text:
    Franklin Emilio SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3024
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Michael CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-372
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    FOX-LAKE WORTH, INC., a Florida Corporation, Appellant, v. ANDERSON & CARR, INC., a Florida for Profit Corporation, Appellee.
    No. 4D18-422
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charlene BARKER, Appellant, v. COMPOUNDING DOCS, INC., Appellee.
    No. 4D16-3662
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cyrus Wilfred AHYOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1832
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rafael Alberto LLOVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-826
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earl EMANUEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-961
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo B. LEIVA-GARAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3120
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Travius M. CATO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3411
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Zaven KAZANDJIAN and Marie Kazandjian, Appellants, v. David VASTOLA, D.O. and Your Good Health Medical Group, P.A. a Florida Corporation, Appellees.
    No. 4D17-3494
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jorge A. CASTRO a/k/a Jorge Castro a/k/a Jorge Castro, III, and Leonor Dominguez, Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 4D17-3622
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D.S.V., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-205
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert GIBSON, Appellant, v. COUNTRYWIDE HOME LOANS SERVICING, LP, and NRZ REO VI Corp, Appellees.
    No. 4D18-352
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    PARKSIDE VILLAS, LLC; Rodger Kooser, Bruce K. Herman, Stanley Budzinski, WestLB AG; and Gustavo J. Carbonnell Architect/Planner, P.A., Appellants, v. FIRST CITIZENS BANK & TRUST COMPANY, N.A., Appellee.
    No. 4D18-362
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenju Joseph KONN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-681
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ekaterini ALEXOPOULOS, Appellant, v. STEVEN GOLDSMITH, P.A., a Florida Professional Association and Steven M. Goldsmith, Appellees.
    No. 4D18-1007
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Malcolm Jamal STRAGHN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1110
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    GELCH & ASSOCIATES, P.A., Appellant, v. Arkady BRODSKY and Joseph Nardoci, Appellees.
    No. 4D18-1216
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Georgeta MILLER, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 4D17-2628
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Catherine CLARK, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D18-0584
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Colvin BEST, Appellant, v. EAGLE HOME MORTGAGE, LLC., Appellee.
    No. 4D18-1288
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tyshon RENFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2762
    District Court of Appeal of Florida, Fourth District.
    February 14, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David H. BAGWIN and Theresa A. Bagwin, Appellants, v. U.S. BANK, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, and Tivoli Lakes of Palm Beach County Homeowners Association, Inc., Appellees.
    No. 4D18-617
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Zeev VINIK and Jany Vinik, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D18-734
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Digna ACOSTA, Appellant, v. Jorge OMAR, Appellee.
    No. 4D18-1223
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward Gregory STEADMAN, Appellant, v. Sheldon Jason BURNETT, Appellee.
    No. 4D18-1355
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    AMERA FEDERAL 300, LTD., a Florida Limited Liability Company, Appellant, v. SHOPPING CTR. INTEREST LLC, a Florida Limited Liability Company, and Tab 250, Ltd., a Florida Limited Partnership, Appellees.
    No. 4D18-327
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Freddie Lee MCLAWHORN Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3196
    District Court of Appeal of Florida, Fourth District.
    [January 3, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Davon K. WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3903
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Donna HORWITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3285
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maikel HERNANDEZ, as Personal Representative of the Estate of Yaimi Gandul, Appellant, v. OLYMPUS INSURANCE COMPANY, Appellee.
    No. 4D18-840
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Melvin A. RAGIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-140
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terry Lee NEVILLS, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2822
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scott GEORGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2583
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Raymond Raphael FORD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2528
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ty Esha Maria Mersades KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2440
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lorenzo GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1743
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Frank MORRIS Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1660
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lana KEITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1221
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Donald Gordon BURHANS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1072
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Clayton Foster TUCKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-252
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    STATE of Florida, Appellant, v. Allen Bernard MOSS, Appellee.
    Case No. 5D17-3905
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kendrick KITCHEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3237
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mia NOWELLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2688
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Darvin WILFORK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3900
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tramaine D. MILES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3285
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Samuel PIERRE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1371
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tyrone HARRISON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-350
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlos CANCEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3180
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antonio WILBURN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2602
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Luis ARGUELLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2311
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ronald Gregory BARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2220
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    P.K., Father of M.K., D.K. and J.K., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3145
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Howard Shane SHAFER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1734
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Walter WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1551
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ashley Anders BISHOP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-52
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Justin ARNOLD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-4033
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Demond L. BOOKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3958
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John Wesley COE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3678
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sean Patrick SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2782
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mel Roucell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2746
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kelsey FISHER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2641, 5D18-3575
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gaveale Remone HANSLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2496
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leron Devonte GRAHAM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2322
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Earl Lee SUTTON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2269
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Luis PACHECO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4098
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mindy Sue GRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2319 5D18-2321
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scott Andrew PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1908
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeffrey PARENTI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1620
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William CASIANO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1589
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steve SELENCOEUR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1085
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bud THORN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-882
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christie Burkey HUNT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-865
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher Joseph COLLIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-612
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED,


text:
    John Joseph WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2317
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard Warren LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1747
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    R.D., Mother of K.W., V.W., and A.W., Children, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3436
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 1, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Kuntz, J.

text:
    Adalberto RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1924
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Adalberto Ramos, Miami, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Adalberto Ramos raises seventeen points in his appeal of the circuit court's denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm, without comment, sixteen of the points. For the final issue, Ramos argues the court erred when it failed to hold an evidentiary hearing to evaluate his claim that a witness at trial recanted her testimony. We agree and reverse.

The recanting witness, who is the victim's older sister, stated in an affidavit that she informed another sister that Ramos was "innocent." The other sister also signed an affidavit affirming the conversation and stating that the recanting witness "said the detectives were [ ] telling her and putting fear into her that she was going to go to jail, if she didn't testify." The other sister also stated that the recanting witness started the conversation.

The circuit court found that the claim was "legally sufficient" but refuted by the record. The court explained that the other sister did not testify at trial and did not influence the verdict. After reviewing the court file and the State's response to Ramos's motion, the court found the "equivocal statements contained in [the recanting witness's] affidavit" were "not credible."

Florida courts view the recantation of testimony as "exceedingly unreliable." Lambrix v. State , 39 So.3d 260, 272 (Fla. 2010) (quoting Heath v. State , 3 So.3d 1017, 1024 (Fla. 2009) ). Because recantation is viewed with suspicion, when a State witness recants her testimony, a new trial is required "only if the court is satisfied that the recantation is true and that 'the witness's testimony will change to such an extent as to render probable a different verdict.' " Robinson v. State , 736 So.2d 93, 93 (Fla. 4th DCA 1999) (quoting Armstrong v. State , 642 So.2d 730, 735 (Fla. 1994) ).

In making this determination, an evidentiary hearing is usually required. Id. (citations omitted). And the court must "examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial." Sweet v. State , 248 So.3d 1060, 1066 (Fla. 2018) (quoting Consalvo v. State , 937 So.2d 555, 561 (Fla. 2006) ). But "[i]f a postconviction court 'is not satisfied that the recanted testimony is true, it has a duty to deny the defendant a new trial.' " Id. (emphasis removed) (quoting Heath , 3 So.3d at 1024 ).

Here, there was no physical evidence presented in the underlying trial and the recanting witness was one of the main witnesses for the State. The jurors also asked questions during trial seeking medical evidence and asked the court to reread the witnesses' testimony.

Similar to Robinson , we are unable to conclude that the statements in the affidavits in support of Ramos's motion were "inherently incredible or that [the] trial testimony was obviously immaterial to the verdict, so as to allow the trial court to reject [the] recantation without holding an evidentiary hearing." 736 So.2d at 93.

The court's order denying Ramos's motion is affirmed in part and reversed in part. We affirm without comment sixteen of the points raised on appeal, but we reverse and remand for the court to hold an evidentiary hearing on Ramos's claim about the recanting witness.

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

Ciklin and Conner, JJ., concur.

      We have issued two prior opinions in this case. See Ramos v. State , 178 So.3d 941 (Fla. 4th DCA 2015) ; Ramos v. State , 75 So.3d 1277 (Fla. 4th DCA 2011).


author: Gross, J.

text:
    Goldbourne Oneil HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2501
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Goldbourne Henry appeals his convictions for burglary of a dwelling and grand theft. He also raises the issue of the imposition of a public defender fee which exceeds the statutory minimum without the showing to justify the higher fee. We reverse the grand theft conviction and the $400 public defender fee and remand the case for resentencing. We affirm on all other issues.

The primary witness ("the witness") against Henry was a co-defendant who testified for the state after entering an open plea. This witness described using his gold Mercury to drive Henry and another man to an apartment complex. While the witness acted as a lookout, Henry and the other man entered an apartment. When they were away from the car, the witness called Henry multiple times to see what was happening. Henry and his accomplice returned with a television and other items. They loaded their booty into the car and transported it to the witness's house for storage.

The witness was arrested hours later. A police search of his home pursuant to a warrant uncovered stolen credit cards, jewelry, and a television. A detective obtained consent to search the witness's cell phone; he discovered 22 calls during the time of the burglary between the witness and a person with the contact name of "GB." At trial, the witness testified that he inputted "GB" into his phone as the contact name for Goldbourne Henry. As further evidence of Henry's identification as the burglar, the state offered evidence that Henry's fingerprint was lifted off of a soda can recovered from a bedroom closet in the burgled house.

The defendant was entitled to a judgment of acquittal on the grand theft charge

Henry first challenges the denial of his motion for judgment of acquittal as to the grand theft charge because the state failed to prove that the fair market value of the stolen items exceeded $300.00.

A trial court's ruling on a motion for judgment of acquittal is reviewed de novo . Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). "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." Id.

In order to prove grand theft, the state must prove that the value of the stolen items was at least $300. § 812.014(2)(c)1., Fla. Stat. (2014). Section 812.012(10)(a)1., Florida Statutes (2014), defines "value" as "the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense."

This court has "adopted a two-pronged test for determining whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal." Mansfield v. State , 954 So.2d 74, 76 (Fla. 4th DCA 2007) (citing Gilbert v. State , 817 So.2d 980 (Fla. 4th DCA 2002) ; I.T. v. State , 796 So.2d 1220 (Fla. 4th DCA 2001) ). "First, the court must ascertain whether the person testifying is competent to testify to the value of the property." Id. (citing I.T. , 796 So.2d at 1221 ). Second, "the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft." Id. (quoting Gilbert , 817 So.2d at 982 ). "Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction." Id. at 76-77 (quoting Gilbert , 817 So.2d at 982 ).

In this case, the victim offered only estimates of what he paid for the stolen property. Without any testimony regarding the manner in which the items had been used, their age, their general condition and quality, or the percentage of depreciation since their purchase, the victim's testimony was insufficient to prove that the present value of the stolen items was at least $300. A guesstimate of purchase price, without more, is generally insufficient to establish value in a theft case, especially one involving electronic components. Lucky v. State , 25 So.3d 691, 692 (Fla. 4th DCA 2010) ; Davis v. State , 48 So.3d 176 (Fla. 4th DCA 2010) ; Doane v. State , 847 So.2d 1015, 1017 (Fla. 5th DCA 2003). The state argues that, in the aggregate, the value of the stolen items surpasses the $300 threshold. However, speculation cannot be so aggregated. See Davis , 48 So.3d at 180 (citing D.H. v. State , 864 So.2d 588 (Fla. 2d DCA 2004) ).

We reverse the grand theft conviction and remand with instructions to enter judgment for the lesser included offense of petit theft and for resentencing.

A photo of a contact information screen from the witness's iPhone was admissible for the non-hearsay purpose of establishing a connection between Henry and the witness

Over Henry's hearsay objection, the trial court admitted a photograph of a contact information screen from the witness's iPhone. We agree with the state's contention that the photograph was non-hearsay admitted for a limited purpose. This was the photograph:

If the photograph were offered to prove Henry's telephone number, it would be hearsay under Florida's hearsay rule. Section 90.801(1)(c), Florida Statutes (2014), defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible, except as provided by statute. § 90.802, Fla. Stat. (2014). The data entry of the phone number into the cell phone and the photograph were not made at the trial or hearing, so the photograph is hearsay if offered to establish Henry's phone number. This is so even though the witness, the person who entered the data, was available in court for cross-examination by the defense, thus eliminating one of the rationales for excluding hearsay evidence-"the lack of an opportunity to cross-examine the person who made the out-of-court statement to test the person's perception, memory, sincerity, and accuracy." Ehrhardt, Florida Evidence § 801.1 (2012 edition). The express language of the section 90.801 definition of hearsay controls over practical considerations.

The contact information screen here at issue is tantamount to a modern-day entry in an address book. Courts have generally held a witness's address book entry to be non-hearsay when used for the limited purpose of proving association between the maker of the address book and another. See Guidry v. State , 9 S.W.3d 133, 152 (Tex. Crim. App. 1999) (testimony by police detective that name and phone number of co-conspirator's girlfriend were listed in address book of principal was not hearsay because it was not offered to prove that phone number was actually girlfriend's number, but rather as circumstantial evidence of link between co-conspirator and principal, the conspiracy which involved defendant); People v. Reed , 108 Ill.App.3d 984, 64 Ill.Dec. 469, 439 N.E.2d 1277, 1280-81 (1982) (address book found in co-conspirator's car containing defendant's name and phone number was not hearsay where entry was offered for purpose of demonstrating that co-conspirator knew defendant and officer who found the book testified at trial regarding the book); United States v. Ellis , 461 F.2d 962, 970 (2d Cir. 1972) ("[A]ddress books belonging to one defendant, containing names of other defendants, are not hearsay and are admissible as circumstantial evidence showing association."); United States v. Panebianco , 543 F.2d 447, 456-57 (2d Cir. 1976) (admission of address book entry was proper where an inference could be reasonably drawn that it was co-defendant who was listed in the address book, and when used for purpose of establishing an additional transactional link in the conspiracy, the entry "is not hearsay because what is probative is the mere existence of the entry rather than the meaning intended by the writer.").

Here, the photograph of the contact information screen was admissible for the limited purpose of linking Henry and the witness. This is the way the Eleventh Circuit has approached such evidence. In United States v. Fuentes , 368 F. App'x 95, 99 (11th Cir. 2010), the court held testimony that the defendant's name and phone number which appeared in the "contacts" list of a cell phone seized from his co-defendant was admissible for the limited purpose of linking co-conspirators. See also Hudson v. Perez , 2013 WL 5229797, *13 (S.D.N.Y. Sept. 17, 2013). In a similar case, the opponent of the evidence would be entitled to a limiting instruction, although we doubt its usefulness where the owner of the phone providing the contact information screen is available for cross-examination.

Finally, as the state concedes, it was error to impose a $400 public defender fee without giving Henry notice of his right to a hearing and without making factual findings to support fees in excess of $100. See § 938.29(1)(a), Fla. Stat. (2014).

On the remaining issues we find no reversible error.

Affirmed in part, reversed in part and remanded .

May and Conner, JJ., concur.

      Unlike the Federal Rules of Evidence, Florida has no residual exception to the hearsay rule under which this type of evidence might well be admissible. See Fed. R. Evid. 807.


author: Conner, J.

text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QS12, Appellant, v. Christopher HARRIS a/k/a Christopher E. Harris, Appellee.
    No. 4D17-3009
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    A. Donald Scott, Jr. of McCabe, Weisberg & Conway, LLC, West Palm Beach, and Jacqueline J. Brown and Sean P. Belmudez of McCabe, Weisberg & Conway, LLC, Tampa, for appellant.
    Samantha Neides of Loan Lawyers, LLC, Fort Lauderdale, for appellee.
   Conner, J.

Deutsche Bank Trust Company Americas, as Trustee For Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QS12 ("the Bank") appeals the trial court's final order granting Christopher Harris's ("the borrower's") motion for involuntary dismissal of the mortgage foreclosure proceedings at the close of the Bank's case-in-chief. Involuntary dismissal was granted after the trial court agreed with the borrower that the Bank failed to present sufficient evidence of its standing as holder of the note and compliance with the condition precedent that notice of default and acceleration was mailed. We determine that the trial court erred in concluding the Bank failed to present a prima facie case supporting foreclosure. Thus, we reverse the dismissal and remand the case for further proceedings.

Background

The Bank filed its foreclosure complaint alleging that it was the holder of the original note and that all conditions precedent to foreclosure of the mortgage had occurred. The complaint also alleged that Ocwen Loan Servicing, LLC ("Ocwen") was the servicer for this particular loan pursuant to a limited power of attorney.

Attached to the complaint was a copy of the note and mortgage. The copy of the note reflected that the original lender was Homecomings Financial Network, Inc. The copy contained two indorsements: (1) from the original lender to Residential Funding Corporation, and (2) from Residential Funding Corporation to "Deutsche Bank Trust Company Americas as Trustee ." (emphasis added). Additionally, on the following page of the copy of the note was a copy of an allonge made by "Deutsche Bank Trust Company Americas as Trustee by its attorney in fact, Ocwen Loan Servicing, LLC " to "Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass Through Certificates, Series 2005-QS12," which is the trust series involved in this case. (emphasis added). Also attached to the complaint was a copy of a limited power of attorney between the Bank and Ocwen, containing an addendum identifying the trust series involved in this case.

The borrower filed his answer to the complaint, raising two affirmative defenses pertinent to this appeal: lack of standing and failure to comply with conditions precedent by not providing the borrower with a notice of default and intent to accelerate.

The matter proceeded to a nonjury trial, where the Bank's sole witness was a senior loan analyst for Ocwen. The Bank entered into evidence the original note and allonge, the original mortgage, and the limited power of attorney, which the witness testified gave Ocwen the authority to service the subject loan and take any actions that are necessary in the foreclosure, such as adding an indorsement to a note. The witness testified that the original note was sent to the Bank's counsel prior to the suit, and a bailee letter predating the complaint was admitted into evidence without objection.

The Bank also entered into evidence a pooling and servicing agreement with a closing date of August 2005, which was prior to the filing date of the suit, along with the mortgage loan schedule containing the subject loan. Finally, the Bank entered into evidence a default letter, giving notice of default and acceleration, discussed more fully below.

After the Bank rested its case and before the presentation of any evidence by the borrower, the borrower moved for an involuntary dismissal, which the trial court granted. The trial court concluded that the evidence did not establish that the allonge placed the note and mortgage into the trust pool in a timely fashion and that comment log in evidence sufficiently proved the default letter was mailed. After the trial court entered a final order of dismissal, the Bank gave notice of appeal.

Appellate Analysis

The "standard of review for a motion for involuntary dismissal is de novo." Deutsche Bank Nat'l Tr. Co. v. Huber , 137 So.3d 562, 563 (Fla. 4th DCA 2014).

When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.

Id. at 563-64 (quoting Deutsche Bank Nat'l Tr. Co. v. Clarke , 87 So.3d 58, 60 (Fla. 4th DCA 2012) ).

When a party raises a motion for involuntary dismissal in a nonjury trial "the movant admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non-moving party. Where the plaintiff has presented a prima facie case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal."

Deutsche Bank Nat'l Tr. Co. v. Kummer , 195 So.3d 1173, 1175 (Fla. 2d DCA 2016) (quoting Day v. Amini , 550 So.2d 169, 171 (Fla. 2d DCA 1989) ).

Standing

At the close of the Bank's case-in-chief, the borrower argued that there was no evidence that the limited power of attorney and the pooling and servicing agreement gave Ocwen the authority to create an allonge indorsing the note to the Bank as trustee for the subject trust series. The borrower further argued that even if Ocwen had the authority to create the allonge, because the power of attorney was effective in April 2013 and the closing date of the pooling and servicing agreement was August 2005, there was no evidence that the note was indorsed to the trustee of the specific trust prior to the trust closing.

In response, the Bank argued the pooling and servicing agreement permitted the trustee to give authority to its agent, Ocwen, to indorse the note and that this authority was given in the limited power of attorney, which included actions necessary for the completion of the loan assumption agreement. The Bank further argued that the allonge was intended to provide a more complete name of the trust, and maintained that even if the allonge was not effective, the Bank would still have standing.

In granting dismissal, the trial court reasoned that while it agreed that Ocwen was given the authority to execute the allonge based on the limited power of attorney, it did not seem that Ocwen had the authority to do so when it did, referencing the pooling and servicing agreement's 2005 closing date.

Standing of the plaintiff to foreclose on a mortgage must be established at the time the plaintiff files suit. McLean v. JP Morgan Chase Bank Nat'l Ass'n , 79 So.3d 170, 173 (Fla. 4th DCA 2012) ; Rigby v. Wells Fargo Bank, N.A. , 84 So.3d 1195, 1196 (Fla. 4th DCA 2012). Here, the Bank filed its complaint, alleging its status as the holder of the note. A "holder" is defined as: "The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. " § 671.201(21)(a), Fla. Stat. (2017) (emphases added). On appeal, as below, the Bank asserts that its standing was established by the application of Ortiz v. PNC Bank, National Ass'n , 188 So.3d 923 (Fla. 4th DCA 2016).

In Ortiz , we explained that:

We recognize the fact that a copy of a note is attached to a complaint does not conclusively or necessarily prove that the Bank had actual possession of the note at the time the complaint was filed. However, if the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

Id. at 925 (emphasis added).

Relying on Ortiz , the Bank argues that the trial court erred in dismissing the case because both the original note and the copy attached to the complaint reflected indorsements: (1) from the original lender to Residential Funding Corporation, and (2) from Residential Funding Corporation to Deutsche Bank Trust Company Americas as Trustee. Additionally, the Bank argues that the allonge attached to the note, a copy of which was attached to the complaint, included an indorsement by Deutsche Bank Trust Company Americas as Trustee by its attorney in fact, Ocwen, to Deutsche Bank Trust Company Americas, as Trustee for the pool of mortgages. As argued below, the Bank contends that regardless of the validity or the effect of the allonge to show the Bank's standing with respect to a specific trust, the record reflects that the note has a specific indorsement to "Deutsche Bank Trust Company Americas as Trustee ," which is sufficient by itself to establish its standing.

We agree with the Bank that an indorsement to a trustee is sufficient to establish standing to foreclose, in terms of the identity of the person or entity entitled to enforce the note, regardless of whether the identity of the trust is clear from note, together with any indorsements or allonges. Section 673.1101, Florida Statutes (2017), provides that:

(3) A person to whom an instrument is payable may be identified in any way, including by name, identifying number, office, or account number. For the purpose of determining the holder of an instrument, the following rules apply:
....
(b) If an instrument is payable to:
1. A trust, an estate, or a person described as trustee or representative of a trust or estate, the instrument is payable to the trustee , the representative, or a successor of either, whether or not the beneficiary or estate is also named [.]

§ 673.1101(3)(b)(1), Fla. Stat. (emphases added). We have recently explained that proof of the trust on whose behalf the plaintiff acts is not necessary to establish the plaintiff's standing:

Here, the special endorsement on the note is in favor of the Bank, and Ginsberg offered no evidence to show the Bank lacked possession of the note at the time it filed the complaint. To prove standing, a plaintiff is not required to identify or prove the trust on whose behalf the plaintiff acts. See [ McLean , 79 So.3d at 173 ]. Thus, in this case, the fact that the trust identified in the complaint is somewhat different from the trust identified in the special endorsement does not create a defect in standing. See also Fla. R. Civ. P. 1.120(a) ("It is not necessary to aver the capacity of a party to sue or be sued ... except to the extent required to show the jurisdiction of the court.").

Bank of N.Y. Mellon Tr. Co., Nat'l Ass'n v. Ginsberg , 221 So.3d 1196, 1197 (Fla. 4th DCA 2017), rev. denied sub nom. Ginsberg v. Bank of N.Y. Mellon Tr. Co., N.A. , No. SC17-1468, 2018 WL 503421 (Fla. Jan. 22, 2018) (emphasis added).

Notably, the borrower's reliance on our opinion in Bolous v. U.S. Bank National Ass'n , 210 So.3d 691 (Fla. 4th DCA 2016), in support of his position concerning whether the allonge properly indorsed the note to the trust under the terms of the pooling and servicing agreement, is misplaced. In Bolous , the bank could not rely on Ortiz to establish its standing because the note attached to the original complaint was not indorsed. Id. at 691. Furthermore, as the Bank points out, where the borrower is neither a party to nor a third-party beneficiary of the trust, the borrower lacks standing to raise an issue as to the Bank's compliance with its pooling and servicing agreement when it took possession of the original note and mortgage. See Citibank, N.A. v. Olsak , 208 So.3d 227, 230 (Fla. 3d DCA 2016), reh'g denied (Dec. 21, 2016), rev. denied , No. SC17-10, 2017 WL 2590706 (Fla. June 15, 2017) ("Florida courts have repeatedly held that borrowers cannot defeat a foreclosure plaintiff's standing by relying upon trust documents to which the borrower is not a party."); Castillo v. Deutsche Bank Nat'l Tr. Co. , 89 So.3d 1069 (Fla. 3d DCA 2012). However, even putting aside the borrower's lack of standing to make this challenge, the record nevertheless reflects the note was properly indorsed to the trustee , as required by the section of the pooling and servicing agreement cited by the borrower.

Based on the foregoing, the record reflects the Bank presented prima facie evidence of its status as the holder, specifically as the entity "in possession of a negotiable instrument that is payable ... to an identified [entity] that is the [entity] in possession ," such that the trial court should have denied the motion for involuntary dismissal at the close of the plaintiff's case. See § 671.201(21)(a), Fla. Stat. (emphases added). Additionally, the Bank presented other evidence of its possession of the note where it introduced evidence of the attorney bailee letter, reflecting that the original note was sent to the Bank's counsel prior to the initiation of the suit. Finally, we note that neither below nor on appeal has the borrower challenged the Bank's possession of the note with regard to standing.

Having determined that the trial court erred by involuntarily dismissing the case at the close of the Bank's case-in-chief on the issue of standing, we reverse the trial court's ruling as to that issue.

Compliance with the Condition Precedent of Mailing Notice

With regard to the condition precedent of mailing the notice of default and acceleration, the borrower moved for dismissal arguing that the Bank's witness was not familiar with the policies and procedures of the third-party vendor that Ocwen utilized to send out the demand letter and that there was no evidence the letter had been sent.

In response, the Bank argued that the witness testified to Ocwen's procedures for creating the demand letter and having it sent to the borrower and also testified that the collection notes reflected that the letter was sent. The Bank further argued that because there was no evidence that the letter was not received, it was proper to rely on the witness's testimony as to Ocwen's practices and procedures for giving the required notice.

In granting dismissal, the trial court reasoned that the witness was not familiar with the third-party vendor's mailing practices and that the note in the comment log regarding the mailing was vague.

On appeal, the Bank argues that its witness testified that it was Ocwen's practice and procedure for an Ocwen employee to generate the letter notifying the borrower of the default and demanding payment of the delinquent amounts to avoid acceleration of the note and foreclosure. The witness explained that the Ocwen employee

computes all the numbers that need to be in there, and creates the demand letter and sends the information to the third-party vendor to print and mail that demand letter to the borrower.
Once the demand is sent to the borrower an e-mail or note comes back to the agent that is from the foreclosure department, and an e-mail is sent to the pre-foreclosure department, letting them know the letter is mailed to the borrower.

The witness further testified that a comment log in reference to the demand letter is generated and placed into Ocwen's data system after the third-party vendor confirms the letter has been mailed. The witness testified that the comment log in this case bore the same date of the demand letter. The demand letter and comment log were admitted into evidence. The comment log reflected the code "D19" with the description "BREACH CHRISTOPHER HAR." The witness testified that the code "D19" in the comment log is what is entered into Ocwen's system indicating the letter had been mailed to the borrower and confirmed that this note would not be in the system if the letter had not been sent.

On cross-examination, the witness could not recall the name of the third-party vendor that Ocwen utilized to mail out the letters and testified he was not familiar with the third-party vendor's policies and procedures for doing so. In granting the borrower's motion for involuntary dismissal, the trial court cited the witness's unfamiliarity with the third-party vendor's mailing practices and reasoned that the note in the comment log, which stated "breach Christopher Harris," appeared "vague," even though the witness testified that this meant the breach letter was sent to Christopher Harris, the borrower.

On appeal, the Bank correctly argues that it was unnecessary for its witness to testify regarding his knowledge of the third-party vendor's mailing practices to establish that the demand letter had been sent. We recently addressed this issue in Wells Fargo Bank, N.A. v. Balkissoon , 183 So.3d 1272 (Fla. 4th DCA 2016), in a somewhat different context. In Balkissoon , we held that the servicer's representative, although unfamiliar with the third-party vendor's practices and procedures, properly laid the foundation for the admission of the demand letter where he "demonstrated that he was sufficiently familiar with [the servicer's ] practice and procedure for generating and sending the default notice." Id. at 1277 (emphasis added). Specifically, the witness:

testified that the notice was made at or near the time of the events reflected therein and made by or from information transmitted by people with knowledge. Each night, [the servicer] transmitted the information for loans in default to [the third-party vendor] over a secure connection. [The third-party vendor] used [the servicer's] template to create the notice within two days of receiving the loan information. [The third-party vendor] did not generate any of the information in the notice. [The witness] testified that the copy of the notice was kept in the ordinary course of [the servicer's] regularly conducted business activity and it was the regular practice of [the servicer] to make this record. Once [the third-party vendor] generated the notice and mailed it, [the servicer] kept a copy of the notice in its records and made a note of the mailing date.

Id.

Although the issue in this case is whether the Bank presented evidence that the letter was mailed, and not the admissibility of the letter into evidence, as was the issue in Balkinsoon , the testimony in this case was sufficient. The witness testified that Ocwen actually creates the letters with the requisite information and sends them electronically to the third-party vendor to print and send the letters out. Upon mailing, Ocwen receives a notification from the third-party vendor, and someone from Ocwen's pre-foreclosure department enters a note into the system indicating that the demand letter has been mailed. The witness also testified that the comment log, which was admitted into evidence, reflected that the letter in this case had indeed been mailed to the borrower. Therefore, our review of the record in this case leads us to conclude that sufficient evidence was presented to preclude an involuntary dismissal at the close of the Bank's case-in-chief on the issue of whether a prima facie showing was made that the demand letter was mailed to the borrower prior to the filing of the suit. Thus, we reverse the trial court's ruling on this issue as well.

Conclusion

Having determined that the trial court erred in granting the motion for involuntary dismissal at the close of the Bank's case-in-chief, we reverse the trial court's final order of dismissal and remand the case for further proceedings.

Reversed and remanded.

Taylor and Ciklin, JJ., concur.


author: May, J.

text:
    STATE of Florida, Appellant, v. Raquel FONSECA, Appellee.
    No. 4D17-3726
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellant.
    Raquel Fonseca, Coral Springs, pro se.
   May, J.

The State appeals an order granting the defendant's motion to suppress. The State argues the trial court erred in granting the motion when the arresting officer failed to identify the defendant at the hearing on the motion to suppress. We agree and reverse.

The case arose from the defendant's DUI arrest. An officer observed a black Lexus SUV swerving across traffic lanes. The vehicle was traveling sixty miles per hour in a forty mile per hour zone. The officer observed the vehicle's driver as she passed him. The driver had long hair and was wearing a pink top.

The officer activated the emergency lights and sirens in his marked police car; the defendant's vehicle accelerated to seventy miles per hour. The officer terminated the pursuit when he observed the vehicle run a solid red light and strike a valve box on the side of the road.

The officer recorded the vehicle's license plate number, "called it in," and obtained the address associated with the tag. The officer drove to the residence where he saw the defendant exiting the Lexus's driver's side and a passenger exiting the passenger's side. The officer noticed the vehicle's hood was still "very hot." The vehicle's front passenger side was damaged.

The defendant ignored the officer's command to stop, attempted to unlock the front door, but could not do so before being detained. She then spontaneously repeated: "I'm sorry." The defendant resisted the officer by dropping to the ground and refusing to place her hands behind her back.

The officer observed that she had bloodshot watery eyes, slurred speech, was unsteady on her feet, and had a strong odor of alcohol. She admitted to drinking vodka earlier. A second officer administered a field sobriety test at the police station. He observed many signs of intoxication. The defendant refused to submit to a breath test.

The officer arrested the defendant. The State charged her with: (1) aggravated fleeing or eluding (high speed); (2) resisting police officer without violence; (3) DUI with property damage; (4) DUI; and (5) leaving the scene of a crash (unattended property).

The defendant entered a written plea of not guilty and moved to suppress her confession for lack of corpus delicti . Her motion argued the State had no independent evidence, aside from her confession, that she committed the charged offenses.

Ten months later, the trial court heard the defendant's motion to suppress. The arresting officer attested to the facts surrounding the arrest, but failed to identify the defendant in court. The State did not present any other witnesses.

The trial court granted the defendant's motion to suppress because the officer identified the defendant's sister, not the defendant, as the driver of the car. The State moved for rehearing and argued it was not required to establish the defendant's identification during a motion to suppress hearing, particularly because identity was not the issue raised in the motion.

The trial court found the corpus delicti rule encapsulated the officer's failure to identify the defendant as the driver. The judge emphasized that he granted the motion "entirely ... on the fact the arresting officer could not identify the defendant ...."

"When reviewing a ruling on a motion to suppress an incriminating statement, [we] accord[ ] a presumption of correctness to the trial court's factual findings, but independently review[ ] mixed questions of law and fact that ultimately determine constitutional issues." State v. Jackson , 120 So.3d 88, 90 (Fla. 4th DCA 2013). "[A] trial court's application of the law to the historical facts is reviewed de novo." Gilbert v. State , 104 So.3d 1123, 1125 (Fla. 4th DCA 2012) (citation omitted).

In the context of a DUI conviction, our supreme court defined corpus delicti as " 'the fact that a crime has actually been committed, that someone is criminally responsible.' " Burks v. State , 613 So.2d 441, 443 (Fla. 1993) (quoting Ballentine's Law Dictionary 276 (3d ed. 1969) ). It further explained that "the identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession." Id.

Significantly, the trial court based its ruling on Burks . But, Burks involved the appeal of a conviction, not a ruling on a motion to suppress. And, language in Burks actually conflicts with the trial court's ruling. In short, the case argued by the defendant, and relied upon by the trial court, is inapposite. Burks , 613 So.2d at 443 ; see also Franqui v. State , 699 So.2d 1312, 1317 (Fla. 1997) (proof of corpus delicti is required before a confession can be admitted, but the State is not required to identify the defendant to establish corpus delicti ).

We therefore reverse and remand the case to the trial court to vacate the suppression order.

Reversed and remanded.

Damoorgian and Kuntz, JJ., concur.

      The defendant also relied on State v. Hepburn , 460 So.2d 422 (Fla. 5th DCA 1984). But, Hepburn is also distinguishable. It also involved an appeal of a criminal conviction. But, there no one witnessed the hit-and-run, and the defendant did not confess to the crime. Id. at 423-25.


author: Per Curiam.

text:
    CITY OF WEST PALM BEACH, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 4D18-183
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Douglas N. Yeargin and Anthony M. Stella, West Palm Beach, for appellant.
    Sean Fahey of the Office of General Counsel, SBPBC, West Palm Beach, for appellee.
    Steven L. Brannock of Brannock & Humphries, Tampa, for Amicus Curiae Florida Stormwater Association.
    Susan M. Seigle of Alvarez Winthrop Thompson & Storey, P.A., Gainesville, and Walter Harvey of Miami-Dade County School Board, Miami, for Amicus Curiae Miami-Dade County School Board.
   Per Curiam.

Affirmed. See City of Gainesville v. Fla. Dep't of Transp. , 920 So.2d 53 (Fla. 1st DCA 2005) ; City of Key West v. Fla. Keys Cmty. College , 81 So.3d 494 (Fla. 3d DCA 2012).

Conner and Klingensmith, JJ., and Roby, William, L., Associate Judge, concur.


text:
    Michele PAGLIARO, Appellant, v. Brent PAGLIARO, Appellee.
    No. 4D18-702
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Christopher R. Jette of Goldstein & Jette, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   Kuntz, J.

The Former Wife appeals the circuit court's order ratifying the terms and provisions of a mediation agreement. She argues the court erred when it ratified the agreement without allowing her to present testimony and without considering the best interest of the minor child. We agree with both arguments and reverse.

Background

At mediation, the Former Wife and the Former Husband signed an agreement that specifically contemplated additional negotiations and stated:

The Respondent/Husband's counsel, shall prepare a more formalized global Marital Settlement Agreement and Parenting Plan which outlines the terms and conditions set forth herein. Said Agreements shall be prepared within twenty days of the date of this Agreement. In the event the parties' [sic] are unable or unwilling to execute a more formalized Marital Settlement Agreement and Parenting Plan, this Agreement shall be incorporated into, ratified and approved by the Court and made a part of the Final Judgment of Dissolution of Marriage.

Later, the Former Wife moved to set aside the mediation agreement. The Former Wife stated that during mediation, the parties agreed that the Minor would reside in Pennsylvania with the Former Wife and with the Former Husband for one week during Christmas break and one week during the summer.

Despite attempts to develop a more detailed timesharing plan, the Former Wife and Former Husband were unable to agree. During this time, the Former Wife discovered that the Former Husband allegedly committed "serious and violent acts against his current significant other," resulting in his arrest and criminal charges of domestic battery by strangulation, false imprisonment, and tampering in a life capital felony proceeding. She argued any unsupervised visitation agreed-to in mediation was no longer in the Minor's best interest.

At the hearing on the Former Wife's motion, the court stated that the allegations against the Former Husband were hearsay and that "criminal charges are just allegations." After being informed that an alleged victim was in the courtroom and prepared to testify about one of the alleged criminal incidents, the court questioned the relevancy of the criminal charges to the Minor. The court then denied the motion:

Okay. All we have is she's heard that he's been charged. And another party hearsay, you know, has these allegations. They haven't been-Now, we have a lower standard than the criminal court. However, I don't know if your witness, the witness you'd like to bring, has spoken to the State Attorney's office about this before she comes in here, and she may have someone in the State Attorney's office that's a victim's advocate. They may not want her to testify. I don't know if they were noticed of today's hearing.
Under all of these circumstances, I am not going to accept testimony of an allegation that has nothing to do with the minor child.
That being said, the victim is also alleged to be the mother, and they live in separate states, and they entered into a valid contract.
I'm denying the motion to set aside.
I haven't heard anything that would lead me to rule otherwise.

The court issued a written order denying the Former Wife's motion and ratifying the mediation agreement.

Analysis

The Former Wife raises two arguments on appeal. First, she argues the court erred when it denied her motion and ratified the mediation agreement without allowing her, or her witness, the opportunity to testify. Second, she argues the court erred when it ratified the mediation agreement, including a timesharing plan for the Minor, without considering the best interests of the Minor.

i. Procedural Due Process

We first consider the Former Wife's argument that she was denied procedural due process. Procedural due process consists of notice and a meaningful opportunity to be heard. Keys Citizens For Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth. , 795 So.2d 940, 948 (Fla. 2001) ; Ferris v. Winn , 242 So.3d 509, 510 (Fla. 2d DCA 2018) (citation omitted); see also Cole v. Cole , 159 So.3d 124, 125-26 (Fla. 3d DCA 2013) ("[T]he right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner." (internal quotation marks and citation omitted) ).

For example, the Third District held that a court erred when it ended a proceeding at the end of one party's presentation of evidence because of time constraints. In Munoz v. Salgado , 253 So.3d 87 (Fla. 3d DCA 2018), a mother moved to modify a timesharing agreement. Id. at 88. The court held a hearing and allowed the mother to testify and call a witness. Id. But, before the father could introduce evidence, the court ended the hearing because it had exceeded the allotted time. Id. The Third District held this violated the father's procedural due process rights and reversed. Id.

Similarly, in Douglas v. Johnson , 65 So.3d 605 (Fla. 2d DCA 2011), the father moved for an emergency order alleging the mother and grandmother impermissibly moved the child from Florida to Tennessee. Id. at 606. The court held a hearing on the father's motion and heard testimony from him and his other witnesses. Id. The court then heard legal argument without allowing the mother to present evidence. Id. The Second District held that the court abused its discretion when it prevented the mother from presenting evidence or witnesses at the hearing. Id. at 607.

Here, because the court refused the Former Wife's request to testify and to present the testimony of another witness, we reverse for a new hearing at which the court affords the Former Wife the opportunity to present evidence and witnesses.

ii. The Best Interest of the Minor Child

Next, we address the Former Wife's argument that the court erred when it failed to consider the best interests of the Minor.

While parents may agree about child custody, "a trial court's responsibility to the child cannot be abdicated to any parent, [or] any expert," and "a court is not bound by any agreement between parents, nor by the opinions of any expert or group of experts." Lane v. Lane , 599 So.2d 218, 219 (Fla. 4th DCA 1992) (citing Sedell v. Sedell , 100 So.2d 639 (Fla. 1st DCA 1958) ; Bolton v. Gordon , 201 So.2d 754 (Fla. 4th DCA 1967) ); see also Trang Ngoan Le v. Tung Phuong Nguyen , 98 So.3d 600, 601 (Fla. 5th DCA 2012).

Similarly, in Wayno v. Wayno , 756 So.2d 1024 (Fla. 5th DCA 2000), the Fifth District held that the circuit court did not err when it denied a motion to enforce a mediation agreement, because "it is at least implicit in the rule [governing mediation in family law cases] and certainly the better practice for the judge to not approve either custody or support before being fully informed about the welfare of the children." Id. at 1025.

In another case, the mother argued the court erred when it refused to set aside a mediation agreement. Feliciano v. Feliciano , 674 So.2d 937, 937 (Fla. 4th DCA 1996). In denying the motion to set aside the agreement, the circuit court did not admit evidence about the best interest of the children because it believed that those "portions of the mediation agreement were subject to the same enforceability test as the alimony and marital property provisions." Id. We reversed and remanded for the court to hold an evidentiary hearing and consider the evidence when determining the best interest of the children. Id.

Here, neither the hearing transcript nor the court's order shows the court considered the best interests of the Minor. On remand, even if the court ultimately ratifies the mediation agreement, the court must independently determine whether the agreement about child custody is in the best interest of the Minor.

Conclusion

We reverse the court's order ratifying the mediation agreement and remand the case for a new hearing at which both the Former Wife and the Former Husband are afforded the opportunity to present testimony and evidence. Additionally, any order determining timesharing of the Minor must consider the best interest of the Minor.

Reversed and remanded .

Warner and Damoorgian, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Bertie THOMAS, as Personal Representative of the Estate of Marvin Thomas, Appellee.
    No. 4D17-3040
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta, Georgia, for appellant.
    Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A., Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for appellee.
   Gross, J.

In this Engle wrongful death action, R.J. Reynolds ("RJR") appeals a final judgment awarding the plaintiff $2.2 million in compensatory damages after making a reduction for the decedent's comparative fault. The plaintiff, Bertie Thomas, cross-appeals the trial court's reduction of the compensatory damages award by the decedent's share of comparative fault. We affirm on all issues raised by RJR without further comment, but we reverse on the cross-appeal and remand for reinstatement of the full value of the jury's compensatory damages verdict.

By way of background, the jury returned a verdict finding in favor of the plaintiff on each claim, apportioning 45% of the fault to the decedent, determining that the total amount of compensatory damages was $4 million, and concluding that punitive damages were not warranted. Over the plaintiff's objection, the trial court made a reduction for the decedent's comparative fault and entered final judgment awarding the plaintiff $2.2 million in compensatory damages.

Under the law in this district at the time this case was tried, an Engle plaintiff's compensatory damages award had to be reduced by the smoker's share of comparative fault even if the plaintiff prevailed on intentional tort claims. See R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487 (Fla. 4th DCA 2015) (" Schoeff I ").

However, the Florida Supreme Court later quashed Schoeff I and held that "the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional torts such that the compensatory damage awards in those cases are not subject to reduction." Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 298 (Fla. 2017)

(" Schoeff II "). The Florida Supreme Court further explained that where the jury finds for the plaintiff on the intentional tort claims, the plaintiff's compensatory damages award "may not be reduced" by comparative fault unless the plaintiff "waived the intentional tort exception." Id. at 305.

On the cross-appeal, the plaintiff argues that the trial court erred in reducing the compensatory damages award based on comparative fault where the jury found for the plaintiff on the intentional tort claims. We agree.

As an initial matter, the plaintiff did not waive the intentional tort exception to comparative fault. Throughout the litigation, the plaintiff steadfastly maintained her position that any compensatory damages award should not be reduced by comparative fault. Moreover, all of RJR's waiver arguments based on the plaintiff's trial conduct have been foreclosed by Schoeff II and subsequent case law applying that decision. See Schoeff II , 232 So.3d at 306 (rejecting this court's "theory of waiver" that was based on arguments substantially similar to those now raised by RJR in this appeal); Philip Morris USA, Inc. v. Gore , 238 So.3d 828, 831 (Fla. 4th DCA 2018) ("Here, the plaintiff's arguments to the jury were similar to those in Schoeff that the Florida Supreme Court found to be insufficient to constitute a waiver of the intentional tort exception. Moreover, although the defendants now attempt to distinguish Schoeff on the basis that the verdict form here, unlike in Schoeff , asked jurors to apportion fault after the questions concerning the intentional tort claims, we are unpersuaded by this argument."); Burkhart v. R.J. Reynolds Tobacco Co. , 884 F.3d 1068, 1089 (11th Cir. 2018) ("It is true that this rhetorical question clearly compared Burkhart's negligent conduct with Appellants' intentional conduct. However, in light of the entire body of the trial record, we conclude that this statement cannot amount to a waiver of Burkhart's apportionment rights with respect to her negligence claims.").

We next turn to the appropriate remedy for the error. Relying heavily upon Foreline Security Corp. v. Scott , 871 So.2d 906, 911 (Fla. 5th DCA 2004), RJR contends that because the jury was instructed that its damages verdict would be reduced by comparative fault, the proper remedy for a reversal on this issue is a new trial limited to damages and comparative fault.

In Philip Morris USA Inc. v. Martin , 262 So.3d 769, 777-78, 2018 WL 6566755 (Fla. 4th DCA Dec. 12, 2018), however, we recently rejected this identical argument and held the proper remedy for a trial court's error in applying a comparative fault reduction to an Engle progeny plaintiff who prevailed on the intentional tort claims is reinstatement of the full amount of the jury verdict on compensatory damages, even if the jury was erroneously instructed that its compensatory damages award would be reduced by the smoker's share of comparative fault. As we explained in Martin :

Here, the Florida Supreme Court's elimination of the comparative negligence defense under the circumstances below leaves nothing for retrial or apportionment. The jury was instructed to award the compensatory damages they found to be attributable to the defendants-nothing less-nothing more. The fact that they were also instructed to determine the percentage of comparative negligence attributable to the plaintiff on a defense that the Florida Supreme Court has eliminated as applied here is of no consequence to the gross amount of compensatory damages awarded by the jury.
Moreover, it is a well-established presumption that a jury would have properly followed a trial court's instructions....
The jury was separately instructed to award the full amount of compensatory damages they found to be proximately caused by the defendants. They were also separately instructed to determine what percentage of comparative negligence, if any, they attributed to the plaintiff. They were instructed not to reduce the total amount of compensatory damages by the amount of comparative negligence, leaving it to the court to reduce any amount of comparative fault. In the absence of any evidence of wrongdoing by the jury, we must accept the well-established presumption that the jury properly followed the trial court's instructions.

Id. at 778 (citations omitted).

In short, we presume that the jury has followed the court's instructions, not that the jury ignored the instructions and manipulated the damages award based on its determination of comparative fault. Accordingly, we reverse and remand on the cross-appeal "with instructions for the trial court to award compensatory damages in the full amount of the jury's verdict." Gore , 238 So.3d at 831.

Affirmed on main appeal; reversed and remanded on cross-appeal.

Conner and Klingensmith, JJ., concur.

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006).


author: Damoorgian, J.

text:
    Calvin Scott MCDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3323
    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, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Calvin McDonald appeals his conviction and sentence for one count of robbery with a deadly weapon and one count of attempted robbery with a deadly weapon. Because Appellant stands convicted of crimes for which he was not charged, we reverse.

Appellant was accused of robbing one individual and attempting to rob another individual in a store parking lot while brandishing the barrel of a firearm. Shortly after fleeing from the scene, Appellant was apprehended by police and identified as the perpetrator by one of the victims. The firearm allegedly used during the commission of the crimes was never retrieved. Based on the information provided by the victims, the State charged Appellant with one count of robbery with a firearm and one count of attempted robbery with a firearm contrary to section 775.087(2)(a)1., Florida Statutes. The State did not charge Appellant with robbery or attempted robbery with a deadly weapon.

The matter ultimately proceeded to a jury trial. At trial, one of Appellant's theories of defense was that he did not possess or use a real firearm during the alleged robbery and attempted robbery and that what the victims observed was a BB gun. To dispel this defense, the State presented the testimony of both victims which established the following.

On the night of the incident, the victims were approached by Appellant in the parking lot of a Walmart. After engaging in conversation, Appellant leaned against the victims' vehicle, placed his hand underneath his shirt, mumbled "do you see what's in my hand," and demanded cash. When both victims looked down towards Appellant's hand, they saw the barrel of a black firearm. The remainder of the firearm was hidden underneath Appellant's shirt. Both victims testified that the object Appellant was holding appeared to be a real firearm. Specifically, one of the victims testified that she was somewhat familiar with firearms and that the object in Appellant's hand was not a BB gun as it did not have a red tip. The other victim testified that he was very familiar with firearms and that he automatically recognized the object in Appellant's hand as being a black automatic or semi-automatic hand gun.

During the charge conference, the parties agreed that the jury instructions and verdict form would include the following interrogatories for sentencing enhancement purposes :

If you find the defendant guilty of the crime of robbery [or attempted robbery], you must further determine beyond a reasonable doubt if "in the course of committing the robbery [or attempted robbery]" the defendant:
1. carried some kind of weapon;
2. carried a deadly weapon;
3. carried a firearm; and/or
4. actually possessed a firearm.

The jury ultimately found Appellant guilty of robbery and attempted robbery, however selected "no" to the questions of whether Appellant carried or actually possessed a firearm in the course of committing the offenses and "yes" to the question of whether Appellant carried a deadly weapon in the course of committing the offenses. Consistent with the jury's verdict, the court entered a judgment of guilt adjudicating Appellant guilty of one count of robbery with a deadly weapon, a first degree felony punishable by life, and one count of attempted robbery with a deadly weapon, a second degree felony. Appellant did not object to, or otherwise challenge, the judgment of guilt.

At the ensuing sentencing hearing, the trial court found that Appellant qualified as a prison releasee reoffender ("PRR"). As required under section 775.082(9)(a)3., Florida Statutes, the court sentenced Appellant to life in prison on the robbery with a deadly weapon conviction and fifteen years in prison on the attempted robbery with a deadly weapon conviction to run concurrent with the life sentence.

On appeal, Appellant argues that his convictions for the uncharged offenses of robbery with a deadly weapon and attempted robbery with a deadly weapon constitute fundamental error and must be reduced to robbery and attempted robbery with a weapon. We agree.

It is well established that "[d]ue process prohibits an individual from being convicted of an uncharged crime" and that "[v]iolation of this prohibition constitutes fundamental error." Morgan v. State , 146 So.3d 508, 512 (Fla. 5th DCA 2014) ; see also Falstreau v. State , 326 So.2d 194, 195 (Fla. 4th DCA 1976) (recognizing that a conviction for an uncharged crime constitutes fundamental error unless the conviction is for a crime that is "(1) a lesser degree of the crime charged, (2) an attempt to commit the crime charged, (3) necessarily included in the crime charged, or (4) included within the allegations of the accusatory pleading and shown by the proofs").

The holding in Davis v. State , 235 So.3d 320 (Fla. 2018) is instructive. The defendant in that case was charged in two separate cases with one count of robbery with a firearm. Id. at 321. As in the instant case, the State in Davis did not charge the defendant with robbery with a deadly weapon. Id. In both cases, evidence was presented that the object used to commit the crimes was either a real firearm or a BB gun replica of a firearm. Id. The juries in both cases found that the defendant did not possess a firearm as alleged in the information and instead found him guilty of robbery with a deadly weapon, an offense which the juries were instructed was a lesser-included offense of the crime charged. Id.

Citing to Jaimes v. State , 51 So.3d 445, 448 (Fla. 2010) for the proposition that "[i]t is a fundamental principle of due process that a defendant may not be convicted of a crime that has not been charged by the state," the court held that the defendant's convictions for the uncharged offense of robbery with a deadly weapon could not stand. Id. In so holding, the court observed that robbery with a deadly weapon is not a lesser-included offense of robbery with a firearm; rather, robbery with a weapon is the next immediate lesser-included offense of robbery with a firearm. Id. The court nonetheless concluded that because the evidence in both trials established that the object the defendant used during the robberies was, if not a firearm, a replica of a firearm which the juries clearly found to be a weapon, the evidence was sufficient to sustain convictions for robbery with a weapon. Id. Accordingly, the proper remedy was to reduce the defendant's convictions from robbery with a deadly weapon to robbery with a weapon. Id. at 322.

In the present case, as in Davis , it is undisputed that the State did not charge Appellant with robbery or attempted robbery with a deadly weapon and that the offenses of robbery or attempted robbery with a deadly weapon are not lesser-included offenses of the charged crimes. Accordingly, Appellant's convictions for robbery and attempted robbery with a deadly weapon cannot stand. Id. at 321. Because the evidence presented at trial established that, if not a firearm, the object Appellant used during the robbery and attempted robbery was a BB gun which the jury clearly found to be a weapon, the evidence is sufficient to sustain convictions for robbery and attempted robbery with a weapon. Id. Consistent with Davis , we reverse and remand for entry of a corrected judgment adjudicating Appellant guilty of robbery and attempted robbery with a weapon. Id. at 322.

The State acknowledges the holding in Davis but nonetheless maintains that the instant case is distinguishable because the verdict form did not list robbery or attempted robbery with a deadly weapon as lesser-included offenses but rather as sentencing enhancements. This argument has no merit. Regardless of the reason why the uncharged crimes were listed on the verdict form, the fact remains that Appellant stands convicted of crimes for which he was not charged and which are not lesser-included offenses of the charged crimes.

Appellant also argues that he was unconstitutionally sentenced as a PRR because the trial court judge, rather than the jury, made the predicate findings for PRR status. We reject this argument without further comment. See Chavis v. State , 247 So.3d 9, 10 (Fla. 4th DCA 2018) ; Chapa v. State , 159 So.3d 361, 362 (Fla. 4th DCA 2015). Appellant will, however, need to be resentenced on the robbery with a weapon conviction. This is because section 775.082 only provides for a PRR life sentence for a felony punishable by life. § 775.082(9)(a)3.a., Fla. Stat. (2015). For any other felony in the first degree, the statute provides that the defendant must be sentenced to a term of imprisonment of thirty years. § 775.082(9)(a)3.b., Fla. Stat. Robbery with a weapon is a felony of the first degree not punishable by life.

§ 812.13(2)(b), Fla. Stat. (2015). Accordingly, Appellant must be resentenced to a legal sentence in accordance with section 775.082(9)(a)3.b.

Reversed and remanded for a corrected judgment and resentencing.

Gross and May, JJ., concur.

      The State initially sought imposition of an enhanced sentence under section 775.087, Florida's 10-20-Life statute.


text:
    Dwight PARDO And Isabel Pardo, as Husband and Wife, Appellants, v. ENGEL CONSTRUCTION, INC., and Simeon F. Burges, Appellees.
    No. 4D18-1006
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Joseph R. Dawson of the Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for appellants.
    Carlos J. Jimenez and Scott Goldstein of the Law Offices of Carlos J. Jimenez, P.L., Boynton Beach, for appellee The Law Offices of Carlos J. Jimenez, P.L.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Warner, Damoorgian and Levine, JJ., concur.


author: Klingensmith, J.

text:
    Fritz Gerald PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1198
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Fritz Gerald Pierre appeals his conviction and sentence for refusal to submit to testing under section 316.1932(1)(a)(1)(a), Florida Statutes (2016), driving with a suspended license, and reckless driving. He claims the trial court erred by denying his motion to suppress and imposing an excessive public defender lien. We affirm as to the first issue without comment; however, we find merit in appellant's second claim, and hereby reverse.

At the plea hearing, appellant entered a no-contest plea. Consequently, the trial court adjudicated him guilty, sentenced him to time served, and announced a "mandatory" $ 200 public defender lien. The court asked a series of questions to ensure that appellant understood the terms of his sentence, but failed to inform him of his right to a hearing to contest the lien under section 938.29(1)(a), Florida Statutes (2018).

This section, regarding liens for the payment of attorney's fees or costs, provides that:

A defendant who is convicted of a criminal act ... and who has received assistance of the public defender's office ... shall be liable for payment of ... attorney's fees and costs. Attorney's fees and costs shall be set in all cases at ... no less than $ 100 per case when a felony offense is charged .... The court may set a higher amount upon a showing of sufficient proof of higher fees or costs incurred .

§ 938.29(1)(a) (alterations and emphasis added); accord Houle v. State , 33 So.3d 822, 823 (Fla. 4th DCA 2010). At sentencing, a trial court must announce the amount of the lien, as well as "the accused's right to a hearing to contest the amount of the lien ...." Fla. R. Crim. P. 3.720(d)(1).

Here, section 938.29(1)(a) required the trial court to assess appellant at least $ 100 in attorney's fees and costs because he was charged with felony DUI. Although the court described this fee as "mandatory" during the plea colloquy, the trial court exercised discretion by assessing a $ 200 public defender lien against appellant yet failed to consider any evidence establishing a reasonable hourly rate or the amount of time spent by the public defender on the case to support an amount exceeding the statutory minimum. See Alexis v. State , 211 So.3d 81, 83 (Fla. 4th DCA 2017). Furthermore, the trial court failed to inform appellant of his statutory right to contest the lien. See Fla. R. Crim. P. 3.720(d)(1) ; Alexis , 211 So.3d at 83 ; accord Hayes v. State , 25 So.3d 683, 684-85 (Fla. 2d DCA 2010).

Therefore, we reverse the imposition of the public defender lien and remand to the trial court to either reduce the amount to the statutorily required $ 100 or hold a hearing with proper notice to obtain evidence in support of a lien in an amount greater than the statutory minimum.

Reversed and remanded with instructions .

Conner and Kuntz, JJ., concur.


text:
    Robert BATES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3368
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges the imposition of $ 100 in prosecution costs and $ 50 in investigative costs not requested by the State, which the trial court granted in addition to the $ 3758 in costs that the State did request. The State concedes error. We thus reverse the award of costs with directions to reduce the sum by $ 150.

Warner, Ciklin and Levine, JJ., concur.


author: Gerber, C.J.

text:
    Charles ADAMS, Appellant, v. Claudine ADAMS, Appellee.
    No. 4D18-264
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Andrea Cox and John A. Turner of Saul Ewing Arnstein & Lehr LLP, Miami, for appellant.
    Steven M. Katzman and Craig A. Rubinstein of Katzman, Wasserman, Bennardini & Rubinstein, P.A., Boca Raton, for appellee.
   Gerber, C.J.

The former husband appeals from the circuit court's "Second Order on True-Up/Equalizing Payment" and the circuit court's later order denying the former husband's "Motion for Rehearing of Second Order on True-Up/Equalizing Payment." The former husband primarily argued in the motion for rehearing that the "Second Order," entered eight months after the evidentiary hearing on which the order was based, did not credit certain expenses which the former husband continued to pay after the evidentiary hearing, up to the time the "Second Order" was entered and thereafter.

We affirm the "Second Order," because until the former husband filed his motion for rehearing, the former husband had not requested the circuit court to credit certain expenses which the former husband continued to pay after the evidentiary hearing up to the time the "Second Order" was entered and thereafter.

However, because the motion for rehearing ultimately raised this request, the circuit court erred in summarily denying the motion, which appears to merely seek relief consistent with the findings and conclusions in the "Second Order," that is, credit for certain expenses which the former husband continued to pay after the evidentiary hearing, up to the time the "Second Order" was entered and thereafter.

We remand for the circuit court to reconsider the former husband's motion for rehearing on its merits. We caution the parties and the circuit court that any order entered on the motion for rehearing should address credit to be given for any future payments beyond that order as well, rather than perpetuating piecemeal disposition and appeals of future payments.

Affirmed in part, reversed in part, and remanded.

Ciklin and Kuntz, JJ., concur.


text:
    ICE LEGAL, P.A., Appellant, v. NATIONSTAR MORTGAGE LLC, Mallory Cheron a/k/a Cheron Mallory, Chrismene St. Louis Cheron, Carmel Financial Corporation, Inc., The Greens at Carolina Homeowners Association, Inc., and Carolina Maintenance Association, Inc., Appellees.
    No. 4D18-2047
    District Court of Appeal of Florida, Fourth District.
    [February 27, 2019]
    Max Utzschneider of Ice Appellate, Lake Worth, for appellant.
    No brief filed for appellees.
   Per Curiam.

Ice Legal, P.A. appeals a $ 1,000 sanction imposed against it for litigation misconduct. We reverse the sanction because the order to show cause setting a hearing on the sanction was directed to an individual attorney, not to Ice Legal, P.A. The order indicated that copies were provided to the attorney and to opposing counsel, but contained no address for service. Not properly put on notice of a potential sanction against it, the law firm did not appear at the sanction hearing. "Florida has consistently required notice and an opportunity to be heard before sanctions are imposed upon counsel."

Clare v. Coleman (Parent) Holdings, Inc. , 928 So.2d 1246, 1249 (Fla. 4th DCA 2006).

Reversed and remanded .

Gross, Conner and Forst, JJ., concur.