author: Conner, J.

text:
    STATE of Florida, Appellant, v. Daniel Lamont SEPHES, Appellee.
    No. 4D18-981
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Ashley Brooke Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   Conner, J.

The State appeals, contending the trial court erred in granting post-trial a renewed motion for judgment of acquittal, after a jury found Defendant Daniel L. Sephes guilty as charged. The State contends that it proved by direct evidence that Defendant was guilty and that the trial court improperly applied the circumstantial evidence standard in granting the acquittal. We determine that the trial court used the correct standard, but improperly applied it. Thus, we reverse and remand the case for the trial court to proceed with an appropriate sentencing disposition.

Background

Defendant was charged with being a felon in possession of a firearm or ammunition. Prior to trial, Defendant's motion for statement of particulars was granted, and the State responded by alleging that Defendant possessed a firearm on March 13, 2015.

At trial, a law enforcement officer testified that on March 13, 2015, around 6:30 a.m., he was on a police motorcycle and conducted a traffic stop on a speeding car. After the officer turned on his blue light to signal the stop, the car did not stop right away, but eventually turned into the entrance of a gated apartment complex and stopped. As the officer was getting off of his motorcycle, the driver's side door of the car opened, and he observed a man get out of the driver's seat, go around the open door and start to run towards the complex. The officer testified that he was unable to describe the man other than to give his sex and race and describe him as about the same height and weight as the officer - six-foot and 250 pounds.

The officer testified that as he started to chase the man, he heard "[s]omething metallic hit the payment [sic] just at the front of the car." He said he could not see what the object was until he got around the car, which he estimated took "[l]ike a second," and saw that the object was a handgun. He estimated that the firearm was about ten or twelve feet in front of the car. He then testified:

Um, I saw the firearm and I looked at the male. The male looked back at me. He looked at the firearm, and I said, "Stop, police." I didn't want him going towards the gun. He turned around and ran back into the apartment complex.

The officer further testified that it was his impression that the fleeing man turned around to look at him and the firearm as if he wanted to go back and retrieve the firearm.

On cross-examination, the officer admitted that he did not see anything in the fleeing person's hand, any bulges on the person, or the person gripping his waistband. He conceded he did not remember specific identifying factors regarding the person who fled, such as hair or facial hair, and also stated that if he were given a photo line-up, he probably could not identify the person he saw flee.

The officer testified that he stayed in the area of the car and firearm because he did not want to leave the firearm unattended. As he was waiting for a crime scene investigator to arrive, a woman came from within the apartment complex and said, "That's my car." The woman was later identified as Defendant's girlfriend.

The crime scene investigator testified that he took the firearm back to the lab and swabbed it for DNA. He testified that he used one swab to swab the outside of the firearm, including the grips, trigger, slide, and sights, and then another swab to swab the magazine. He explained that he preferred to swab the top of the magazine, since "as you're loading bullets into the magazine, you're pushing them down into the top of the magazine, so there's a lot of skin contact as such where I normally will swab the opening of the top of the magazine to collect DNA." He also said he swabbed the live rounds inside the magazine. On cross-examination, he admitted that he did not know when the magazine was loaded. The crime scene investigator testified that he tried to process the firearm for fingerprints, but he did not get any useable prints.

The car was towed to the impound lot and searched. Men's clothing was found on the backseat, as well as a dry cleaning receipt in the open glovebox. The receipt was in the name of Defendant and was admitted as an exhibit.

Two DNA analysts were called by the State to testify. The combination of their testimony established that the swab of the outside of the firearm revealed there were three or more contributors, one of whom was a male, but due to the complexity of the mixture, no DNA profile could be identified. As to the swab of the magazine, the sample matched Defendant's DNA.

Cross-examination of one of the DNA analysts revealed that a person's DNA can be transferred to an object in multiple ways without the person actually touching the object. The cross-examination revealed a transfer of DNA could occur without a person touching the object by: (1) a person shaking hands with a third person and the third person later touching the object; (2) the object coming in contact with clothing worn by a person, since DNA is very prone to rubbing off on clothing; and (3) the object being close by when a person sneezes.

The State called the owner of the vehicle to testify. The owner was the mother of the woman who came up to the motorcycle officer and claimed the vehicle was hers. The owner testified that she allows her daughter to use her vehicle. She also testified that she knew Defendant and that her daughter was dating Defendant. The owner testified as to the numbers composing her daughter's cellphone number.

The State called the records custodian for inmate telephone calls at the jail. The records custodian testified that while Defendant was in jail, there were 771 attempted connections to the daughter's cellphone number by the Defendant attempting to place a call from the jail, and 260 completed calls to the daughter's cellphone number.

The State rested and Defendant moved for a judgment of acquittal. Defendant put forth two reasonable hypotheses of innocence: (1) that there was a secondary transfer of Defendant's DNA onto the firearm; and (2) that Defendant touched the magazine on a different and unknown date rather than on March 13, 2015. The motion was denied. Defendant rested without presenting evidence and then renewed his motion for judgment of acquittal. The trial court expressed doubts about the case, reserved ruling on the renewed motion, and allowed the jury to deliberate on the case.

After deliberating, the jury found Defendant guilty as charged, including the special interrogatory finding that Defendant actually possessed the firearm. After the verdict, the trial court allowed the State and Defendant to submit memoranda of law regarding the reserved ruling on the renewed motion for judgment of acquittal. After considering both memoranda, the trial court granted the motion. Applying the circumstantial evidence standard, the trial court found that the State's evidence was not inconsistent with the two reasonable hypotheses advanced by Defendant. The State gave notice of appeal.

Appellate Analysis

The State's sole argument on appeal is that the trial court erred in granting Defendant's renewed motion for judgment of acquittal following the jury's verdict finding Defendant guilty of felon in possession of a firearm. We apply a de novo standard of review. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

The State argues that the circumstantial evidence standard should not apply in this case, because the facts at issue in this case, the time at which Defendant's DNA was deposited on the firearm and how it was deposited, are not elements of the crime. We disagree with the State's argument that the circumstantial evidence standard does not apply. As our supreme court explained in Knight v. State , 186 So.3d 1005 (Fla. 2016) :

We now expressly hold that the circumstantial evidence standard of review applies only where all of the evidence of a defendant's guilt-i.e., the evidence tending to show that the defendant committed or participated in the crime-is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence.

Id. at 1010. Applying Knight , two of the important parts of this standard are whether the defendant committed or participated in the crime . Here, the two facts at issue - Defendant's identity and how Defendant's DNA got on the firearm-go to whether Defendant committed the crime . More importantly, although the DNA evidence in this case shows that Defendant's DNA was on a portion of the firearm at the time it was seized by law enforcement, such evidence does not show, by itself, his involvement in a crime . That is because the DNA evidence presents the possibility his DNA was transferred to the firearm without him being in possession of it or touching it. Thus, we agree with Defendant that the circumstantial evidence standard applies to the ruling on the motion for judgment of acquittal.

"When the evidence of guilt is wholly circumstantial, it must be inconsistent with any other reasonable hypothesis of innocence." Jackson v. State , 180 So.3d 938, 949 (Fla. 2015). Therefore, we next look to Defendant's reasonable hypotheses of innocence, and determine if the State provided any evidence inconsistent with the theories.

The trial court, as well as Defendant, heavily rely on our decision in Finley v. State , 139 So.3d 940 (Fla. 4th DCA 2014) in support of the conclusion that the State's evidence was not inconsistent with Defendant's hypothesis of innocence. Although the facts of that case are somewhat similar to the facts of the instant case, the facts in Finley that we found determinative demonstrate why Defendant was not entitled to an acquittal in this case.

In Finley , the defendant was also charged with felon in possession of a firearm, where officers responded to a burglary of defendant's home, found his home had been "ransacked," and "found a handgun lying on a box spring left exposed by an overturned mattress." Id. at 941. The burglar was apprehended as officers were responding to the scene. Id. Officers dusted the handgun and magazine for fingerprints, and none were found. Id. They also swabbed the handgun and magazine for DNA, finding a match to the defendant. Id. However, the DNA expert testified that there was a second contributor of DNA, and testified regarding "secondary transfer" of DNA, whereby DNA can be transferred from one object to a second, without the DNA owner touching the second object. Id. The defendant moved for a judgment of acquittal at the end of the State's case-in-chief, which the trial court denied, the jury found the defendant guilty, and the defendant appealed. Id.

On appeal, we first addressed whether the State's evidence was direct or circumstantial, and found that the circumstantial evidence standard applied. Id. at 942. Applying the special standard, we found that the trial court erred in denying the defendant's motion for judgment of acquittal, because the State failed to provide evidence inconsistent with defendant's reasonable hypothesis of innocence: that the handgun was left by the burglar, and the DNA evidence on the handgun was the result of a secondary transfer. Id. at 943. We explained that there was no evidence presented inconsistent with the defendant's theory, such as: (1) the burglar testifying that the gun was not his; (2) a test using the burglar's DNA to provide evidence to rebut the hypothesis; or (3) a DNA test using separate swabs from multiple areas of the handgun and magazine, so it was not clear where the defendant's DNA was found on the handgun or magazine. We concluded that "[t]here was no evidence provided as to when or how the DNA evidence became present on the handgun." Id.

In this case, the trial court granted the renewed motion for judgment of acquittal on the basis that Defendant advanced two reasonable hypotheses of innocence that: (1) the DNA found on the firearm was due to secondary transfer; and (2) his DNA was deposited on the firearm prior to March 13, 2015. As to the first hypothesis of innocence, Defendant argued that the firearm may at some point have been on the pile of clothes on the backseat of the car, those clothes may have belonged to Defendant, and the clothes may have had his DNA on them, which would have served as a medium for a transfer of his DNA. Additionally, Defendant argued to the jury that the deposit of his DNA could have occurred by transfer when some unknown and unidentified person touched the magazine after having touched him, some unknown and unidentified person had contact with some other unknown and unidentified object that Defendant touched and subsequently the other person touched the magazine, or Defendant may have sneezed in the presence of a third unknown and unidentified person who then touched the magazine.

The problem with Defendant's hypotheses of innocence, based on a secondary transfer of his DNA to the firearm, is that his theories do not present reasonable hypotheses, since they rely on multiple layers of speculation. Cf. Ayalavillamizar v. State , 134 So.3d 492, 496 (Fla. 4th DCA 2014) ("The notion that some random intruder broke into the victim's apartment shortly after appellant left, found appellant's sledgehammer in the closet, killed the victim with the hammer at least three to six hours before her body was found, and did so without taking any valuables, is not a reasonable hypothesis of innocence.").

More importantly, the primary hypothesis of transfer from touching clothing on the back seat of the car fails to account for the fact that Defendant's DNA was found inside the firearm. Finding Defendant's DNA inside of the firearm would be inconsistent with the hypothesis of secondary transfer, since it does not appear logical, and therefore reasonable, that the magazine would have been separated from the firearm while lying on the clothing. This is a significant difference from the facts of Finley , where it was unknown as to which portion of the firearm the defendant's DNA was found. See Finley , 139 So.3d at 943.

Likewise, Defendant's theories that he shook hands with some third party or sneezed in close proximity to the firearm, and afterwards a third person loaded the magazine into the gun rely on multiple levels of speculation, including that this unknown and unidentified person knew the car owner or her daughter, and also had access to the car that was stopped by the officer on March 13. Thus, we conclude the evidence that Defendant's DNA was found inside the firearm was sufficient to rebut Defendant's reasonable hypothesis of innocence based on a theory of secondary transfer of his DNA. Additionally, the facts of this case make Finley inapposite, where the reasonable hypothesis regarding secondary transfer was based on a potential known second party that could have possessed the firearm - the burglar. Therefore, while the proffered hypothesis of innocence was reasonable in Finley , the proffered hypotheses in this case were not because of the multiple layers of speculation.

Defendant's second reasonable hypothesis of innocence is that his DNA was deposited on the firearm on a different date than March 13, 2015. That hypothesis is grounded on the theory that the State had to prove that Defendant's DNA was deposited on the gun on March 13, 2015. Pretrial, the defense sought to firm up this hypothesis by obtaining a statement of particulars which sought "[t]he date that Sephes is alleged to have possessed the firearm ." (emphases added). While it is true that the State attempted to prove the identity of the person who dropped the firearm by way of DNA evidence, in asserting his second hypothesis of innocence, Defendant focused his argument on the fact that the State was unable to prove beyond a reasonable doubt that Defendant's DNA was deposited on the firearm on March 13, 2015. Thus, Defendant equated the State's inability to prove the date on which Defendant's DNA was deposited on the gun with the inability to prove Defendant possessed the firearm on March 13.

Although Defendant is correct that the time of possession of the firearm was essential in this case, Defendant's timing argument regarding the deposit of his DNA does not create a reasonable hypothesis of innocence under the facts of this case. Reasonable doubt was defined in the jury instructions as "not a mere possible doubt, a speculative, imaginary, or forced doubt." Fla. Std. Jury Instr. (Crim.) 3.7. Extrapolating from the definition of "reasonable" under the applicable jury instruction, a reasonable hypothesis of innocence is a hypothesis that is something more than a theory that is possible, speculative, imaginary, or forced. Therefore, in this case, simply postulating speculative theories as to how Defendant's DNA may have been deposited on the firearm sometime prior to March 13, 2015 does not assert a reasonable hypothesis of innocence as to the crime of possession of a firearm by a felon.

Additionally, Defendant's argument regarding the timing of the deposit of his DNA on the firearm magazine is a bit of a red herring argument. There was certainly enough evidence to connect the firearm to the person who fled from the motorcycle officer. The motorcycle officer testified that after hearing the metallic noise and seeing a firearm on the ground a short distance from the car, he saw the fleeing suspect look back at the firearm on the ground. That establishes Defendant possessed a firearm that day, if there was other sufficient evidence to prove the identity of the fleeing suspect. In other words, the DNA evidence is simply a corroborating piece of evidence of identity, in addition to other evidence presented to the jury.

We agree with the State's arguments that the evidence was sufficient to allow the jury to decide whether Defendant was the person who fled. In addition to Defendant's DNA being found inside the firearm, there was evidence that (1) Defendant matched the suspect's race, height, and build, (2) the romantic relationship between Defendant and the daughter of the owner of the car, (3) the daughter was regularly using the car around the time the vehicle was stopped, (4) the daughter was the one who approached the officer and sought to retrieve the car shortly after the suspect fled, (5) a laundry receipt for Defendant's clothes was found in the car, (6) men's clothing was present on the back seat of the car, and (7) Defendant made numerous telephone calls to the daughter from jail after his arrest. The combination of all that evidence was sufficient to allow the jury to decide if Defendant fled from the officer on March 13, even without the DNA evidence. Finally, we agree with the State's argument that flight with the firearm before dropping it was evidence of consciousness of guilt.

We disagree with Defendant's argument that the State's evidence required an improper stacking of inferences in order to support guilt. See Brown v. State , 672 So.2d 648, 650 (Fla. 4th DCA 1996) ("Circumstantial evidence is insufficient when it requires pyramiding of assumptions or inferences in order to arrive at the conclusion of guilt.") There is a difference between putting pieces of a puzzle together and stacking inferences and assumptions. In this case, there were multiple pieces of evidence for the jury to consider to link Defendant to the crime. We are not persuaded by Defendant's argument that impermissible inference stacking would have to be used for the jury to find Defendant guilty beyond a reasonable doubt.

We conclude the trial court erred in granting the renewed motion for judgment of acquittal. We reverse and remand for the trial court to reinstate the jury's verdict and to proceed accordingly.

Reversed and remanded for further proceedings.

Taylor and Ciklin, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Edward WESBY, Appellee.
    No. 4D16-4246
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   Per Curiam.

The State appeals an order granting the defendant's motion to correct an illegal sentence. We reverse. Because the defendant is eligible for parole, his sentence is not unconstitutional under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). See Franklin v. State, 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.

In State v. Michel , 257 So.3d 3 (Fla. 2018), and Franklin, 258 So.3d at 1240-41, the Florida Supreme Court receded from Atwell v. State , 197 So.3d 1040 (Fla. 2016). The defendant argues Michel does not create binding precedent because only three justices joined in Justice Polston's opinion and Justice Lewis concurred only in the result. Michel , 257 So.3d at 3. However, four justices joined the majority in Franklin , which recognized that Atwell is no longer good law and "improperly applied Graham and Miller ." Franklin , 258 So.3d at 1241.

Reversed .

Gross, May and Damoorgian, JJ., concur.


text:
    STATE of Florida, Appellant, v. Gerald WEST, Appellee.
    No. 4D16-4252
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   Per Curiam.

The State appeals an order granting the defendant's motion to correct an illegal sentence. We reverse. Because the defendant is eligible for parole, his sentence is not unconstitutional under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Franklin v. State , 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.

In State v. Michel , 257 So.3d 3 (Fla. 2018), and Franklin , the Florida Supreme Court receded from Atwell v. State , 197 So.3d 1040 (Fla. 2016). The defendant argues Michel does not create binding precedent because only three justices joined in Justice Polston's opinion and Justice Lewis concurred only in the result. However, four justices joined the majority in Franklin , which recognized that Atwell is no longer good law and "improperly applied Graham and Miller ." Franklin , 258 So.3d at 1241.

Reversed.

Taylor, Damoorgian and Klingensmith, JJ., concur.


author: May, J.

text:
    Jehu Alex COMPERE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1535
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his sentence after entering a no contest plea. He argues the trial court fundamentally erred in permitting the State to cross-examine him during his allocution. We disagree and affirm.

The State charged the defendant with eleven financial crimes , six of which included a co-defendant. The defendant entered a no contest plea with a two-year prison cap and three years' probation; he stipulated to a factual basis. The court was given no information about the crimes during the change of plea hearing.

Based on the defendant's scoresheet, the maximum possible sentence was fifty years. He acknowledged that he understood the maximum possible penalty. The defendant did not score mandatory prison.

At the subsequent sentencing hearing, defense counsel called the defendant's mother and sister to testify. Neither of them were sworn before giving their testimony. They both asked for leniency in sentencing because the defendant accepted responsibility for what he did. The State did not cross-examine either witness.

The defendant then gave unsworn testimony. He accepted full responsibility for his actions. He told the court he was no longer with his girlfriend, the co-defendant. He asked the court to impose house arrest or probation. When given the chance to speak freely to the court and victim, the defendant apologized for his "mistakes." After being questioned by the court, he agreed his actions were a "consciously bad decision."

The State then, without objection, cross-examined him about the charges and credit cards taken out under the victims' names. When asked how he got the victims' names, dates of birth, social security numbers, and addresses, he admitted getting them from a website. He did so "with the express purpose of obtaining somebody's information to open fraudulent accounts for them."

One of the victims, who also wrote a letter to the court, gave sworn testimony. He testified the defendant obviously got his personal information online. He asked the court to "give [the defendant] whatever [sentence] the court will allow."

Following argument by both sides, the trial court remarked the crime sounded intentional and sophisticated. The court sentenced the defendant to two years imprisonment followed by three years of probation, the same sentence as the agreed-to cap. The defendant moved to mitigate sentence or reduce his sentence, pursuant to Florida Rule of Criminal Procedure 3.800(c). The court denied the motion. The defendant now appeals.

The defendant argues the trial court fundamentally erred by allowing the State to cross-examine him about facts pertaining to uncharged offenses during his allocution. The State responds the defendant failed to preserve the issue because his counsel did not object to the cross-examination. And, because the victim corroborated the defendant's testimony during cross-examination, there is no fundamental error.

We have de novo review of this sentencing issue. Allen v. State , 211 So.3d 48, 52 (Fla. 4th DCA 2017).

Generally, a trial court may impose a sentence "within the minimum and maximum limits set by the legislature [and it] 'is a matter for the trial Court in the exercise of its discretion, which cannot be inquired into upon the appellate level.' " Nusspickel v. State , 966 So.2d 441, 444 (Fla. 2d DCA 2007) (citation omitted).

However, an exception exists if the facts establish a violation of a specific constitutional right during sentencing. Howard v. State , 820 So.2d 337, 340-41 (Fla. 4th DCA 2002). The State bears the burden to show, from the record as a whole, that the trial court did not rely on such impermissible considerations when sentencing the defendant. Nusspickel , 966 So.2d at 444-445.

To properly preserve an issue for appellate review, a party must make a timely, contemporaneous, and specific objection, stating the legal ground upon which it is based. Mansueto v. State , 148 So.3d 813, 815 (Fla. 4th DCA 2014).

Where an issue is not preserved, it must qualify as fundamental error or it is waived. Hill v. State , 246 So.3d 392, 394 (Fla. 4th DCA 2018). A fundamental sentencing error is "one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected." Maddox v. State , 760 So.2d 89, 100 (Fla. 2000).

Because defense counsel failed to make a contemporaneous objection to the State's cross-examination of the defendant during allocution, we cannot address the issue unless the error is fundamental.

Florida Rule of Criminal Procedure 3.720 governs sentencing hearings. That rule provides: "The court shall entertain submissions and evidence by the parties that are relevant to the sentence." Fla. R. Crim. P. 3.720(b). Failure to comply with Rule 3.720(b) is reversible error. State v. Munson , 604 So.2d 1270, 1271 (Fla. 4th DCA 1992).

We have interpreted the rule to mean that "a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution." Jean-Baptiste v. State , 155 So.3d 1237, 1242 (Fla. 4th DCA 2015). In making this statement, the defendant is allowed to "express to the sentencing court any additional information to aid the court in making a sound and reasoned judgment." Id.

Here, the defendant called his mother and sister, both of whom asked for leniency in their unsworn statements to the court. The court then permitted the defendant to provide unsworn testimony. The trial court complied with rule 3.720(b). There was no reversible error.

Yet, the defendant suggests that the court erred in allowing the State to cross-examine the defendant and then use his responses concerning uncharged crimes against him in sentencing. We disagree.

Case law involving allocutions has often involved downward departure hearings, both seemingly occurring simultaneously. That case law has blurred the lines between the two proceedings. In doing so, what is permitted during each has become unclear.

Allocution is designed to allow the defendant an opportunity to speak freely with the court, to provide some explanation of the defendant's conduct, and to allow the defendant to provide input on the impending sentence. Hill , 246 So.3d at 395. In such proceedings, the defendant is not sworn. Jean-Baptiste , 155 So.3d at 1241-42.

It is not uncommon however for the trial judge to question the defendant to clarify the information the defendant conveys. We have found no case that has actually "held" that it is fundamental error for the State to cross-examine the defendant during an allocution. Indeed, there is little reason for the State to do so as the purpose of the allocution is for the defendant to speak to the judge.

Downward departure hearings however have their own set of rules. Section 921.0026, Florida Statutes (2018), entitled "Mitigating Circumstances," enumerates the circumstances under which a trial court can depart from the lowest permissible sentence. The hearing requires a two-step process, in which the court first determines if a departure is permitted, and then whether the court should exercise its discretion in granting the departure. State v. Waterman , 12 So.3d 1265, 1267 (Fla. 4th DCA 2009). During those proceedings, the testimony is generally sworn, and the State is permitted to cross-examine the defendant and other witnesses.

The blurred lines on when the State may cross-examine the defendant have resulted from instances in which the trial court hears the defendant's allocution at the same time as the evidence in support of a downward departure motion. Then, the defendant is sworn (for the purposes of the motion), but also speaks to the court as part of the allocution while sworn. This is illustrated in Jean-Baptiste .

There, the defendant argued the court reversibly erred by requiring him to be sworn and subject to cross-examination during his allocution. Jean-Baptiste , 155 So.3d at 1239. The State responded that because the allocution and the motion for downward departure took place simultaneously, there was no error. Id. at 1242. We held the defendant failed to preserve any error by failing to state a reason for demanding an unsworn statement separate from the departure testimony. Id. at 1240.

Because the defendant offered his allocution "in the context of a sentencing hearing which included the introduction of evidence in support of [his] motion for downward departure, the trial court did not err in requiring [him] to be sworn and subject to cross-examination." Id. at 1242. Fundamental error did not occur when the defendant was not permitted to make an unsworn statement. Id. We specifically noted rule 3.720 does not require the defendant to be unsworn nor does it prohibit a defendant from cross-examination. Id. at 1241.

In Guerra v. State , 212 So.3d 541 (Fla. 4th DCA 2017), the court and the State cross-examined the defendant over defense counsel's objection. Guerra , 212 So.3d at 542. The opinion reveals the trial court's frustration with the defendant when he refused to name a co-defendant despite the court and State's questioning of him. Id. The court then sentenced the defendant to 45 years imprisonment followed by 10 years' probation. Id.

We reversed because the court considered the defendant's failure to name a co-defendant in imposing the sentence. Id. In doing so, we commented that the defendant is entitled to make an unsworn statement without cross-examination before sentencing. Id. at 542 (relying on Jean-Baptiste , 155 So.3d at 1237 ).

Important is what we did not say. We did not say that fundamental error occurred when the court allowed the State to cross-examine the defendant. In fact, because defense counsel had objected, there was no need to even consider fundamental error.

Here, the trial court sentenced the defendant to two years in prison followed by three years' probation, the precise term of the plea cap. The record fails to reflect that the sentence was affected by anything learned during the State's cross-examination of the defendant. Indeed, the defendant's response as to how he obtained the victims' information was cumulative of a victim's testimony. There was no error, much less fundamental error. Therefore, defense counsel could not have rendered ineffective assistance of counsel.

Affirmed.

Gross and Conner, JJ., concur.

      Of the crimes charged, the defendant pled to one count of third degree grand theft, two counts of organized fraud, four counts of criminal use of an ID, one count of possession of a stolen credit card, and one count of dealing in stolen credit cards. The State dismissed one of the counts.


text:
    Sean JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3009
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Sean Jenkins, Orlando, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed . See Mayes v. Moore , 827 So.2d 967, 971 (Fla. 2002) ("Because conditional release does not impose an enhanced criminal penalty or sentence, no actual notice of an offender's eligibility for this program is required ....").

Warner, Taylor and Klingensmith, JJ., concur.


text:
    Justin KENDALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-439
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Justin Kendall, Lake City, pro se.
    No appearance filed for appellee.
   Per Curiam.

Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we have reviewed the entire record on appeal and brief filed by counsel seeking to withdraw. There are no issues of arguable merit in the two appeals before this Court, arising from lower court cases numbered 15-5828CF10A and 16-009287CF10A. We specifically reject appellant's sentencing challenge in the 2015 case, based on the authorities recognizing that a defendant is not entitled to retain his youthful offender status after his violation of probation and adult sentencing. See Eustache v. State , 248 So.3d 1097, 1102 (Fla. 2018) ; Granger v. State, 252 So.3d 769 (Fla. 4th DCA 2018). Therefore, we affirm the adjudications and sentences.

However, the record demonstrates that the trial court did not file a written order revoking community control in case number 15-5828CF10A. This requires remand to the trial court for entry of a written order revoking community control and specifying the conditions violated. Musto v. State , 174 So.3d 568, 569-70 (Fla. 4th DCA 2015).

Affirmed, but remanded for entry of written revocation order in case number 15-5828CF10A, consistent with this opinion.

Gerber, C.J., Taylor and Levine, JJ., concur.


text:
    MERCANTIL BANK, N.A., Appellant, v. Javier PAZMINO and JP Industrial Parts, Inc. d/b/a JP Forklifts, Appellees.
    No. 4D18-1168
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Victor K. Rones of the Law Offices of Victor K. Rones, P.A., North Miami Beach, for appellant.
    Daniel M. Herrera and Gary M. Singer of the Law Firm of Gary M. Singer, P.A., Fort Lauderdale, for appellees.
   Per Curiam.

In this foreclosure-related action, Mercantil Bank, N.A., appeals the trial court's order dismissing with prejudice its 2017 action to reestablish a 2011 final foreclosure judgment and granting motion for judgment on the pleadings. We affirm, because the bank did not obtain a money judgment in the underlying foreclosure action and, after entry of the 2011 final judgment of foreclosure determining only the amount of damages, the bank did not initiate a deficiency proceeding since it did not sell the foreclosed property. Thus, the trial court correctly barred the bank from bringing an action that effectively sought to amend the relief awarded in the 2011 foreclosure judgment, which was not a money judgment.

In March 2011, the trial court entered a final default judgment of foreclosure and damages in favor of Mercantil Bank and against the borrowers, Javier Pazmino and JP Industrial Parts, Inc. The court's order determined that the bank had suffered damages in the amount of $97,183.85, and thus held a lien on the proceeds of any foreclosure sale of the property. The court retained jurisdiction to enter further orders, including deficiency judgments.

For some unexplained reason, there was no sale of the property, but in May 2017, the bank moved for entry of an amended final judgment based on an affidavit of non-payment for deficiency indebtedness, which appears to have been an attempt to obtain a money judgment. The affidavit stated that the amount due to the bank as of May 2017 was $130,342.66. However, the trial court denied the motion for entry of an amended final judgment.

Rather than proceeding with the prior case and challenging the court's denial, the bank commenced a new action in September 2017, purportedly to reestablish the 2011 final judgment. The bank alleged that the 2011 judgment remained unpaid, and demanded a new judgment to satisfy the original cause of action.

After filing their Answer and Affirmative Defenses, the borrowers moved for judgment on the pleadings and argued that the bank had failed to state a cause of action and was attempting to enforce, amend, or change a null judgment from a prior action. The bank responded that its action was permitted as a new suit to secure satisfaction of the 2011 judgment.

After a hearing on the borrowers' motion, the trial court entered a final order granting judgment on the pleadings and dismissing with prejudice the bank's new action.

On appeal, the bank argues that its new action was permitted under common law and was not an attempt to amend the prior judgment. The borrowers maintain that the bank's new action was improper because the bank had not obtained a money judgment in the foreclosure action and it failed to sell the foreclosed property. We agree with the borrowers.

We review a judgment on the pleadings de novo. United Inv. & Dev. Corp. v. Langton , 952 So.2d 1260, 1260-61 (Fla. 4th DCA 2007).

A judgment "constitutes a cause of action upon which a new and independent action may be based." Crane v. Nuta , 157 Fla. 613, 26 So.2d 670, 671 (1946). "If a limitations period has almost run on a judgment, a judgment creditor can start the limitation period anew by bringing an action on the judgment to obtain a new judgment." Burshan v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA , 805 So.2d 835, 841 (Fla. 4th DCA 2001) (internal quotation marks omitted). However, "[e]xcept as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment." Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson , 236 So.2d 1, 3 (Fla. 1970).

"It is well-settled that 'to collect money owed on a note, a mortgagee may pursue its legal and equitable remedies simultaneously, until the debt is satisfied.' " Schneider v. First Am. Bank , 252 So.3d 264, 265 (Fla. 4th DCA 2018) (quoting Royal Palm Corp. Ctr. Ass'n v. PNC Bank, NA , 89 So.3d 923, 929 (Fla. 4th DCA 2012) ). This allows the mortgagee to bring an action at law on the note simultaneously with an equitable foreclosure action, which may result in the trial court entering a final judgment of foreclosure that allows immediate execution of the damages award. Id. at 265. However, because a mortgagee may not simultaneously execute on the money judgment and foreclose on the property, a final judgment of foreclosure allowing for the immediate execution of the damages award must withhold the setting of the foreclosure sale until the mortgagee certifies that the money judgment has not been satisfied. Id.

Here, the bank obtained only a foreclosure judgment, which limited its remedy to one in equity. The record does not support a finding that the bank originally sought and obtained a money judgment; the 2011 final judgment of foreclosure did not order immediate execution of the damages award. Accordingly, because the bank failed to obtain a money judgment and subsequently failed to sell the property and seek a deficiency judgment based on the foreclosure judgment it obtained, the bank was not authorized to bring a new independent action that effectively sought to reestablish the foreclosure judgment as a money judgment. For these reasons, we affirm the trial court's order dismissing with prejudice the bank's 2017 action to enforce or reestablish the original final judgment, which was never converted to a money judgment, and entering judgment on the pleadings.

Affirmed.

Taylor, Ciklin and Conner, JJ., concur.


text:
    John Basil ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1657
    District Court of Appeal of Florida, Fourth District.
    [January 16, 2019]
    Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Ft. Lauderdale, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
    CONFESSION OF ERROR
   Per Curiam.

Appellant filed a notice of appeal with respect to his judgment of conviction and sentence. Due to a malfunctioning of the memory device that held the files from Appellant's jury trial, no stenography notes or audio files of the trial exist. The court below attempted to reconstruct the trial record, but was unable to do so. Thus, Appellant was unable to receive a transcript of his jury trial. The State concedes, and we agree, that Appellant is entitled to a full transcript containing appealable issues. See Hardy v. United States , 375 U.S. 277, 279, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) ; Ader v. State , 814 So.2d 461, 462 (Fla. 4th DCA 2001) ; Smith v. State , 801 So.2d 198, 199-200 (Fla. 4th DCA 2001). Accordingly, we reverse Appellant's conviction and sentence and remand for a new trial.

Reversed and remanded for new trial.

May, Damoorgian and Klingensmith, JJ., concur.


text:
    Dominique BEEKS, Appellant, v. HMC ASSETS, LLC, Solely in Its Capacity as Separate Trustee of CAM X Trust, Appellee.
    No. 1D17-5145
    District Court of Appeal of Florida, First District.
    December 5, 2018 Rehearing Denied January 28, 2019
    Dominique Beeks, pro se, Appellant.
    August J. Stanton, III, and Diva N. Totten of Gasdick, Stanton & Early, P.A., Orlando, for Appellee.
   Per Curiam.

Because Appellant, Dominique Beeks, fails to establish any ground for reversal of the order on appeal, the order granting the motion for writ of possession after the foreclosure sale is affirmed on the merits.

Roberts, Makar, and Bilbrey, JJ., concur.


text:
    Chancy MALLORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2458
    District Court of Appeal of Florida, Fourth District.
    October 17, 2018
    Chancy Mallory, Bristol, pro se.
    No appearance required for appellee.
   Per Curiam.

Dismissed . See Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997).

Gerber, C.J., Levine and Forst, JJ., concur


author: LAGOA, J.

text:
    ULTRA AVIATION SERVICES, INC., Appellant, v. Lisvan L. Cruz CLEMENTE and Miami-Dade County, Appellees.
    No. 3D18-1569
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Holland & Knight LLP, and Miguel De Grandy and Daniel P. Hanlon, for appellant.
    Fairlaw Firm, and Brian H. Pollock ; Friedman, Rodman, & Frank, P.A., and Elizabeth Estrada and Ronald D. Rodman ; Beckham & Beckham, P.A., and Pamela Beckham, for appellee Lisvan L. Cruz Clemente.
    Abigail Price-Williams, Miami-Dade County Attorney, and David M. Murray, Cynji A. Lee, and Altanese Phenelus, Assistant County Attorneys, for appellee Miami-Dade County.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

ON MOTION TO DISMISS

Appellee Lisvan L. Cruz Clemente ("Cruz") moves to dismiss Appellant Ultra Aviation Services, Inc.'s ("Ultra"), appeal for lack of jurisdiction. Specifically, Cruz argues that Ultra's appeal is premature, as the trial court continues to exercise jurisdiction over three related claims pled by Cruz that involve the Miami-Dade Living Wage Ordinance (the "LWO"), codified in Section 2-8.9 of the Miami-Dade County Code of Ordinances. We deny Cruz's motion to dismiss.

In the underlying proceedings, Cruz brought suit against Ultra, alleging that Ultra had unlawfully retaliated against him after he voiced complaints to both Ultra and Miami-Dade County ("the County") about Ultra's purported violations of the LWO. After Ultra moved to dismiss Cruz's complaint on the grounds that the LWO was preempted by state law and the LWO's health plan requirements were no longer valid, the County filed an unopposed motion to intervene in the case, which the trial court granted.

The County then filed a complaint against Ultra, alleging two counts for declaratory judgment, one count of estoppel, and one count for injunctive relief. Specifically, the County requested the trial court to declare that section 218.077, Florida Statutes (2017), did not preempt the LWO and that the Florida Legislature's repeal of section 627.6699(12)(a), Florida Statutes, during the 2015 legislative session did not invalidate the health plan requirements in the LWO. After Ultra filed its responsive pleading, Ultra and the County both moved for summary judgment. On June 29, 2018, the trial court granted the County's motion for summary judgment as to its two counts for declaratory judgment. Ultra appealed the trial court's "Final Judgment as to Miami-Dade County's Third Party Complaint" entered on August 15, 2018, which entered judgment in favor of the County on its two counts for declaratory judgment, found the County's count of estoppel moot, and noted the County's voluntary dismissal of its count for injunctive relief. On November 1, 2018, Cruz moved to dismiss Ultra's appeal.

Cruz contends that because the trial court continues to exercise jurisdiction over his three related claims that concern the viability of the LWO, Ultra's appeal of the partial final judgment is premature pursuant to Florida Rule of Appellate Procedure 9.110(k) and must be dismissed. Rule 9.110(k) provides:

Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party , is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition .

(emphasis added). Here, the trial court's final judgment totally disposed of the case as to the County, as no counts remain below in which the County is a party. See Gator Boring & Trenching, Inc. v. Westra Constr. Corp., 210 So.3d 175, 180 (Fla. 2d DCA 2016) ("Because the trial court's orders completely dispose of all claims involving Travelers, we have jurisdiction to review Gator's appeal from the dismissal of count II as a partial final judgment in accordance with rule 9.110(k)."). Because the trial court's order disposes of all claims involving the County, we have jurisdiction to review the partial final judgment pursuant to rule 9.110(k).

Accordingly, we deny Cruz's motion to dismiss Ultra's appeal.

Motion to dismiss denied.


text:
    Matthew L. FAISON, Appellant, v. STATE of Florida, Verell Martin, et al., Appellees.
    No. 1D18-3354
    District Court of Appeal of Florida, First District.
    December 14, 2018 Rehearing Denied January 29, 2019
    Matthew L. Faison, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Leslie A. Healer, Assistant Attorney General, Tallahassee, for Appellees.
   Per Curiam.

Appellant's motion, filed on November 6, 2018, is treated as a response to the Court's order of October 26, 2018. Upon consideration of the response, the Court has determined that the order denying Appellant's motion to alter or amend judgment is not an appealable order. Fla. R. App. P. 9.130(a)(4). To the extent that Appellant may be seeking review of the underlying Order of Dismissal, the appeal is untimely. Fla. R. App. P. 9.020(i) ; see Pennington v. Waldheim , 669 So.2d 1158, 1160 (Fla. 5th DCA 1996).

DISMISSED .

Wolf, Kelsey, and M.K. Thomas, JJ., concur.


author: Winsor, J.

text:
    Stephen B. SCHROLL, Appellant, v. Nancy Smith SCHROLL, Appellee.
    No. 1D17-2466
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Therese A. Felth of McKenzie Law Firm, Pensacola, for Appellant.
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   Winsor, J.

The Schrolls married in 1981 and divorced in 2016. After the former husband failed to comply with the court's equitable distribution order (an order this court has subsequently reversed, Schroll v. Schroll , 227 So.3d 232 (Fla 1st DCA 2017) ), the trial court held him in contempt. The former husband now appeals, arguing that the court lacked authority to enforce an equitable-distribution scheme through its contempt powers. We reverse.

The trial court's final judgment appeared to award each party approximately $1.2 million in marital assets as part of the equitable distribution. The former wife received proceeds from the sale of the marital home, an annuity, and an IRA. The former husband received the family business (StorkLand, a baby supply store), property the business was located on, and several StorkLand-related accounts. Additionally, the court awarded both parties specific dollar amounts from a Vanguard money market account. The Vanguard account was worth approximately $450,000 when the case began, but as the case went along, the former husband used money from the account to pay for "the parties' living expenses, including attorneys' fees and costs, new vehicles for both parties, moving expenses, and paying off the mortgage on the former marital residence before it sold." Schroll , 227 So.3d at 236. As a result, the account was worth only $350,000 by the time of the final order. Yet the final judgment awarded each side amounts that totaled more than that. On appeal, this court reversed because the court failed to value the parties' assets "as of a date closer to the final hearing ... because those assets had significantly declined in value during the course of litigation." Id. at 236-37.

As to this appeal, the former husband explains, "[b]ecause of the trial court's faulty equitable distribution scheme, confusion ensued in the trial court on post-judgment enforcement, which ultimately led to the Former Husband's incarceration and then the instant appeal." Init. Br. at 4. Essentially, the situation devolved into a series of tit-for-tat exchanges, with the parties transferring money between their various personal, joint, and business accounts, and each claiming entitlement to certain funds. They disagreed about much.

After the court entered the final judgment, the former wife withdrew $40,000 from the StorkLand business account, leaving the account with insufficient funds to cover outstanding checks. The former husband testified that, to replace the funds withdrawn by the former wife, he transferred $40,000 from the Vanguard account to the parties' joint checking account. (According to the former husband, the withdrawal had to go through the joint account because "it was the only one linked to the Vanguard account.") But before he could transfer those funds to the StorkLand account, the former wife captured the additional $40,000, withdrawing it from the joint account. She later returned $33,000 to StorkLand, but kept $7,000, which she claimed was hers. She also kept the first $40,000 she withdrew. The former husband subsequently withdrew the amount the final judgment allocated him from the Vanguard account, plus an additional $7,000 to make up for what the former wife withdrew (wrongfully, he believed) from the StorkLand account. As a result of all of this, the Vanguard account was left without enough to cover what the (now-reversed) final judgment said the former wife should take from it.

The former wife filed a contempt motion, and the court ordered the former husband "to fully cooperate in the transfer of the funds remaining in the Vanguard account." Following a hearing, the former husband gave the former wife's attorney a signed document allowing her to access the Vanguard account. But when the former wife's attorney found insufficient funds in the account, the former wife filed a second contempt motion and requested an ex parte order, which the court granted. The ex parte order directed the former husband to transfer from the Vanguard account "or otherwise provide to the former wife from some other source the sum of $287,276.50" within three business days (by Christmas Eve). After the former husband failed to comply, the former wife filed a certificate of non-compliance and requested an order of incarceration.

At a hearing on the pending motions, the former husband testified (and the former wife confirmed) that the funds remaining in the Vanguard account-approximately $133,000-had been transferred to the former wife. Although the financial records and the former wife's testimony confirmed the former husband's accounting, the court found his testimony to be "not very credible," held him in contempt, and ordered his immediate incarceration. The former husband was taken into custody, but he was released later that day, after the parties' adult daughter tendered the purge amount.

The former husband now appeals, arguing that the court abused its discretion in entering the contempt order. At the outset, we note that the fact that this court reversed the equitable distribution scheme is not alone a basis to reverse. "[A]n aggrieved party's failure to abide by [an] order may be punished by contempt even if the order is ultimately found to be erroneous." Carnival Corp. v. Beverly , 744 So.2d 489, 496 (Fla. 1st DCA 1999) (quoting Rubin v. State, 490 So.2d 1001, 1003 (Fla. 3d DCA 1986) ). But that is not the argument the former husband makes. He instead argues that the court lacked authority to enforce the monetary judgment through its contempt power.

The Florida Constitution provides that "no person shall be imprisoned for debt, except in cases of fraud." Art. I, § 11, Fla. Const. Accordingly, this court has held that "[o]bligations incurred by a party in a marital property settlement are not subject to enforcement through contempt proceedings." Taylor v. Taylor , 653 So.2d 1126, 1127 (Fla. 1st DCA 1995). There is an exception for child support or alimony obligations, see Schneider v. Schneider , 189 So.3d 276, 278 (Fla. 1st DCA 2016), but that exception is not applicable here: These parties had no minor children, and the former wife received only nominal alimony. Cf. Lee v. Lee , 710 So.2d 186, 187 (Fla. 1st DCA 1998) (noting that it is "necessary to look at the circumstances of the particular debt under consideration, as well as the specific provisions of the judgment itself, in order to determine if the obligation is one for alimony or family support"). Indeed, the former wife does not argue that the debt was for a support obligation. Instead, she argues that contempt was appropriate because the court specifically ordered the former husband to take specific actions to effectuate the funds transfer and to facilitate her access to the Vanguard account. We cannot accept this argument.

Although courts can use contempt powers to compel specific actions to facilitate property transfers-they can, for example, use contempt to compel return of personal property, see, e.g. , Morse v. Morse , 796 So.2d 1200 (Fla. 3d DCA 2001) -they cannot convert a general payment obligation into something enforceable by contempt by simply characterizing it as an obligation to perform a specific action. In Marks v. Marks , for example, this court held that the final judgment's requirement that the husband "shall be responsible for the mortgage payments on the said marital home" was not enforceable by contempt because the requirement was "solely in the nature of a property settlement." 457 So.2d 1137, 1138 (Fla. 1st DCA 1984) ). But cf. Lee v. Lee , 710 So.2d 186, 187 (Fla. 1st DCA 1998) (holding mortgage obligation was enforceable by contempt because in that case, the requirement "was a portion and integral part of [husband's] duty to contribute to the support of the child").

In this case, we cannot interpret the obligation at issue as anything other than part of a marital property settlement. See Ball v. Ball , 440 So.2d 677, 679 (Fla. 1st DCA 1983). Nor can we interpret the court's orders as anything other than an attempt to compel the former husband make certain payments or face imprisonment. Indeed, the order of incarceration specifically provided that the former husband was to remain in custody "until such time as he purges himself by payment to the former wife ... in liquid, non-retirement funds." We conclude, therefore, that the court lacked authority to hold the former husband in contempt.

REVERSED .

Makar and Winokur, JJ., concur.


text:
    CITY OF JACKSONVILLE BEACH and City of Jacksonville Beach Planning Commission, Appellants, v. BCEL 4, LLC, and BCEL 5, LLC, Appellees.
    No. 1D18-1280
    District Court of Appeal of Florida, First District.
    December 18, 2018 Rehearing Denied January 29, 2019
    Michael J. Roper and Dale A. Scott of Bell & Roper, Orlando, for Appellants.
    Emily G. Pierce, Cristine M. Russell, and William Michaelis of Rogers Towers, P.A., Jacksonville, for Appellees.
   Per Curiam.

The appellants, City of Jacksonville Beach and City of Jacksonville Beach Planning Commission (the City), appeal an order from the circuit court granting a petition for writ of mandamus and alternatively granting a petition for writ of certiorari filed by the appellees, BCEL 4, LLC, and BCEL 5, LLC (BCEL).

We reverse the portion of the order granting BCEL mandamus relief. See Browning v. Young , 993 So.2d 64, 65 (Fla. 1st DCA 2008) (reviewing a circuit court order granting mandamus relief by plenary appeal). BCEL failed to establish the City's decision to approve or deny its concept plan for plat application was a purely ministerial one. See Rhea v. Dist. Bd. of Trs. of Santa Fe Coll. , 109 So.3d 851, 855 (Fla. 1st DCA 2013) (mandamus is a remedy to command performance of ministerial act in which there exists no room for the exercise of discretion) (citing Town of Manalapan v. Rechler , 674 So.2d 789, 790 (Fla. 4th DCA 1996) ); see also Key Biscayne Gateway Partners, Ltd. v. Village of Key Biscayne , 172 So.3d 499 (Fla. 3d DCA 2015) (affirming dismissal of mandamus petition where the local government's action was quasi-judicial and not ministerial). The portion of the order granting BCEL's petition for writ of mandamus is reversed.

As to the portion of the order granting BCEL's petition for writ of certiorari, our review is by second-tier certiorari. See Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 530 (Fla. 1995). We deny the City's petition for second-tier certiorari review as the circuit court afforded procedural due process and did not depart from the essential requirements of law. See id.

We REVERSE the portion of the order granting mandamus relief. We DENY second-tier certiorari review of that portion of the order granting certiorari.

Roberts, Makar, and Bilbrey, JJ., concur.


author: LOGUE, J.

text:
    SPACE COAST CREDIT UNION, Appellant, v. Eric GOLDMAN, et al., Appellees.
    No. 3D18-252
    District Court of Appeal of Florida, Third District.
    Opinion filed December 18, 2018
    Blaxberg, Grayson, Kukoff & Forteza, P.A., and Moises T. Grayson, and Gaspar Forteza, Miami, for appellant.
    Robert C. Meyer, P.A., Miami, for appellee Asset Recoveries, LLC.
    Before SUAREZ, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Space Coast Credit Union appeals the trial court's order granting Asset Recoveries, LLC the right to intervene in this foreclosure action. Because Asset Recoveries purchased the property at issue after Space Coast filed its notice of lis pendens, the trial court erred by allowing Asset Recoveries to intervene, and accordingly, we reverse.

Space Coast filed a foreclosure action against Eric Goldman ("Decedent Borrower") in December 2015. The following month, on January 22, 2016, a tenant living on the property filed a pro se answer. The answer disclosed that the Decedent Borrower had passed away. To the tenant's knowledge, the property had been passed to Yves Frantz Goldman ("Decedent's Brother").

Space Coast ultimately obtained a final judgment of foreclosure. Subsequently, however, the court set aside the judgment on Space Coast's own motion so that Space Coast could add as defendants the estate of the Decedent Borrower, the Decedent Borrower's heirs, National Equity Recovery Services (who had been assigned the rights of the heirs), and the Decedent's Brother. Significantly, Space Coast recorded a new notice of lis pendens.

The Decedent's Brother then filed a crossclaim against the estate, the heirs, and National Equity, for mortgage payments he made as loans to the Decedent Borrower. The Decedent's Brother sought to "foreclose claim and lien and to impose a constructive or resulting trust ... against the real property that is the subject of the instant foreclosure action." After securing a default on the crossclaim, the Decedent's Brother obtained a foreclosure judgment against the heirs and the estate.

Pursuant to that judgment, the property was sold to Asset Recoveries, the appellee. Concerned that Space Coast's claim for attorney's fees was excessive and Space Coast failed to properly credit all payments made to it by prior owners, Asset Recoveries filed a motion to intervene for the limited purpose of establishing the proper redemption amount. The trial court allowed Asset Recoveries to intervene but "only for the purpose of challenging or questioning witnesses and participating in proceedings to determine the amount owed to [Space Coast]." This appeal followed.

Analysis

Under Florida law, "when property is purchased during a pending foreclosure action in which a lis pendens has been filed, the purchaser generally is not entitled to intervene in the foreclosure action." Bymel v. Bank of Am., N.A., 159 So.3d 345, 347 (Fla. 3d DCA 2015). As this Court has noted, "[i]ndeed, if such a buyer purchases the property, he does so at his own risk because he is on notice that the property is subject to the foreclosure action." Id.

Here, it is undisputed that the lis pendens was filed prior to Asset Recoveries' purchase of the property. As such, Asset Recoveries was "on notice that the property [was] subject to a foreclosure action" and was therefore, under the facts of this case, not entitled to intervene in the foreclosure action. Id. See Tikhomirov v. Bank of New York Mellon, 223 So.3d 1112, 1114 (Fla. 3d DCA 2017) ("It is well established that a purchaser of property that is the subject of a pending foreclosure action is not entitled to intervene in the foreclosure action where a notice of lis pendens has been recorded."); Andresix Corp. v. Peoples Downtown Nat'l Bank, 419 So.2d 1107, 1107 (Fla. 3d DCA 1982) (affirming "the trial court's order denying the motion to intervene by Andresix Corporation upon a holding that Andresix, as purchaser of property which was then the subject of a mortgage foreclosure action and accompanying lis pendens by [the Bank], was not entitled to intervene in such action."); see also SADCO, Inc. v. Countrywide Funding, Inc., 680 So.2d 1072, 1072 (Fla. 3d DCA 1996) (affirming trial court's denial of motion to intervene under the authority of Andresix ).

Nevertheless, Asset Recoveries argues it is entitled to intervene under the authority of Bymel, 159 So.3d at 345-46, wherein this Court allowed a third party purchaser to intervene in a foreclosure. Bymel, however, recognized only a narrow exception to the general rule against such interventions which does not apply here.

Bymel was a foreclosure case where a third party purchaser appealed the denial of his motion to intervene. Id. at 346. While the foreclosure was pending, the lender approved a short sale between the borrowers and the third party purchaser. The approved short sale closed, a warranty deed was executed, and the settlement agent initiated the wire transfer of the funds to the lender. The lender, however, refused to accept the wire transfer. For the next several months, the settlement agent attempted to resolve the dispute regarding the wire transfer. Ultimately, five days before the scheduled foreclosure trial, the lender repudiated the short sale. The following day, the third party purchaser moved to intervene and continue the trial. The trial court denied the motions and the third party purchaser appealed. Id.

This Court reversed. We held the general rule preventing third party purchasers to intervene in a foreclosure actions did not apply because the third party purchaser "was not a stranger to [the lender]. Rather, [the lender] was actively involved in the [the third party purchaser's] purchase of the real property because it had approved both the short sale of the real property to [the third party purchaser] and the settlement statement ... prior to the short sale closing." Id. at 347. Thus, Bymel was "not a situation where [the third party purchaser] believed that he was purchasing the property subject to the pending foreclosure action and the lis pendens." Id. To the contrary, the third party purchaser "reasonably believed that following the short sale, [the lender] would dismiss its foreclosure action against the [borrowers], discharge its notice of lis pendens, and record a satisfaction of its mortgage, thereby clearing title to the real property." Id. Here, in contrast, no relationship between Asset Recoveries and Space Coast exists comparable to that between the third party purchaser and lender in Bymel .

Based upon the foregoing, we reverse the order granting Asset Recoveries' motion to intervene and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      While this appeal was pending, Asset Recoveries filed an ex parte motion to vacate the order on appeal. On April 16, 2018, the trial court granted the motion while still authorizing Asset Recoveries to "participate at the trial or evidentiary hearing in this matter to facilitate this Court determining the amount owed to Plaintiff, or the redemption amount." Because the trial court lacked jurisdiction to amend the order on appeal, we continue to review the original January 8, 2018 order on appeal. See Schultz v. Schickedanz, 884 So.2d 422, 424 (Fla. 4th DCA 2004) ("A trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.")


author: SCALES, J.

text:
    Maximiliano REY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1429
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Maximiliano Rey, in proper person.
    Pamela Jo Bondi, Attorney General and Sandra Lipman, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   SCALES, J.

ON CONFESSION OF ERROR

Maximiliano Rey appeals a June 29, 2018 order of the Miami-Dade Circuit Court denying his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. Based on the State of Florida's commendable confession of error, we remand this case to the trial court to determine whether Rey is entitled to additional prison credit.

On February 5, 2013, Rey, an habitual offender, pleaded guilty in two separate cases to charges of burglary, grand theft, petit theft and possession of cocaine. The trial court sentenced Rey to a probationary split sentence by sentencing him to state prison for two years, followed by eighteen months of probation. He was also sentenced to 288 days in county jail on one of the counts. The trial court granted Rey jail credit. After his release in 2014, Rey violated his probation. On November 11, 2016, the trial court sentenced Rey to seven years in prison and again granted Rey jail credit. Rey contends that he should have been, but was not, granted both jail credit and an additional 347 days of prison credit for his time spent in state prison from February 5, 2013 to January 18, 2014. Rey maintained that the trial court did not follow through on its oral pronouncement at Rey's November 11, 2016 resentencing that Rey be credited with "all time served."

The State concedes that Rey was entitled to both jail credit and prison credit. "A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless credit is waived." Scharman v. Crews, 123 So.3d 147, 148 (Fla. 1st DCA 2013). The record is not clear in this instance whether the trial court directed the Florida Department of Corrections, pursuant to section 921.0017 of the Florida Statutes, to compute the appropriate prison credit; nor, ultimately, is it clear whether Rey either waived the additional prison credit or is entitled to it. In the order on appeal, however, the trial court generally found that its credit calculations conform to its oral pronouncement of "all time served."

We reverse the order on appeal and remand for further proceedings consistent with this opinion. If, on remand, the trial court determines to summarily deny Rey's claim for additional prison credit, the trial court shall ensure that its order be accompanied by those portions of the record that conclusively demonstrate that Rey is not entitled to relief, per Florida Rule of Appellate Procedure 9.141(b)(2)(D).

Reversed and remanded.


author: PER CURIAM.

text:
    G.M.R., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-1404
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant.
    Law Office of Rocco J. Carbone, III, PLLC, and Rocco J. Carbone, III (St. Augustine); Thomasina Moore, and Laura J. Lee (Tallahassee), for appellee Guardian ad Litem Program.
    Before SALTER, FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

The trial court entered a final judgment terminating G.M.R's parental rights as to her two children, K.M. and L.D. However, G.M.R. challenges only the termination of her parental rights as to K.M. in the instant appeal. For the reasons set forth below, we affirm in part and reverse in part and remand to the trial court to enter a corrected final judgment.

The Department of Children and Families ("DCF") filed a petition for termination of parental rights as to L.D. on October 12, 2017. K.M.'s father ("K.M. Father"), similarly filed a petition for termination of G.M.R.'s parental rights as to K.M. in December 2017. K.M. Father asserted the following grounds in support of his petition: (i) continued abuse/neglect/abandonment for failure to comply substantially with a case plan pursuant to section 39.806(1)(e)(1), Florida Statutes (2017) ; (ii) irrespective of services pursuant to section 39.806(1)(c) ; (iii) egregious conduct pursuant to section 39.806(1)(f) ; and (iv) involuntary termination of parental rights to another child pursuant to section 39.806(1)(i). The trial court considered the termination petitions filed by DCF and K.M. Father during a three-day adjudicative hearing in April 2018.

In the final judgment, the trial court indicated that it was terminating G.M.R.'s parental rights as to K.M. under section 39.806(1)(c) and section 39.806(1)(e)(1). On appeal, G.M.R. contends-and DCF concedes-that the trial court erred by terminating G.M.R.'s parental rights based on section 39.806(1)(e)(1) because K.M. was never adjudicated dependent. Indeed, in order to establish any basis for termination of parental rights under section 39.806(1)(e)(1) or (2), it must first be shown that the child has been adjudicated dependent and a case plan has been filed with the court. See § 39.806(1)(e).

Here, the record establishes that L.D. was adjudicated dependent, but it does not demonstrate that K.M. was also adjudicated dependent. Thus, the trial court erred in basing the termination of G.M.R.'s parental rights on section 39.806(1)(e)(1). See T.H. v. State, Dep't of Children & Families, 226 So.3d 915, 918 (Fla. 4th DCA 2017) (reversing portion of trial court's final judgment terminating parental rights under section 39.806(1)(e)(1) because "there was no adjudication of dependency and no case plan had been filed with the court.").

There is, however, competent, substantial evidence to sustain the trial court's termination of G.M.R's parental rights to K.M. under section 39.806(1)(c). See In re W.B., 915 So.2d 761, 762 (Fla. 2d DCA 2005) (reversing portion of trial court's order terminating parental rights under section 39.806(1)(e)(1) where the child had never been declared dependent, but affirming the termination of the parents' parental rights because there was competent, substantial evidence under section 39.806(1)(c) to sustain the trial court's decision); see also K.W. v. State, Dep't of Children & Family Servs., 36 So.3d 810, 811 (Fla. 1st DCA 2010).

Accordingly, we reverse only the portion of the order terminating G.M.R.'s parental rights under section 39.806(1)(e)(1) and remand for entry of an amended termination final judgment removing all references to section 39.806(1)(e)(1).

Affirmed in part, reversed in part, and remanded with instructions.

      The final judgment also terminated the parental rights of L.D.'s father as to L.D. The tumultuous relationship between L.D.'s father and G.M.R. was an important factor throughout the termination proceedings.

      K.M. was not part of the underlying dependency action because K.M. Father was granted sole custody of K.M. prior to the commencement of the underlying dependency action pursuant to Family Case Number 13-29341.


text:
    Curtis Wayne HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4672
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Frank Xavier Moehrle, Jr., Assistant Attorney General, for Appellee.
   Per Curiam.

In this appeal from his resentencing following the revocation of probation, Appellant raises three claims: (1) the trial court erred in denying his motion to dismiss for lack of jurisdiction because his probation had expired; (2) the trial court committed reversible error in finding that he violated his probation by leaving his county of residence and changing his approved residence without his probation officer's consent; and (3) the trial court erred in not specifying the conditions violated in the revocation order. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I.

Appellant moved unsuccessfully to dismiss for lack of jurisdiction because his probation expired, asserting that the filing of an affidavit and issuance of an arrest warrant for technical violations of probation did not toll the probationary period. In doing so, he relied on Mobley v. State , 197 So.3d 572 (Fla. 4th DCA 2016), in which the Fourth District explained:

Section 948.06(1)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here). Section 901.02 in turn requires that the warrant be for a "crime." Here, the warrants issued were for violations of probation based on the failure to make restitution payments and a payment for drug testing. These are not "crimes." The warrants were therefore not issued under section 901.02, and Appellant's probation was never tolled.

Id. at 574. However, in Williams v. State , 202 So.3d 917 (Fla. 4th DCA 2016), the Fourth District held that when a defendant absconds from probation, an exception to its holding in Mobley is triggered, and the probationary period is tolled until the defendant is once more placed under probationary supervision.

More recently, the Second District explained that "our common law recognizes that a probationer's absconsion from supervision during his probationary term, apart from section 948.06(1)(f)'s tolling provision, automatically tolls his term." Canchola v. State , 43 Fla. L. Weekly D2092, D2093, 255 So.3d 442 (Fla. 2d DCA Sept. 7, 2018). The trial court denied Appellant's motion to dismiss on the ground that Appellant had been charged with absconding from supervision, which tolled the running of Appellant's probation.

At the probation violation hearing, Appellant's probation officer testified that Appellant's mother came to his office and informed him that Appellant had not been home in a week. Appellant's mother acknowledged at the hearing that Appellant had not been at her home for a week and that she did not know his whereabouts at that time. Thus, there was competent, substantial evidence that Appellant had absconded for at least a week during his probationary term. If tolled for the week that he had absconded, Appellant's probation would have expired on June 16, 2017. It appears undisputed that Appellant was arrested on June 15, 2017, for criminal charges in Duval County pursuant to a warrant under section 901.02. Because Appellant was arrested on this warrant before his probation expired, his probation was tolled by operation of section 948.06(1)(f). Therefore, the trial court properly denied Appellant's motion to dismiss.

II.

The trial court found that Appellant violated his probation by leaving Nassau County, his county of residence, without the consent of his probation officer. The affidavit alleged that Appellant violated this condition when he left Nassau County and entered Duval County on March 8, 2017.

However, no evidence was presented that Appellant was in Duval County on March 8, 2017. The revocation of probation based on conduct not alleged in the affidavit constituted fundamental error and did not require a contemporaneous objection to preserve the claim for appellate review. Perkins v. State , 842 So.2d 275, 277 (Fla. 1st DCA 2003). Therefore, the trial court erred in finding that Appellant violated his probation by leaving his county of residence without his probation officer's consent based on acts not charged in the violation of probation affidavit. See T.T. v. State , 82 So.3d 1019 (Fla. 4th DCA 2011) (reversing the trial court's finding that T.T. violated his probation where the affidavit alleged that he violated probation by skipping school or being tardy on specific dates, but no evidence was presented that he violated his probation on those dates); Cherington v. State , 24 So.3d 658, 660-61 (Fla. 2d DCA 2009) (holding that the trial court erred in finding a violation of probation where Cherington admitted to possessing and using cocaine on some undetermined date rather than on the date specified in the affidavit of violation); Perkins , 842 So.2d at 277 (holding that the trial court's finding that Perkins violated his probation by absconding during the months of May through November constituted fundamental error where the affidavit did not allege that he had absconded during those months); Johnson v. State , 811 So.2d 749 (Fla. 2d DCA 2002) (holding that the trial court could not find that Johnson violated his community control by being absent from his approved residence on April 11, 2000, where the affidavit alleged that Johnson failed to remain confined to his approved residence on March 31, 2000).

The trial court further found that Appellant violated his probation by changing his residence without the consent of his probation officer. Appellant's probation officer testified that he filed this charge based solely on what Appellant's mother told him during a meeting at his office. Such hearsay alone is not sufficient to establish that Appellant changed his residence in the absence of nonhearsay evidence to corroborate it. See Rutland v. State , 166 So.3d 878 (Fla. 1st DCA 2015) ; Webb v. State , 154 So.3d 1186, 1188 (Fla. 4th DCA 2015) ; Cito v. State , 721 So.2d 1192 (Fla. 2d DCA 1998). Although Appellant's mother testified at the probation violation hearing, she denied that Appellant had changed his residence. At most, she conceded that Appellant had been absent from the residence for a week and that she did not know his whereabouts at that time.

A probationer's absence from an approved residence for a brief time during which the probationer's location was unknown would not support a finding that the probationer violated a condition of probation by changing his residence without first procuring the consent of his probation officer. Tobias v. State , 641 So.2d 194 (Fla. 4th DCA 1994) ; accord Gauthier v. State , 949 So.2d 326, 326-27 (Fla. 5th DCA 2007) ; Johnson v. State , 668 So.2d 240, 241 (Fla. 1st DCA 1996). Therefore, the trial court erred in finding that Appellant violated his probation by changing his residence without his probation officer's consent.

However, Appellant was also charged with violating his probation by committing new law violations in Duval County, which would support the revocation of his probation, if proven. The trial court's oral findings focused on the allegations that Appellant violated his probation by leaving his county of residence and changing his approved residence without his probation officer's consent, but the prosecutor was able to coax what appears to be a further oral finding that Appellant violated his probation by committing the new law violations in Duval County as an accessory.

Given the somewhat ambiguous nature of the trial court's oral findings and the lack of any written findings, we reverse and remand with directions that the trial court make an express determination whether Appellant's probation should be revoked based on the new law violations. See Manis v. State , 30 So.3d 586 (Fla. 5th DCA 2010).

III.

The trial court's written order of revocation does not specify the conditions of probation that were violated by Appellant. "If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated." King v. State , 46 So.3d 1171, 1172 (Fla. 4th DCA 2010). The State properly concedes that this case must be remanded for entry of a written order specifying the conditions of probation violated by Appellant. See Davis v. State , 218 So.3d 507 (Fla. 1st DCA 2017) ; Leggs v. State , 27 So.3d 155 (Fla. 1st DCA 2010).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

Makar, Osterhaus, and Jay, JJ., concur.

      Effective July 1, 2017, the legislature amended section 948.06(1)(f) to remove the requirement that the warrant be issued under section 901.02. Ch. 2017-115, §§ 9, 20, Laws of Fla. This amendment is not applicable here since Appellant's probation expired before July 1, 2017.


text:
    Scott Thomas HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5876
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Michael Ufferman of the Michael Ufferman Law Firm, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Scott Thomas Hicks appeals his convictions and sentences for aggravated child abuse, neglect of a child causing great bodily harm, leaving a child unattended in a motor vehicle causing great bodily harm, and endangering a child. We affirm three of Hicks's convictions but reverse his child-endangerment conviction.

Hicks was arrested after he left a child in his truck for an hour and a half with the windows up. It was the middle of September in the Florida Panhandle. By the time police discovered the child, he was already dehydrated, with an elevated heart rate and cracked, bloody lips. The child also had other serious injuries: he had an inch-long laceration on his forehead, bruising all over his body, and a severely swollen scrotum. There was no food or water in the truck, but there was a bag of loaded firearms.

At trial, Hicks admitted to leaving the child in the truck but insisted that the child's mother-Hicks's girlfriend at the time-was responsible for the child's unrelated injuries. Hicks also claimed he did not know the extent of the child's injuries when he left him in the truck.

The jury rejected Hicks's defense and convicted him of aggravated child abuse, neglect of a child causing great bodily harm, leaving a child unattended causing great bodily harm, and child endangerment. The court sentenced Hicks to a total of twenty-five years.

Hicks's main argument on appeal relates to the sufficiency of the evidence. The State can prove aggravated child abuse by showing a defendant committed an aggravated battery on the child, "willfully tortur[ed]" the child, or abused the child causing great bodily harm. § 827.03(1)(a), Fla. Stat. (2015). Hicks insists that the State failed to prove any of this. Our review is de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

Viewing all of the evidence in a light most favorable to the State, we conclude that a rational jury could have found all elements proven beyond a reasonable doubt. See Veney v. State , 217 So.3d 1189, 1190 (Fla. 1st DCA 2017). Among other things, the jury heard testimony that the child "appeared to be dead" and was "pale" and "lethargic" upon discovery. There was evidence from which the jury could conclude that Hicks "[k]nowingly or willfully abuse[d the] child and in so doing cause[d] great bodily harm." § 827.03(1)(a) 3. We therefore reject Hicks's argument that the trial court should have granted an acquittal as to the aggravated child abuse. And for the same reason, we reject Hicks's argument that there was no showing of "great bodily harm" to support his convictions for neglect of a child causing great bodily harm and leaving a child unattended causing great bodily harm.

Hicks's fourth conviction, however, is another matter. This count arose from events on a separate day when Hicks was with the child. The State thought it was possible that Hicks abused the child during this time because the child's mother testified that the child was not injured when he left with Hicks, but the jury did not receive any evidence related to what actually happened, other than Hicks's testimony that he took the child to the beach and to McDonald's. Therefore, we hold that the court erred by not granting Hicks's motion for judgment of acquittal on his fourth count, and we reverse Hicks's conviction for endangering a child.

We reject Hicks's remaining arguments. First, Hicks argues that he is entitled to a new trial because the court erroneously admitted photos showing guns in the truck, photos Hicks argues were irrelevant and prejudicial. We hold that even if the photos should have been excluded, any error was harmless. See State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986). By the time the photos were introduced, the jury had already heard Hicks's recorded statement, in which he brought up the issue of guns in his truck. Through this evidence-to which Hicks did not object-the jury knew of the guns regardless of the photos.

Second, Hicks contends that the court should have issued a curative instruction after the State improperly defined "torture" during closing argument. But this issue was not preserved. "[T]o preserve a claim based on improper comment, counsel has the obligation to object and request a mistrial." See Bright v. State , 90 So.3d 249, 259 (Fla. 2012), as revised on reh'g (May 31, 2012). Here, Hicks's counsel did neither, waiting until after the completion of closing arguments and a fifteen-minute recess to first raise the issue. The error (if any) was not preserved, and there was no fundamental error.

Last, Hicks argues that under double-jeopardy principles, he could not be convicted of both child neglect causing great bodily harm (in violation of § 827.03(2)(b) ) and leaving a child unattended in a motor vehicle (in violation of § 316.6135(1) ). But there is no double-jeopardy violation. Each crime included an element that the other did not, and neither was subsumed into the other. See McKinney v. State , 66 So.3d 852, 854 (Fla. 2011).

AFFIRMED in part and REVERSED in part.

B.L. Thomas, C.J., and Makar and Winsor, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Willie Mathers NEWTON, DOC #268531, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3559
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Willie Mathers Newton appeals a judgment and sentence entered after a jury found him guilty of second-degree murder while discharging a firearm causing death. We disagree with Newton's argument that the trial court erred in denying his motion for judgment of acquittal and affirm the judgment and sentence without further comment.

Newton also appeals the judgment for costs and fines that, in pertinent part, imposes a $100 fee for the services of court-appointed conflict counsel. See § 938.29(1), Fla. Stat. (2016). We agree with Newton's argument that the trial court erred in denying his motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b)(2) because contrary to our precedent and to the plain language of rule 3.720(d)(1), read together with section 938.29(5), the court had failed to give Newton notice of his right to a hearing to contest the $100 fee when pronouncing its imposition at sentencing. See Gedehomme v. State, 160 So.3d 533, 534 (Fla. 2d DCA 2015) (holding that the trial court erred in failing to give Gedehomme an opportunity to request a hearing regarding the $100 cost for his public defender pursuant to section 938.29, Florida Statutes (2012), and instructing that "[t]he court may reimpose the $100 public defender fee but only after proper notice and the opportunity for Gedehomme to be heard on that issue"); Neal v. State, 62 So.3d 1277, 1277-78 (Fla. 2d DCA 2011) (holding that the trial court erred in failing to "give Neal notice of his right to a hearing to contest the amount of the $100 public defender's lien that was imposed as part of his sentence" under rule 3.720(d)(1) and remanding for the trial court "to strike the lien and afford Neal the opportunity to properly object to the amount imposed").

Instead, the trial court determined that such notice was not required when imposing the statutory minimum of $100, relying on the First District's decision in Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015) (en banc) ("[W]e recede from any and all decisions holding that sections 938.29(1) and 27.52, Florida Statutes, as amended effective July 1, 2008, require notice and hearing before imposition of a minimum public defender's lien, i.e., $150 in felony cases or $100 in misdemeanor cases."). Because we have already held to the contrary, however, the trial court was not at liberty to do so. See also Pardo v. State, 596 So.2d 665, 666-67 (Fla. 1992) ("The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it." (quoting State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976) ) ). Accordingly, we reverse the $100 fee, remand for further proceedings, and certify conflict with the First District's decision in Mills.

Affirmed in part; reversed in part; remanded; conflict certified.

CASANUEVA and CRENSHAW, JJ., Concur.

      We recognize that a challenge to the amount of the $100 fee would be unavailing because that is the statutory minimum fee that may be imposed. See § 938.29(1). But, read together, section 938.29(5) and rule 3.720 unequivocally require that a defendant be given notice of his or her "right to a hearing," Fla. R. Crim. P. 3.720(d)(1), and be afforded the "opportunity to be heard and offer objection to the determination" of the value of defense counsel's services, § 938.29(5), regardless of the outcome.

      To the extent that the trial court also relied on Mojica v. State, 192 So.3d 1271, 1272 (Fla. 2d DCA 2016), which was decided after Gedehomme and Neal, to support its conclusion that notice is not required when the statutory minimum fee is imposed, that case's suggestion that notice is not required in such a situation is not part of the holding but merely dicta because that specific issue was not before the court. And, in any event,
      absent an en banc opinion expressly receding from a point of law announced in previous opinions of this court, a trial court should not rely on the expressions of a three-judge panel as a basis to conclude that a previous opinion of another three-judge panel no longer carries the force of law.
      Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996).


text:
    Antoinette TYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-583
    District Court of Appeal of Florida, First District.
    December 28, 2018
    Andy Thomas, Public Defender, and Colleen D. Mullen, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General; Edward M. Wenger, Chief Deputy Solicitor General; Steven E. Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Antoinette Tynes moved for immunity under Florida's Stand Your Ground law after she was charged with attempted first-degree murder for stabbing her boyfriend seven times with a knife in 2016. The trial court denied the motion, and Tynes petitions this Court for a writ of prohibition.

At the pretrial immunity hearing in November 2017, the trial court applied the evidentiary standard outlined in Bretherick v. State , 170 So.3d 766, 775 (Fla. 2015), finding that Tynes had the burden to prove entitlement to immunity by a preponderance of the evidence. The trial court concluded that Tynes failed to meet that burden. In 2017, in response to Bretherick , the Legislature amended the Stand Your Ground law to shift the burden of proof to the State and to change the quantum of proof required to overcome a defendant's claim of immunity. Ch. 2017-72, § 1-2, Laws of Fla. Now, after the defendant makes a prime facie claim of immunity, the State bears the burden to prove by clear and convincing evidence that the defendant is not entitled to immunity. § 776.032(4), Fla. Stat. (2017). Tynes argues that this amendment to the Stand Your Ground law applies retroactively to her 2016 offense, and thus the trial court erred in requiring her to prove her entitlement to immunity by a preponderance of evidence and in concluding that she failed to meet that burden.

Based on this Court's recent decision in Commander v. State , 246 So.3d 1303, 1304 (Fla. 1st DCA 2018), wherein this Court held that the 2017 amendment to the Stand Your Ground law applied retroactively, Tynes is entitled to relief. See also Martin v. State , 43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) (holding that the 2017 amendment to section 776.032 is procedural in nature and therefore can be applied retroactively). But see Hight v. State , 253 So.3d 1137 (Fla. 4th DCA 2018) (applying the 2017 amendment prospectively after concluding it was a substantive change in the law); Love v. State , 247 So.3d 609 (Fla. 3d DCA 2018) (same and certifying conflict with Martin ), review granted , SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018).

Because the State argues that it met its burden to prove by clear and convincing evidence that Tynes was not entitled to immunity, on remand the trial court may reconsider Tynes' motion based on the evidence presented at the hearing.

PETITION GRANTED .

Rowe, Kelsey, and M.K. Thomas, JJ., concur.