text:
    Esther PORTO, Appellant, v. Michael C. WALKER, et al., Appellees.
    No. 3D18-481
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Esther Porto, in proper person.
    Nexterra Law, and Steven M. Liberty and Eric A. Jacobs, Hollywood for appellees.
    Before EMAS, C.J., and SCALES and MILLER, JJ.
   PER CURIAM.

Appellant Esther Porto appeals a February 7, 2018 injunction order rendered by the trial court. The relevant portion of the order reads, in its entirety, as follows:

The Court reserves ruling on Plaintiffs' motion for rule to show cause and hereby enters an order freezing all of the assets of Esther Porto, as of the date of this order; an agreement and/or further orders shall be made as to an exception for living expenses.

Florida Rule of Civil Procedure 1.610(c) requires, in relevant part, that "[e]very injunction shall specify the reasons for entry" and "shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document." Fla. R. Civ. P. 1.610(c). Additionally, rule 1.610(b) contains a bond requirement for all temporary injunctions.

We reverse the subject injunction order because it fails to meet the requisites of rule 1.610. Indus. Waste Servs. Inc. v. Faircloth Sanitation, Inc., 643 So.2d 688, 688 (Fla. 3d DCA 1994) (concluding that "[t]he injunction is defective because the order fails to specify the reasons for its entry"). Because of our holding, we need not, and therefore do not, address the other alleged infirmities in the challenged injunction order.

Reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Dominic HARRIS, Appellee.
    No. 3D17-2703
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Franklin Sandrea-Rivero and Dharma Sierra, Certified Legal Interns, for appellee.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

The State appeals the trial court's order suppressing evidence seized in a warrantless search of Dominic Harris's property. After conducting an evidentiary hearing, the trial court determined that Mr. Harris had not abandoned his privacy interest in the subject property. This Court's review of the suppression order involves a mixed question of law and fact; the trial court's factual findings are presumed correct if supported by competent, substantial evidence, while we review, de novo , the trial court's ruling on the legality of the search. See State v. Milewski, 194 So.3d 376, 378 (Fla. 3d DCA 2016). "[A] trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Pagan v. State, 830 So.2d 792, 806 (Fla. 2002). With this standard in mind, we affirm the trial court's determination that Mr. Harris had not abandoned his reasonable expectation of privacy in his property when it was seized and searched by the police.

Affirmed.

EMAS, C.J., and SCALES, J., concur.

LINDSEY, J.

I respectfully dissent and would reverse the trial court's suppression order based on the authority of State v. Jackson, 240 So.2d 88 (Fla. 3d DCA 1970) (reversing trial court's order suppressing evidence and finding abandonment where defendant had possession of a bag and divested himself of the possession of that bag in the view of the police officer).


text:
    The STATE of Florida, Appellant, v. Daniel RINCON, Appellee.
    No. 3D18-1282
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee.
    Before SCALES, LINDSEY and MILLER, JJ.
   SCALES J.

The State of Florida appeals (i) the trial court's May 16, 2018 dismissal of an Affidavit of Violation of Probation, setting forth an alleged probation violation by appellee, the defendant below, Daniel Rincon; and (ii) the trial court's contemporaneous termination of Rincon's probation. The State maintains that the trial court neglected to abide by the procedural imperatives of section 948.06(8) of the Florida Statutes. We agree, reverse the order on appeal, and remand for further proceedings.

Statement of the Case

On June 24, 2016, Rincon pleaded guilty to Aggravated Battery on a Pregnant Victim and Strong-Arm Robbery (lower tribunal case number F16-9231). Rincon had struck his pregnant girlfriend and taken a piece of jewelry (with a value of under $ 100) from her. He received a sentence of four years of probation. The offense of battering a pregnant woman qualified Rincon as a "violent felony offender of special concern," pursuant to section 948.06(8)(b) 1. and (c)3.

On May 9, 2018, the Florida Department of Corrections filed an Affidavit of Violation of Probation, alleging that Rincon had violated his probation when the police arrested him on May 5, 2018, for driving with a suspended license. At first appearance on May 9th, the trial court ordered Rincon held without bond. Subsequently, the State and Rincon entered into plea negotiations, but never reached an agreement. The parties came before the trial court on May 16, 2018, for a plea hearing. At that point, Rincon had been in jail for eleven days.

At this hearing, the trial court learned the following information about Rincon: (i) this was Rincon's first probation violation in two years; (ii) Rincon had completed both a domestic violence intervention program and a drug evaluation program, and had completed a portion of a parenting course; (iii) the State's plea offer was thirty days in jail (including the time Rincon had served already), reinstatement of probation, and Rincon's admission to the underlying suspended license offense; (iv) the alleged probation violation made Rincon eligible for a prison term of between approximately three and thirty-five years; (v) the pregnant woman Rincon battered had given birth to their child and recently had given birth to the second of their children; and (vi) Rincon was employed and supporting his family.

The trial court responded to this information - sua sponte and over the State's objection - by dismissing the violation of probation and by terminating Rincon's probation "unsuccessfully."

Analysis

Because Rincon qualified as a "violent felony offender of special concern," the trial court was obligated to follow the procedures of section 948.06(8). While section 948.06(2)(c) authorizes the trial court to dismiss a probation violation, section 948.06(8), by its express provisions, controls over section 948.06(2)(c). § 948.06(8)(a), Fla. Stat. (2018). Section 948.06(8)(d) provides:

The court shall not dismiss the probation or community control violation warrant pending against an offender enumerated in this paragraph without holding a recorded violation-of-probation hearing at which both the state and the offender are represented.

§ 948.06(8)(d), Fla. Stat. (2018).

Subsection (8)(e) further provides that, if, after the trial court conducts this evidentiary hearing, the trial court determines the violent felony offender of special concern has violated probation, the trial court must make a series of written findings as to whether the offender poses a danger to the community. § 948.06(8)(e) 1., Fla. Stat. (2018); see Barber v. State, 207 So.3d 379, 384 (Fla. 5th DCA 2016). If the trial court finds that the offender poses a danger to the community, then the trial court must revoke probation and sentence the offender up to the statutory maximum or longer, if the law permits. § 948.06(8)(e) 2.a., Fla Stat. (2018). If, however, the trial court finds that the offender does not pose a danger to the community, then the trial court "may revoke, modify or continue the probation." § 948.06(8)(e) 2.b.

The trial court did not follow the procedural requirements of section 948.06(8)(d) and (e). Whatever the trial court observed in Rincon's personal development during the previous two years required a deeper exploration in a formal hearing and the requisite written findings.

Therefore, we reverse the order on appeal and remand for further proceedings to be conducted in accordance with section 948.06(8).

Reversed and remanded with instructions.

      On the same day, Rincon pleaded guilty to Possession of a Controlled Substance and Possession of Marijuana (lower tribunal case number F16-10576). He received a probation sentence of four years and one day. The trial court ordered that the probation sentences in F16-9231 and F16-10576 run concurrently.

      If, at this evidentiary hearing, the trial court finds that the violent felony offender of special concern has not violated probation, the trial court presumably would dismiss the violation warrant. § 948.06(8)(d), Fla. Stat. (2018).

      We express no opinion as to whether the parties in this case could have fashioned a plea agreement that would have pre-empted trial court compliance with the procedural dictates of section 948.06(8).

      We find no merit in Rincon's argument that the trial court's dismissal of his probation violation and termination of his probation occurred because the trial court participated in a plea negotiation.


author: Jay, J.

text:
    Rashawn Renard JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-373
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this direct appeal from Appellant's convictions and sentences for first-degree murder, armed burglary, and attempted armed robbery, we affirm in all respects, but write to address two of Appellant's claims: (1) that the trial court abused its discretion by rereading a portion of the jury instructions in response to a jury question; and (2) that the trial court erred in imposing consecutive mandatory minimum sentences under section 775.087(2), Florida Statutes, also known as the 10-20-Life statute. For the reasons that follow, we find both claims to be without merit.

I

Appellant was indicted for first-degree murder with a firearm, armed burglary, and two counts of attempted armed robbery. The evidence at trial established that the charges arose from a single criminal episode involving three different victims. Specifically, Appellant and an unidentified codefendant forced their way into a trailer and attempted to rob two of the occupants at gunpoint. During the incident, a neighbor tried to intervene and was shot repeatedly and killed. No one else was shot, but one of the occupants was beaten during the robbery attempt.

During its deliberations, the jury submitted the following question: "Does the verdict count number just pertain to the individual stated on each charge? Example: if he fired a gun but not at the person listed on the count number, does it still affect other verdict counts?" The State requested that the court respond to the question by rereading two paragraphs from the jury instructions relating to the 10-20-Life statute, which stated that the jury had to determine whether Appellant discharged a firearm causing death or great bodily harm to "any person" during the commission of the offenses. Defense counsel countered that the court should simply tell the jurors to rely upon their memories and the instructions they had been provided, expressing the concern that reading a particular paragraph might lead the jury to place undue emphasis on that portion of the instructions.

After the parties concluded their arguments, the court made the following ruling:

I'm always troubled by the concept that we ask the jurors a lot-we ask a lot of them and I think we have an obligation to try to make their job as easy as we possibly can and if they ask us a specific question I think, unless answering the question would provide a specific prejudice to one side or the other, I think it's incumbent on us to try to answer that question if we can, to the best of our abilities. This question simpl[y] calls for a restating of a particular portion. I don't think it causes an undue emphasis on that portion. It simply answers the question that they're asking. So over the defense's objection I am going to answer the question in that fashion.

The court then brought the jury back in and answered the question as follows:

Remember, I don't want you to pay particular emphasis on any one instruction. You need to pay attention to all of the instructions that I gave which you have with you, but two particular paragraphs I think may answer these particular questions.
If you find Rashawn Jackson committed attempted robbery, and also find beyond a reasonable doubt that during the commission of the crime he discharged a firearm and in doing so death or great bodily harm was inflicted upon any person, you should find the defendant guilty of attempted robbery with discharge of a firearm causing death.
And the other section is, if you find that Rashawn Jackson committed burglary and you also find beyond a reasonable doubt that during the commission of the crime he discharged a firearm, and in doing so that death or great bodily harm was inflicted upon any person, you should find the defendant guilty of burglary with discharge of a firearm causing great bodily harm or death.
And, again, do not pay particular attention to any one section of the jury instructions, read them all together. They're each-no one is more important than the other section, but I think that hopefully should assist you in answering that question.

After resuming its deliberations, the jury returned a verdict finding Appellant guilty as charged on all four counts. As to each count, the jury made the specific finding that Appellant "discharged a firearm causing death or great bodily harm during the commission of the offense."

At sentencing, the trial court imposed mandatory minimums of life imprisonment on the murder count and twenty-five years in prison on the remaining three counts. The court further ordered that these sentences would run consecutively with the exception that the sentences for the two attempted armed robbery counts would run concurrently with one another.

After this court granted a belated appeal, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which claimed that the trial court improperly imposed consecutive mandatory minimum sentences under the 10-20-Life statute. The trial court denied this motion.

II

"A reviewing court applies the abuse of discretion standard when reviewing a trial court's response to a jury question." Smith v. State , 743 So.2d 1141, 1143 (Fla. 1st DCA 1999) ; accord Miller v. State , 253 So.3d 752, 755 (Fla. 1st DCA 2018). If a jury poses a question during its deliberations, the trial court has the discretion to directly answer the question or reread or refer to prior instructions on the subject matter. Perriman v. State , 707 So.2d 1151, 1152 (Fla. 3d DCA 1998). However, if the court decides to reinstruct the jury, the repeated instructions should be complete on the subject involved because " '[t]he giving of a partial instruction fails to inform the jury fully and often leads to undue emphasis on the part given as against the part omitted.' " Finklea v. State , 920 So.2d 156, 157 (Fla. 1st DCA 2006) (quoting Hedges v. State , 172 So.2d 824 (Fla. 1965) ).

Citing Finklea , Appellant claims that the trial court abused its discretion by rereading a portion of the jury instructions in response to the jury's question. In Finklea , the jury asked for the definition of "possession" while deliberating on charges of possession of a controlled substance and possession of drug paraphernalia. In discussing how to respond to the jury's request, defense counsel requested that the court reread in full the three elements of the crime of possession in the standard jury instruction, specifically including the requirement that the State prove knowledge. The trial court denied this request and, over defense objection, gave only a partial instruction that left out the "knowledge" portion of the definition of unlawful possession. On appeal, this court reversed and remanded for a new trial, holding that the trial court abused its discretion in refusing to give a complete instruction where the case involved only one disputed issue-i.e., whether the defendant knew that unlawful items were in the bottle. Id. at 157-58.

Unlike Finklea , the trial court in this case did not respond to the jury's question by giving an incomplete instruction that failed to fully define an element of the charged offense that was in dispute. The jury's question did not reflect any misunderstanding regarding the crimes charged; rather, it went to the issue of the firearm enhancement under the 10-20-Life statute-i.e., whether a finding that the defendant fired a gun at one victim would apply to counts involving the other victims. The trial court responded to the question by rereading those portions of the instructions addressing that issue. We conclude that the trial court did not abuse its discretion by rereading only those portions of the instructions that answered the jury's specific question. See Holsworth v. State , 522 So.2d 348, 353 (Fla. 1988) ; Garcia v. State , 492 So.2d 360, 366 (Fla. 1986) ; Engle v. State , 438 So.2d 803, 810-11 (Fla. 1983) ; Griffin v. State , 414 So.2d 1025, 1028 (Fla. 1982) ; Henry v. State , 359 So.2d 864, 867-68 (Fla. 1978).

Moreover, by repeatedly reminding the jury that it needed to pay attention to all of the instructions and not focus on any one particular instruction, the court satisfactorily addressed any concern that rereading only a portion of the instructions would unduly emphasize that portion over the remainder of the instructions. See Morgan v. State , 212 So.3d 1104, 1106 (Fla. 1st DCA 2017) (recognizing that absent a finding to the contrary, juries are presumed to follow the instructions given them).

III

In Williams v. State , 186 So.3d 989 (Fla. 2016), the Florida Supreme Court held that "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible [under the 10-20-Life statute] if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Id. at 993. The supreme court further held that "[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Id.

Most recently, in Miller v. State , 265 So.3d 457 (Fla. 2018), the supreme court held that the 10-20-Life statute "permits consecutive sentences at judicial discretion for specified crimes committed in a single criminal episode with either multiple victims or injuries," but "neither mandates nor permits consecutive sentences for crimes committed in a single criminal episode with a single victim or injury in which a firearm is not discharged."

In this case, Appellant claims that the trial court erred in imposing consecutive mandatory minimum sentences under the 10-20-Life statute for multiple firearm offenses arising out of a single criminal episode where Appellant only shot at one victim. In doing so, he relies on Torres-Rios v. State , 205 So.3d 883 (Fla. 5th DCA 2016), which held that consecutive mandatory minimums were not permissible where there was only a single discharge of a firearm and only one person was shot during a single criminal episode. Although it was approved by the supreme court in Miller , Torres-Rios did not involve multiple discharges of a firearm, and there is no indication that the charged offenses arose from a single criminal episode involving more than one victim. Accordingly, we conclude that this case is controlled not by Torres-Rios , but by Abrams v. State , 220 So.3d 581 (Fla. 1st DCA 2017), in which this court held:

Here, the jury found Appellant guilty of discharging a firearm in each of the charged offenses. The offenses occurred in the same episode and involved multiple victims. Thus, the trial court had discretion to impose concurrent or consecutive mandatory minimum sentences in this case.

Id. at 582. Likewise, the jury in this case found Appellant guilty of discharging a firearm in each of the charged offenses, which occurred in the same episode and involved multiple victims. Accordingly, the trial court had discretion to impose concurrent or consecutive mandatory minimum sentences in this case.

We acknowledge the existence of case law from the Fourth and Fifth Districts holding that consecutive mandatory minimum sentences are not permitted under the 10-20-Life statute for firearm offenses arising from the same criminal episode and involving multiple victims where only one victim is shot. See State v. Parker , 812 So.2d 495, 497-99 (Fla. 4th DCA 2002) (holding that the trial court could not impose consecutive mandatory minimum sentences for one count of attempted second-degree murder with a firearm and three counts of aggravated assault with a firearm where the defendant shot only one of the four victims); Cook v. State , 775 So.2d 425, 427 (Fla. 5th DCA 2001) (holding that the trial court could not impose consecutive mandatory minimum sentences where one victim was shot and two other victims were threatened at gunpoint during an armed robbery). However, these cases can be distinguished because they involved the single discharge of a firearm whereas this case involved multiple discharges of a firearm, resulting in multiple fatal injuries to one of the victims. To the extent these cases could be construed for the proposition that consecutive sentencing is not permissible where only a single victim is shot regardless of the number of gunshots or injuries to the victim, they cannot be reconciled with the Florida Supreme Court's subsequent decision in Williams , which held that consecutive mandatory minimum sentences for four counts of aggravated assault with a firearm were permissible where a defendant pointed a gun at four victims and then fired multiple shots into the air. 186 So.3d at 989. Notably, none of the victims actually were shot at or injured. Moreover, the supreme court in Miller cited Williams for the proposition that "consecutive sentences were permissible because there were multiple victims and the gun was fired." 265 So.3d at 459. Accordingly, consecutive sentences were permissible in this case because there were multiple victims and the gun was fired. To the extent Parker and Cook held that multiple victims must be shot at or injured, we conclude that those decisions are no longer good law after Williams and Miller .

IV

In summary, the trial court did not abuse its discretion by rereading a portion of the jury instructions that responded to the jury's specific question, especially where the court emphasized that the jury needed to pay attention to all of the instructions and not focus on any one particular instruction. Moreover, the trial court did not err in denying Appellant's rule 3.800(b)(2) motion because the trial court had discretion to impose consecutive mandatory minimum sentences under the 10-20-Life statute where there were multiple victims and discharges of a firearm. Finally, we affirm as to Appellant's other claims without discussion.

AFFIRMED .

Roberts and Ray, JJ., concur.


author: Winokur, J.

text:
    Joshua Daneel GLOSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2756
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Andy Thomas, Public Defender, Joanna A. Mauer, Assistant Public Defender, Glenna Joyce Reeves, Assistant Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant Attorney General, Samuel B. Steinberg, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Joshua Daneel Gloston was convicted of kidnapping and attempted sexual battery. Gloston challenges his kidnapping conviction, claiming that the trial court should have granted his motion for judgment of acquittal because the asportation of the victim was incidental and inherent to the crime of attempted sexual battery. We reject this claim and affirm his judgment and sentence.

I.

At trial, the victim, J.W., testified that during early morning hours, she was exercising on an elliptical machine at a Jacksonville hotel gym. About fifteen minutes into her workout, J.W. heard the door to the gym click as if someone else had entered. A man with a towel tied across his face, later identified as Gloston, grabbed her arm and told her to get off the elliptical. Gloston was also wearing what appeared to be gloves. Believing that he was "joking or someone nuts," J.W. continued to exercise. Gloston then proceeded to grab J.W. again and pull her off the elliptical.

J.W. then verbally confronted Gloston and pulled the towel from his face. Gloston proceeded to put J.W. in a full nelson wrestling hold, causing J.W. to scream and attempt to kick him in the groin. In response, Gloston hit her on the nose and eye. Gloston then told J.W. that he was going to kill her if she screamed again.

Gloston tried to drag J.W. out of the hotel gym. J.W. grabbed a nearby fitness machine, prompting Gloston to strike her head against the machine's post in order to loosen her grip. Gloston then continued to drag her towards the gym door. Gloston opened the door and both he and J.W. fell through onto the hallway, where she grabbed hold of a column while he grabbed her feet and pulled her towards the doorway that led to the pool deck.

As this was happening, J.W. was face up on the ground looking at her assailant. J.W. testified that when she first pulled the towel from his face she was able to look at Gloston for approximately ten seconds. J.W. then stated that she "got a really good look at him [when she] was laying on the floor, looking up at him and he was trying to grab me." J.W. was still clinging onto the column when Gloston kicked her on the side of her leg, which caused J.W. to let go. Gloston then resumed pulling her towards the pool deck door.

Once Gloston got J.W. to the pool deck door, J.W. became exhausted and exclaimed "I give up." As a result, Gloston stopped trying to move J.W. to the pool deck and proceeded to pull down her gym shorts. J.W. then began to scream and she then heard what sounded "like, a ripping sound, and to [J.W.], it sounded like he was tearing off something to make a gag to put on [her] mouth so [she would] shut up." A hotel employee then appeared, which prompted Gloston to flee. J.W. pulled up her shorts and ran towards the hotel employee, asking hysterically if he had seen her assailant.

J.W. was able to identify Gloston as her assailant in a photo spread. J.W. also identified Gloston in court during her testimony. Additionally, the hotel employee testified that the pool deck area was "pretty dark."

After the State rested, defense counsel moved for acquittal on the kidnapping charge, arguing that the movement of J.W. was incidental and part of the attempted sexual battery. The trial court denied the motion, and later denied a renewed motion following the defense case. The jury then found Gloston guilty as charged on both counts.

II.

A trial court's ruling on a motion for judgment of acquittal is reviewed de novo. Ridgeway v. State , 128 So.3d 935, 936 (Fla. 1st DCA 2013). The evidence must be construed in the light most favorable to the State. Perez v. State , 138 So.3d 1098, 1100 (Fla. 1st DCA 2014). As a result, a judgment of acquittal is improper if the State presents competent, substantial evidence to establish the elements of the charged offense. Id.

Gloston was charged with kidnapping with the intent to commit a felony, sexual battery, pursuant to section 787.01(1)(a), Florida Statutes. In Faison v. State , the Florida Supreme Court articulated the standard for analyzing kidnapping when done to facilitate the commission of another crime. 426 So.2d 963 (Fla. 1983). In such circumstances, kidnapping occurs when the movement or confinement employed by the defendant is 1) not slight, inconsequential, or incidental to the other crime charged; 2) not inherent in the other crime charged; and 3) significant and independent of the other crime charged so as to lessen the risk of detection or making the other crime easier to commit. Id. at 965.

III.

Gloston argues that his movement of J.W. was inherent or incidental to the commission of the attempted sexual battery. The evidence suggests otherwise.

As to the first Faison factor, the record indicates that Gloston not only forcefully moved J.W. off the elliptical machine, but also proceeded to struggle with J.W. in an attempt to drag her out of the hotel gym, into the hallway, and toward the pool deck. These efforts resulted in J.W. resisting, with Gloston resorting to kicking and striking J.W. in order to subdue her. These acts are neither slight, inconsequential, nor incidental to Gloston's intent of sexually battering J.W.

As to the second factor, Gloston's asportation of J.W. was not inherent to an attempted sexual battery. Gloston chose not to sexually batter J.W. in the hotel gym. Instead, Gloston forced J.W. out of the gym and dragged her across the hallway toward the pool deck. Thus, Gloston's actions were not inherent to his attempted sexual battery, but rather part of his intent to forcibly move J.W. in order to facilitate a sexual battery.

Lastly, Gloston's actions were significant and independent of an attempted sexual battery and were done to lower the risk of detection. Gloston argues that the fact that he chose to pull down J.W.'s shorts in the hallway shows that the asportation was simply part of his attempted sexual battery because the hallway was a public area and he could have been easily discovered. But Gloston only began his attempt to sexually batter J.W. in the hallway after she told him that she "gave up." Before that point, Gloston was forcibly moving J.W. towards the pool deck. Furthermore, the State elicited testimony that the pool deck area was dark. Thus, it is entirely reasonable to conclude that Gloston was moving J.W. to the pool deck since the dimly lit area decreased the risk of detection.

Gloston relies on two cases to support his argument. Wilson v. State , 159 So.3d 316 (Fla. 2d DCA 2015) ; Stanley v. State , 112 So.3d 718, 719-20 (Fla. 2d DCA 2013). In Wilson , the defendant grabbed the victim as she was walking through a vacant lot and proceeded to strike her, knock her to the ground, and then forced her to engage in sexual intercourse. 159 So.3d at 317. On appeal, the Second District reversed the defendant's kidnapping conviction finding that "the evidence established that the movement and confinement of the victim was merely incidental to the crime of sexual battery, was inherent in the nature of the crime, and did not make the crime easier or substantially lessen the risk of detection." Id. at 318.

In Stanley , the defendant threw the victim onto a bed, held her down, put tape over her mouth, taped her hands together, and proceeded to turn her over and commit sexual acts. 112 So.3d at 719. On appeal, the defendant's kidnapping conviction was reversed because the confinement was "minor" and inherent in the nature of the crimes he committed. Id. at 719-20.

Unlike Wilson and Stanley , the asportation of J.W. was not minor or incidental. Gloston intentionally and forcibly dragged J.W. out of the hotel gym, having to strike her to loosen her grip on nearby exercise equipment. Gloston then dragged J.W. across the hallway towards the dimly lit pool deck. But for J.W.'s submission, Gloston would have continued his effort to drag J.W. to the pool deck so he could commit sexual battery.

This case is akin to Carter v. State , where the defendant entered an apartment complex gym where the victim was exercising alone. 762 So.2d 1024, 1028 (Fla. 3d DCA 2000). The defendant robbed the victim at gunpoint, moved her to a nearby hallway, and sexually battered her. Id. The Third District affirmed the defendant's kidnapping conviction finding that "[a]lthough the movement was only three feet, the effect was to hide the victim and defendant from the view of anyone who might enter the gym, thus making detection of the crime considerably more unlikely." Id. at 1027.

Like Carter , Gloston endeavored to move J.W. to the pool deck area to avoid detection and to facilitate a sexual battery. Moreover, Gloston's asportation of J.W. was more than the three feet noted in Carter.

IV.

Gloston's asportation of J.W. was neither inherent nor incidental to his attempted sexual battery. Gloston's actions reflected a clear intent to forcibly move J.W., in order to accomplish his goal of committing a sexual battery. The trial court did not err in denying Gloston's motion for judgment of acquittal for kidnapping.

AFFIRMED .

B.L. Thomas, C.J., and Kelsey, J., concur.


author: LINDSEY, J.

text:
    Daniel FILS-AIME, et al., Appellants, v. Yolly ROBERSON, Appellee.
    No. 3D18-0184
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019.
    Piantini & Associates, P.A., and Albert J. Piantini, Coral Gables; Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellants.
    Yolly Roberson, North Miami, and Roberson | Sweeting, for appellee.
    Before SCALES, LINDSEY and HENDON, JJ.
   LINDSEY, J.

Appellants' counsel, Albert J. Piantini and Andrew M. Kassier, appeal an order denying two motions for sanctions against Yolly Roberson. Because the trial court did not abuse its discretion in denying the motions, we affirm.

I. BACKGROUND

This case began as a landlord/tenant dispute. Appellee, Yolly Roberson is the landlord/Plaintiff below. In September 2014, the trial court entered a default judgment of eviction and writ of possession in favor of Roberson. Defendants below, Daniel Fils-Aime and the Haitian Historical Society, Inc., appealed that judgment. This Court affirmed and granted Roberson's motion for fees pursuant to Florida Rule of Appellate Procedure 9.400. In her fee motion, Roberson also requested sanctions against Defendants and their appellate counsel, Albert J. Piantini and Andrew M. Kassier ("Appellate Counsel"), for bringing a frivolous appeal. This Court's order granting fees did not indicate that it was granting Roberson's request for sanctions and did not include any express findings of misconduct. Neither party sought clarification.

Following issuance of the mandate, Roberson filed the following fee motions below:

• January 15, 2015: Roberson sought fees from Defendants and Appellate Counsel.
• May 17, 2015 (first amended motion): Roberson only sought fees against Defendants.
• June 26, 2015 (second amended motion): Roberson again sought fees against Defendants and Appellate Counsel.

On May 19, 2017, Appellate Counsel served Roberson with a notice of their intent to file a motion for sanctions pursuant to section 57.105 because Roberson had wrongfully sought fees from them. Following the 21-day safe harbor period, Appellate Counsel filed two motions for sanctions. The trial court held a hearing and subsequently entered an order denying both motions. This appeal follows.

II. ANALYSIS

An appellate court reviews an order denying a motion for 57.105 sanctions for an abuse of discretion. Phillips v. Garcia, 147 So. 3d 569, 571 (Fla. 3d DCA 2014). As this Court explained in Phillips, "[w]e recognize the superior vantage point of the trial judge, and will reverse only if the record reflects that no reasonable trial judge could have denied the subject motions for 57.105 sanctions." Id.

When a trial court is vested with broad discretion, an appellate court can reverse only where the trial court's decision is completely unreasonable. Ruffa v. Saftpay, Inc., 163 So. 3d 711, 714 (Fla. 3d DCA 2015). As this Court stated in Ruffa,

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Id. (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) ).

Appellate Counsel argue that they are entitled to sanctions because Roberson's filing of a motion for fees against them was not supported by material facts or existing case law. Roberson argues that she reasonably believed there was a basis for her claim-specifically, this Court's order granting fees in the prior appeal. While it is true that Roberson perhaps should have realized that this Court's fee order did not grant fees as sanctions because the order was completely silent as to sanctions and made no findings of misconduct, the trial court, nonetheless, did not abuse its discretion when it denied Appellate Counsel's motions for sanctions because its decision was not completely unreasonable. See Phillips, 147 So. 3d at 571 ("The [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law." (alteration in original) (quoting Asinmaz v. Semrau, 42 So. 3d 955, 957 (Fla. 4th DCA 2010) )).

III. CONCLUSION

Because the trial court did not abuse its discretion in denying Appellate Counsel's motions for sanctions, we affirm.

AFFIRMED.

      Roberson is an attorney and represents herself.

      See Fils Amie v. Roberson, 152 So. 3d 581 (Fla. 3d DCA 2014) (No. 3D14-2051).

      See § 57.105(4), Fla. Stat.

      At the hearing, Roberson clarified that she had dropped her request for fees against Appellate Counsel.

      Section 57.105(1) provides as follows:
      (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.

      Roberson's actions below appear to be motivated more by misunderstanding than by bad faith.


text:
    Randon LINK, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D19-759
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019.
    Carlos J. Martinez, Public Defender and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for respondent.
    Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Petitioner, Randon Link, seeks a writ of mandamus compelling the trial court to hold a hearing on his claim of stand-your-ground immunity pursuant to section 776.032(1), Florida Statutes (2018). On petitioner's motion for the requested hearing, the trial court and counsel for petitioner engaged in the following discussion, in relevant part:

MR. CUMMINGS: Judge, Mr. Link has a pending stand your ground hearing. We have been resetting it. I don't know if you got a chance to read my motion?
THE COURT: I did, and your motion is, you are absolutely right to file it, and your argument is very sound, but justice is due to the accuser also, should the State have a ruling from the Florida Supreme Court so that they know what the law is?
MR. CUMMINGS: Judge, I believe that we have law from the 3 DCA all ready [sic].
THE COURT: I understand. Once the Supreme Court accepts jurisdiction that the 3rd District's decision isn't really quite as binding - is your client in custody?
* * *
THE COURT: I am not going to set a hearing.

Petitioner has an absolute right to a pretrial evidentiary hearing to determine whether he is entitled to immunity from criminal prosecution pursuant to section 776.032(1). Dennis v. State, 51 So.3d 456, 462 (Fla. 2010) ; Arauz v. State, 171 So.3d 160, 161 (Fla. 3d DCA 2015). The hearing must be conducted within a reasonable time. Petitioner has been in custody on the charge for which he seeks the hearing since May of 2018, and although some of the delay in setting the requested hearing is attributable to the petitioner, his present request for an expedited hearing is reasonable. The State, in its response to this petition, has commendably conceded that the petitioner is entitled to relief. The trial court wrongly denied petitioner's request for a hearing.

When a district court of appeal issues an opinion deciding a point of law, that opinion is binding on trial courts within that district and throughout the state where no other district court has issued a contrary opinion. Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ; State v. Washington, 114 So.3d 182 (Fla. 3d DCA 2012) ; State v. Hayes, 333 So.2d 51, 52 (Fla. 4th DCA 1976). The trial court is incorrect in its articulated belief that once the Supreme Court "accepts jurisdiction that [district court's] decision isn't really quite as binding." Until the decision of this Court in Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), rev. granted, No. SC 18-747 2018 WL 3147946 (Fla. June 26, 2018), is overruled or otherwise affected by a decision of the Florida Supreme Court, this Court's decision is binding on the trial courts within the Third District.

Accordingly, the Petition for a Writ of Mandamus is granted and the trial court is ordered to conduct the relevant hearing within forty-five days, notwithstanding the filing and determination of any motion for rehearing.


text:
    The STATE of Florida, Petitioner, v. David GOTTFRIED, Respondent.
    No. 3D19-699
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for respondent.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

We dismiss the State's petition for writ of certiorari for lack of jurisdiction. See Coffey-Garcia v. South Miami Hosp., Inc., 194 So. 3d 533, 536 (Fla. 3d DCA 2016) (observing: "For a writ of certiorari to issue, the petitioner must demonstrate that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on post-judgment appeal. The last two elements are referred to as irreparable harm, the establishment of which is a condition precedent to invoking certiorari jurisdiction") (citations omitted); Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So. 3d 344, 353 (Fla. 2012) (noting that "this Court has never held that requiring a party to continue to defend a lawsuit is irreparable harm for the purposes of invoking the jurisdiction of an appellate court to issue a common law writ of certiorari. ... [T]o establish the type of irreparable harm necessary in order to permit certiorari review, a party cannot simply claim that continuation of the lawsuit would ... result in needless litigation costs. To hold otherwise would mean that review of every non-final order could be sought through a petition for writ of certiorari. Under such a ruling, appellate courts would be inundated with petitions to review non-final orders and trial court proceedings would be unduly interrupted"); State v. Lozano, 616 So. 2d 73, 75 (Fla. 1st DCA 1993) (noting: "Ordinarily, the time, trouble, and expense of an unnecessary trial are not considered 'irreparable injury' for these purposes. The 'irreparable injury' test must be satisfied in a certiorari proceeding that arises from a criminal case, as well") (citation omitted).


author: EMAS, C.J.

text:
    María Soledad LARRAÍN TRONCOSO, et al., Appellants, v. Manuel Antonio OSSANDÓN LARRAIN, Appellee.
    No. 3D19-393
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019
    Akerman, LLP, and Luis A. Perez, Sandra J. Millor, Jenny Torres, and Kristen M. Fiore (Tallahassee), for appellants.
    Harper Meyer, and Patrick J. O'Connor, Patricia M. O'Connor and Bryan Morera, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   EMAS, C.J.

Maria Soledad Larraín Troncoso, Real State Golden Investments Inc., and Bernardo Ossandón Larraín, appeal the trial court's order summarily denying Maria Soledad Larraín Troncoso's motion to intervene pursuant to Florida Rule of Civil Procedure 1.230. That rule provides:

Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

The Florida Supreme Court explained the nature of the interest that will permit intervention:

The interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of the litigation.

Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992) (quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918) ). Importantly, and as the Carlisle court further explained:

Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention. In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstances.

Id. at 507-08.

The record in this case would appear to establish the existence of a requisite interest and a valid basis for intervention. In the instant case, however, we cannot know whether the trial court reached a contrary conclusion or whether it considered any of the above-described Carlisle factors, because the trial court did not conduct any hearing on the motion to intervene (or the motion for rehearing), and simply denied each in unelaborated orders. We conclude that the failure to conduct a hearing, combined with the failure to articulate any findings in its order, requires reversal. See Farese v. Palm Beach Partners, Ltd., 781 So. 2d 419 (Fla. 4th DCA 2001) (reversing denial of motion to intervene where court failed to conduct an evidentiary hearing to determine movant's interest in the litigation); Ownby v. Citrus Cty., 13 So. 3d 136 (Fla. 5th DCA 2009) (reversing order denying intervention where intervention appeared to be appropriate, trial court gave no reason for denying intervention, and no valid reason was apparent on the existing record). Compare Charry v. Torres, 263 So. 3d 238 (Fla. 3d DCA 2019) (holding that although a hearing on the motion to intervene was held, because appellant failed to provide this court with a transcript, it could not determine whether the trial court abused its discretion in denying the motion).

Reversed and remanded for the trial court to articulate its findings in denying the motion or, as may be appropriate, to conduct a hearing on the motion.

      A decision on a motion to intervene is generally reviewed for an abuse of discretion. See Fed. Nat'l Mortg. Ass'n v. JKM Svcs., LLC, 256 So. 3d 961 (Fla. 3d DCA 2018).

      On its face, the motion and the existing record would appear to support intervention. However, we do not reach the merits of the trial court's determination, but instead reverse and remand for further proceedings on the motion for intervention as may be appropriate.

      After appellant filed her motion to intervene, the parties-pursuant to the trial court's order-coordinated a special-set, thirty-minute hearing date for the motion. However, on the day before the special set hearing was to be held, appellee filed his response to the motion to intervene. Two hours after appellee's response was filed, the trial court entered its order denying the motion to intervene and cancelled the hearing specially set for the following day. Appellant thereafter filed her motion for rehearing in which she raised the trial court's decision to cancel the hearing, and also replied to (and took issue with) several of the factual allegations appellee asserted and relied upon in his response as a basis for the trial court to deny the motion to intervene.


author: FERNANDEZ, J.

text:
    BJ'S WHOLESALE CLUB, INC., and State of Florida Department of Revenue, Appellants, v. Laura BUGLIARO, et al., Appellees.
    Nos. 3D17-1495 3D17-1476
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019
    Foley & Lardner, LLP, Kevin A. Reck, and Christina M. Kennedy (Orlando), Brandon J. Williams, James A. McKee and Benjamin J. Grossman (Tallahassee), for appellant BJ's Wholesale Club, Inc.
    Ashley Moody, Attorney General, and Amit Agarwal, Solicitor General, and J. Clifton Cox, Special Counsel, and Edward M. Wenger, Chief Deputy Solicitor General, (Tallahassee), for appellant State of Florida Department of Revenue.
    Kluger, Kaplan, Silverman, Katzen and Levine, P.L., Alan J. Kluger, Steve I. Silverman and Erin E. Bohannon ; Samson Appellate Law and Daniel M. Samson ; VM Diaz & Partners, LLC, Victor M. Diaz, Jr., and Jorge D. Lorenzo, for appellees.
    Before EMAS, C.J., and FERNANDEZ, and LOGUE , JJ.

      Did not participate in oral argument.

   FERNANDEZ, J.

State of Florida Department of Revenue, as intervenor, and BJ's Wholesale Club, Inc., a Florida retailer, separately appeal the trial court's May 24, 2017 non-final order certifying a class on Count I, pursuant to Florida Rule of Appellate Procedure 9.30(a)(3)(C)(vi). We have jurisdiction. Concluding that the trial court lacked subject matter jurisdiction and that the class is not ascertainable, we reverse the order and remand to the trial court for further proceedings consistent with this opinion.

This matter came before the trial court on Laura Bugliaro's motion for class certification on Count I, seeking injunctive relief under the Florida Deceptive and Unfair Trade Practices Act. The motion concerns a statewide class of non-tax-exempt members of BJ's Wholesale Club's thirty-one Florida stores. In her third amended complaint, Bugliaro alleges that BJ's engaged in deceptive and unfair trade practices by improperly imposing on and collecting from its members a charge denominated as a "sales tax" on the full, undiscounted price of products purchased with a discount, funded in part by BJ's, at all of BJ's thirty-one Florida locations. Particularly, Bugliaro asserts that when members of BJ's Wholesale Club's thirty-one Florida stores use discounts, issued and funded in-part by BJ's, to make in-store purchases in Florida, BJ's still charges and purports to collect "sales tax" on the full price of the item, without application of the portion of the discount that is funded by BJ's to reduce the sales price of the item.

On February 27, 2016, the trial court, on the parties' cross-motions for summary judgment, determined that BJ's "improperly charged and collected taxes on the portion of the discounts that constituted its dealer discount." On September 9, 2016, Bugliaro filed her motion for class certification on Count I for injunctive relief pursuant to Florida Rule of Civil Procedure 1.220(b)(2). Bugliaro defined the proposed statewide class as: "All non-tax-exempt members of BJ's Wholesale Club's 31 Florida stores who will make in store purchases in Florida and will be charged and pay monies as a 'sales tax' on the full, undiscounted price of products purchased with a discount funded in part by BJ's." On October 4, 2016, BJ's filed its opposition to the motion for class certification. On November 4, 2016, Bugliaro filed her reply in support of her motion for class certification.

On May 24, 2017, the trial court entered an order granting Bugliaro's motion for class certification on Count I finding, "Bugliaro has demonstrated by competent, substantial evidence that this action meets each and every one of Rule 1.220's prerequisites for class certification." The trial court certified the class under Bugliaro's proposed definition and appointed Bugliaro as class representative. The State and BJ's separately appealed the non-final order granting class certification. The appeals are consolidated for the purposes of the record, oral argument, and decision only.

Trial court orders that determine class certification are reviewed for an abuse of discretion. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1267 (Fla. 2006). However, a review of the legal conclusions underlying the decision to certify a class are reviewed de novo . Alderwoods Grp., Inc. v. Garcia, 119 So.3d 497, 502-03 (Fla. 3d DCA 2013). Upon review of the record, we reverse and remand the order granting class certification because: 1) the trial court lacked subject matter jurisdiction, as Bugliaro failed to exhaust her administrative remedies, and 2) the class is not ascertainable.

As to the trial court's lack of subject matter jurisdiction, Bugliaro is not seeking purely injunctive relief, as she claims. Count I, upon which Bugliaro is proceeding for class certification, incorporates the first paragraph of the operative complaint in which Bugliaro seeks damages, including a tax refund. Because Count I includes a request for a refund, Bugliaro and any putative class members were required to exhaust their administrative remedies with the Department of Revenue pursuant to section 215.26, Florida Statutes (2016). Since the statute requires that an aggrieved party pursue his or her administrative remedies prior to filing a lawsuit, the trial court was without subject matter jurisdiction in this case. See also Dist. Bd. of Trs. of Broward Cmty. Coll. v. Caldwell, 959 So.2d 767, 771 (Fla. 4th DCA 2007) ("The failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction ....").

In addition, the class is not ascertainable because the definition of the class is either over or under inclusive. See Karhu v. Vital Pharms., Inc., 621 F.App'x 945, 946 (11th Cir. 2015) ("[A] class is not ascertainable unless the class definition contains objective criteria that allow for class members to be identified ...."); Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (denying certification because class was overbroad). The tax issue in this case only affects the stores in Florida; however, BJ's has nationwide membership where potentially any member in the nation could travel to Florida and shop at any one of BJ's thirty-one Florida locations. Because BJ's members are not members of particular stores, the reference to "members of BJ's Wholesale Club's 31 Florida stores" encompasses either every current and future BJ's member nationwide, or the definition does not include anyone, as membership is not limited by state. Karhu, 621 F.App'x at 946 (To be ascertainable, the class definition must allow for class members to be identified through a "manageable process that does not require much, if any, individual inquiry."). Based on the definition of the class, we find that the class is not ascertainable because it has not been defined in such a way that the members of that class can be properly notified of the class action and their right to opt out.

Upon finding that the trial court lacked subject matter jurisdiction and that the class is not ascertainable, we reverse the order and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

      The appeals are consolidated for the purposes of the record, oral argument, and decision only.


text:
    Laroyce ODOM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1330
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019.
    Carlos J. Martinez, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General and Richard L. Polin, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. The sole issue on appeal is whether the trial court erred in denying the defendant's motion for mistrial based on a prosecutor's passing reference to "jail calls" in closing argument. A sixteen-minute jail call from the defendant to a victim was admitted into evidence during the case and without objection, but was not identified at that time as a "jail" call. Defense counsel moved for a mistrial based on this reference during the State's closing argument, and the motion was denied by the trial court.

We find no abuse of discretion or harmful error in the trial court's denial of a motion for mistrial based on this single word amidst ten pages of closing argument. The issue does not warrant extended discussion, as it is clear the reference was not "so prejudicial as to vitiate the entire trial." See Guzman v. State, 214 So. 3d 625, 633 (Fla. 2017) ("Even if the jurors might have inferred that [the defendant] was jailed for a different crime, the reference to the jail was brief, isolated, inadvertent, and not so prejudicial as to vitiate the entire trial."); Fletcher v. State, 168 So. 3d 186, 207 (Fla. 2015) ("A comment [regarding a defendant's prior imprisonment] that is brief, isolated, and inadvertent may not warrant a mistrial.").

The final judgment of conviction and sentence are affirmed.

      The closing argument passage by the prosecutor was, "The state brought to you photographs state brought to you casings, the state brought to you 7 different witness testimonies, state brought to you 911 call and the state brought to you jail calls but what are you to do with all this?" [sic].


author: LOGUE, J.

text:
    L. J., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D18-2026
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
    Karla Perkins, Miami, for appellee.
    Before SALTER, LOGUE, and HENDON, JJ.
   LOGUE, J.

The Mother, L.J., appeals the trial court's order adjudicating her two minor children dependent and placing the children in the temporary care and custody of their maternal aunt. In the order adjudicating the children dependent, the trial court discusses the Mother's mental health issues, the Mother's past substance abuse, and the Mother's removal of an IV from one child's arm during the child's stay in a hospital. Regarding the first two matters, there was no expert testimony or other evidence that indicated the children were harmed or at risk of being harmed. The third matter was based solely on hearsay.

As the Mother properly points out, the evidence and the controlling law does not support adjudicating the children dependent on these three grounds. See J.M. v. Dep't of Children & Families, 188 So. 3d 94, 95 (Fla. 4th DCA 2016) ("[A]lthough there was testimony that the [m]other was under the influence of substances on the date that she met with the child protection investigator, there was no testimony that the [m]other was under the influence in the presence of the [c]hild, or that any substance abuse adversely affected the [c]hild."); V.G. v. Dep't of Children & Families, 813 So. 2d 298, 299 (Fla. 5th DCA 2002) ("The standard of review on the issue of sufficiency of the evidence in dependency cases is whether the trial court's findings are supported by competent substantial evidence."); E.M.A. v. Dep't of Children & Families, 795 So. 2d 183, 187-88 (Fla. 1st DCA 2001) (affirming a finding of dependency where expert testimony and other competent evidence showed a parent's mental disorder posed a significant risk of danger to their children).

The trial court, however, also found that the Mother neglected the children because she and they were homeless and the Mother twice refused the offer of shelter services. Although there was disputed evidence on this point, this finding was supported by competent, substantial evidence and reflects a basis for the trial court to adjudicate the children dependent. Under Florida law, a child is dependent if the child is found "to have been abandoned, abused, or neglected by the child's parent or parents or legal custodians." § 39.01(15), Fla. Stat. (2017). "Neglect," in turn, encompasses a child who "is deprived of, or is allowed to be deprived of ... shelter ...." § 39.01(50), Fla. Stat. (2017). However, "[t]he foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person." Id. (emphasis added).

The court's factual findings that the Mother and children were homeless and the Mother twice refused shelter services for her and her children are supported by competent, substantial evidence. Accordingly, we hold that the trial court did not abuse its discretion. Y.P. v. Dep't of Children & Family Servs., 939 So. 2d 1118, 1119 (Fla. 3d DCA 2006) ("We review an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence.").

Affirmed.


text:
    Christopher CLAUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-425
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Cohen v. State, 171 So.3d 179 (Fla. 3d DCA 2015) (holding that reversal of probation violation order was not required, despite error in revoking probation on an uncharged violation, where the record separately supported trial court's revocation on a properly-charged violation and it is clear that trial court would have revoked probation and imposed the same sentence absent the uncharged conduct); Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011). See also Francois v. State, 923 So.2d 1219 (Fla. 3d DCA 2006).


text:
    The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellant, v. The CITY OF MIAMI BEACH, Florida, Appellee.
    No. 3D19-598
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019
    Alvarez, Winthrop, Thompson & Storey, P.A., and Susan M. Seigle (Gainesville); Walter J. Harvey, School Board Attorney, and Jeff James, Assistant School Board Attorney, for appellant.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke (Fort Lauderdale), for appellee.
    Before SALTER, LOGUE, and MILLER, JJ.
    ON MOTION TO DISMISS
   PER CURIAM.

The motion to dismiss for lack of jurisdiction is granted. See Dep't of Children & Families v. Feliciano, 259 So.3d 957, 958 (Fla. 3d DCA 2018), pet. pending, SC18-2146 (Fla. Dec. 27, 2018); Miami-Dade Cnty. v. Pozos, 242 So.3d 1152 (Fla. 3d DCA 2017), reh'g denied, 242 So.3d 540 (Fla. 3d DCA 2018) (Rothenberg, C.J., dissenting), pet. pending, SC18-1118 (Fla. July 6, 2018). But see, Fla. Highway Patrol v. Jackson, 238 So.3d 430, 431 (Fla. 1st DCA 2018), pet. pending, SC18-468 (Fla. Mar. 23, 2018).

Dismissed.


author: LEBAN, Senior Judge.

text:
    Carolina ARISTIZABAL, Appellant, v. Rafael Antonio PINA, Appellee.
    No. 3D18-2083
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    Lindsey Wilson, PLLC, and Amber Wilson and Sean Lindsey (Fort Lauderdale), for appellant.
    McConnell Valdes LLP, and Maria A. Dominguez and Juan C. Ramos and Javier F. Micheo, for appellee.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   LEBAN, Senior Judge.

We review the trial court's factual findings for competent substantial evidence. See Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 734 (Fla. 3d DCA 2006) (noting that although review of a motion to dismiss for lack of personal jurisdiction is de novo, "where the trial court's decision is based on live testimony, the appellate court defers to the trial court's determination of the facts"); Rudel v. Rudel, 111 So.3d 285 (Fla. 4th DCA 2013) (holding where case for lack of jurisdiction is based on a finding of fact, appellate court reviews findings based on competent, substantial evidence standard).

Affirmed.


text:
    Hanoj PEREZ, Appellant/Cross-Appellee, v. Talia PEREZ, n/k/a Talia Sessel, Appellee/Cross-Appellant.
    No. 3D18-322
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019
    Marks & West, P.A.; Young, Berman, Karpf & Gonzalez, P.A., and Cynthia L. Greene, Miami, for appellant/cross-appellee.
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, Miami, for appellee/cross-appellant.
    Before SCALES, LINDSEY and HENDON, JJ.
   PER CURIAM.

In this appeal, Hanoj Perez, the former husband, challenges three components of the trial court's December 9, 2016 Final Judgment of Dissolution of Marriage: (1) the trial court's finding that former husband's annual income is $ 300,000; (2) the amount of a rehabilitative alimony award in light of this annual income calculation; and (3) the summer timesharing schedule of the parties' Parenting Plan.

We conclude that the record contains competent substantial evidence to support the trial court's finding of the ex-husband's annual income. Lin v. Lin, 37 So.3d 941, 943 (Fla. 2d DCA 2010) ("The trial court's determination of the amount of a party's income must be supported by competent, substantial evidence. When there is conflicting evidence concerning a party's income, it is within the trial court's purview to determine what evidence is most credible.") (citations omitted).

With respect to both the trial court's award of rehabilitative alimony and its devising of a "summer break" schedule within the Parenting Plan, we conclude that the trial court did not abuse its discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980).

Our affirmance renders moot the cross-appeal of Talia Perez, the former wife.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Stanford ELLIS, Appellee.
    No. 3D17-2478
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    Ashley Moody, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General, for appellant.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region and Kristen Kawass, Assistant Regional Counsel, for appellee.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   PER CURIAM.

The State of Florida appeals an order granting postconviction relief to Stanford Ellis ("Ellis") following an evidentiary hearing. We affirm the order, finding competent, substantial evidence in the record establishing Ellis's trial counsel's ineffectiveness for failing to file a pretrial motion to dismiss based upon pre-arrest delay, and upon counsel's constitutionally deficient pretrial investigation.

The trial court's closely reasoned 34 page order describes a one-witness case in which Ellis was convicted of two counts of misdemeanor battery and one count of false imprisonment, all as lesser-included offenses of aggravated battery on a pregnant victim, domestic battery by strangulation, and kidnapping. There was no physical or testimonial evidence presented at trial to corroborate the alleged victim's version of what occurred.

The alleged criminal incidents occurred May 13, 2011. The alleged victim made a report to the Miami-Dade Police Department two days later, but Ellis was not arrested until a year later. The victim's report and later testimony disclosed numerous material inconsistencies and differing accounts of the alleged criminal incidents.

At trial in November 2012, the jury convicted Ellis on all three lesser included offenses rather than the charged offenses. The conviction and sentence were affirmed in a citation per curiam opinion in August 2014; Ellis v. State, 145 So.3d 216 (Mem.) (Fla. 3d DCA 2014).

Ellis filed the subject postconviction motion in July 2015 (and a pro se amendment shortly after that). The trial court appointed the Office of Criminal Conflict and Civil Regional Counsel to represent Ellis. Appointed counsel filed two amendments to the postconviction motion, ultimately asserting six claims, and the matter was set for an evidentiary hearing.

The trial court heard the testimony of two of the public defenders for Ellis; a bank employee with knowledge of the surveillance video system operated by the bank where, according to the victim's trial testimony, Ellis compelled her to attempt to withdraw funds; a motel manager for the motel where the alleged criminal incidents occurred; and the defendant.

The trial court granted the postconviction motion based on three claims of ineffective assistance: (1) defense counsel's inability to investigate the bank branch and drug store surveillance video that might have corroborated or disproven the alleged victim's account of the incidents, and failure to file a motion to dismiss based upon the prejudice resulting from the prearrest delay (loss of prospectively-exculpatory video recordings); (2) the duty to investigate the crime scene (and in this case, the motel's check-in records for the dates in question); and (3) counsel's failure to impeach the victim and failure to investigate an alibi. The State's appeal followed.

Analysis

On appeal from the order granting Ellis's postconviction claims of ineffective assistance by defense counsel, we apply a mixed standard of review. We defer to the trial court's factual findings based on competent, substantial evidence in the underlying case and in the evidentiary hearing on the postconviction motion. See Hoskins v. State, 75 So.3d 250, 253-54 (Fla. 2011). The trial court's conclusions of law are reviewed de novo. See id. at 254.

The standard for prevailing on these claims is established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ellis had the initial burden to identify specific acts or omissions demonstrating that defense counsel's performance was unreasonable under prevailing professional norms. See Hoskins, 75 So.3d at 253-54. Defense counsel's performance before and during trial must be shown to have been "so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Next, Ellis was required to prove that he was prejudiced by the deficient performance of his trial counsel. Id. To succeed under the prejudice prong, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. "In assessing prejudice, courts must consider the totality of the evidence presented in postconviction, along with the evidence adduced at trial, to determine whether there is a reasonable probability that the outcome would have differed." Ciambrone v. State, 128 So.3d 227, 230 (Fla. 2d DCA 2013).

The evidence presented during the postconviction hearing disclosed that the bank destroyed its digital surveillance video recordings after 90 days, and that the drug store did so after 30 days. Actual prejudice was demonstrated, because the recordings were potentially exculpatory and the State provided no explanation for the yearlong delay between the victim's report and the filing of the case (initiating defense counsel's investigation of the alleged incidents). There is a reasonable probability that the case may have been dismissed based on that delay, the failure to secure the video recordings and motel records, and the resulting prejudice to Ellis's defense.

The motel manager's testimony established that, had defense counsel investigated the motel records, it would have shown that neither Ellis nor the victim was at the motel on the date of the criminal acts alleged to have occurred there. It was also established that defense counsel did not investigate the victim's alleged pregnancy or Ellis's alibi that he was still at the drug treatment center on the day of the alleged incidents.

Considering the effects of these lapses on Ellis's ability to impeach the credibility of the alleged victim (who was the sole witness to provide evidence against Ellis at trial), the postconviction court properly concluded that counsel's deficient performance caused prejudice and that there exists a reasonable probability the result of the proceedings would have been different had the lapses not occurred. Under the test articulated in Rogers v. State, 511 So.2d 526, 531 (Fla. 1987), defense counsel's failure to move for dismissal (based on the delay between the alleged commission of the crime and the defendant's arrest), amounts to a due process violation.

The trial court also correctly concluded that Ellis was entitled to relief under Lee v. State, 899 So.2d 348 (Fla. 2d DCA 2005), an analogous case in which (a) there was no strategic reason for defense counsel's failure to investigate, and (b) the State's case rested entirely on the alleged victim's testimony.

Affirmed.

      The defendant in the underlying criminal case, Ellis, had served his sentences and was at liberty when the order was entered.

      We reject the State's argument that Ellis's claims are merely speculative regarding what might have been shown by the bank and drug store video recordings had they been preserved. A negative inference cannot be drawn against a defendant based on the State's failure to secure evidence. See Fleming v. State, 624 So.2d 797, 798-99 (Fla. 1st DCA 1993).


text:
    Eugene HARRIS, Sr., Appellant, v. Ramona MIMS, Appellee.
    Case No. 5D18-2904
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2019
    Eugene Harris, Sr., Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the order denying Appellant's motion to dissolve the injunction, without prejudice to Appellant's ability to file a subsequent motion in the lower court asserting the requisite changed circumstances based on Appellee's death.

AFFIRMED.

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


author: Per Curiam.

text:
    Brian M. CASEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D19-1019
    District Court of Appeal of Florida, First District.
    May 16, 2019 Rehearing Denied July 1, 2019
    Brian M. Casey, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Roberts, Ray, and Winsor, JJ., concur.


text:
    Oliver S. BLAKE, Appellant, v. U.S. BANK, N.A., etc., Appellee.
    No. 3D18-1776
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    Castle Law Group, P.A., and Alexander Allred (Largo), for appellant.
    SHD Legal Group, P.A., Roy A. Diaz and Adam A. Diaz (Ft. Lauderdale), for appellee.
    Before FERNANDEZ, MILLER and GORDO, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002) ("As a general rule, reviewing courts will not consider points raised for the first time on appeal.... the appellant must present a record indicating that an adequate and timely objection was interposed in the proceedings below challenging the action sought to be reviewed on appeal."); Smith Original Homes, Inc. v. Carpet King Carpets, Inc., 896 So.2d 844, 847 (Fla. 2d DCA 2005) ("Deliberate and contumacious disregard of the court's authority justifies application of the severe sanction of striking pleadings or entering default for noncompliance with a discovery order, as will bad faith, willful disregard or gross indifference to the court's order, or conduct which evinces deliberate callousness."); Paranzino v. Barnett Bank of South Florida, N.A., 690 So.2d 725 (Fla. 4th DCA 1997).


text:
    Hector LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2623
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019.
    Hector Lopez, in proper person.
    Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and HENDON, JJ.
    ON PARTIAL CONFESSION OF ERROR
   PER CURIAM.

Hector Lopez, the defendant below, appeals an order summarily denying his Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit. Lopez's motion is facially insufficient because the motion is not under oath and otherwise fails to contain the contents required by rule 3.801(c). As the State properly and commendably concedes, however, the trial court erred by denying Lopez's motion without giving him leave to amend the motion. See Fla. R. Crim. P. 3.801(e) (incorporating the amendment procedure under Florida Rule of Criminal Procedure 3.850(f)(2) for timely but facially insufficient post-conviction motions); Belanger v. State, 146 So.3d 136, 137 (Fla. 3d DCA 2014). Accordingly, we reverse the order under review to allow Lopez to file a facially sufficient rule 3.801 motion within sixty days of the issuance of this Court's mandate. See Belanger, 146 So.3d at 137.

Reversed.


author: HENDON, J.

text:
    GEICO INDEMNITY COMPANY and GEICO General Insurance Company, Appellants, v. Ricardo PEREZ and Luz Perez, etc., Appellees.
    Nos. 3D18-208 3D18-629
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019
    Shutts & Bowen LLP, and Suzanne Youmans Labrit, B.C.S. (Tampa) and Amy M. Wessel (Fort Lauderdale), for appellants.
    The Powell Law Firm, P.A., and Brett C. Powell ; Silverstein, Silverstein & Silverstein, P.A., for appellees.
    Before FERNANDEZ, LINDSEY, and HENDON, JJ.
    CONFESSION OF ERROR
   HENDON, J.

As the appellees properly concede, the attorney's fees and costs judgments at issue in these consolidated appeals must be reversed. In GEICO Indemnity Co. v. Perez, 260 So.3d 342 (Fla. 3d DCA 2018), this Court reversed the underlying final judgment as to uninsured/underinsured motorist coverage and remanded for a new trial. Therefore, the attorney's fees and costs judgments that were predicated on the reversed final judgment cannot stand. See City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006) (recognizing that "where an award of attorney's fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award"); Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney's fees. Consequently, an award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed").

Reversed.


text:
    E.V., Appellant, v. D.M.V.H., Appellee.
    Case No. 2D18-2240
    District Court of Appeal of Florida, Second District.
    Opinion filed May 29, 2019
    Colette Kellerhouse Wright of Kellerhouse Law, Naples, for Appellant.
    Neil Morales of Law Offices of Neil Morales, P.A., Naples, for Appellee.
   PER CURIAM.

E.V., the Father, appeals the final judgment on his petition to establish paternity and the counterpetition filed by D.M.V.H., the Mother. He raises six arguments on appeal, which relate to the calculation of his income, the support arrearage, the Mother's income, the parenting plan, the time-sharing schedule, and the limited length of the trial. We reverse the judgment to the extent the parenting plan did not include one of the statutorily required findings. We remand for entry of this finding and to correct the clerical errors and other minor omissions in the parenting plan. We otherwise affirm the judgment without comment.

The Father argues that the parenting plan is legally insufficient because it does not comply with section 61.13(2)(b), Florida Statutes (2017), in five ways: (1) it fails to provide that either parent may consent to health treatment for the child; (2) it fails to describe the methods and technologies that the parents will use to communicate with the children; (3) it lists the Father as the school-based parent; (4) it designates the Father as the parent with whom the children will reside the majority of the time; and (5) it contains an error regarding the number of overnights.

Section 61.13(b) provides the minimum requirements for a court-approved parenting plan. Reversal is required where the trial court fails to create a time-sharing schedule entirely, see Munroe v. Olibrice, 83 So.3d 985, 987 (Fla. 4th DCA 2012) ("Because the court did not create or approve a parenting plan, much less one which satisfies the requirements of section 61.13(2)(b), we are required to reverse the orders establishing the time-sharing schedule."), or where the parenting plan included in the final judgment lacks specific findings in compliance with section 61.13(2)(b), Duke v. Duke, 211 So.3d 1078, 1083 (Fla. 5th DCA 2017) ; Magdziak v. Sullivan, 185 So.3d 1292, 1293 (Fla. 5th DCA 2016) (reversing final judgment of modification that merely adopted the father's recommended parenting plan without actually attaching it).

The parenting plan incorporated into the final judgment in this case is the form approved by the Florida Supreme Court and is sufficiently specific as to the minimum requirements set forth in section 61.13(2)(b), with one exception. Under section 61.13(2)(b)(4), the parenting plan must "[d]escribe in adequate detail the methods and technologies that the parents will use to communicate with the child." This section of the form plan is blank. As a result, we direct the trial court to make these findings. See Lanier v. Lanier, 861 So.2d 457, 459 (Fla. 2d DCA 2003) (reversing in part and remanding for "the trial court to clarify its order regarding the parental responsibility and custody of the children").

On remand, the trial court should also address the rest of the issues identified by the Father, particularly the number of overnights, which the Mother concedes are clerical errors. See Pope v. Langowski, 115 So.3d 1076, 1078 (Fla. 4th DCA 2013) ("In its discretion, the trial court may also address the other 'inconsistencies' identified by the father ... [which] were not so pervasive or significant that they constitute an abuse of discretion requiring reversal of the entire parenting plan.").

Affirmed in part; reversed in part; remanded with instructions.

CASANUEVA, VILLANTI, and ATKINSON JJ., Concur.


author: COHEN, J.

text:
    Luis AVILA and Cristine Rosenhaim, Appellants, v. HMC ASSETS, LLC Solely in its Capacity as Separate Trustee for CAM XVIII Trust and Riviera Bella Master Association, Inc., Appellees.
    Case No. 5D18-1929
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    Tanner Andrews, of Tanner Andrews, P.A., Deland, for Appellant.
    Ashland R. Medley and Wendy S. Griffith, of Ashland Medley Law, PLLC, Coral Springs, for Appellee, HMC Assets, LLC Solely in its Capacity as Separate Trustee for CAM XVIII Trust.
    No appearance for Appellee, Riviera Bella Master Association, Inc.
   COHEN, J.

Luis Avila and Cristine Rosenhaim ("the Avilas") appeal the final summary judgment of foreclosure entered in favor of HMC Assets, LLC Solely in its Capacity as Separate Trustee for Cam XVIII Trust and Riviera Bella Master Association, Inc. ("HMC"). We affirm without discussion. However, we write to comment upon the trial court's reservation of jurisdiction to enter a deficiency judgment against the Avilas following the foreclosure sale.

HMC attempted to effectuate personal service on the Avilas but could not locate them. Instead, it properly effectuated constructive service. The Avilas maintained their objection to personal jurisdiction throughout the proceedings. The trial court entered a final summary judgment of foreclosure in favor of HMC and reserved jurisdiction to enter further orders, including a deficiency judgment against the Avilas following the foreclosure sale.

"A personal money judgment necessitates in personam jurisdiction over the defendant," but "[c]onstructive service confers only in rem or quasi in rem jurisdiction upon the court." Honegger v. Coastal Fertilizer & Supply, Inc., 712 So. 2d 1161, 1162 (Fla. 2d DCA 1998) (citations omitted). Accordingly, the court never acquired the necessary in personam jurisdiction to enter a deficiency judgment against the Avilas, and entry of such would be improper.

AFFIRMED.

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

      We note that HMC is not precluded from personally serving the Avilas and obtaining a deficiency judgment. A plaintiff is not required to obtain personal jurisdiction in an initial foreclosure action in order to bring a deficiency action in the future. NCNB Nat'l Bank of Fla. v. Pyramid Corp., 497 So. 2d 1353, 1355 (Fla. 2d DCA 1986).