text:
    The BANK OF NEW YORK MELLON, as Trustee, etc., Appellant, v. Carleche ARNOUX, etc., Appellee.
    Nos. 3D18-313 3D16-2064
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Akerman LLP, and Nancy M. Wallace (Tallahassee), William P. Heller (Fort Lauderdale), Marc J. Gottlieb (Fort Lauderdale), and Eric M. Levine (West Palm Beach), for appellant.
    Korte & Wortman, P.A., and Scott J. Wortman (West Palm Beach), for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

In this appeal, The Bank of New York Mellon ("the Bank") appeals a final summary judgment and involuntary dismissal of a foreclosure action entered in favor of defendant below, Carl Arnoux. We reverse because the trial court erred in concluding that the Bank's action was barred by the statute of limitations.

On September 1, 2007, the Bank filed a foreclosure action against Arnoux, alleging a default date of April 1, 2007. That initial foreclosure action was voluntarily dismissed on April 12, 2012. Thereafter, the Bank filed the instant foreclosure action on February 28, 2013, alleging in its complaint that Arnoux had "defaulted under the Note and Mortgage by failing to pay the full payment due February 1, 2008, and all subsequent payments." Arnoux answered the complaint and raised, as an affirmative defense, the expiration of the five-year statute of limitations. See § 95.11(2)(c), Fla. Stat. (2013).

Thereafter, and following a variety of motions filed by both sides, the trial court granted Arnoux's motion for summary judgment and involuntarily dismissed the action, concluding that it was barred by the expiration of the five-year statute of limitations.

We reverse. The complaint in the instant foreclosure action alleged that Arnoux had "defaulted under the Note and Mortgage by failing to pay the full payment due February 1, 2008, and all subsequent payments " (emphasis added). It is now well-settled in this district that the action was not barred by the statute of limitations, and the trial court erred in entering final summary judgment in favor of Arnoux and involuntarily dismissing the Bank's action. See Bank of New York Mellon Corp. v. Anton, 230 So.3d 502, 504 (Fla. 3d DCA 2017) (holding: "Given the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same Initial default date as that alleged in the first foreclosure complaint (i.e., August 1, 2008), is of no moment: by alleging that Anton failed to make the payment due on August 1, 2008 and all subsequent payments,' the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014"); Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825, 826 (Fla. 3d DCA 2016) (holding: "Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments , and the action was filed within the five years of default payment ... the action survived the asserted statute of limitations bar"); Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc) (holding that, even if the alleged initial default date was more than five years before the complaint was filed, the action was not barred by the statute of limitations where "the bank alleged the failure to pay the October 1, 2006 installment payment 'and all subsequent payments.' ") See also Gonzalez v. Federal Nat'l Mortg. Ass'n., 43 Fla. L. Weekly D1739 (Fla. 3d DCA August 1, 2018) ; U.S. Bank, N.A. v. Ramirez, 43 Fla. L. Weekly D1650, 252 So.3d 781 (Fla. 3d DCA July 25, 2018) ; U.S. Bank, N.A. v. Amaya, 43 Fla. L. Weekly D1637 (Fla. 3d DCA July 25, 2018) ; Wells Fargo Bank, N.A. v. Rendon, 245 So.3d 917 (Fla. 3d DCA 2018).

We therefore reverse the final summary judgment and involuntary dismissal and remand for further proceedings consistent with this opinion.

      During the pendency of this appeal, Carl Arnoux passed away. We stayed the appeal pending the appointment of a personal representative. On February 14, 2018, the trial court substituted Arnoux's daughter, Carleche Arnoux ("Carleche"), as the party defendant. The Bank appealed that substitution order (3D18-313), asserting that, once the final judgment was entered and the time for filing a motion for rehearing had expired, the trial court lacked jurisdiction to enter the order. This court consolidated the two appeals and, on June 14, 2018, lifted the previously-imposed stay, and substituted Carleche (who by that time had been appointed by the probate court to serve as personal representative of Carl Arnoux's estate) as the appellee in both appeals. The parties have stipulated that the issue has been resolved and that the appeal from that order has been rendered moot. We therefore dismiss as moot the appeal in 3D18-313. For ease of reference, in this opinion we refer to appellee as "Arnoux."

      We acknowledge that the case law in this area was in a state of flux during the proceedings below, and, with the exception of our en banc decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016), all of the decisions cited herein as a basis for reversal were issued after the trial court rendered the order on appeal.

      Arnoux asserts that the Bank's failure to send a "new" default letter, as a condition precedent to filing the second foreclosure action, serves as an alternative basis for affirmance. We disagree. First, the issue was not properly raised in Arnoux's motion below, and we decline the invitation to apply a "tipsy coachman" analysis to affirm on this issue in the context of a motion for summary judgment. See Mitchell v. Higgs, 61 So.3d 1152, 1155 n. 3 (Fla. 3d DCA 2011) (observing that the "Tipsy Coachman doctrine does not apply to grounds not raised in a motion for summary judgment"); Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So.2d 1311, 1315 (Fla. 3d DCA 1985) (holding that " 'right for the wrong reason' appellate maxim does not apply in summary judgment proceedings where the issue was never raised in the motion for summary judgment"); Loranger v. State Dep't of Transp., 448 So.2d 1036 (Fla. 4th DCA 1983). Second, Arnoux's contention is foreclosed on the merits by our recent decision in Nationstar Mortg., LLC v. Silva, 239 So.3d 782 (Fla. 3d DCA 2018), where we held that no new default letter was required under relevant circumstances indistinguishable from the instant case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linezka TORRES and Jorge Navarro, as Parents and Legal Guardians of Lucas Navarro, Their Minor Son, Petitioners, v. VARIETY CHILDREN'S HOSPITAL, a Florida Not for Profit Corporation, d/b/a Nicklaus Children's Hospital, Respondent.
    No. 3D18-1355
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Goldberg & Rosen, P.A., and Judd G. Rosen and Mustafa H. Dandashly ; Eaton & Wolk, P.L., and Douglas F. Eaton, Miami, for petitioners.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and Norman M. Waas, Scott E. Solomon, Coral Gables, and Richard Warren, Richmond, for respondent Variety Children's Hospital d/b/a Nicklaus Children's Hospital; Radey Law Firm, and Thomas A. Crabb, Tallahassee, and Lauren K. Thompson (Tallahassee), for Intervention Project for Nurses, Inc.; Wicker Smith O'Hara McCoy & Ford, P.A., and Alyssa M. Reiter, Fort Lauderdale, and Lindsey A. Hicks, Coral Gables, for Thomas James Sprufera, III.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   PER CURIAM.

Linezka Torres and Jorge Navarro, as parents and legal guardians of Lucas Navarro, their minor son (collectively, "the plaintiffs"), seek certiorari review of the order denying their request for an in camera inspection of a portion of Thomas Sprufera's patient file held by Intervention Project for Nurses, Inc. ("IPN"). We grant the petition, quash the trial court's order denying the plaintiffs' request for an in camera inspection, and direct the trial court to reconsider the plaintiffs' motion seeking an order from the trial court authorizing the release of these records following its in camera inspection.

Certiorari granted; order quashed with directions.

      This Court takes no position on the merits of the plaintiffs' motion seeking an order from the trial court authorizing IPN to release these documents.


author: SALTER, J.

text:
    Richard BERENYI and Catherine Berenyi, Appellants, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-922
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    The Albury Law Firm, and Joseph M. Albury ; Bernadette Restivo, for appellants.
    Karla Perkins, for appellee Department of Children & Families; Thomasina F. Moore (Tallahassee), for appellee Guardian ad Litem Program.
    Before SALTER, SCALES and LUCK, JJ.
   SALTER, J.

The paternal grandparents ("Grandparents") of a six-year-old child (the "Child") appeal a final judgment of adoption in favor of a couple who were serving as foster parents ("Petitioners") before petitioning to adopt the Child. The Petitioners had custody and cared for the Child for three years, following his placement by the Florida Department of Children and Families ("DCF"). Based on the lack of notice to the Grandparents and opportunity for them to be heard in connection with the ultimately-granted petition by the foster parents/Petitioners, we reverse and remand the final judgment for further proceedings.

In August 2016, the Circuit Court for Monroe County terminated the parental rights of the parents of the Child, and this Court affirmed that final judgment in March 2017. S.B. v. Dep.'t of Children & Families, 224 So.3d 230 (Fla. 3d DCA 2017). The Grandparents, who reside in Illinois, filed a "Verified Petition for Adoption by Relatives," in April 2017, identifying themselves as "Intervenors." Their allegations in their brief on appeal include declarations that (a) they had filed a motion to intervene in the dependency case in the trial court, and (b) that the motion had been granted. The record and docket do not include a written order on the motion. The Grandparents moved to change counsel in April 2017, however, and both the motion to substitute and order of substitution signed by the trial court did identify the Grandparents as "Intervenors."

As the Child remained in the care of DCF, a judicial review was held in May 2017. At the hearing, the Grandparents (through counsel) objected to the judicial review because they were "pretty much not even mentioned" and it looked as if "Wesley House and the Guardian want[ed] [the child] to be adopted by the current caregivers and not the grandparents." As the hearing progressed, the Grandparents' counsel inquired as to "the status of [his] clients"; the trial court responded, "They are not parties to the action at this point in time[,] [h]owever, since they filed the adoptive application, the[ ] [Grandparents] are considered to be interested in the process."

Thereafter, the Grandparents filed a motion to compel phone visitation and other contact with the Child. Following a hearing in July 2017, the Grandparents' motion was granted in part to allow for Skype visits on Sundays and Tuesdays with the Child while in the care and custody of the Petitioners.

At a status conference in February 2018, DCF submitted a "judicial review," and counsel for the Grandparents objected:

Obviously the paternal grandfather objects because [the judicial review] does not recommend that he adopt his grandson. Previous counsel, Mr. Bridges, has filed a petition for adoption. I presume the Department will be filing one shortly. And we'll have a hearing on the matter.

Noting the objection, the trial court "accept[ed] the reports filed by the Department and the Guardian ad Litem, and f[ound] that the child is appropriately placed and all of his needs are being met, and that ... the Department is in substantial compliance." The court set the next judicial review for May 7, 2018.

The order on judicial and permanency review entered on February 5, 2018, includes two relevant findings. First, the order indicates that "[a]ll persons entitled to notice of this hearing were properly noticed of the hearing and were provided a copy of documents filed for this hearing"; the "persons present" and "copies to" entries included counsel for the Grandparents. Second, the "Current Case Plan Goal" indicated "ADOPTION" and set "the projected goal date [of] October 24, 2018."

Prior to the next status conference, on April 2, 2018, the Petitioners filed a joint petition for adoption; the petition did not include a certificate of service. On the same day, and within three hours of the filing of the joint petition, the trial court entered a final judgment of adoption. The final judgment indicated that copies were sent to all parties except the Grandparents or their counsel. A brief hearing on the Petitioners petition was conducted; the Grandparents and their attorney were neither present nor provided notice.

Following the entry of the final judgment, the Grandparents sought to dismiss the Petitioners' adoption petition, claiming, among other things, they "were entitled to notice of the adoption when it occurred." The Grandparents, however, were unable to obtain a hearing date prior to the expiration of the deadline within which to appeal. This appeal by the Grandparents followed.

Analysis

"Intervention is the procedure by which third persons, not originally parties to a lawsuit but claiming an interest in the subject matter, enter the case to protect their rights or to interpose a claim." In re Adoption of a Minor Child, 593 So.2d 185, 189 (Fla. 1991). Generally, the interest which entitles a party to intervene must be "one of such direct and immediate character that the intervenor will be affected by a judgment." Wilson v. Wilson, 211 So.3d 313, 316 (Fla. 3d DCA 2017).

Although the record is devoid of an order addressing intervention, the Grandparents have actively participated-and without objection by the Petitioners or DCF-at nearly all stages of the post-termination of parental rights adoption proceeding. And through counsel, the Grandparents established their interest in adopting the Child, including their submission of a home study attached to their own verified petition to adopt the Child.

The Grandparents acknowledge that their own adoption application was denied by the local Adoption Review Committee at the end of December 2017, but that application and denial are not a part of the trial court record, and there is no indication that they were reviewed by the trial court after notice to the Grandparents through their counsel. Their verified petition was not the subject of a hearing or order by the trial court.

The Petitioners argue that the Grandparents did not obtain an order granting intervention, that the Grandparents lack standing, and that they are non-parties. The record belies such a contention, as the record includes: the recognition of the Grandparents' original and successor counsel as "counsel for Intervenors"; the trial court's ruling allowing the Grandparents to have Skype video time with the Child and acknowledging the Grandparents were "interested in the process"; and the trial court's direction to Wesley House to send a copy of the Petitioners' home study to the Grandparents.

Here, as in In re Adoption of a Minor Child, the Grandparents were "legally interested parties" entitled to notice and an opportunity to be heard regarding the Petitioners' petition to adopt the Child. We express no opinion regarding the best interests of the Child at this point, nor the merit or lack of merit of the parties' positions regarding those interests.

Reversed and remanded for further proceedings, which we trust will be reset and conducted expeditiously in order to achieve all parties' goal of permanency for the sake of the Child.

      Wesley House Family Services, a not-for-profit corporation, provides child welfare services throughout the Florida Keys.

      The objection was raised by the Grandparents' Monroe County counsel, as the Grandparents resided in Illinois.

      The rule governing intervention in family cases, Florida Family Rule of Civil Procedure 12.230, was amended in March 2017, during the pendency of the proceedings in the circuit court. The amendment does not alter our analysis in this case.


text:
    Kasey CALDWELL, Appellant, v. Emily CALDWELL o/b/o K.C., Appellee.
    Case No. 5D18-6
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Eduardo J. Mejias, of AAA Family Law, LLC, Altamonte Springs, for Appellant.
    Chad A. Barr, of the Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellee.
   PER CURIAM.

Appellant challenges the final judgment of injunction for protection against domestic violence entered against him and in favor of Appellee, on behalf of the parties' minor child, K.C. The sole ground Appellant raises for reversal is that the trial court "misconstrued" the meaning of section 784.046(4)(a)1., Florida Statutes (2017), and "essentially rewrote [this statute] to justify granting the permanent injunction." We affirm.

Appellant and Appellee are former spouses and the parents of K.C. Appellee filed a petition for injunction for protection against domestic violence on behalf of K.C., alleging that Appellant had committed or threatened to commit acts of domestic violence and, specifically, had committed repeated acts of sexual battery upon K.C. The trial court first issued a temporary injunction without notice and thereafter, following a lengthy evidentiary final hearing at which the minor child, a case coordinator from the Brevard County Child Protection Team ("CPT"), and a crisis intervention counselor, among others, testified, issued the final judgment of injunction now under review.

Appellant argues that under section 784.046(4)(a)1., which provides for an injunction for incidents of repeat violence, sexual violence, or dating violence, in order for a parent on behalf of a minor child living at home to obtain an injunction against the other parent, he or she must either "[h]ave been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought." Appellant submits that Appellee failed to establish any of these statutory requirements to justify the entry of the injunction as she did not testify to being a witness to the alleged sexual battery and presented no direct physical evidence of, or affidavits from any eyewitnesses to, the alleged sexual abuse.

Appellee responds that the minor victim testified in person at the final hearing and thus is clearly an eyewitness to the sexual battery committed upon her by Appellant. Appellee posits that if both a minor victim and the offending parent testified to the sexual battery, under Appellant's interpretation of the statute, this would still be legally insufficient for injunctive relief under section 784.046, absent additional testimony from the petitioning parent or a third person who actually witnessed the sexual battery or some direct physical evidence of the battery. Appellee argues that construing this statute so that a minor child's in-court testimony to being the victim of a sexual battery by a parent, without more, can never be sufficient evidence for the issuance of an injunction for protection is both unreasonable and absurd. See State v. Atkinson , 831 So.2d 172, 174 (Fla. 2002) ("A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences." (citing Thompson v. State , 695 So.2d 691, 693 (Fla. 1997) ; State v. Hamilton , 660 So.2d 1038, 1045 (Fla. 1995) ) ).

Although a minor child's in-court testimony of acts of sexual battery committed upon him or her by a parent would seemingly qualify as sufficient eyewitness evidence under section 784.046(4)(a)1., we find it unnecessary to reach this specific question because Appellee did not seek injunctive relief under this statute. Rather, Appellee petitioned for an injunction for protection against domestic violence under section 741.30, Florida Statutes (2017), and both the temporary injunction and the final judgment of injunction were issued under this statute. Section 741.30 created a cause of action for an injunction for protection against "domestic violence," and sexual battery is one of the offenses specifically described in the statutory definition of domestic violence. See § 741.28(2), Fla. Stat. (2017). Moreover, an adult parent has standing to petition for an injunction for protection against domestic violence against a former spouse on behalf of his or her minor child. G.C. v. R.S. , 71 So.3d 164, 166 (Fla. 1st DCA 2011) ; accord Sager v. Holgren , 250 So.3d 793, 794 (Fla. 1st DCA 2018) ("An adult parent has standing to petition for an injunction against domestic violence on behalf of his or her child where the violence is alleged to occur in the other parent's household." (citing G.C. , 71 So.3d at 166 ) ). Notably, section 741.30 does not contain the evidentiary requirements present in section 784.046(4)(a)1., that the petitioner must be an eyewitness, provide direct physical evidence, or provide an eyewitness affidavit to the sexual battery, to obtain an injunction for protection.

It is unclear why the parties proceeded under the assumption that this was a case brought under section 784.046, when the petition filed and the orders entered were standard Florida Supreme Court approved family law forms that consistently referred to "domestic violence" and section 741.30. Inasmuch as Appellant has not challenged the admissibility or sufficiency of the minor child's direct testimony of sexual battery or, for that matter, the testimony from the CPT case coordinator and the crisis intervention counselor, which collectively support the trial court's conclusion that a sexual battery was committed by Appellant upon the minor child, the final judgment of injunction for protection against domestic violence entered in favor of Appellee, on behalf of the minor child, K.C., is affirmed.

AFFIRMED.

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


text:
    Wayne Darnell ROBINSON, Appellant, v. Noemi ROBINSON, Appellee.
    Case No. 5D18-57
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Troy W. Klein, of Troy W. Klein, P.A., West Palm Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Wayne Darnell Robinson ("Husband") appeals the final judgment of injunction for protection against domestic violence entered against him and in favor of his estranged wife, Noemi Robinson ("Wife"). Because the evidence presented at the final hearing was legally insufficient to support the injunction, we reverse.

To obtain an injunction for protection against domestic violence under section 741.30(6)(a), Florida Statutes (2017), a petitioner must either be the victim of domestic violence as that term is defined in section 741.28, Florida Statutes, or have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. Section 741.28(2), Florida Statutes (2017), defines "domestic violence" as:

[A]ny assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

A domestic violence injunction must be supported by competent substantial evidence. Zapiola v. Kordecki , 210 So.3d 249, 250 (Fla. 2d DCA 2017) (citing Leaphart v. James , 185 So.3d 683, 685 (Fla. 2d DCA 2016) ). And, "[w]hen evaluating whether competent, substantial evidence supports a trial court's ruling, '[l]egal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.' "

Brilhart v. Brilhart ex rel. S.L.B. , 116 So.3d 617, 619 (Fla. 2d DCA 2013) (quoting Tibbs v. State , 397 So.2d 1120, 1123 (Fla. 1981) ). "[T]he question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo." Pickett v. Copeland , 236 So.3d 1142, 1144 (Fla. 1st DCA 2018) (citing Wills v. Jones , 213 So.3d 982, 984 (Fla. 1st DCA 2016) ).

The final hearing was relatively brief. Neither party was represented by counsel. Other than each party's respective narrative testimony, no other witnesses or evidence were presented. There was no testimony presented that Husband physically injured, had physical contact with, or threatened to do any physical harm or injury to Wife. Wife did not allege that she had been kidnapped by Husband, nor was there evidence of a false imprisonment. Wife testified to one incident, where Husband insisted on returning to her some personal belongings and then abruptly dropped off these items at her parents' house at midnight, and to a second incident, where the parties were meeting at their bank and Husband started acting irate and yelling profanities at Wife. While these events were upsetting to Wife, mere uncivil behavior or annoyance is not sufficient to obtain an injunction against domestic violence. See Hair v. Hair , 159 So.3d 984, 985 (Fla. 4th DCA 2015) (citing Young v. Young , 96 So.3d 478, 479 (Fla. 1st DCA 2012) ).

Wife did testify to Husband having placed telephone calls and text messages to her, her parents, and her employer. As previously indicated, stalking can constitute an act of domestic violence under section 741.28(2). Stalking is defined under section 784.048(2), Florida Statutes (2017), as "willfully, maliciously, and repeatedly follow[ing], harass[ing], or cyberstalk[ing] another person." To prove "harassment" under this statute, Wife had to show that Husband "engage[d] in a course of conduct directed at [her] which cause[d] substantial emotional distress to [her] and serve[d] no legitimate purpose." § 784.048(1)(a), Fla. Stat. (2017). In determining whether the harassment has caused substantial emotional distress to support a finding of stalking, courts apply a reasonable person standard, not a subjective standard. Akin v. Jacobs , 230 So.3d 1292, 1292-93 (Fla. 5th DCA 2017) (quoting Plummer v. Forget, 164 So.3d 109, 110 (Fla. 5th DCA 2015) ).

Wife's testimony was that Husband had called her at work when she was not there, had "threatened" to call her "HR Department," and had called her parents and brother to influence them to contact Wife to encourage her to communicate with Husband about resolving their marital difficulties. There was no testimony that Wife had lost her job or that her job was in jeopardy, nor was there any evidence that Husband had threatened Wife in these communications with any act of violence. There was also no evidence provided as to the frequency or the content of these communications. Simply put, the evidence at the hearing that Wife was the victim of domestic violence based upon being stalked by Husband was legally insufficient.

We next consider whether the evidence presented at the hearing showed that Wife had reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. This requisite fear of imminent danger, however, must be an objectively reasonable fear. Mitchell v. Mitchell , 198 So.3d 1096, 1100 (Fla. 4th DCA 2016) (quoting Oettmeier v. Oettmeier , 960 So.2d 902, 904 (Fla. 2d DCA 2007) ). In making this determination, trial courts "must consider 'the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole.' " Leal v. Rodriguez , 220 So.3d 543, 545 (Fla. 3d DCA 2017) (quoting Gill v. Gill , 50 So.3d 772, 774 (Fla. 2d DCA 2010) ).

Husband categorically denied having any history of domestic violence. Wife presented no evidence of Husband having a history of threatening or abusive behavior. Additionally, there was scant testimony of the parties' behavior within their relationship. The absence of any objectively reasonable evidence of Wife's fear that she was in imminent danger of becoming a victim of domestic violence leads us to conclude that the injunction, if entered under this basis, is not supportable. See Gustafson v. Mauck , 743 So.2d 614, 615 -16 (Fla. 1st DCA 1999) (concluding that in the absence of objectively reasonable evidence, a person's subjective belief of imminent danger of becoming a victim of domestic violence is unsubstantiated speculation that does not support the entry of an injunction).

Accordingly, we reverse the final judgment of injunction for protection against domestic violence.

REVERSED.

ORFINGER, LAMBERT, and EISNAUGLE, JJ., concur.

      Husband apparently had text messages and a video on his phone that he offered to show to the court, but he did not seek to move them into evidence.

      There was no evidence presented at the hearing that anyone observed Husband physically following Wife and only a brief reference in Wife's testimony to an unelaborated text sent by Husband to Wife's brother, which is legally insufficient to constitute "cyberstalking" under section 784.048(1)(d). This subsection defines cyberstalking as "engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose."


text:
    Barbara BLACKBURN, Appellant/Cross-Appellee, v. Richard WISSNER, Appellee/Cross-Appellant.
    Case No. 5D17-2803
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Moses Robert Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant/Cross-Appellee.
    J. Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellee/Cross-Appellant.
   PER CURIAM.

Barbara Blackburn ("Former Wife") appeals the order denying her motion for contempt/enforcement filed against Richard Wissner ("Former Husband"). Former Husband cross-appeals the trial court's order requiring him to bring to the closing for the former marital home one-half of the closing costs required to effectuate the sale. Former Husband also argues that the trial court's order requiring the sale of the former marital home was unconstitutional as it forced Former Husband to sell his homestead property. We affirm, without further discussion, all issues raised in Former Husband's cross-appeal.

The parties were divorced in 2011. Among the numerous items addressed in the final judgment was the sale of the parties' marital home. The final judgment provided for the parties to retain joint ownership of the marital home and for the home to be placed on the market for sale on a date upon which the parties mutually agreed, but no later than September 5, 2015. Prior to the sale and closing on the marital home, both parties made payments that resulted in the reduction of the debt owed on the home. Former Wife claimed approximately $84,000 in payments, and Former Husband claimed approximately $3,300 in payments.

Former Wife argues that the trial court erred in denying her motion for contempt/enforcement and in failing to award her credit for her reduction of the debt owed on the marital home from the date of the final judgment. The final judgment held Former Wife responsible for all expenses related to the home and set out that the net profit or losses divided at the sale would be equal. It further provided that Former Wife would receive credit for the reduction in debt from the time of the final judgment as additional share, if any.

Florida appellate courts have consistently held that a former spouse making payments on a jointly-held property is entitled to a credit for the other former spouse's share of the payments. See Hoyt v. Hoyt , 457 So.2d 599, 600 (Fla. 1st DCA 1984) ; Tucker v. Tucker , 392 So.2d 1008, 1008-09 (Fla. 1st DCA 1981) ; Smith v. Smith , 390 So.2d 1223, 1224 (Fla. 1st DCA 1980). We therefore find that it was error for the trial court not to grant Former Wife any credit for her reduction of the debt on the marital home, and we hold that both parties should receive credit for their respective payments for the debt on the marital home subsequent to the entry of the final judgment. We therefore remand to the trial court for a determination of these amounts and for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED.

EVANDER and EISNAUGLE, JJ., and ROGERS, S.G., Associate Judge, concur.

      Although not specifically stated in the final judgment, counsel for Former Wife acknowledged that Former Husband should also be entitled to credit for any reduction in debt on the marital home made by Former Husband subsequent to entry of the final judgment.


author: B.L. Thomas, C.J.

text:
    Kenya J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3132
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Candice Kaye Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville; Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

In this Anders appeal, Appellant was charged with first degree murder, attempted armed robbery with a firearm, armed robbery with a firearm, and possession of a firearm by a convicted felon, all arising out of an incident that occurred in the early morning hours of March 22, 2015. We affirm.

At trial, the State presented evidence that on the night of the incident, Michael Williams (the victim) went to Club Karma with two cousins, where they sat talking in the car outside the club. One cousin soon left to talk to a nearby friend, leaving the victim and his other cousin, Ambernesia President, in the car. Suddenly a man with a gun opened the front door of the car, and another man opened the rear door and told the victim to "give it up." The men started robbing them, but the victim laughed as though it were not serious. The man at the front door told the other man to "handle that" and walked toward the rear of the car; one or both men then shot and killed the victim. Ms. President ran to find her other cousin, and they drove off and called 911. Ms. President later identified Appellant in a photographic lineup as the man who opened the rear door of the car, which was admitted into evidence over defense counsel's motion to suppress. Ms. President also identified Appellant in court.

A few hours after the shooting, a man approached two women and asked if he could use their phone. The man was sweaty and covered in grass. He told the women he had been in an altercation at Club Karma and that "some guys at the club jumped me. I went home, got my gun, I unloaded my whole clip in their [expletive]." The man told the women that his mother had a house on Apalachee Ridge and that his girlfriend lived on Keith Street. He borrowed a phone and made a few calls. At some point, one of the women received a call from the victim's family friend, and the man ran away. The women called 911, and police apprehended Appellant based on the 911 description. A police officer drove one of the women to where Appellant was detained, and she identified Appellant as the man who borrowed her phone. At trial, she was shown a photograph of shoes and testified that the shoes in the photograph were the same shoes as those worn by the man who borrowed the phone. The trial court overruled defense counsel's objection to the witness being shown the photo before identifying Appellant.

Appellant's former girlfriend testified that a few hours before the incident, she and Appellant were drinking and smoking drugs at her house. She testified that at some point during the night, she left Appellant at her home with a man whom police later identified on the Club Karma surveillance video. She testified that when she returned home, she got into an argument with Appellant, and he took her phone; she then threatened to call the police for taking her phone. The State asked, "Weren't you threatening to call the police because you knew he had the gun that he just used to empty a clip in someone at Club Karma?" She denied that assertion, as well as the State's question about whether she initially told police that Appellant left the house between 2:00 and 4:00 am, and that she had not seen him since. She admitted that she had been convicted eight times for crimes of dishonesty. The trial court then admitted, over defense counsel's relevance objection, jail visitation logs revealing that Appellant's former girlfriend had visited Appellant eighty times while he was in jail.

Several police and forensic witnesses testified about the crime and about evidence recovered at the crime scene. Russell Huston, a former investigator with the Tallahassee Police Department, testified that he interviewed Appellant and that Appellant understood his rights and signed a form indicating his desire to speak to police. Appellant admitted to police that he told the women on the porch that he had been involved in a shoot-out at Club Karma, but claimed to have fabricated the story, because he did not want to tell them about the argument with his girlfriend. When asked whether his timeline of the events remained consistent, defense counsel objected on the grounds that the question called for a legal conclusion.

At the close of the State's case, defense counsel moved for judgment of acquittal, arguing that the State relied on one or two eyewitnesses and that there was no fingerprint or DNA evidence tying Appellant to the crime. The trial court denied the motion. The jury found Appellant guilty as charged, finding as to the first degree murder charge that guilt had been established by felony murder.

Analysis

"[T]here are circumstances where a court-appointed appellate counsel will, 'after a conscientious examination,' find their client's case to be 'wholly frivolous.' " Redmon v. State , 211 So.3d 306, 307 (Fla. 1st DCA 2017) (quoting Anders , 386 U.S. at 744, 87 S.Ct. 1396 ). In such cases, counsel must "submit 'a brief referring to anything in the record that might arguably support the appeal.' " Id. In Redmon , the Anders requirements were met, as counsel outlined the facts and procedural history of the case, noted raised objections, provided clear citations to the record, and identified possible issues with citations to appropriate legal authority. Id.

Like the counsel in Redmon , appellate counsel here gave a thorough description of the facts and procedural history, identified potential issues, and cited relevant authority for each issue to explain why no reversible error exists. We thus hold that appellate counsel satisfied the requirements established in Anders . We affirm without discussion those issues where there is no feasible basis for reversal. As to the remaining issues, after reviewing the merit of the issues identified by appellate counsel, and conducting an independent review of the record, we find no basis for reversal, and affirm for the reasons set forth below.

As to the State's peremptory strike of an African-American man from the venire, when a peremptory strike is used on a member of a distinct racial group to which the defendant belongs, and the opposing party requests a reason for the peremptory strike, the court must ask for a reason and the party must provide a race-neutral explanation. Melbourne v. State , 679 So.2d 759, 765 (Fla. 1996). If the explanation is facially race-neutral and the court believes it is not pretextual, the strike will be sustained. Id. Here, because the State cited the potential juror's criminal record and noted specific instances where the potential juror failed to respond to questions or pay attention, we find no abuse of discretion in granting the peremptory strike.

Regarding the trial court denying defense counsel's cause challenge, "[w]here a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily." Trotter v. State , 576 So.2d 691, 693 (Fla. 1990). As Appellant accepted the jury, he has no basis to appeal this issue. See id. ; Couch v. Dunn Ave. Shell, Inc. , 803 So.2d 803, 804 (Fla. 1st DCA 2001).

Regarding the photographic line-up, the test for admissibility of an out-of-court identification is: "(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Willis v. State , 242 So.3d 1195, 1197 (Fla. 1st DCA 2018) ; see also Pierre v. State , 990 So.2d 565, 570 (Fla. 3d DCA 2008) (holding that a detective "correctly told the victim and the victim's mother to focus on faces, not hairstyles, because hairstyles may change").

We conclude that instructing Ms. President not to focus on hairstyle or facial hair before showing her the photo lineup did not render the procedure unduly suggestive. Ms. President insisted that she was certain of her identification, and she testified that no one suggested in any way that she should pick a particular photo. The officer testified that he did not even prepare the lineup, he only presented it, and the trial court noted that the photographs were taken on a different date than when it was shown to Ms. President. This procedure was not unduly suggestive.

As to the State showing a photograph to a witness before the witness's in-court identification, "a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter." § 90.604, Fla. Stat. Here, in identifying the shoes worn by Appellant, the State showed the witness a photograph of shoes worn by a person in ankle chains, showing the person's legs up to the shins. Because the witness had personal knowledge of the shoes, she could properly testify about the photograph. Although the witness had not yet identified Appellant, the photograph did not taint her later identification, as it did not show a person's face.

Moreover, if the court erred, such error would be harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). The witness's identification of the shoes that Appellant was wearing, when he asked to borrow her phone, merely corroborated evidence that Appellant was the man who spoke to her on the porch. Appellant's identification was supported by the witness's in-court identification of Appellant as the man she met, by phone records, by out-of-court identifications, and by Appellant's own statement to police.

No reversible error occurred when the State asked Mr. Huston if his timeline remained consistent. Lay witnesses must confine their testimony to facts and may not give opinions and conclusions. Thomas v. State , 317 So.2d 450, 452 (Fla. 3d DCA 1975). The State's question asked for a factual response, not an opinion: Whether Mr. Huston modified his own created timeline upon receiving new information. It remained for the jury to determine the timeline of events, and the State's question did not usurp that determination.

As to the jail visitation log, defense counsel admitted that the evidence fell within the business records exception to hearsay, but argued that the evidence was irrelevant and that the State was improperly impeaching its own witness. A party may impeach its own witness with evidence of bias, if there is a foundation for bias. Gosciminski v. State , 132 So.3d 678, 704 (Fla. 2013). The trial court did not abuse its discretion in admitting this evidence, as Appellant's former girlfriend's visits to see Appellant in jail were relevant to show that the witness was biased.

Finally, the trial court did not err in denying Appellant's motion for judgment of acquittal. "In reviewing the trial court's ruling on a motion for judgment of acquittal, the task of this court is to determine whether the state produced competent evidence to support every element of the crime." Thomas v. State , 589 So.2d 392, 393 (Fla. 1st DCA 1991). Appellant was identified as the shooter by an eyewitness, and multiple witnesses identified him as the person who admitted to recently "emptying his clip" into someone at Club Karma. Any argument regarding the weight of the evidence does not negate the competent evidence that was presented as to each element of the charged offenses. See Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). We conclude that the trial court correctly denied Appellant's motion for judgment of acquittal.

AFFIRMED .

Makar and Winsor, JJ., concur.

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


author: Per Curiam.

text:
    Darlene S. HORTON, Former Wife, Appellant/Cross-Appellee, v. John D. HORTON, Former Husband, Appellee/Cross-Appellant.
    No. 1D17-5223
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Jill W. Warren, Pensacola, for Appellant/Cross-Appellee.
    James M. Burns of the Law Offices of James M. Burns, P.A., Pensacola, for Appellee/Cross-Appellant.
   Per Curiam.

Approaching three years after John Horton (the husband) filed a petition for dissolution against Darlene Horton (the wife), final judgment was entered. The wife appealed as to the timesharing schedule implemented as to the parties' adopted son. The husband cross-appealed, asserting several errors concerning distribution of assets and alimony. We address all issues requiring discussion, and find several that compel reversal.

I. Timesharing Schedule

A significant portion of the testimony related to the relationship between the parties' and their son, and what kind of timesharing schedule would be in his best interests. All evidence indicated an extremely strong bond between the wife and son, and a strained relationship between the husband and son. During the years of contentious litigation, the parties continued to live in the same house and the husband's relationship with the son deteriorated significantly. No evidence showed improper behavior by the husband, and all indications were that this deterioration was due to the animosity between the parties, uncomfortable living situation, and strong bond between the wife and son. The husband requested 50/50 timesharing; the wife wanted more.

The trial court believed that the son should repair his relationship with the husband, which could occur with counseling and a graduated timesharing schedule. A three-step schedule was found to be appropriate, beginning with the son spending approximately one to three days per week with the husband, and concluding, after one year, with the parties rotating timesharing on a weekly basis.

The wife argues that this graduated plan is not based on the son's current best interests, but is impermissibly prospective. In Preudhomme v. Preudhomme , 245 So.3d 989, 989-90 (Fla. 1st DCA 2018), the trial court ordered the parties to continue their weekly timesharing rotation for twenty months, at which time the father would attain majority timesharing so the child could begin kindergarten. We concluded that this prospective-based approach to timesharing was prohibited, and the best interests of the child must be determined in the present. Id. at 990. Because the trial court did not discuss the son's current best interests, see section 61.13(3), Florida Statutes, it is unclear whether or not it would have found the first phase of the schedule to be in his best interests. Therefore, we reverse the timesharing schedule in sum.

II. Benefits and Income

The husband and wife agreed that the wife receives monthly income of approximately $937 from social security for being a non-working spouse, $937 from social security for having a minor child, and $350 from the state of Florida for having an adopted child. The parties did not agree as to which payments would be divided or how. The final judgment ordered that, beginning at the point when timesharing would be evenly split between the two parties, social security and adoption monies would also be evenly split. As we reversed the timesharing plan, we likewise reverse this provision premised on that plan.

III. 401(k) Distribution

The husband's 401(k) plan was worth approximately $252,800 at the time of the petition for dissolution, but at the time of trial was worth under $201,400. The husband argued that this marital asset should be divided based on its worth as of the time of the trial, while the wife found the date of the petition to be the applicable date. At trial, the trial court correctly found that the plan's worth as of the date of the trial controlled based on the uncontroverted evidence that the husband used all of the funds that had been distributed to pay all of the household bills, as well as to otherwise support the wife and son. See Ballard v. Ballard , 158 So.3d 641, 642-43 (Fla. 1st DCA 2014) ("Sums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage ... should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.").

Seven months after the trial, the parties' attorneys reconvened to discuss a proposed final judgment. The husband's counsel asserted that the 401(k) plan was still being used to support the household, and the $201,400 figure should be further adjusted downward; the wife objected to any adjustments. The final judgment, entered approximately two months after this hearing, valued the plan at its worth near $201,400 at the time of the trial.

The husband argues that dividing the plan based on its worth at the time of trial is inequitable because the funds were continuously used to support the household post-trial. The trial court must determine a valuation for marital assets that is just and equitable, and this determination is reviewed for abuse of discretion. See Schroll v. Schroll , 227 So.3d 232, 235 (Fla. 1st DCA 2017) ; Leonardis v. Leonardis , 30 So.3d 568, 571 (Fla. 4th DCA 2010). The husband relies on Leonardis , where the trial court valued the marital house as of the date of the filing of the petition, declined to take into account the decline in property value at the time of the hearing, and used this figure as the anticipated sale price, although the house did not need to be sold until the youngest of the parties' three children reached the age of eighteen. 30 So.3d at 570. Reliance on Leonardis is mistaken for two reasons: 1) here, the asset was valued at the time of the final hearing rather than the filing of the petition, and 2) the 401(k) plan has an identifiable value capable of division, and does not involve speculation. The husband has not shown that the trial court was required to amend the evidence post-trial, and we do not find that the trial court abused its discretion.

IV. Alimony

The wife requested sixteen years of durational alimony based on her age, standard of living, health issues, and limited assets. The husband argued that the wife should not be awarded alimony because he and his wife would receive comparable incomes following division of the 401(k) plan. The final judgment awarded $1,000 of alimony monthly for sixteen years, noting that the trial court had "considered section 61.08, Florida Statutes, in determining whether an alimony award was appropriate," and considered the length of the marriage and age of the parties.

In determining whether to award alimony, the trial court must "make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance," and, if an award is appropriate, must consider several factors to determine the proper type and amount. § 61.08(2), Fla. Stat. Failure to do so "precludes meaningful appellate review." Abbott v. Abbott , 187 So.3d 326, 328 (Fla. 1st DCA 2016). The husband argues, and the wife concedes, that the alimony award does not include sufficient factual findings. We agree and, because this issue was preserved in a motion for rehearing, reverse the award of alimony.

V. Conclusion

We AFFIRM the division of the 401(k) plan and award of attorney's fees; REVERSE the timesharing schedule, division of social security and benefit funds, and alimony award; and REMAND for proceedings consistent with this opinion.

Winokur and Jay, JJ., concur; Bilbrey, J., concurs with opinion.

I join in the majority opinion and write only to address the timesharing issue in the parenting plan. The graduated, stepped-up timesharing schedule was a reasonable attempt by the circuit judge to restore the strained relationship between the father and son. Unfortunately, this reasonable approach to restoring the relationship was precluded by the cases which interpret section 61.13, Florida Statutes. Courts have repeatedly held that the "best interest of the child" is a present, not prospective, determination. See Arthur v. Arthur , 54 So.3d 454 (Fla. 2010) ; Preudhomme v. Preudhomme , 245 So.3d 989 (Fla. 1st DCA 2018) ; Horn v. Horn , 225 So.3d 292 (Fla. 1st DCA 2017) ; Janousek v. Janousek , 616 So.2d 131 (Fla. 1st DCA 1993) ; Martinez v. Martinez , 573 So.2d 37 (Fla. 1st DCA 1990).

I recognize that "a trial court is not equipped with a 'crystal ball' that enables it to prophetically determine whether future" changes are in the best interest of the child. Arthur , 54 So.3d at 459. But many of the decisions circuit judges have to make in family law cases do not involve scrying, augury, or anything ending with the suffix mancy. Rather these decisions involve reasonable, evidence-based anticipation or prospective determination of likely future events.

For instance, in awarding bridge-the-gap alimony the circuit judge is anticipating what support will be necessary "to allow the party to make a transition from being married to being single." § 61.08(5), Fla. Stat. In awarding rehabilitative alimony, a circuit judge is anticipating the development of future skills necessary for the former spouse receiving that alimony to establish "the capacity for self-support." § 61.08(6)(a), Fla. Stat.

Even some of the numerous factors a circuit judge must consider in "establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule" require a prospective determination. § 61.13(3), Fla. Stat. "The anticipated division of parental responsibilities after the litigation" clearly requires a prospective determination. § 61.13(3)(b). The "desirability of maintaining continuity" of the child's current environment is a prospective determination. § 61.13(3)(d). And for many factors, the "demonstrated capacity" of a parent presupposes a "disposition" in the future to continue acting in accordance with past behaviors. § 61.13(3)(a), (c), (j), (k), (p), (q), (r) & (s).

Here, the circuit judge reasonably anticipated that the graduated time-sharing plan she put in place would help build the relationship. But even when future events are almost sure to occur, our case law based on Florida Supreme Court precedent prohibits a prospective determination. See Preudhomme , 245 So.3d at 990 (relying on Arthur , among other cases, in holding that a timesharing schedule which set forth what was to happen when the child started kindergarten in 20 months was impermissible).

The end result of the prohibition on any prospective determination of parenting is that in many cases the parties end up back in court seeking to modify the parenting plan or timesharing. See § 61.13(2)(c) & (3). Since the parenting and timesharing impacts the amount of child support, financial information has to again be disclosed. See 61.30(11)(b), Fla. Stat ; Florida Family Law Form 12.905(a). As was shown here, crowded court dockets, discovery, and counsels' schedule means that family law litigation can take many months or years.

Furthermore, the burden imposed on the parent moving for modification is high. The "modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances." § 61.13(2)(c) ; see also § 61.13(3). This potentially puts the party seeking modification in a situation without a remedy. Is it unanticipated here that the father will strengthen his parental bonds and want more time-sharing with his child? Was it unanticipated in Preudhomme that the parents' and child's schedule would need to be adjusted upon the child starting kindergarten?

The Legislature requires a circuit judge determining parental responsibility and time-sharing to reasonably consider numerous likely future events. Barring a tragedy, all children will continue to age and develop. But under the current case law a circuit judge cannot consider a future event that is very likely to occur. Perhaps the Legislature should consider allowing reasonable, limited, prospective modifications to be included in determining parental responsibility and time-sharing so that a party and the court are spared modification for such an event.

      We affirm as to the husband's argument that the trial court erred by failing to make factual findings supporting the award of attorney's fees because his motion for rehearing failed to raise this argument. See Burkett v. Burkett , 155 So.3d 478 (Fla. 1st DCA 2015).

      We note the lengthy delay between trial and final judgment, and the potential consequences of such a delay. See McGoldrick v. McGoldrick , 940 So.2d 1275, 1276 (Fla. 2d DCA 2006) (reversing due to the eight-month delay and numerous errors); McCartney v. McCartney , 725 So.2d 1201, 1202 (Fla. 2d DCA 1999) (finding the delays "unacceptable" but denying reversal on this basis). We do not find that the delay here requires reversal because the parties did not address who or what caused it, the wife objected to the argument that the plan should be adjusted, and the husband did not move to admit new evidence.

      The minor child was apparently aware of being adopted. According to the attorney guardian ad litem's testimony, the father and son had a grandparent/grandchild relationship. The stepped-up timesharing was meant to strengthen the relationship and facilitate the development of a parent/child relationship.


author: Rowe, J.

text:
    Deshawn HURST, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2935
    District Court of Appeal of Florida, First District.
    November 6, 2018 Rehearing Denied December 18, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Deshawn Hurst appeals his judgment and sentence for attempted first-degree premeditated murder with a firearm. Hurst was 17 years old at the time of the offense. The trial testimony demonstrated that Hurst, whose identity was concealed under a mask, carjacked and kidnapped the 21-year-old victim at gunpoint. Hurst forced the victim into the trunk of a vehicle and drove the victim to several unknown locations before reaching a final destination. Hurst then raped the victim twice at gunpoint, shot the victim at close range in the head, and left the victim alone to die. Hours later, the victim was found and transported to a hospital where he miraculously survived. DNA evidence confirmed that Hurst was the person who committed the offenses. Hurst was found guilty as charged.

For the charge of attempted murder, Hurst was sentenced to life imprisonment with a 25-year mandatory-minimum sentence and a 25-year sentence review. After filing a motion to correct sentencing error in the lower court, Hurst appealed his sentence, arguing he was entitled to a review of his sentence after 20 years, as opposed to 25 years. We disagree and affirm.

Our review is de novo. Ray v. State , 68 So.3d 346, 347 (Fla. 1st DCA 2011). Hurst seeks relief under the juvenile sentencing laws enacted in 2014. Ch. 2014-220, § 1-3 Laws of Fla. These laws allow defendants who were sentenced for offenses committed as a juvenile to obtain judicial review of their sentence after 15, 20, or 25 years depending on the nature of the offense. See §§ 775.082 and 921.1402, Fla. Stat. (2016).

Here, the trial court found that Hurst was entitled to review of his sentence after serving 25 years for his conviction for attempted murder pursuant to section 775.082(3)(a) 5.a. Under subsection (3)(a)5.a., a person who is convicted under section 782.04 and sentenced to a term of imprisonment of more than 25 years, and who "actually killed, intended to kill, or attempted to kill the victim," is entitled to a review of his or her sentence after 25 years. §§ 775.082(3)(a) 5.a., 921.1402(2)(b), Fla. Stat. (2016). Hurst argues that he should have been sentenced under section 775.082(3)(c) instead, which provides for a review of his sentence after 20 years. §§ 775.082(3)(c), 921.1402(2)(d), Fla. Stat. (2016). He advances two arguments in support of his theory.

First, Hurst disputes that he was convicted under section 782.04. He contends that he was actually convicted under section 777.04, therefore section 775.082(3)(a) 5. does not apply to him, and he is entitled to review of his sentence after 20 years. Hurst cites no authority to support his contention nor can he. A person cannot be convicted of the offense of attempt without necessarily proving the elements of some underlying, substantive offense. See generally § 777.04(1), Fla. Stat. (2016) ("A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense , but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt." (emphasis added) ). Here, the underlying offense committed by Hurst was first-degree premeditated murder under the homicide statute, making his conviction and sentence subject to the sentencing provisions of section 775.082(3)(a) 5.

Second, notwithstanding the fact that he was convicted under the homicide statute, Hurst nevertheless argues that because attempted murder is a "nonhomicide offense" for the purposes of applying Graham , he is entitled to a review of his sentence after 20 years. Gridine v. State , 175 So.3d 672, 674 (Fla. 2015) (finding Graham applied to appellant's case because attempted first-degree murder is a nonhomicide offense). Hurst's argument ignores the plain language of the Florida juvenile sentencing laws. The language of section 775.082 is crystal clear-a juvenile offender convicted under section 782.04 is entitled to review of his or her sentence after 25 years where the juvenile offender "actually killed, intended to kill, or attempted to kill the victim ." § 775.082, Fla. Stat. (2016) (emphasis added). This specific language referring to attempt is repeated throughout the statute and applies whether the underlying conviction is for a capital felony, a life felony, or a first-degree felony. See §§ 775.082(1)(b) 1., 775.082(3)(a)5., 775.082(3)(b)2., Fla. Stat. (2016). Further, section 775.082 does not distinguish between "homicide" and "nonhomicide" offenses. Because Hurst was convicted under section 782.04, attempted to kill the victim, and used a weapon or firearm, section 775.082(3)(a) 5.a. applies, and he is entitled to a review of his sentence only after serving 25 years. As the trial court aptly noted, "[Hurst] is not entitled to apply for sentencing review five years early ... merely because his victim survived the attempted murder."

Accordingly, we hold that the trial court properly sentenced Hurst under section 775.082(3)(a) 5.a. See Hernandez v. State , --- So.3d ----, ----, 2018 WL 2224109 *5 (Fla. 3d DCA May 16, 2018) (holding that under the juvenile sentencing laws, a juvenile convicted for attempted murder is entitled to review of his sentence after 25 years); Davis v. State , 199 So.3d 546, 550-51 (Fla. 4th DCA 2016), review granted, decision quashed on other grounds , SC16-1905, 2018 WL 480516 (Fla. Jan. 19, 2018) (noting that if the 2014 juvenile sentencing laws applied to appellant, he would be entitled to sentence review after 25 years because he attempted to kill the victim). Hurst's judgment and sentence are AFFIRMED.

Wetherell and Winokur, JJ., concur.

      In addition to attempted first-degree premeditated murder with a firearm, Hurst was charged with carjacking with a firearm, kidnapping with a firearm, and sexual battery with a deadly weapon.

      First-degree murder is a capital felony, and attempted first-degree murder is a felony of the first degree. §§ 774.04(1), (4)(b); 782.04(1)(a), Fla. Stat. (2016). If attempted first-degree murder is committed with a weapon or firearm, the offense is reclassified to a life felony. § 775.087(1), Fla. Stat. (2016). Section 775.082(3)(a) 5., Florida Statutes, sets forth the penalty for a conviction under section 782.04 of an offense that was reclassified as a life felony, when the offender was a juvenile when the crime occurred.

      Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that a juvenile offender who did not commit a homicide offense may not be sentenced to life without parole).