text:
    Jacinte L. PERIARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1655
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
    CONFESSION OF ERROR
   Per Curiam.

Appellant, Jacinte Periard, appeals the revocation of her probation and subsequent sentencing. Appellant contends the trial court erred: (1) because proof of her violations was based entirely on hearsay; (2) the evidence was insufficient to prove willfulness; and (3) the trial court lacked case jurisdiction to proceed with a violation hearing. The State confesses error on all three issues and does not oppose reversal of the order revoking probation and the sentence imposed thereafter. After reviewing the record, we agree that the trial court erred as to all three issues. We reverse the order revoking probation and the sentence imposed thereafter, and remand the case for the trial court to vacate those orders and to dismiss the violation proceeding.

Reversed and remanded with instructions.

Conner, Forst and Kuntz, JJ., concur.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    J.C., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-2218
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children's Legal Services, Fort Lauderdale, for appellee Department of Children and Families.
    Thomasina Moore, Statewide Director of Appeals, Tallahassee, and Jesse R. Butler of Dickinson & Gibbons, P.A., Florida Statewide Guardian ad Litem Office, Defending Best Interests Project, Sarasota, for appellee Guardian ad Litem Program.
   Warner, J.

Appellant, J.C., appeals the trial court's final order terminating her parental rights as to her two children, J.L. and J.W. We agree with appellant that the trial court erred in terminating her rights based on section 39.806(1)(b), Florida Statutes (2017), and finding that she abandoned her children. However, we find that there was competent substantial evidence to support the trial court's alternative decision to terminate the mother's rights under section 39.806(1)(d)1., Florida Statutes (2017), because she will be incarcerated for a significant portion of her children's minorities, and termination will support the children's interests in permanency. Thus, we affirm the final order of termination under section 39.806(1)(d) 1., but we remand for the trial court to strike all findings of termination under section 39.806(1)(b).

In 2017, a shelter order was entered for the mother's two children. J.L. was seven years old, and J.W. was two. The order states that both of the children's fathers were incarcerated for some time, and the mother, along with the father of J.W., was incarcerated and awaiting trial for federal charges involving child sex trafficking.

In late 2017, the mother was found guilty of three federal charges involving sex trafficking of a minor. She was sentenced to concurrent sentences of 15.6 years for the first two counts, as well as a concurrent 120-month sentence for the third count. J.W.'s father was sentenced to 25 years for the same charges.

The Department of Children and Families never petitioned for an adjudication of dependency. Instead, DCF petitioned for an expedited termination of the mother's parental rights. It alleged two statutory grounds for termination. First, pursuant to section 39.806(1)(b), Florida Statutes (2017), it alleged abandonment as defined in section 39.01(1), in that the mother made no significant contribution to the children's care and maintenance, or failed to establish or maintain a substantial and positive relationship with the children. Second, under section 39.806(1)(d)1., Florida Statutes (2017), the mother was incarcerated, and her period of incarceration will constitute a significant portion of the children's minorities, in light of their ages and their need for a permanent and stable home. In the same petition, DCF moved to terminate the parental rights of J.W.'s father, alleging the same two grounds. It also noted that the legal father of J.L. was unknown, but the mother named a prospective father of the child.

In 2018, the trial court held an adjudicatory hearing. The prospective father of J.L. voluntarily surrendered his parental rights. The appellant mother appeared by telephone from federal prison and contested the petition for termination.

The assigned child advocate testified that the children were removed from the parents because they were in federal custody, and the children were placed with the maternal grandfather. The child advocate testified that the parents were not able to offer the children stable housing or income because of their incarceration, and the mother will be incarcerated for fifteen years. The children were doing well in their grandfather's home, although J.L. was receiving counseling to cope with the trauma that she experienced. The children were bonded with their caregiver, with whom they had a parent-child relationship, and the caregiver was willing to adopt them. The child advocate recommended termination and adoption because the parents will miss the majority of the children's minority years, and termination would help the children achieve permanency. However, during cross-examination, the child advocate admitted that she has never spoken to the mother or witnessed the mother interact with the children. She knew very little about the mother's relationship with her children, but she testified that the children had phone contact with the mother.

The guardian ad litem also recommended termination and adoption. The children were happy in their placement, and the caregivers were willing to adopt the children. The parents could not provide for their children because of their incarceration, and the children would not suffer harm upon termination. Nevertheless, the GAL did not have any concerns regarding the mother other than her criminal case. The mother did communicate with her children over the phone.

The mother testified that her appeal in her federal criminal case is pending. She raised her children since they were born. She speaks to her children about three to four times a week over the phone, and she mails "math work" to J.L. to help her with her homework. When she was incarcerated in Miami, her mother would bring her children to visit her every week. Her son calls her "mommy." Furthermore, she testified that her father did not want to adopt the children, but he would do so to prevent them from being placed with a random family. However, she now is incarcerated in Tallahassee for fifteen years.

The court entered an order terminating the parental rights of the mother and the father based on the above two statutory grounds. The court found that termination was in the children's manifest best interests because they were in a loving home with their maternal grandparents who intended to adopt them, and the parents were unable to provide for their children's basic needs due to their incarceration. The children have a strong bond with their caregivers, and termination was the least restrictive means of protecting them from harm. The mother now appeals.

To terminate a parent's rights, the State must: 1) prove a statutory ground for termination under section 39.806 ; 2) show that termination is in the child's manifest best interests; and 3) prove that termination is the least restrictive means to protect the child from serious harm. B.K. v. Dep't of Children & Families , 166 So.3d 866, 872-73 (Fla. 4th DCA 2015). The State must present clear and convincing evidence of each element, and an appellate court will not reverse a final order terminating parental rights unless it is clearly erroneous or lacking in evidentiary support. Id. at 873.

Furthermore, as long as one of the statutory grounds for termination is supported by competent substantial evidence, this Court will affirm the termination order. M.D. v. Dep't of Children & Families , 187 So.3d 1275, 1277 (Fla. 4th DCA 2016).

The mother argues that competent substantial evidence did not support termination under section 39.806(1)(b) for abandonment, and we agree. A court may terminate parental rights under section 39.806(1)(b), Florida Statutes (2017), if there is "[a]bandonment as defined in s. 39.01(1)." Under section 39.01(1), Florida Statutes (2017), abandonment occurs when a parent:

while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both . For purposes of this subsection, "establish or maintain a substantial and positive relationship" includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.... The incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment.

(emphasis added). A finding of abandonment can be made based upon a parent's failure to support the child if the parent is able to do so or a parent's failure to maintain a substantial and positive relationship with the child, or both.

In its termination order, the court noted that the mother called her children three to four times per week while she was incarcerated, showing a relationship between the mother and child. Compare with M.D. v. Dep't of Children & Families , 187 So.3d 1275, 1278 (Fla. 4th DCA 2016) (finding sufficient evidence that the incarcerated father abandoned his child where he barely communicated with the child). Thus, the court's finding of abandonment was based solely on the parent's incarceration and inability to support the children. However, there was no evidence that, while being able , the mother failed to support her children. In fact, there was no evidence that she had any ability to financially support her children while she was incarcerated. While incarceration may be a factor to consider in determining whether the parent has abandoned the child, incarceration itself does not constitute abandonment as a matter of law. See In re B.W. , 498 So.2d 946, 947-48 (Fla. 1986) (noting "indigency resulting in an inability to provide support does not constitute abandonment," even when the parent is incarcerated). Because abandonment was based solely on the mother's incarceration and inability to provide for her children, we find that the court erred by terminating her rights on this ground. See B.F. v. Dep't of Children & Families , 237 So.3d 390, 393 (Fla. 4th DCA 2018) (holding that there was insufficient evidence that the incarcerated father abandoned his child where there was minimal evidence that he was able to significantly contribute to his child's care, and there was evidence that the father communicated with the child over the phone).

We must affirm the termination order, however, as there was competent substantial evidence to terminate the mother's parental rights under section 39.806(1)(d)1., Florida Statutes (2017). Under this subsection, a court may terminate an incarcerated parent's parental rights if:

The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child's minority. When determining whether the period of time is significant, the court shall consider the child's age and the child's need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration[.]

§ 39.806(1)(d)1., Fla. Stat. In D.S. v. Department of Children and Families , 164 So.3d 29, 34 (Fla. 4th DCA 2015), we explained that "the court must look both at the length of the incarceration as well as its effect on the child's need for permanency. In other words, the statute requires both a quantitative and qualitative dimension to the inquiry." The mother argues that the trial court considered only the length of her sentence, rather than whether her incarceration would harm the children's interests in permanency. We disagree as the court evaluated both the length and effect of the incarceration.

There was competent substantial evidence that the mother's period of incarceration would constitute not just a significant portion of her children's minorities but all of it. She is expected to be released in fifteen years. At that time, her eldest child will be in her twenties, and her youngest child will be just shy of eighteen years old. In its order, the court considered the children's relationship with both their mother and their grandparents, and it found that termination would allow the children to enter a more stable, permanent family relationship with their grandparents, who intended to adopt them. Under its least restrictive means analysis, the court noted that the children's interests in permanency were "paramount" to the mother's "desire to wait out" her criminal appeal. Notably, the court found that the children's relationships with their parents and other relatives were likely to continue in their current placement. The court's findings and rulings were supported by competent substantial evidence.

For the foregoing reasons, we affirm the termination of J.C.'s parental rights under section 39.806(1)(d) 1., but we remand for court to strike all findings of termination based on section 39.806(1)(b).

Ciklin and Levine, JJ., concur.


author: Klingensmith, J.

text:
    STATE of Florida, Appellant, v. Tammara ESTER, Appellee.
    No. 4D18-2648
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellant.
    George Joseph Reres of Georges Reres Law, P.A., Fort Lauderdale, for appellee.
   Klingensmith, J.

The State appeals an order withholding adjudication of Tammara Ester's guilt. Prior to this, Ester had adjudication withheld for two unrelated felony charges. For the reasons stated below, we reverse.

Ester was charged by information with grand theft of property valued at $ 300 or more but less than $ 5,000, a third-degree felony. She entered an open, no-contest plea to the charge. During sentencing, the State objected to withholding adjudication of Ester's guilt because she had two previous felony withholds of adjudication, neither of which arose from the grand theft charge before the trial court. Ultimately, the trial court sentenced Ester to six months of community control followed by thirty-six months of probation and withheld adjudication of guilt, over the State's objection. This appeal followed.

Section 775.08435(1)(d), Florida Statutes (2018), states: "Notwithstanding any provision of this section, no adjudication of guilt shall be withheld for a third degree felony offense if the defendant has two or more prior withholdings of adjudication for a felony that did not arise from the same transaction as the current felony offense." (emphasis added).

Under the language of section 775.08435(1)(d), the trial judge in this case was prohibited from withholding adjudication. See State v. Jean , 114 So.3d 451, 452 (Fla. 4th DCA 2013). Accordingly, we reverse the sentence and remand for the trial court to re-sentence the defendant in accordance with section 775.08435. See id.

Reversed and remanded.

Conner and Kuntz, JJ., concur.


author: Gross, J.

text:
    Brian Alexander FUNDERBURK, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1667
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Brian Funderburk appeals his conviction and sentence after entering a negotiated plea, arguing that he pled to a non-existent crime not charged in the information; he was charged with "Driving While License Revoked - Habitual Offender," but his judgment and probation order reflect a conviction for "Driving While License Suspended - Habitual Offender."

We affirm appellant's sentence, but remand with instructions to correct the scrivener's error on the judgment and probation order to reflect that appellant was convicted of Driving While License Revoked - Habitual Offender, as charged in the information.

Appellant was pulled over by a St. Lucie County Sheriff's Officer for not wearing his seat belt. When the officer asked for his driver's license, appellant stated that his license was suspended. After reviewing appellant's identification through NCIC/FCIC and DAVID, the officer learned that appellant's license had been "revoked since 06/06/2016 due to three prior driving while license suspended charges and failure to appear charges," and that appellant was considered a habitual traffic offender.

As a result, the officer arrested appellant for a "violation of F.S.S. 322.34(5), driving while license revoked (habitual offender)." The officer also issued a traffic citation for "DRIVING WHILE LICENSE SUSPENDED OR REVOKED" under section 322.34(5), again noting that appellant's license was "revoked on 06/06/16."

Appellant was later charged in a one-count information. The heading of the information described the offense as "Driving With License Suspended - Habitual Traffic Offender." However, the body of the information alleged that appellant drove with a revoked license in violation of section 322.34(5), Florida Statutes.

Appellant entered a negotiated plea. Tracking the heading in the information, the plea form stated that appellant was charged with "Driving With License Suspended - Habitual Traffic Offender" and that he was entering his plea "[a]s charged." At the plea hearing, the trial court explained the plea agreement to appellant, stating, in pertinent part, "[The plea form] tells me that you were charged with driving with a suspended license as a habitual traffic offender ... a third-degree felony punishable by up to five years of incarceration ...." The court asked appellant, "[Y]ou're here today to enter a no contest plea to that charge, correct?" Appellant responded, "Yes, sir." Defense counsel stipulated that there was a factual basis for the plea.

The trial court accepted appellant's plea, adjudicated him guilty, and imposed the agreed-upon jail sentence, followed by two years of probation. Both the judgment and probation order refer to appellant's offense as "DRIVING WITH LICENSE SUSPENDED-HABITUAL TRAFFIC OFFENDER." However, the judgment cites section 322.34(5), Florida Statutes, as the "offense statute number," and this section pertains to driving with a revoked license as a habitual offender.

On appeal, the parties acknowledge that "[w]hen a 'discrepancy exists between the offense designated in the information heading and the crime depicted in the body of the instrument, the offense described in the body is the one with which the defendant is charged.' " Castillo v. State , 929 So.2d 1180, 1182 (Fla. 4th DCA 2006) (quoting Troyer v. State , 610 So.2d 530, 531 (Fla. 2d DCA 1992) ). Therefore, both parties agree that appellant was charged with "Driving While License Revoked - Habitual Offender" in violation of section 322.34(5), Florida Statutes (2017).

The parties disagree as to the crime to which appellant entered his plea.

Appellant contends that he did not plead to the offense of driving with a revoked license as a habitual offender, as charged in the information; rather, he asserts that he pled guilty to driving with a suspended license as a habitual offender-a non-existent crime for which he was not charged. The offense of driving with a suspended license is set forth in section 322.34(2), Florida Statutes, which provides:

(2) Any person whose driver license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264 [i.e. habitual traffic offenders], who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 322.34(2), Fla. Stat. (2017) (emphasis added). "This statutory subsection expressly provides that it does not apply to habitual traffic offenders .... [A] habitual traffic offender cannot violate subsection (2)." Gil v. State , 118 So.3d 787, 791 (Fla. 2013). Therefore, while driving with a suspended license is a recognized offense in Florida, driving with a suspended license as a habitual offender is not.

After reviewing the entire record, we conclude that appellant pleaded guilty as charged. The body of the information charged a crime under section 322.34(5), the same charge for which appellant was arrested, the same charge contained in the officer's uniform traffic citation. Nothing in the record even hints that appellant relied upon the "suspended" misnomer in entering his plea. Appellant cannot rely on verbal legerdemain to set aside his plea. The sloppy use of the term "suspended" instead of "revoked" at the plea conference does not rise to the level of fundamental error.

We therefore affirm appellant's sentence, but remand with instructions to correct the judgment and probation order to reflect a conviction for Driving While License Revoked - Habitual Offender pursuant to section 322.34(5).

May and Damoorgian, JJ., concur.

      NCIC is the acronym for National Crime Information Center; FCIC is the acronym for Florida Crime Information Center; and DAVID is the acronym for Driver and Vehicle Information Database.


text:
    Marcus JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2152
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Carey Haughwout, Public Defender, and Timothy Wang, 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.
   Gross, J.

In the hope of securing a youthful offender sentence, Marcus James entered pleas of no contest to crimes arising in three separate cases. The trial judge declined to impose youthful offender sentences. In this appeal, we reverse the conviction of one crime on double jeopardy grounds. Also, because the trial judge emphasized an improper factor in sentencing, we reverse the sentences and remand for resentencing before a different judge.

The Crimes

This appeal involves three cases as set forth below.

Burglary of a Dwelling

A residential burglary occurred in November 2013. In 2015, Marcus James was identified as the prime suspect based on a fingerprint match. James was charged with burglary of a dwelling in violation of subsections 810.02(1) and (3), Florida Statutes (2015).

Carjacking and Robbery

In August 2015, a woman walking to her car was approached by a man who pointed a black semi-automatic handgun at her. The man said, "If you scream, I'll shoot you!" He then demanded her purse and keys, and forced her to the ground while he located her vehicle. The woman identified James from a photo array as the man who stole her purse, keys, and car. As a result of this incident, James was charged with armed carjacking in violation of subsections 812.133(1) and (2)(a), Florida Statutes and robbery with a firearm of the victim's purse and its contents in violation of subsections 812.13(1), (2)(a) and 775.087(2)(a)1.c., Florida Statutes.

Grand Theft (Auto) and Aggravated Fleeing or Eluding

The car stolen in the above carjacking was spotted by a license plate reader. The police followed the vehicle with lights and sirens activated, but the driver did not stop until he crashed. The driver and a passenger fled on foot. James was caught and identified as the driver of the stolen car. These allegations gave rise to charges of grand theft (auto) in violation of subsections 812.014(1)(a), (b) and (2)(c)6., Florida Statutes and aggravated fleeing or eluding in violation of subsection 316.1935(2), Florida Statutes.

Defendant's Open No Contest Plea, Motion for Youthful Offender Sanctions, and Sentencing

James was sixteen years old when he committed the burglary and had just turned eighteen when he was caught driving the stolen car. Three weeks before his twenty-first birthday, his attorney filed motions for youthful offender sanctions pursuant to Chapter 958, Florida Statutes. The motions stated that James "would benefit from the rehabilitative aspects of the sanctions permitted by the Florida Youthful Offender Act."

At the plea conference, James pled no contest to all of the pending charges. The judge advised him of the potential sentences for each charge.

In each case, defense counsel stipulated to the factual basis for purposes of the plea and waived the defendant's right to a presentence investigation. The judge accepted the defendant's no contest pleas and deferred sentencing pending his decision on the motion for youthful offender sanctions.

The parties agreed that James qualified for youthful offender sanctions pursuant to Chapter 958. The defense attorney argued in support of his motion, pointing out that James was very young when the offenses occurred; that he had a good family support system (many family members were in the courtroom); and that while in custody he had earned his GED.

Defense counsel's primary argument was that James was innocent of the armed carjacking and robbery charges. He told the court that his client maintained his innocence; that the firearm was never recovered; and that the victim's identification was flawed because James did not match her description of the suspect (i.e. , he did not have dreadlocks). According to his attorney, James was entering a plea to those charges solely because he needed to be sentenced before his twenty-first birthday to qualify as a youthful offender.

The state opposed a youthful offender sentence. The state highlighted James's prior juvenile felonies and misdemeanors.

The state noted that James was not taking responsibility for the crime even though the victim identified him just two days after the carjacking occurred. The state asked the court to deny the motion for youthful offender sanctions "considering how serious this case is."

The judge asked if the defendant had any other arguments in support of his motion, and defense counsel told the court that James was a juvenile and was terrified. He said, "There's issues concerning the armed robbery case but he is pleading."

From the bench, the court announced that it was denying the defendant's motion for youthful offender sanctions. In part, the court explained:

First, as to [the armed carjacking and robbery case], it doesn't sound like Mr. James has taken any responsibility. He's plead[ed] to this case by virtue of this plea. He's admitted to having committed this crime. He has a history here. He cut off his monitor while he was on release. The court is going to deny the youthful offender sentence.

The court then adjudicated James and imposed these concurrent sentences:

Case No. Count Sentence 15-13070 Burglary Unoccupied Dwelling 15 years 15-10782 Carjacking (Armed) 15 years 15-10782 Robbery (Firearm) 15 years 15-10704 Grand Theft (Auto) 114.3 months 15-10704 Aggravated Fleeing or Eluding 114.3 months

Someone in the courtroom said, "That's bullshit. That's bullshit. That's bullshit, brother." Defense counsel asked that the family's reaction be noted for the record, and the court responded to the attorney:

Mr. Curry, you could have had a trial. You could have required the State to prove its case. Mr. James chose to plea. I accepted his plea knowingly, intelligently and voluntary. He took responsibility for his actions in terms of the plea, and then you stood here today as his attorney and represented on his behalf that he didn't do the crime to which he just pled. He didn't have to plea. No one forced him to plea, he acknowledged that.
He's admitted to putting a gun in a woman's face, taking her purse and her car with a firearm. Okay. That's the Court's sentence. I'm sorry that the family is upset. Maybe if he was provided some services when he was 13 - 14 - 15 years old committing crimes, he wouldn't find himself in this position today. But apparently the fact that he was committing burglaries when he was 15, possessing drugs, stealing things, disturbing school functions wasn't enough to get him services as a juvenile and now we find ourself (sic) here today.
So if there's any bullshit in this courtroom [it] is the bullshit of putting a gun in a woman's face and Mr. James will -

At that point, the judge was interrupted again by someone in the courtroom and he abruptly concluded the hearing.

The conviction for grand theft auto must be vacated because it violated double jeopardy

As the state concedes, we must vacate the conviction for grand theft of the same vehicle that was involved in the carjacking.

"A defendant's double jeopardy rights are violated when he is convicted of two offenses which require identical elements of proof." Ortiz-Medina v. State , 126 So.3d 1183, 1183 (Fla. 4th DCA 2012) (internal quotation marks and citation omitted). But, "the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts." Hayes v. State , 803 So.2d 695, 700 (Fla. 2001). "Although a guilty plea and adjudication of guilt generally preclude a later double jeopardy attack, an exception applies when, as in this case, there is a general or open plea, the double jeopardy is apparent from the face of the record, and there is nothing in the record to indicate a waiver of double jeopardy." Bailey v. State , 21 So.3d 147, 149 (Fla. 5th DCA 2009).

"For double jeopardy purposes lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense." Bell v. State , 437 So.2d 1057, 1058 (Fla. 1983). Here, grand theft auto is a lesser included offense of carjacking because all of the essential elements of grand theft auto are also elements of carjacking. Fryer v. State , 732 So.2d 30, 33 (Fla. 5th DCA 1999) (stating that "[e]ach of the statutory elements of grand theft auto are statutory elements of the offense of carjacking.").

Our recent opinion in Palmer v. State , 254 So.3d 426 (Fla. 4th DCA 2018), is directly on point. There, the defendant carjacked a vehicle and was apprehended two days later driving the stolen car. He was convicted of grand theft auto and armed carjacking. Id. at 427. In Palmer , as here, the state conceded that grand theft auto was a lesser included offense of carjacking, and that the carjacking offense subsumed the later grand theft auto offense. Id. We accepted the state's concession of error, holding:

While the police found the defendant with the vehicle two days after the carjacking occurred, the defendant only took one vehicle on one occasion. His grand theft auto charge was a lesser included offense of his carjacking charge. Because these charges resulted from a single criminal act, convictions on both of them violate double jeopardy.

Id. at 427-28.

As in Palmer , this case involves one vehicle taken on one occasion. The charges resulted from a single criminal act and all of the elements of grand theft auto are included in the crime of carjacking. As a result, convictions for both grand theft auto and carjacking violated the defendant's right to be free from double jeopardy.

"When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater." Pizzo v. State , 945 So.2d 1203, 1206 (Fla. 2006). We therefore reverse the conviction for grand theft auto and affirm the conviction for carjacking.

The trial court erred by penalizing appellant at sentencing for maintaining his innocence of the carjacking charges

As the state concedes, the trial court erred by penalizing James at sentencing for maintaining his innocence of the carjacking charge.

Here, in entering his plea, James explained why he was entering his plea of no contest, even though he maintained his innocence of the carjacking charge. "While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt." Ritter v. State , 885 So.2d 413, 414 (Fla. 1st DCA 2004) ; see Aliyev v. State , 835 So.2d 1232, 1234 (Fla. 4th DCA 2003). "[R]e-sentencing is required even if a defendant's refusal to admit guilt was but one of several factors considered by the court in imposing sentence." Johnson v. State , 948 So.2d 1014, 1017 (Fla. 3d DCA 2007).

We reverse the sentences imposed in this case and remand the case (1) to vacate the grand theft conviction and dismiss the charge and (2) for resentencing before a different judge. See Whitmore v. State , 27 So.3d 168, 172 (Fla. 4th DCA 2010). James is also entitled to a corrected scoresheet reflecting our reversal of the grand theft auto conviction. See Fernandez v. State , 199 So.3d 500, 502 (Fla. 2d DCA 2016).

Affirmed in part, reversed in part, and remanded for resentencing.

May and Damoorgian, JJ., concur.

      We reject James's argument that his convictions for armed carjacking and robbery violated double jeopardy. See Cruller v. State , 808 So.2d 201, 202 (Fla. 2002) ; Jacobs v. State , 162 So.3d 29, 31 (Fla. 4th DCA 2014).

      Recognized exceptions to the general rule do not apply here. See § 921.0026(2)(j), Fla. Stat. (2017) (which allows a sentencing court to grant a downward departure when, among other things, "the defendant has shown remorse"); Rankin v. State , 174 So.3d 1092, 1097 (Fla. 4th DCA 2015) ; Corbitt v. State , 220 So.3d 446, 450 (Fla. 5th DCA 2016) (providing that a lack of remorse may be considered at sentencing where a defendant "freely and voluntarily enters a plea and admits his involvement in the crimes or presents testimony regarding his involvement in the crimes during trial.").


author: Per Curiam.

text:
    Diahann D. KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2770
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

After an argument with the operator of an after-hours club, outside of the establishment, appellant pulled a handgun out of her purse and fired at the operator. The bullet shattered the club's glass door-the operator ducked inside unhurt but a bouncer holding the door open was hit. The bouncer was an unintended victim of the shooting.

Appellant was convicted of attempted first degree murder of both the club operator and the bouncer. As to the conviction involving the bouncer, the trial court erred in not granting a motion for judgment of acquittal. To support a conviction, the state was required to prove the specific intent to commit first degree murder plus an overt act in furtherance of that intent. See Bell v. State , 768 So.2d 22, 27 (Fla. 1st DCA 2000). On this record, appellant's only intent was to kill the club operator, not the bouncer. We agree with those courts that have held that the doctrine of transferred intent does not apply to the "crime of attempted murder of the unintended victim." Id. at 28, and cases cited therein; see also State v. Brady , 745 So.2d 954, 956, n.2 (Fla. 1999).

We reverse the conviction for attempted first degree murder of the bouncer. As did the court in Bell , we remand with directions that the trial court enter judgment for attempted second degree murder and for resentencing on that count. 768 So.2d at 28.

We have considered the other issues raised on appeal and find no reversible error.

Affirmed in part, reversed in part, and remanded for further proceedings .

Gross, May and Damoorgian, JJ., concur.


author: Gerber, C.J.

text:
    STATE of Florida, Appellant, v. John THOMAS, Appellee.
    No. 4D18-1646
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   Gerber, C.J.

The state appeals from the trial court's post-verdict order granting the defendant's motion for judgment of acquittal on the charge of delivery of cocaine. The state argues that viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt and, thus, sufficient evidence existed for the trial court to have denied the motion. We agree with the state's argument and reverse.

The crime was documented by the undercover officer's vehicle's three audio/video recorders, showing: (1) the interior compartment and driver's window; (2) a close-up of the driver's window; and (3) a close-up of the front passenger window. We will describe in detail what the video shows.

What the Video Shows

The event occurred at midday, in broad daylight. The undercover officer is seen driving down a street when he says that he is being flagged down. The officer pulls into a parking lot. One man (not the defendant or co-defendant) runs up to the driver's open window. Simultaneously, the co-defendant and the defendant walk towards the front passenger open window.

The co-defendant says, "I'm right here, what you need?" The co-defendant leans on the front passenger open window and holds his hands open just above the door. The co-defendant's hands are empty. The defendant also leans onto the front passenger door with his left hand hanging over the door. The defendant's left hand is empty.

The officer, facing the man at the driver's window, asks "You got soft? You got soft?" (slang for powder cocaine). The defendant asks the officer, "How much soft?" The co-defendant also asks the officer, "How much soft?" The officer says, "a double soft" (slang for a $ 20 amount). The man at the driver's window says that he's got "hard" (slang for crack cocaine).

The officer turns towards the co-defendant and the defendant at the front passenger window and asks, "You got soft?" The co-defendant asks the officer, "How much you need?" The officer replies, "a double soft." The co-defendant says, "I got you."

Both the defendant and the co-defendant take a few steps back from the front passenger window and say something to each other, which cannot be heard on audio. The defendant's right hand now can be seen, and it is empty. While that is occurring, the officer buys some "hard" from the man at the driver's window, and that man walks away.

The co-defendant and the defendant step back to the front passenger window. The co-defendant again holds his hands open just above the door. The co-defendant's hands are still empty. The co-defendant says, "Oh damn man I got number 40 (slang for a $ 40 amount). I ain't no 20. They good though. They good." The officer asks, "40 a soft?" The co-defendant replies, "Yeah." The officer says, "Alright, I'll take a 40." The co-defendant says, "Alright, stay right here."

The defendant and the co-defendant again take a few steps back from the window, saying something to each other, which cannot be heard on audio. The co-defendant, while looking at the defendant, points back to the officer. The defendant gestures towards himself. The co-defendant walks a few feet further away towards a tree with a bike leaning against it.

The defendant, while pointing towards a trashcan located several feet behind the officer's vehicle, says something to the co-defendant, which cannot be heard on audio. The co-defendant immediately stops walking towards the tree, and instead turns in the direction of the trashcan. Both the defendant's hands and the co-defendant's hands are still empty.

The defendant walks past the co-defendant towards the trashcan, and the co-defendant instead walks around the back of the officer's vehicle towards the driver's window. The defendant gets to the trashcan as the co-defendant gets to the driver's window. The defendant takes five seconds reaching to get something out of the trashcan, then jogs and walks back towards the driver's side. While the defendant is doing those things, the co-defendant, standing at the driver's window, tries to get the officer to buy some more "hard." The officer replies, "I don't need no hard."

As the defendant walks closer to the driver's side, the co-defendant turns his face to the right, towards the defendant, while saying to the officer, "I got that powder right here."

The officer uses his right hand to pull two bills (presumably $ 20 bills) from several bills in his left hand. The officer puts the remaining bills back into his left pocket using his left hand. The officer then moves the two bills from his right hand into his left hand beneath the steering wheel.

The co-defendant turns his face back to the officer and says "get my number." As the officer uses his right hand to take his cell phone from his right pocket, the officer turns his face away from the co-defendant standing at the driver's door, and instead looks forward at his cell phone.

While the officer is looking forward, the defendant walks up to the co-defendant's right side. The co-defendant turns his face toward the defendant and looks downward for one second. During that one second, the camera views are unable to show on video what is occurring below the driver's door, where the defendant's and co-defendant's hands are located.

After that one second, the defendant walks behind the co-defendant to stand on the co-defendant's left side, and the co-defendant reaches both of his hands into the officer's vehicle. The co-defendant's right hand puts a small baggie of powder cocaine into the officer's left hand, and the co-defendant's left hand takes the two bills from the officer's left hand.

The co-defendant moves his clenched left hand up behind his left ear, in the direction of the defendant to his left, with one of the two bills almost fully protruding and the other bill barely protruding. In the next second, the defendant's right arm reaches up to the co-defendant's left hand. In the second after that, two things happen simultaneously: the defendant's right arm moves back down to his side, and the co-defendant brings his left hand slightly forward near his left ear, now with only a single bill barely protruding from his left hand.

The co-defendant then says a phone number, while the officer types the number into his cell phone. The officer asks for the co-defendant's name. The co-defendant says "James," which the officer types into his cell phone. The officer asks for the defendant's name. The defendant says "Goldie," which the officer types into his cell phone.

But before the officer can ask for the defendant's number, the first man who sold the "hard" (crack cocaine) to the officer comes up to the driver's side window. The officer says, "I can get your number too ... Everyone wants to give me their number." The officer asks for the first man's name. The first man says "Trey" and gives a phone number. The officer types the name and number into his cell phone.

The defendant then says, "Goldie got the 'soft.' " The officer responds, "Goldie got the 'soft.' So I got Trey got me 'hard.' I got James got everything for me." The officer asks for the defendant's number. The defendant gives a phone number, which the officer types into his cell phone.

The three men walk away. The officer drives away. The videos end.

The Parties' Arguments and Our Standard of Review

The state's briefs argue that the trial court erred in granting the defendant's motion for judgment of acquittal. According to the state, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt and, thus, sufficient evidence existed for the trial court to have denied the motion.

Specifically, the state argues the jury could (and did) find the defendant guilty of delivery of cocaine based on the state's "principals" theory upon which the jury was instructed. According to the state, given the undisputed fact that the co-defendant delivered cocaine to the officer, the only two factual issues for the jury were whether, under the "principals" instruction, the defendant: (1) helped the co-defendant commit the crime of delivery of cocaine; (2) had a conscious intent that the crime of delivery of cocaine be committed; and (3) did some act or said some word which was intended to and which did assist the co-defendant to actually commit the crime of delivery of cocaine.

The defendant's brief argues the trial court did not err when it granted the defendant a post-verdict judgment of acquittal. According to the defendant, the state's evidence against him was wholly circumstantial and failed to rebut every reasonable hypothesis of innocence. The defendant argues, as the undercover officer conceded at trial, it is possible that the co-defendant had the powder cocaine on his person the whole time, while the defendant merely witnessed the transaction and did not participate.

In Pagan v. State , 830 So.2d 792 (Fla. 2002), our supreme court set forth our standard of review of a motion for judgment of acquittal:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies.... If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. However, if the State's evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant's reasonable hypothesis of innocence. [Where] the evidence [is] both direct and circumstantial, it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases.

Id. at 803 (citations omitted). The standard of review does not change for a judgment of acquittal granted post-verdict. See State v. Johnson , 209 So.3d 23, 26 (Fla. 4th DCA 2016) ("In matters ... which concern a trial court's order granting a motion for judgment of acquittal entered after a jury's verdict of guilt, this court conducts a de novo review of the record to determine whether sufficient evidence supports the jury's verdict.") (citation omitted).

Our Analysis

Applying Pagan to the instant case, the special standard of review applicable to circumstantial evidence cases does not apply here. The State's evidence was both direct and circumstantial. The direct evidence was the video recording's documentation of all of the defendant's actions during the entire event. The only circumstantial evidence was the defendant's actual possession of the cocaine, because the video is too distant to show whether the object which the defendant obtained from the trashcan was cocaine, and later because the driver's door blocks the video's view of whether the defendant handed the cocaine to the co-defendant at the driver's side. The fact that the defendant's actual possession of the cocaine is the only circumstantial evidence does not turn this case into a wholly circumstantial evidence case, given the direct evidence on video of all of the defendant's actions during the entire event.

Viewing the video evidence in the light most favorable to the State, we conclude that a rational trier of fact could find the existence of the elements of delivery of cocaine beyond a reasonable doubt.

Florida Standard Jury Instruction (Criminal) 25.2 defines the elements of delivery of cocaine, which was modified for instruction to this jury, in pertinent part, as:

1. [The defendant] delivered a certain substance.
2. The substance was cocaine.
3. [The defendant] had knowledge of the presence of the substance.
"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

See Fla. Std. Jury Instr. (Crim.) 25.2.

Further, Florida Standard Jury Instruction (Criminal) 3.5(a) defines "Principals," which was modified for instruction to this jury as:

If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime.
To be a principal, the defendant does not have to be present when the crime is committed.

See Fla. Std. Jury Instr. (Crim.) 3.5(a).

Here, the video indisputably showed that the co-defendant delivered cocaine to the undercover officer. Thus, the only issue was whether the video provided sufficient evidence from which a rational trier of fact could find that the defendant was a principal who helped the co-defendant to deliver the cocaine.

The video provided that evidence. The video shows that the defendant had a conscious intent that the crime of delivery of cocaine be done, based on his approaching the vehicle side-by-side with the co-defendant, with both of them asking the officer "How much soft?"

The video also shows that the defendant did some act or said some word which was intended to and which did assist the co-defendant to actually commit the crime of delivery of cocaine. Both the defendant's and the co-defendant's hands were empty when they proposed to sell cocaine to the officer. When the officer agreed to buy the cocaine, neither the defendant nor the co-defendant immediately delivered the cocaine to the officer. Instead, the co-defendant and the defendant backed away to have a conversation. The defendant next hurriedly walked to a nearby trashcan and obtained an item from the trashcan, while the co-defendant simultaneously walked around to the driver's window but still without delivering the cocaine to the officer. When the defendant walked up to the co-defendant at the driver's window, the co-defendant faced the defendant while saying to the officer, "I got that powder right here." Only after the one second when the defendant walked up to the co-defendant's right side, with their hands out of camera view, was the co-defendant finally able to deliver the cocaine to the officer. The co-defendant holds up the two $ 20 bills in the direction of the defendant, who appears to take one of the $ 20 bills. The defendant then tells the officer "Goldie got the 'soft.' "

Conclusion

In sum, after viewing the video evidence in the light most favorable to the state, we conclude that a rational trier of fact could (and in fact, did) find the existence of the elements of delivery of cocaine beyond a reasonable doubt.

Even if we were to conclude that the special standard of review applicable to circumstantial evidence cases applied here (which we do not), we still would conclude sufficient evidence existed not only to establish each element of the offense beyond a reasonable doubt, but also to exclude the defendant's hypothesis that he merely witnessed the transaction and did not participate. The video evidence described above not only belies that hypothesis, but makes that hypothesis appear facially unreasonable. See Westbrooks v. State , 145 So.3d 874, 878 (Fla. 2d DCA 2014) ("The State is not required to rebut a hypothesis of innocence that is unreasonable.").

Based on the foregoing, we reverse the trial court's post-verdict order granting the defendant's motion for judgment of acquittal. We remand for the trial court to reinstate the guilty verdict, and proceed to sentencing.

Reversed and remanded for reinstatement of verdict and for sentencing.

Ciklin and Kuntz, JJ., concur.

      According to the transcript of the hearing on the motion for judgment of acquittal, the court asked, "[J]ust out of curiosity, this does seem to come down to the video. You think the folks in West Palm Beach are going to sit down and look at the video?" The answer is yes.


text:
    Jack STEIN, Appellant, v. John CHARLES and Riverwalk of the Palm Beaches Homeowners Association, Inc., Appellees.
    No. 4D18-2662
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Jack Stein, West Palm Beach, pro se.
    Ashley N. Landrum and Karen M. Nissen of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for appellees.
   Gerber, C.J.

Third-party plaintiff Jack Stein ("Stein") appeals from the circuit court's final order granting third-party defendants Riverwalk of the Palm Beaches Homeowners' Association, Inc.'s ("Riverwalk") and John Charles's ("Charles") motion for sanctions based upon Stein's fraud upon the court. The order's ultimate outcome was to dismiss Stein's claim against Riverwalk and Charles for tortious interference with advantageous business relationship, as well as Stein's claim against Riverwalk for violation of section 720.303(5), Florida Statutes, relating to record requests. We affirm.

This is the second time in which we have reviewed the circuit court's order granting Riverwalk's and Charles's motion for sanctions. Our first review resulted in our opinion styled as Stein v. Defren, 247 So.3d 24 (Fla. 4th DCA 2018) (" Stein I "). Stein I held, in pertinent part:

Stein argues six purported errors by the trial court as a basis for reversal. Five of the asserted errors revolve around arguments that the trial court improperly weighed evidence, improperly conducted the sanction hearing, or applied the facts incorrectly in reaching legal conclusions. Because Stein has not provided us with a transcript of the proceedings and many of the assertions of facts in his brief, which he contends are favorable to his position, do not support his arguments, we affirm the trial court as to those five issues without discussion. However, we find merit in his sixth argument that the trial court erred by failing to make findings of fact in its order granting dismissal as a sanction. As we recently held in Chacha v. Transp. USA, Inc. , 78 So.3d 727 (Fla. 4th DCA 2012) :
An order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process.
Id. at 731 ; see also Smith v. Brinks, Inc. , 133 So.3d 1176, 1177 (Fla. 4th DCA 2014).
Therefore, we reverse the final order granting dismissal and remand for the trial court to make express written findings. We make no comment on whether reconsideration of the ultimate ruling is warranted or not.

247 So.3d at 24.

Pursuant to our mandate in Stein I , the circuit court held a second hearing on the motion for sanctions, but simply to give the parties an opportunity to be heard before the court entered a more detailed order. Following the hearing, both sides were given an opportunity to submit a proposed more detailed order. The court ultimately entered a second, more detailed order making express written findings to support the dismissal of Stein's claims as a sanction for fraud on the court.

In this appeal from entry of the second order, Stein again argues that, at the first hearing on the motion for sanctions, the trial court improperly weighed evidence, improperly conducted the hearing, or applied the facts incorrectly in reaching legal conclusions. Because Stein once again has not provided us with a transcript from the first hearing, we affirm the trial court as to all claims without discussion. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) ("In appellate proceedings[,] the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.").

We comment only upon one argument which Stein had not raised in Stein I , but which Stein has raised in this appeal. According to Stein, during the first hearing, the circuit court erred in taking testimony from a witness by phone without complying with Florida Rule of Civil Procedure 1.451. Rule 1.451(b) states, in pertinent part: "The court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (1) by agreement of the parties or (2) for good cause shown upon written request of a party upon reasonable notice to all other parties." Rule 1.451(e) states, "Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness's jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction."

Because Stein has not provided us with a transcript from the first hearing, we cannot determine whether Stein raised a contemporaneous objection to the circuit court's alleged taking of testimony from the witness by phone without allegedly complying with rule 1.451. See Sunset Harbour Condo. Ass'n v. Robbins , 914 So.2d 925, 928 (Fla. 2005) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved."). Thus, that argument, like Stein's other arguments, was not preserved.

However, even if the circuit court did not comply with rule 1.451, we would find the error to be harmless based on the court's express written findings in its second order. The circuit court found the witness's properly-introduced deposition testimony revealed that the witness did not create, read, or sign the affidavit which Stein used to defeat the third-party defendants' motion for summary judgment. The fact that the circuit court may have attempted to have the witness testify by phone to confirm Stein's use of the affidavit to commit fraud upon the court would have been merely cumulative and, therefore, harmless. See Witham v. Sheehan Pipeline Constr. Co. , 45 So.3d 105, 109 (Fla. 1st DCA 2010) ("An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.").

Affirmed.

Ciklin and Kuntz, JJ., concur.


author: Kuntz, J.

text:
    Penny PERLMUTTER, Appellant, v. OLYMPUS INSURANCE COMPANY, a Florida corporation, Appellee.
    No. 4D18-731
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Joel L. Roth, Sagi Shaked and Loretta Guevara of Shaked Law Firm, P.A., Aventura, for appellant.
    Marc J. Gutterman and Seth J. Feintuch of Gutterman Trial Group, Fort Lauderdale, for appellee.
   Kuntz, J.

Penny Perlmutter appeals the circuit court's involuntary dismissal of her complaint against Olympus Insurance Company. She raises two issues on appeal. First, she argues the court erred in its application of the factors set forth in Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993), required to justify an involuntary dismissal. Second, she argues she was unfairly prejudiced by the involuntary dismissal. We affirm.

Perlmutter sued Olympus, asserting claims arising out of a homeowner's insurance claim. During the lawsuit, Olympus filed a request for its consulting experts to enter Perlmutter's land to inspect her property. Days before trial and facing court-ordered deadlines to do so, Perlmutter had failed to schedule the inspection. As a result of this failure and other discovery violations, Olympus sought sanctions.

At the end of a hearing on Olympus's motion for sanctions, the court issued an order involuntarily dismissing Perlmutter's complaint. The court addressed each of the six required Kozel factors:

1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

629 So.2d at 818.

The court explained that Olympus's "long standing quest for discovery beginning with the October 26, 2016, Request for Entry Upon Land has been met with either utter indifference or outright resistance." And "emails were routinely ignored and court ordered deadlines were disregarded." The court noted that it had issued an order that "unequivocally mandated that the inspection take place no later than July 17, 2017." Yet, after the deadline passed, the inspection still had not taken place.

In its order of involuntary dismissal, the court noted that after it issued the order requiring inspection of the property by July 17, "counsel for Olympus made repeated and diligent attempts to schedule the Inspection, mediation and the depositions of any remaining witnesses." But "[d]espite the urgency of the situation, these emails were, for the most part, totally ignored. In those rare instances where there was a response from [Perlmutter], it was to reject the dates proposed by [Olympus] without any suggestion of alternate dates."

The court continued, stating that "the end result was that the court imposed deadlines for discovery and mediation came and went ... [t]hrough no fault of [Olympus]." Instead, "it appears that the client, [Perlmutter], must assume some, if not the majority of the responsibility for the delays in obtaining discovery by not allowing or permitting inspection of her residence and by not being responsive to her attorney's numerous requests for information and dates."

The court also found that Perlmutter's "failure to provide discovery has left [Olympus] totally unprepared for a trial that is only days away. To cancel and reset the trial would only serve to reward [Perlmutter] for her flagrant disregard of court orders and encourage similar conduct in the future." The court concluded that Perlmutter "filed this action seeking affirmative relief but has frustrated [Olympus's] attempt to ready itself for trial and willfully and without justification violated this court's Orders." Based on these findings, the court entered the order of involuntary dismissal.

While courts must be careful when dismissing an action for violating court orders or the rules of procedure, in certain cases the ultimate sanction of dismissal is appropriate. Here, the court's findings were supported by competent, substantial evidence. Perlmutter's actions caused prejudice to Olympus and showed a blatant disregard for the court's orders and the efficient administration of justice. As a result, we affirm the court's order in its entirety.

Affirmed.

Gerber, C.J., and Ciklin, J., concur.

      We note that approximately four months after the initial request for entry upon land, Perlmutter provided one date for the inspection that Olympus responded to within minutes but never confirmed. Later, Perlmutter provided a date for the inspection, but the date was after the court-ordered deadline.


author: Forst, J.

text:
    Jessica SERNA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1619
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Carey Haughwout, Public Defender, and Jaime Lapidus, 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 Jessica Serna appeals her sentence stemming from multiple charges of fraudulent practices and theft. Appellant argues that the trial court violated her right to due process in rejecting her request to be placed under oath at her sentencing hearing because 1) the court was required to entertain submissions and evidence in mitigation, and 2) she had the right to allocution prior to sentencing. Because we find that it was error to deny Appellant an opportunity to present mitigation testimony to rebut issues raised by the State and the trial court during sentencing, we reverse her sentence and remand for a new sentencing hearing.

Background

Appellant was charged with one count of trafficking in counterfeit credit cards, two counts of defrauding a financial institution, one count of criminal use of personal identification information, two counts of credit card forgery, and one count of misdemeanor petit theft. The trial court accepted her no contest plea to all charges and a sentencing hearing followed.

Defense counsel requested that the court withhold adjudication, arguing that Appellant "has a drug problem" and is "amenable for treatment," had no prior felony criminal history, and that her nonviolent crimes were "a[n] isolated incident" done in an unsophisticated manner. As the State began to object to the characterization of the crimes as unsophisticated, the trial court interjected that, "absent a showing of remorse," it could not grant the request for a withhold of adjudication. The State added that there was no evidence presented that Appellant had a substance abuse issue or that she was amenable to treatment.

The court then asked defense counsel for the "[l]ast word." Defense counsel requested that Appellant be placed under oath, which entreaty the court summarily denied. Defense counsel replied, "But that was my only argument[ ], Judge. Based off the circumstances and based off of mitigator reasons in the downward departure statute, I believe this is an individual that should receive a withhold."

The trial court denied the defense's request to withhold adjudication, adjudicated her guilty, and imposed a ten-year probationary sentence. On appeal, Appellant argues that she was "never given the chance to address the sentencing court," and this denial "violated appellant's due process right to allocution and went against the sentencing court's mandatory obligations to entertain evidence relevant to the sentence."

Analysis

We review a trial court's compliance with the guarantees of due process de novo. Hill v. State , 246 So.3d 392, 394 (Fla. 4th DCA 2018) (citing Flegal v. Guardianship of Swistock , 169 So.3d 278, 281 (Fla. 4th DCA 2015) ).

Appellant contends that despite her request, she was denied the chance to address the court concerning a withhold of adjudication. At trial, defense counsel argued that, based on section 775.08435, Florida Statutes, the trial court may withhold adjudication if there are mitigating circumstances such as those set forth in the downward departure statute ( section 921.0026, Florida Statutes ). Specifically, Appellant maintained that "this crime was committed in an unsophisticated manner and it's a (sic) isolated incident"; she has a drug problem and is amenable to treatment; and, she had no prior felonies.

Florida Rule of Criminal Procedure 3.720(b) requires the court to entertain submissions and evidence by the parties that are relevant to sentencing. Failure to comply with this rule is reversible error. Compere v. State , 262 So.3d 819, 2019 WL 140989 (Fla. 4th DCA Jan. 9, 2019) (citing State v. Munson , 604 So.2d 1270, 1271 (Fla. 4th DCA 1992) ). "Under the rule ... defendant[s] are entitled to make a statement to the court, as well as present matters in mitigation." Chillingworth v. State , 846 So.2d 674, 676 (Fla. 4th DCA 2003) ; see Hodierne v. State , 141 So.3d 1254, 1255 (Fla. 2d DCA 2014) (remanding for new sentencing "at which Hodierne shall be permitted to present the entirety of his statement and any other evidence or submission relevant to the sentence, as provided by rule 3.720(b)").

"The rule does not address which submissions or what evidence are ultimately admissible; it requires only that the sentencing court should 'entertain' their proffers." Gorzynski v. State , 255 So.3d 990, 993 (Fla. 2d DCA 2018) (Lucas, J. concurring). Courts have determined that Rule 3.720(b) provides defendants with an opportunity to proffer evidence in mitigation (which might include the defendant's own testimony).See Goldberg v. State , 65 So.3d 115, 116 (Fla. 3d DCA 2011) (holding that the defendant was entitled to present rebuttal to the State's evidence that the defendant lacked remorse); H.B.T. v. State , 495 So.2d 919, 920 (Fla. 4th DCA 1986) (reversing because the trial court refused the defendant's request to present the testimony of two police officers to buttress the defense's substantial assistance argument as mitigation of sentence evidence).

"The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ). Due process requires a meaningful opportunity "to be heard, to testify, and to present evidence"; otherwise, it is fundamental error. Weiser v. Weiser , 132 So.3d 309, 311 (Fla. 4th DCA 2014) (citing Slotnick v. Slotnick, 891 So.2d 1086, 1089 (Fla. 4th DCA 2004) ); see Branton v. State , 187 So.3d 382, 385 (Fla. 5th DCA 2016) (wholly denying defendant's request to present matters in mitigation is fundamental error).

In Jean-Baptiste v. State , 155 So.3d 1237 (Fla. 4th DCA 2015), we concluded that the defendant's right to due process was not violated because he was given the opportunity to make a sworn statement at sentencing (during an evidentiary hearing on his motion for downward departure), but he chose not to do so. Id. at 1242. By contrast, Appellant here indicated that she sought to present evidence in mitigation through a sworn statement, but the request was summarily denied. In looking to the context of Appellant's request to be placed under oath (particularly the court's assertion that it would not grant a withhold absent a showing of remorse-an issue not previously addressed by Appellant), the trial court's outright denial does not meet the rule's mandatory language that it "entertain" submissions and evidence relevant to mitigation. This violated Appellant's due process rights because she did not have a meaningful opportunity to be heard on the issues raised by the court and the State. This was error on the part of the trial court and entails reversal.

Conclusion

Determining an appropriate sentence is "the most important matter upon which [a court] is called to judge." Id. Defendants are entitled to present matters in mitigation pursuant to rule 3.720(b) and the requirements of due process. Therefore, denying Appellant the requested opportunity to testify at her sentencing was error. Accordingly, we reverse Appellant's sentence and remand for a new sentencing hearing in compliance with rule 3.720(b).

Reversed and remanded.

May and Levine, JJ. concur.

      Appellant's initial brief also asserts that she was denied the opportunity to allocute. A statement in allocution is an unsworn statement by the defendant to the court that is not subject to cross-examination and potential perjury, and where the defendant can speak freely to the court and express "any additional information to aid the court in making a sound and reasoned judgment ...." Jean-Baptiste v. State , 155 So.3d 1237, 1242 (Fla. 4th DCA 2015). In the instant case, defense counsel requested that Appellant be sworn, and did not otherwise place the trial court on notice that Appellant sought an opportunity to allocute. Thus, we do not address this issue on appeal.

      The State maintains that Appellant failed to preserve the issue by not offering an objection subsequent to the trial court's denying her an opportunity to present sworn evidence. Appellant contends that the issue was preserved, because the request to be heard was unambiguously made. We need not address the preservation issue, as we find that, even if the issue was not preserved for appellate review, the trial court's refusal to permit Appellant to present evidence in mitigation while under oath constituted fundamental error.


text:
    DEEP SEA ATLANTIC N.V., a Suriname Naamloze Vennootschap, Appellant, v. MICAL SEAFOOD, INC., a Florida corporation, Appellee.
    No. 4D18-1603
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Daniel Lustig, Michael J. Pike and Dominique J. Torsiello of Pike & Lustig, LLP, West Palm Beach, for appellant.
    William G. Salim, Jr. and Ari J. Glazer of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

We dismiss that portion of this appeal challenging an order denying dismissal under Florida Rule of Civil Procedure 1.070(j). We do not have jurisdiction of orders denying dismissal under this rule, as such orders are not orders determining "jurisdiction of the person." Jennings v. Montenegro , 792 So.2d 1258, 1261 (Fla. 4th DCA 2001). We affirm on all other issues as appellant did not overcome the presumption that arises from a return of service that is regular on its face. See Koster v. Sullivan , 103 So.3d 882, 884 (Fla. 2d DCA 2012).

Warner, Gross and Klingensmith, JJ., concur.


text:
    Regina HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D19-0007
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Howard Finkelstein, Public Defender, and Lisa S. Lawlor, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Regina Hawkins petitions for a writ of prohibition seeking review of the denial of her motion for discharge under the speedy trial rule. The trial court denied discharge because the court did not receive a copy of Hawkins' notice of expiration. Hawkins strictly complied with the rules by filing her notice with the clerk of court and serving a copy on the State. She was not brought to trial within the recapture period, and the rules do not allow the trial court to deny discharge based on its lack of awareness of a notice of expiration. We grant the petition.

Hawkins was arrested and charged with felony possession of cocaine and misdemeanor possession of drug paraphernalia. After the 175-day time period of Florida Rule of Criminal Procedure 3.191(a) expired, Hawkins filed a timely notice of expiration of time for speedy trial and served it on the state. See Fla. R. Crim. P. 3.191(h) ("A notice of expiration of speedy trial time shall be timely if filed and served after the expiration of the periods of time for trial provided in this rule." (emphasis added) ).

Rule 3.191(p) sets out the remedies when a defendant is not tried within the speedy trial time:

(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled "Notice of Expiration of Speedy Trial Time," and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Id. ; accord State v. Nelson , 26 So.3d 570, 574-75 (Fla. 2010).

More than fifteen days after filing her notice, Hawkins filed a motion for discharge because she had not been brought to trial within the fifteen-day "recapture provision" of rule 3.191(p)(3). The trial court held a hearing two days after the motion was filed. During the hearing, the trial court explained that the notice of expiration had not been brought to its attention and a copy had not been provided to it by defense counsel. Defense counsel contended that the rule requires filing with the clerk of court and service on the prosecuting authority-not service on the trial court judge, personally. The trial court denied discharge because it was not provided the notice of expiration as it perceived is required by State v. Hollis , 127 So.3d 609 (Fla. 4th DCA 2012), and State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003). The court set the trial for the following week. This petition followed.

"A writ of prohibition is an appropriate remedy 'where an accused has been denied [her] right to a speedy trial and [her] motion for discharge has been denied.' " Dempsey v. State , 82 So.3d 928, 929 (Fla. 4th DCA 2011) (quoting Sherrod v. Franza , 427 So.2d 161, 163 (Fla. 1983) ).

The trial court's reliance on Demars was misplaced. There, the defendant filed a motion for discharge after the speedy trial period expired-without ever filing a notice of expiration. Demars , 848 So.2d at 438. The trial court granted discharge based on Bryant v. State , 757 So.2d 617, 618 (Fla. 4th DCA 2000), which determined that a prematurely filed motion for discharge should be treated as a notice of expiration. Id. On appeal, this court receded from Bryant and held, "[A] notice, not a motion, is required to trigger the expiration of [the] recapture period." Id. (footnote omitted). Therefore, before a defendant can seek discharge under the rule, a notice of expiration must be filed. This court reasoned that:

Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court's attention. When the notice is styled as a motion for discharge, a clerk accepting it for filing may not distinguish it from the myriad of motions filed in the clerk's office. We cannot expect the non-lawyer personnel of the clerk's office to [pore] over motions to determine whether they seek a speedy trial discharge, requiring the court's immediate attention. Moreover, even the state attorney's office may not treat a motion for discharge with the same urgency as a notice. Strict compliance with the rule is a practical necessity.
Although we might harmonize Bryant with our result here by allowing a trial court to treat a motion for discharge as a notice of expiration of speedy trial when the trial court becomes "aware" of it, that approach is fraught with the possibility of inconsistent results. We fear that we would be inviting a multitude of disputes as to exactly when a trial judge became "aware" that a motion for discharge constituted an assertion that the speedy trial time had expired. The rule is specific and easy for defense counsel to follow. We see no need to complicate the process by permitting other means of compliance.

Id. at 439 (alteration added).

The trial court also erred by relying on Hollis . In Hollis , this court reversed a trial court's discharge of a defendant on speedy trial grounds because there was insufficient proof that the defendant served the notice of expiration on the State. 127 So.3d at 610. Although the defendant filed his pro se notice of expiration with the clerk, the State did not receive it. Id. This court looked to rule 3.191(p)(2) and explained:

We interpret the word "serve" in this context to include the state's receipt or awareness of the notice. If we were to interpret the word "serve" in this context to require only that the defendant send the notice, then the state would bear the risk of losing the recapture period, through no fault of its own, where the state did not receive or otherwise become aware of the notice.

Id. at 611. We observed that the issue presented in Hollis was distinguishable from that in Demars , which considered "whether the court became 'aware' that the defendant filed the notice." Hollis , 127 So.3d at 612.

In this case, however, Hawkins strictly complied with rule 3.191(p). After expiration of the 175-day time period of Florida Rule of Criminal Procedure 3.191(a), she filed a notice of expiration of speedy trial time and served it on the State-as required by rule 3.191(p)(2). Unlike the situation in Hollis , here the State has not disputed its receipt or awareness of the notice.

The State points to a 2003 administrative order (AO) adopted by the Seventeenth Judicial Circuit to address "delays in the scheduling of Notices of Expiration of Speedy Trial, Motions for Discharge, and Demands for Speedy Trial." In relevant part, that AO provides:

2. The attorneys filing Notices of Expiration of Speedy Trial, Motions for Discharge, and Demands for Speedy Trial, are to simultaneously provide the Judge or Traffic Hearing Officer to whom the case is assigned a copy of the motion(s).
3. The Clerk of Court shall provide the Judge or Hearing Officer to whom a case is assigned, by hand delivery, copies of Notices of Expiration of Speedy Trial, Motions for Discharge, and Demand for Speedy Trial on the day of filing.

In re Notice of Expiration of Speedy Trial, Motion For Discharge, Demand For Speedy Trial, Fla. Admin. Order No. III-03-R-1 (Mar. 12, 2003) (on file with Clerk, 17th Cir. Ct.).

It is not disputed that Hawkins' trial counsel did not comply with paragraph two of the AO. While there is no direct conflict between the rules and the AO, certain additional requirements imposed by AO are inconsistent with the rule. See Fla. R. Jud. Admin. 2.120(c) (defining an administrative order as "[a] directive necessary to administer properly the court's affairs but not inconsistent with the constitution or with court rules and administrative orders entered by the supreme court" (emphases added) ). The AO is necessary to properly administer and implement the speedy trial rule. However, the AO may not force a defendant seeking discharge to jump through additional hoops other than those set forth by the rule.

We cannot construe the AO in a manner inconsistent with the rules adopted by the Florida Supreme Court. See Dougan v. Bradshaw , 198 So.3d 878, 882 (Fla. 4th DCA 2016) ("[A]n administrative order which attempts to amend a statute or rule by adding terms and conditions ... is invalid." (citation omitted) ). The plain language of the rules require the trial court to grant discharge in this situation unless one of the circumstances in rule 3.191(j) is shown. See Fla. R. Crim. P. 3.191(p)(3) ; accord Nelson , 26 So.3d at 575.

Accordingly, we grant the petition, quash the order denying Petitioner's motion for discharge, and direct the trial court to conduct the inquiry required by rule 3.191(j).

Petition granted.

Ciklin, Levine and Klingensmith, JJ., concur.


text:
    Michael GALLUCCIO, Appellant, v. COUNCIL ON AGING OF ST. LUCIE, INC., Appellee.
    No. 4D18-3005
    District Court of Appeal of Florida, Fourth District.
    [February 27, 2019]
    Michael Galluccio, Stuart, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed . See Fla. R. App. P. 9.315(a).

Gross, May and Damoorgian, JJ., concur.


text:
    Antoinette HENNIS, Appellant, v. Patrick C. STEVENS, Appellee.
    No. 4D18-3119
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Antoinette Hennis, North Lauderdale, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed . Fla. R. App. P. 9.315(a).

Warner, Damoorgian and Klingensmith, JJ., concur.


author: PER CURIAM.

text:
    THANH-THUY THI LE, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL 1 INC. Trust 2006-WMC2 Mortgage Pass-Through Certificates, Series 2006-WMC2, Appellee.
    Case No. 2D17-2959
    District Court of Appeal of Florida, Second District.
    Opinion filed October 26, 2018 Rehearing Denied January 24, 2019
    Thanh-Thuy Thi Le, pro se.
    Melissa A. Giasi and Richard S. McIver of Kass Shuler, P.A., Tampa, for Appellee.
   PER CURIAM.

Thanh-Thuy Thi Le, pro se, challenges (1) the trial court's order denying her motion for relief from a 2014 foreclosure judgment entered in favor of Deutsche Bank National Trust Company in August 2014, (2) the trial court's order denying rehearing of its denial of the motion for relief from judgment, and (3) the trial court's order granting the bank's motion to reset the foreclosure sale. We affirm the denials of the motion to vacate and the motion for rehearing without further comment. And we dismiss the portion of this appeal that attempts to challenge the order resetting the foreclosure sale as it is not an appealable order. See Pridgen v. First Union Bank, 879 So.2d 21, 21 (Fla. 2d DCA 2004) ("An order that merely schedules a foreclosure sale is not a final appealable order. Rather, it is a purely administrative, interlocutory step in the judicial sales process.").

Affirmed in part; dismissed in part.

MORRIS, SLEET, and BADALAMENTI, JJ., Concur.