author: Warner, J.

text:
    PETRI POSITIVE PEST CONTROL, INC., a Florida corporation, Appellant, v. CCM CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation, d/b/a Country Club Manor Condominium Association, Appellee.
    No. 4D18-1290
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Thomas L. Hunker of Cole, Scott & Kissane, P.A., Plantation, for appellant.
    Steven J. Hammer and Zane Berg of Schlesinger Law Offices, P.A., Fort Lauderdale, Celene H. Humphries and Maegen P. Luka of Brannock & Humphries, Tampa, and Thomas P. Angelo of Angelo & Banta, P.A., Fort Lauderdale, for appellee.
   Warner, J.

We are asked to decide whether it was error for the trial court to include post-offer prejudgment interest in calculating the statutory threshold amount to trigger an award of attorney's fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2014). The prejudgment interest was part of the judgment entered for the plaintiff, and the amount of the judgment exceeded, by 25%, the offer made by the plaintiff to settle the case, entitling it to attorney's fees. The appellant, defendant below, contends that the supreme court has already decided this issue in its favor, and post-offer interest must be excluded in calculating the amount recovered by the plaintiff. Language in supreme court opinions does suggest that result, although the court has never squarely addressed this issue. Were we writing on a clean slate, we would interpret the statute as written and include post-offer prejudgment interest. But as the supreme court opinions appear to exclude post-offer prejudgment interest in the judgment obtained, we are bound to follow the supreme court. Therefore, we reverse, but certify conflict with a district court of appeal opinion and also certify a question of great public importance.

In 2013, the appellee/plaintiff, CCM Condominium Association, Inc., sued the appellant/defendant, Petri Positive Pest Control, Inc., for negligence and breach of contract regarding the parties' contract for Petri to address a termite problem at CCM's property. Petri answered, denying the allegations. CCM served an amended offer of judgment in 2014, pursuant to section 768.79, Florida Statutes. It offered to settle all of CCM's claims for damages, including punitive damages, attorney's fees, costs, and interest, for $ 500,000. Petri rejected the offer.

Following a trial in 2016, the jury found in favor of CCM on its breach of contract claim, and it awarded CCM $ 551,881 in damages. CCM submitted a proposed final judgment, requesting $ 551,881 in damages, and an additional $ 84,295.60 in prejudgment interest calculated by an accountant, with a per diem rate for each day. This amount included both pre-offer of settlement and post-offer of settlement interest. The court entered judgment based on those calculations for a total of $ 636,326.90. CCM then moved to tax costs, which the court granted in the amount of $ 73,579.21.

CCM moved for attorney's fees pursuant to section 768.79, Florida Statutes, the offer of judgment statute, contending that its judgment of $ 636,326.90, inclusive of interest, exceeded the offer by more than 25%. Thus, CCM was entitled to an award of attorney's fees incurred. Petri objected, contending that in accordance with White v. Steak & Ale of Florida, Inc. , 816 So.2d 546 (Fla. 2002), the amount of the plaintiff's total recovery included only its attorney's fees, costs, and prejudgment interest accrued up to the date of the offer of judgment. Without the post-offer prejudgment interest and costs, CCM had not met the threshold amount of $ 625,000.

The court granted CCM's motion for attorney's fees. It concluded that White addressed only pre-offer costs in relation to a plaintiff's "judgment obtained," not prejudgment interest. Relying on Perez v. Circuit City Stores, Inc. , 721 So.2d 409 (Fla. 3d DCA 1998), the court ruled that prejudgment interest is included in the "judgment obtained" for section 768.79 purposes. The court held a hearing to determine the amount of attorney's fees, and the parties ultimately agreed on the amount, leaving the issue of entitlement for this appeal.

Two principles of review apply to this case. On the one hand, we review de novo issues of statutory interpretation. Diamond Aircraft Indus., Inc. v. Horowitch , 107 So.3d 362, 367 (Fla. 2013). Appellate courts first analyze the plain meaning of the language of a statute, finding the legislative intent from the statute's actual text. Id. If the statute's language is clear, the court need not resort to the rules of statutory interpretation or construction. Id. On the other hand, it a longstanding principle of law that the district courts of appeal must follow the opinions of the supreme court. State v. Hayes , 333 So.2d 51, 53 (Fla. 4th DCA 1976), cited with approval in Pardo v. State , 596 So.2d 665, 666 (Fla. 1992). In this case, these two principles of appellate review collide.

Section 768.79, Florida Statutes (2014), governs offers of judgment and provides:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand . If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
....
(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney's fees against the award.
When such costs and attorney's fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.
(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.
For purposes of the determination required by paragraph (a), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered , plus any postoffer settlement amounts by which the verdict was reduced.

(emphasis added). The statute requires the plaintiff to "recover[ ] a judgment" exceeding a threshold amount, and the "judgment entered" is the amount from which to calculate whether a plaintiff or defendant has met the respective threshold for an award of attorney's fees. The "judgment entered " is easily understood-the final judgment entered in the case by the court, its plain meaning. The statute does not refer to the amount of the offer except to state that the judgment "recovered" must be more (or less) than the offer by a certain percentage. It is easy to calculate. Included in that judgment are all of the elements of damages recovered in a case. This includes prejudgment interest where applicable. "[S]ince at least before the turn of the century, Florida has adopted the position that prejudgment interest is merely another element of pecuniary damages." Argonaut Ins. Co. v. May Plumbing Co. , 474 So.2d 212, 214 (Fla. 1985) (footnote omitted); Phillips v. Parrish , 585 So.2d 1038, 1039 (Fla. 1st DCA 1991) (approving the inclusion of prejudgment interest to the date of the final judgment in determining whether the threshold amount of section 768.79, Florida Statutes, was met). In this case, the amount of the judgment entered was $ 636,326.90, inclusive of prejudgment interest to the date of judgment, none of which was contested or appealed. That amount was more than 25% greater than CCM's offer of judgment. Based upon the plain meaning of the statute, CCM was entitled to its award of attorney's fees.

Petri, however, contends that for purposes of determining whether CCM met the threshold, the post-offer prejudgment interest should not be considered, even though it is part of the "judgment entered." There is nothing in the statute about deductions from the "judgment entered," except for "postoffer settlement amounts by which the verdict was reduced." § 768.79(6)(b), Fla. Stat. Post-offer prejudgment interest does not meet that definition. Instead, Petri argues that the supreme court has created its own formula for calculating whether a plaintiff or defendant has met the threshold, something which is not contained in the text of the statute. A review of the supreme court case law shows that the court does appear to have gone beyond the statutory language to create a different threshold for attorney's fee awards under the statute.

In White v. Steak & Ale of Florida, Inc. , 816 So.2d 546, 548 (Fla. 2002), the court considered "whether, under the offer of judgment statute, section 768.79, Florida Statutes (1993), pre-offer taxable costs are included in calculating the 'judgment obtained' for the purpose of determining whether the party making the offer is entitled to attorneys' fees under section 768.79." During the case, a personal injury suit, the defendant, Steak and Ale, made an offer of judgment of $ 15,000, which was rejected. Id. At trial, the jury awarded the plaintiff $ 8,025, for which judgment was entered. Id. White also obtained a judgment for his pre-offer costs of $ 4,243. Id. The combined total of the two judgments of $ 12,268 was more than 75% of the offer of $ 15,000 (with a 25%-of-offer threshold of $ 11,250). Id. If the cost judgment were not included, then Steak and Ale would be entitled to an award of attorney's fees. Id.

The supreme court resolved a conflict among the districts by holding that the cost judgment for pre-offer costs was part of the "judgment obtained" under the statute, approving Perez v. Circuit City Stores, Inc. , 721 So.2d 409 (Fla. 3d DCA 1998), rev. dismissed , 729 So.2d 390 (Fla. 1999). Id. at 548-50. It then determined that "common sense, fairness, and the purpose of the offer-of-judgment statute" led the court to the conclusion that the judgment for costs should be included in the net judgment entered for purposes of section 768.79. Id. at 550. In White, where there were judgments entered for both the costs and the jury verdict, the combined "judgment entered" or "judgment obtained" exceeded the offer by more than the statutory threshold. Id. at 551.

Had the court simply stated that the cost judgment together with the judgment for damages exceeded the threshold, the opinion would have been consistent with the plain meaning of "judgment entered" or "judgment obtained." The opinion went further, however. It relied on Danis Industries Corp. v. Ground Improvement Techniques, Inc. , 645 So.2d 420, 421-22 (Fla. 1994), in which, considering section 627.428 regarding attorney's fees awardable to a prevailing insured in an action against an insurance company, the court said:

[A]ny offer of settlement shall be construed to include all damages, attorney fees, taxable costs, and prejudgment interest which would be included in a final judgment if the final judgment was entered on the date of the offer of settlement.

Id. at 550-51. The court in White further found:

We reaffirmed this principle in our recent decision in Scottsdale Insurance. Co. v. DeSalvo , 748 So.2d 941, 944 n.3 (Fla. 1999), where we explained that the plaintiff's "recovery" must be added to its "attorney fees, costs, and prejudgment interest" accrued up to the date of the "offer" to determine the total "judgment." It is this judgment to which the offer must be compared in determining whether to award fees and costs. Id.

Id. at 551 (footnote omitted). The White court then concluded:

[T]he "judgment obtained" pursuant to section 768.79 includes the net judgment for damages and any attorneys' fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer . Thus, in calculating the "judgment obtained" for purposes of determining whether the party who made the offer is entitled to attorneys' fees, the court must determine the total net judgment, which includes plaintiff's taxable costs up to the date of the offer and, where applicable, the plaintiff's attorneys' fees up to the date of the offer.

Id. (emphasis added). Thus, the court did not use the judgment actually entered or recovered in accordance with the statutory language, but it directed the calculation of a different amount based upon what might have been a final judgment at the time that the offer was made. However, the court did not include in this calculation any direction regarding prejudgment interest.

While the court relied on Danis and Scottsdale Insurance Co. , section 627.428 is not the same as section 768.79. Danis established that under section 627.428, an insured is a prevailing party only when the insured obtains a judgment in excess of any offer of settlement tendered by the insurer. Danis , 645 So.2d at 421. The court was defining what it meant to prevail in suits against an insurance company; it was not construing what "judgment entered" or "judgment obtained" meant under section 768.79.

Nevertheless, in Shands Teaching Hospital and Clinics, Inc. v. Mercury Insurance Co. of Florida , 97 So.3d 204, 214 (Fla. 2012), the court added to the White formula in briefly determining that an insurer was not entitled to attorney's fees pursuant to an offer of judgment. It noted that, "We have interpreted the 'judgment obtained' under section 768.79 to include 'the total net judgment, which includes the plaintiff's taxable costs up to the date of the offer and, where applicable, the plaintiff's attorneys' fees up to the date of the offer.' " Id. (citing White , 816 So.2d at 551 ). The court then quoted with approval the trial court's final judgment in which the court had applied the formula of White , "adding to the amount of damages recovered the attorney's fees, costs and pre-judgment interest accrued up to the date of the proposal for settlement ." Id. (emphasis added). Based upon that calculation, the plaintiff had exceeded the threshold amount, and the insurer was not entitled to attorney's fees. Id. The supreme court appears to have approved the inclusion of pre-offer prejudgment interest in the calculation of "judgment obtained" under the statute, even though neither discussed this, noted that prejudgment interest was not included in White's formula, nor specifically held that post-offer prejudgment interest was excluded.

In Shands , the supreme court's approval of the trial court's denial of fees rested on the inclusion of pre-offer prejudgment interest in the White formula. Thus, we conclude that this cannot be treated as mere dicta. We are therefore bound to follow the supreme court's opinion. See Pardo. Nevertheless, we are troubled by how far the formula created in White strays from what we believe is the plain meaning of the statute.

Our opinion, that prejudgment interest may only be included in the White formula up to the time of the offer, is based on our tenuous conclusion that Shands allows for inclusion of only pre-offer prejudgment interest in the threshold calculation for purposes of section 768.79. As such, our opinion now conflicts with Perez, which the supreme court approved in White, albeit on the issue of inclusion of costs in the judgment. In Perez , the court included prejudgment interest without limiting it to the pre-offer portion of the judgment. Perez , 721 So.2d at 410 n.2. It also conflicts with Phillips , which directly held that all prejudgment interest was included in the threshold amount. Phillips , 585 So.2d at 1039.

We also think that the proper interpretation of the offer of judgment statute is a question of great public importance, as it is so widely used and is an important tool for settlement of litigation. We therefore certify conflict with both Perez and Phillips . We also certify the following question to the supreme court:

FOR PURPOSES OF CALCULATING WHETHER A PLAINTIFF HAS MET THE THRESHOLD AMOUNT OF DIFFERENCE BETWEEN AN OFFER OF JUDGMENT AND THE JUDGMENT ENTERED FOR PURPOSES OF SECTION 768.79, FLORIDA STATUTES, MUST POST-OFFER PREJUDGMENT INTEREST BE EXCLUDED FROM THE AMOUNT OF THE "JUDGMENT OBTAINED"?

Gross, J., and Weiss, Daliah, Associate Judge, concur.

      Prejudgment interest is not authorized for damages awarded for personal injuries. Argonaut , 474 So.2d at 214 n.1.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    James Warren RADICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1373
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

After James Radice was convicted of felony battery, the circuit court granted a downward departure and sentenced him to twenty months' imprisonment followed by two years' probation. He appeals his conviction and the court's denial of his motion for new trial. The State cross-appeals the downward departure sentence. We affirm the issues raised on appeal. We reverse the court's downward departure of Radice's sentence on the cross-appeal, and we remand for resentencing.

Background

i. The Victim's Testimony

The State charged Radice with felony battery. At trial, a witness testified that the Victim worked for him as a driver for his private car service and was authorized to pick up a client on the night of the incident.

When the Victim arrived to pick up the client, the client asked if he could drive her and four other people to a different location. Radice was one of those four other people. The Victim explained that he could not drive to the other location and could not take all four other people in his vehicle. The Victim showed Radice the company email providing the route and passenger, but Radice wanted all four people driven to different locations. After the dispatcher confirmed that the Victim was to pick up one passenger and drive her to one location, the Victim told Radice, "[I]f you in [sic] my way, I can drop you off on my way, but I'm not going out of my way."

According to the Victim, this upset Radice. Radice pushed him in the chest as hard as he could and punched him in the face, knocking him unconscious. As a result, the Victim spent six or seven days in the hospital. The Victim testified he did not hit Radice first, push him, or provoke him.

ii. Radice's Testimony

Radice told a different story. Radice testified that there was an issue about how many people would get into the car and that the Victim "was immediately agitated because he thought he had a ride for one person." Radice did not intend to go with the others, but he just wanted to make sure they could all get into the car.

Radice told the Victim that if he drove everyone to Radice's house, he would drop everyone off. But the Victim "really didn't want to hear anything that came out of [Radice's] mouth," and Radice thought the Victim was taking it "personally," as if Radice were "trying to tell him [how] to do his job."

Radice eventually got out of the car and started walking down the street to call an Uber. Radice noticed that the Victim "came around the back of the vehicle to continue this debate." The Victim seemed angry, offended, aggressive, and forceful. Radice kept telling the Victim to "get out of [his] face" and "leave [him] alone." The situation escalated, and the Victim got louder and took another step in front of Radice. He told Radice, "[D]on't talk to me like that. You don't tell me how to do my job." According to Radice, the Victim was saying: "Hit me. Hit me. I sue you, I sue you." Radice admitted that he was also getting louder because he was frustrated.

Radice believed the argument was over because the Victim returned to his car. But the Victim came running at him with both fists and tried to swing. At first, Radice avoided the fists, but the Victim swung again and hit him in the face. "Almost like a reaction, ... everything happened so quickly"; Radice hit the Victim back and knocked him down.

iii. Radice's Motion for New Trial

After the jury returned a guilty verdict, Radice moved for a new trial. Radice argued the verdict was contrary to the weight of the evidence. He argued the Victim was the only witness who said that the Victim "did not throw the first punch." And before he knew he was being investigated for the battery, Radice told his Dentist that the Victim punched him in the mouth. Radice visited his Dentist because his injuries from a preexisting incident had ruptured. He also argued that the Dentist testified Radice's injuries suggested a punch and that the State did not impeach the Dentist. The court noted that the Dentist was a good witness but that he was "very quick" to say on cross-examination that "a lot of things" other than a punch could have ruptured Radice's stitches.

The State argued that Radice admitted to a battery and that the jury did not believe his self-defense theory.

The court denied the motion, stating:

THE COURT: I get it. I think it is a great argument. I have no problem with that argument. I'm saying -- but the argument wasn't to me. That argument was presented to the jury. You made that argument.
[DEFENSE COUNSEL]: Sure.
THE COURT: And the jury came back unanimous, okay, that this wasn't self defense. I never expressed an opinion. I'm never going to express[ ] an opinion on what happened that night. I don't know. That is not my job in this case.
Okay. We gave it to the nice people of the jury. That is who made the decision of guilt. But to say that the decision, the jury's decision, is contrary to the evidence in this case, I don't think that is accurate.
[DEFENSE COUNSEL]: Okay.

iv. Radice's Motion for Downward Departure From Sentencing Guidelines

After denying Radice's motion for new trial, the court addressed Radice's motion for downward departure from sentencing guidelines. The minimum sentence under the sentencing guidelines was 40.35 months in prison. Radice moved for a downward departure under section 921.0026(2)(j), Florida Statutes (2017), arguing that "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse."

The court granted his motion for a downward departure sentence and sentenced him to twenty months in prison followed by two years of probation.

Analysis

i. The Court Did Not Apply the Incorrect Standard in Denying Radice's Motion for New Trial

Radice argues the court applied the wrong standard in deciding his motion for new trial. His argument is based on the court's statement that the matter was given to the jury and that the court "never expressed an opinion." Radice is correct that a court must evaluate the evidence because Florida Rule of Criminal Procedure 3.600(a)(2) "provides that a trial court shall grant a new trial if the verdict is contrary to ... the weight of the evidence."

Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013) (internal quotation marks omitted).

In Velloso , we explained that in "deciding a motion for new trial pursuant to Rule 3.600 [ (a)(2) ], the trial court acts as a 'safety valve' by 'granting a new trial where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.' " Id. (quoting Geibel v. State , 817 So.2d 1042, 1044 (Fla. 2d DCA 2002) ). " Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror." Id. (quoting Tibbs v. State , 397 So.2d 1120, 1123 n.9 (Fla. 1981) ).

Radice relies on Fulword v. State , 29 So.3d 425 (Fla. 5th DCA 2010), to support his argument that the trial court applied the wrong legal standard in ruling on his motion for new trial. In Fulword , the trial court denied a motion for new trial, stating: "I think clearly the matter of credibility of witnesses is a matter for the jury, as is the issue of intent," and "[i]t was the [jury's] job to determine credibility and the jury's job to determine whether or not the State had proved the requisite intent on these two charges beyond a reasonable doubt." Id. at 426. After the State conceded error, the Fifth District reversed and remanded for the trial court to determine whether credible evidence-the weight of the evidence-supported the verdict. Id.

Radice also relies on Robbins v. State , 250 So.3d 722 (Fla. 4th DCA 2018), where the prosecutor argued that the motion for new trial was "not the time for [the Court] to sit in the chairs of the jury," and the trial court "agree[d] with the State that it was a question of fact and the jurors got to see [defense counsel] challenge [the victim] with the prior inconsistent statement and it didn't make an impact on them." Id. at 724 (first, third, and fourth alterations in original). We reversed, citing Velloso , and concluded that the combination of the prosecutor's and court's comments "appear[ed] to demonstrate" that the trial court incorrectly applied the "sufficiency of the evidence" standard instead of the "weight of the evidence" standard. Id. at 726.

Here, the court did state that "[w]e gave it to the nice people of the jury. That is who made the decision of guilt." But that was not the entirety of the court's statement. The court continued: "[T]o say that the decision, the jury's decision, is contrary to the evidence in this case, I don't think that is accurate."

Thus, the court applied the correct standard and determined the weight of the evidence supported the conviction. We therefore affirm.

ii. The Court Erred in Granting Radice's Motion for Downward Departure Sentence

The State argues that Radice's downward departure sentence is not supported by competent, substantial evidence because the record shows that the crime was not isolated, Radice did not show remorse, and the court failed to make specific findings on sophistication.

Competent, substantial evidence must exist to support a sentencing departure. Hardie v. State , 162 So.3d 297, 301 (Fla. 2d DCA 2015) (citing Banks v. State , 732 So.2d 1065, 1067 (Fla. 1999) ). The decision to depart downward is a two-part process. Banks , 732 So.2d at 1067. First, the court must determine whether there is a valid legal ground to depart and whether there is evidence in support of the legal ground. Id. Second, the court must determine whether it should depart. Id. at 1068 (footnote omitted).

Here, we address whether there was evidence to support the legal ground the court relied on to depart. In granting the downward departure, the court relied on section 921.0026(2)(j), Florida Statutes (2017), which allows a court to grant a downward departure when "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." But when a trial court relies "solely on this mitigator, [ section 921.0026(2)(j) ], all three elements must be shown." State v. Strawser , 921 So.2d 705, 707 (Fla. 4th DCA 2006) (citing State v. Cooper , 889 So.2d 119, 119 (Fla. 4th DCA 2004) ).

So Radice had to establish he committed the offense in an unsophisticated manner, that it was isolated, and that he showed remorse. We first address whether the event was isolated because, if it was not, we need not address whether it was sophisticated or whether he showed remorse. And when the record does not show the incident is isolated, we reverse the sentence. See, e.g. , State v. Perlman , 118 So.3d 994, 996 (Fla. 1st DCA 2013) (reversing and remanding for resentencing where the defendant's criminal record was "too extensive under established case law to permit a finding that the offenses at issue were isolated incidents" under section 921.0026(2)(j) ); State v. Waterman , 12 So.3d 1265, 1269 (Fla. 4th DCA 2009) (same).

The record does not establish this was an isolated incident. Radice himself testified:

[Radice]: ... Do you know how many thousands of fights happen on Fort Lauderdale Beach every year, roughly tens of thousands? How many actually get reported?
[Prosecutor]: How many have you been in?
[Radice]: How many have I been in? I can't even tell ya.
[Prosecutor]: You can't even tell [me]. So you're a frequent fighter, you get into fights on Fort Lauderdale Beach and you don't report them?
[Radice]: No, don't put words in my mouth because it is very rare that you will find me at the beach....

Radice stated that he could not quantify the number of fights he had been in on Fort Lauderdale Beach. And when asked to clarify, he simply stated that it was "rare that you will find me at the beach." We have held that "[a]n offense [ ] is not isolated if [it] involves multiple incidents." Bellamy v. State , 199 So.3d 480, 483 (Fla. 4th DCA 2016) (citing Strawser , 921 So.2d at 707 ); see also State v. Hollinger , 253 So.3d 1207, 1210 (Fla. 5th DCA 2018) (holding that the defendant's "multiple offenses cannot be considered to be isolated," even though he had no prior criminal history). Radice also had two prior felony convictions, one prior domestic violence misdemeanor conviction, and one reckless driving misdemeanor.

Based on these facts, this was not an isolated incident and the court erred in granting a downward departure sentence. See, e.g. , State v. Tice , 898 So.2d 268, 269 (Fla. 5th DCA 2005) ("While Tice has shown remorse, his criminal history does not support the conclusion that his latest felonies were isolated incidents.").

Conclusion

We affirm the issues raised on appeal, reverse the downward departure sentence raised on cross-appeal, and remand for resentencing.

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

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

      We affirm Radice's claims of ineffective assistance of counsel without prejudice to raise the issues in a proper post-conviction motion.

      The judge first raised a downward departure, stating "I don't know if [counsel for Radice] plans on filing a motion for a downward departure."


author: Taylor, J.

text:
    Hershel BRYANT and Betty Bryant, Appellants, v. GEOVERA SPECIALTY INSURANCE COMPANY, Appellee.
    No. 4D18-189
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    David P. Pakula of David P. Pakula, P.A., Pembroke Pines, and David A. Neblett and James M. Mahaffey of Perry & Neblett, P.A., Miami, for appellants.
    Maureen G. Pearcy and Andrew E. Grigsby of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
   Taylor, J.

The insureds, Hershel and Betty Bryant, appeal a final summary judgment in favor of GeoVera Specialty Insurance Company ("GeoVera") in the insureds' suit for breach of contract and bad faith. The trial court ruled that the insurance company complied with the homeowner's insurance policy, as a matter of law, by asserting coverage defenses pre-suit and paying an appraisal award during suit. We reverse, because the insurance company's post-suit payment of the appraisal award constituted a confession that it incorrectly denied benefits by erroneously invoking the $ 1,000 leakage sublimit in its formal response to the claim before the lawsuit. We also reverse summary judgment as to the insureds' bad faith claim. Genuine issues of material fact remain.

I. Facts

A. The Policy

In February 2014, the insureds purchased a surplus lines homeowner's insurance policy from GeoVera with a policy term of 12 months. The policy requires the insureds to provide GeoVera with a sworn proof of loss within 60 days of GeoVera's request. The policy conditions further provide: "No action can be brought against us [GeoVera] unless there has been full compliance with all of the terms under Section I of this policy." The policy also contains an appraisal clause that allows either party to demand an appraisal of the loss "[i]f you and we fail to agree on the amount of the loss." The policy's loss-payment provision states that loss is payable "60 days after we receive your proof of loss" and there is either "an agreement with you," "an entry of a final judgment," or "a filing of an appraisal award with us."

A policy endorsement contains a combined $ 5,000 sublimit for smog, rust, mold, rot, or bacteria coverage and a combined $ 1,000 sublimit for a covered loss caused by water seepage or leakage that occurs over a period of 14 days or more.

B. The Loss

On April 28, 2014, a pipe leak in the insureds' residence resulted in damage to their home. The insureds hired a company to perform emergency water-remediation services at a cost of $ 6,600. The insureds reported the loss to GeoVera on May 13, 2014. On May 15, 2014, GeoVera's adjuster inspected the property and issued a repair estimate of $ 21,372.31, allocating $ 3,597.11 as subject to the ensuing water loss endorsement and $ 17,775.20 as subject to the mold endorsement.

On May 16, 2014, GeoVera requested a sworn proof of loss. The insureds did not provide a sworn proof of loss within 60 days of the request.

However, on June 19, 2014, before the 60 days for providing the proof of loss had expired, GeoVera sent the insureds a formal response to their claim. In the letter, GeoVera stated that the policy provided "limited coverage for the ensuing water and rot/rust/mold damages." GeoVera stated that, based on its inspection of the damages, it had determined that the water leakage had been ongoing for 14 days or more. GeoVera asserted that coverage was limited to the $ 1,000 sublimit for water leakage and the $ 5,000 sublimit for mold, rust, and rot damages. Accordingly, GeoVera issued payment in the amount of $ 6,000. GeoVera also stated: "Unless additional information is provided to us and we notify you that we are agreeing to reopen your claims and consider the matter further, you should treat this correspondence as being our formal notification to you of our position." The letter was copied to the insureds' public adjuster.

On June 20, 2014, the insureds' public adjuster conducted its own inspection of the property and issued a repair estimate of $ 44,731.49. However, there is no record evidence as to whether this estimate was submitted to GeoVera before the insureds filed suit.

C. The Pleadings

In November 2014, the insureds filed suit against GeoVera. They later filed a Verified Amended Complaint, asserting three counts: (1) breach of contract; (2) petition for appraisal; and (3) statutory bad faith in violation of section 624.155, Florida Statutes.

On the same day they filed their amended complaint, the insureds provided GeoVera with a sworn proof of loss.

GeoVera answered the amended complaint and asserted affirmative defenses, including the defense that coverage was limited to the $ 1,000 water leakage sublimit and the $ 5,000 mold sublimit. In its answer, GeoVera denied the insureds' allegation that the public adjuster demanded an appraisal, but admitted the insureds' allegation that "[GeoVera] refused to begin the appraisal process, notwithstanding the language of the subject policy." GeoVera also admitted that a sworn proof of loss had been filed, but denied that it was timely.

D. Agreed Order Staying Counts I and II and Abating Count III

GeoVera moved to stay Counts I and II and to abate Count III. The trial court entered an agreed order on the motion, directing that: (1) the parties were to comply with the policy's appraisal provision; (2) the appraisal award would include an itemization of any damages coming within the leakage sublimit, any damages coming within the mold sublimit, and any covered damages that did not fall within those sublimits; (3) Counts I and II would be stayed until the appraisal award had been issued and GeoVera had sufficient time to pay the award; and (4) Count III would be abated until Counts I and II had been adjudicated.

E. The Appraisal

The appraisal award was issued in January 2016. It itemized the damages as follows: $ 30,963.62 for "dwelling," $ 14,477.99 for "mold," and $ 6,600 for "EMS." The appraisal award did not identify any damages as being subject to the $ 1,000 leakage sublimit. Nonetheless, GeoVera could have continued to litigate the coverage issue of whether the $ 1,000 leakage sublimit applied to the loss. See Johnson v. Nationwide Mut. Ins. Co. , 828 So.2d 1021, 1025 (Fla. 2002) (holding that coverage issues are to be "judicially determined by the court" and are "not subject to a determination by appraisers").

Instead, in February 2016, GeoVera paid $ 29,963.62 to the insureds and $ 6,600 to the water mitigation company. The total amount paid represented the balance due under the appraisal award after taking into account the $ 6,000 prior payment and the $ 5,000 sublimit for mold.

F. The Lifting of the Stay

In March 2017, over a year after the appraisal award, the insureds moved to lift the stay and the trial court granted the motion.

G. Summary Judgment Proceedings and Final Judgment

GeoVera then moved for summary judgment, arguing that it was not liable for breach of contract or bad faith because: (1) the insureds never disputed GeoVera's adjustment of the loss pre-suit, either with regard to the coverage sublimits or the amount of the loss; (2) the insureds failed to comply with GeoVera's demand for a sworn proof of loss; and (3) GeoVera acted in good faith by participating in the appraisal process and timely paying the appraisal award. In support of its motion, GeoVera submitted the affidavit of one of its managers, who attested that "[n]o estimate or sworn proof of loss was received." The insureds filed a response in opposition to summary judgment.

The trial court granted the motion for summary judgment, ruling that there was no evidence the insureds had disputed GeoVera's adjustment of the loss pre-suit. However, the trial court allowed the insureds to file a motion for rehearing to provide additional evidence showing that their public adjuster had disputed GeoVera's adjustment of the claim.

After the trial court entered final summary judgment, the insureds moved for rehearing, arguing that there were genuine issues of material fact remaining. They filed the affidavits of their public adjuster and Ms. Bryant.

The insureds filed a notice of appeal. We stayed the appeal pending a ruling on the motion for rehearing. The trial court denied the motion for rehearing, allowing this appeal to proceed.

II. Arguments and Analysis

A. Parties' Arguments

On appeal, the insureds argue that the trial court reversibly erred in concluding that GeoVera complied with the insurance policy as a matter of law. The insureds contend that GeoVera's payment of the appraisal award constituted a confession that it breached the policy by erroneously invoking the $ 1,000 leakage sublimit. Furthermore, the insureds argue that GeoVera's payment of $ 1,000 towards the water loss and its denial of coverage above that amount constituted a waiver of the proof-of-loss requirement. Similarly, the insureds maintain that GeoVera's notification that it was limiting the coverage on the water loss to $ 1,000 constituted an anticipatory breach of contract, giving rise to an immediate right to sue and rendering it unnecessary for the insureds to contest GeoVera's erroneous position before filing suit. Finally, the insureds argue that GeoVera's confession of judgment entitles them to an award of attorney's fees and also serves as the necessary predicate to allow their bad faith claim to proceed.

GeoVera responds that the trial court correctly entered summary judgment in its favor, arguing that: (1) GeoVera's payment of the appraisal award was pursuant to the policy and cannot constitute a breach of contract or a confession of judgment where the insureds prematurely filed suit before they complied with their post-loss duty to provide a sworn proof of loss; (2) GeoVera's pre-suit application of the policy sublimits did not establish a breach or an anticipatory breach where the insureds "never disputed the payment" pre-suit; (3) GeoVera's pre-suit payment of the policy sublimits did not constitute a waiver of the proof-of-loss requirement; and (4) summary judgment was proper on the bad faith count because GeoVera complied with the terms of the insurance contract by participating in the appraisal process and paying in a timely manner.

B. Standard of Review

A summary judgment is reviewed de novo. Haber v. Deutsche Bank Nat'l Tr. Co., 81 So.3d 565, 566 (Fla. 4th DCA 2012).

C. Whether GeoVera's Post-Suit Payment was a Confession of Judgment

The first issue we address is whether GeoVera's payment of the appraisal award constituted a confession that it breached the policy by applying the $ 1,000 leakage sublimit in its formal response to the claim.

"[I]t is well settled that the payment of a previously denied claim following the initiation of an action for recovery, but prior to the issuance of a final judgment, constitutes the functional equivalent of a confession of judgment." Johnson v. Omega Ins. Co. , 200 So.3d 1207, 1215 (Fla. 2016). The confession-of-judgment doctrine "applies where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in the insurer's change of heart and payment before judgment." State Farm Fla. Ins. Co. v. Lorenzo , 969 So.2d 393, 397 (Fla. 5th DCA 2007).

The confession-of-judgment doctrine is limited to situations where the filing of the lawsuit "acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract." See, e.g. , State Farm Fla. Ins. Co. v. Lime Bay Condo., Inc. , 187 So.3d 932, 935 (Fla. 4th DCA 2016). However, "[i]t is the incorrect denial of benefits, not the presence of some sinister concept of 'wrongfulness,' that generates the basic entitlement to the fees if such denial is incorrect." Ivey v. Allstate Ins. Co. , 774 So.2d 679, 684 (Fla. 2000). Thus, "an incorrect denial of benefits, followed by a judgment or its equivalent of payment in favor of the insured, is sufficient" to constitute a confession of judgment and to allow the insured to recover attorney's fees. Johnson , 200 So.3d at 1219.

An attorney's fees award is also appropriate "where, following some dispute as to the amount owed by the insurer, the insured files suit and, thereafter , the insurer invokes its right to an appraisal and, as a consequence of the appraisal, the insured recovers substantial additional sums." Lewis v. Universal Prop. & Cas. Ins. Co. , 13 So.3d 1079, 1081 (Fla. 4th DCA 2009).

Even after Johnson , not all post-suit payments by an insurer will constitute a confession of judgment. We recently held that where an insurer valued a loss, issued payment, and was unaware of the insured's disagreement with the damage valuation until the filing of the complaint, the insurer's timely payment of an appraisal award during the litigation did not constitute a confession that the insurer breached the insurance policy. See Goldman v. United Servs. Auto. Ass'n , 244 So.3d 310, 311-12 (Fla. 4th DCA 2018).

In Goldman , we explained that "[t]here was never a breakdown in the claims adjusting or communications process, nor was there a refusal to pay the claim." Id. at 311. Furthermore, we characterized the situation as one where "the insured never gave the insurer the opportunity to incorrectly deny the benefits before filing a lawsuit." Id. at 312.

The present case is more like Johnson than Goldman . Here, although GeoVera did not completely deny coverage for the loss, GeoVera did deny coverage above the $ 1,000 leakage sublimit and the $ 5,000 mold sublimit. GeoVera's formal response to the claim was not merely a valuation of the loss-it was a partial denial of coverage.

Before the lawsuit, GeoVera knew that the water-loss damages other than mold were at least $ 10,000, but GeoVera's response was a refusal to pay part of the claim due to a coverage issue. While Johnson involved a total denial of coverage, we conclude that an incorrect partial denial of benefits also suffices to give rise to a confession of judgment. See Ivey , 774 So.2d at 684 (holding that insurer's payment after suit was filed operated as a confession of judgment where the insurer incorrectly reduced benefits before suit based on its erroneous assumption that treatment covered only one of two injuries).

Under Johnson , "[o]nce an insurer has incorrectly denied benefits and the policyholder files an action in dispute of that denial, the insurer cannot then abandon its position without repercussion." 200 So.3d at 1218. Here, the insurer's payment of the appraisal award of $ 37,563.62 demonstrated that GeoVera had abandoned its pre-suit coverage position that the claim was subject to the $ 1,000 sublimit for long-term water leakage.

In this case, unlike in Goldman , GeoVera's response to the claim invoked coverage defenses. And there was a pre-suit refusal by the insurer to pay a portion of the claim-that is, any amount of water damage (aside from mold) that exceeded the $ 1,000 leakage sublimit. By invoking the $ 1,000 leakage sublimit, GeoVera raised a coverage issue that only a court could resolve. This coverage issue went beyond a mere dispute about the valuation of the loss, so the insureds could not have simply invoked the policy's appraisal provision before filing suit.

Because GeoVera invoked the $ 1,000 leakage sublimit to deny coverage for a portion of the claim, it was of no consequence whether the insureds notified GeoVera pre-suit that they were disputing GeoVera's coverage position or damage valuation. Once GeoVera incorrectly invoked the $ 1,000 leakage sublimit and notified the insureds that it would not pay any non-mold-related water damage above that amount, GeoVera committed an anticipatory breach of the policy and created an immediate right of action for the insureds, even though GeoVera's repudiation took place before the time prescribed for the promised performance under the policy's loss-payment provision. See Peachtree Cas. Ins. Co. v. Walden , 759 So.2d 7, 8 (Fla. 5th DCA 2000) (holding that an insurer's notice that it would no longer pay benefits constituted an anticipatory breach of its agreement to provide those benefits).

In short, GeoVera's payment of the appraisal award constituted a confession that it incorrectly denied benefits by erroneously invoking the $ 1,000 leakage sublimit in its formal response to the claim before the lawsuit.

D. Whether GeoVera Waived the Proof-of-Loss Requirement

The next issue we address is whether GeoVera waived the proof-of-loss requirement by its payment of the policy sublimits and its denial of coverage above those amounts.

A policy provision requiring an insured to submit a sworn proof of loss is a condition precedent to a suit against an insurer. Soronson v. State Farm Fla. Ins. Co. , 96 So.3d 949, 952 (Fla. 4th DCA 2012). But where an insurer's "denial of liability is based upon grounds other than failure to furnish a notice or proof of loss, such denial is tantamount to a waiver of the policy requirements." Keel v. Indep. Life & Acc. Ins. Co. , 99 So.2d 225, 227 (Fla. 1957). "When the insurer denies in advance that it has any liability under the policy coverage, the formal filing of a proof of loss becomes, in the eyes of the law, a useless and unnecessary thing that would accomplish nothing." Id. Thus, the effect of an insurer's improper repudiation of coverage is "to waive any right to insist upon the insureds' necessarily-thus-futile compliance" with policy conditions. Wegener v. Int'l Bankers Ins. Co. , 494 So.2d 259, 259 (Fla. 3d DCA 1986).

In this case, GeoVera's denial of liability above the sublimits was "based upon grounds other than failure to furnish a notice or proof of loss," which is tantamount to a waiver of a formal proof of loss. Keel , 99 So.2d at 227. Although Keel involved a complete denial of coverage, we conclude that its reasoning applies equally to the partial denial of coverage in this case.

Once GeoVera denied in advance that it had any liability above the policy sublimits, "the formal filing of a proof of loss [became], in the eyes of the law, a useless and unnecessary thing that would accomplish nothing." Id. Here, a sworn proof of loss would have done nothing to resolve the coverage issues raised in GeoVera's formal response to the claim-for example, it would not have resolved whether the water leakage had been occurring for more than 14 days so as to trigger application of the $ 1,000 leakage sublimit.

Moreover, because GeoVera had raised coverage defenses, the insureds had no right to demand an appraisal under the policy until the coverage issues had been resolved. See Citizens Prop. Ins. Corp. v. Demetrescu , 137 So.3d 500, 502-03 (Fla. 4th DCA 2014) (holding that insureds could not compel an appraisal until all underlying coverage disputes had been resolved); see also Johnson v. Nationwide Mut. Ins. Co. , 828 So.2d 1021, 1025 (Fla. 2002) (holding that coverage issues are to be "judicially determined by the court" and are "not subject to a determination by appraisers"). Under the circumstances here, a sworn proof of loss would have been a useless act.

We conclude that GeoVera waived the proof-of-loss requirement by denying coverage above the sublimits based upon grounds other than the insureds' failure to furnish a notice or proof of loss. We need not decide whether GeoVera waived the proof-of-loss requirement for the additional reason that it admitted liability in some amount when it paid the coverage sublimits.

E. Whether Summary Judgment was Proper on the Bad Faith Count

Finally, we address whether summary judgment was proper on the bad faith count.

"[A] claim for bad faith pursuant to section 624.155(1)(b) 1 is founded upon the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay." Vest v. Travelers Ins. Co. , 753 So.2d 1270, 1275 (Fla. 2000). "A duty of good faith must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements." QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc. , 94 So.3d 541, 548 (Fla. 2012) (internal quotation marks omitted). The obligation of good faith "on the part of an insurer requires the insurer to timely evaluate and pay benefits owed on the insurance policy." Vest , 753 So.2d at 1275.

"It is well settled that a statutory first-party bad faith action is premature until two conditions have been satisfied: (1) the insurer raises no defense which would defeat coverage, or any such defense has been adjudicated adversely to the insurer; and, (2) the actual extent of the insured's loss must have been determined." Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co. , 100 So.3d 1155, 1157 (Fla. 4th DCA 2012). "[A]n insurer's liability for coverage and the extent of damages, and not an insurer's liability for breach of contract, must be determined before a bad faith action becomes ripe." Cammarata v. State Farm Fla. Ins. Co. , 152 So.3d 606, 610 (Fla. 4th DCA 2014).

"[A]n appraisal award pursuant to an insurance contract constitutes a 'favorable resolution' of an underlying breach of contract dispute for purposes of filing a bad faith cause of action." Trafalgar , 100 So.3d at 1156. Moreover, a summary judgment in favor of the insurer on the underlying breach of contract action does not preclude an insured's ability to pursue a bad faith claim. Id. at 1158.

Here, the insureds' bad faith claim is ripe because GeoVera's liability for coverage and the extent of the damages have been established. GeoVera's payment of the appraisal award, which included amounts in excess of the $ 1,000 leakage sublimit, constituted a waiver of GeoVera's previous coverage defense based on that sublimit. Although our case law does not require a breach of contract as a prerequisite to a bad faith claim, we note that GeoVera did breach the policy by erroneously invoking the $ 1,000 leakage sublimit in its formal pre-suit response to the claim.

On this record, GeoVera has not shown that it acted in good faith as a matter of law. Genuine issues of material fact remain as to whether GeoVera exercised good faith and fair dealing towards the insureds when it incorrectly invoked the $ 1,000 leakage sublimit in its formal response to the claim. GeoVera's liability for bad faith will turn on whether GeoVera's denial of coverage above the $ 1,000 leakage sublimit was in good faith. See Vest , 753 So.2d at 1275 ("The insurer has a right to deny claims that it in good faith believes are not owed on a policy. Even when it is later determined ... that the insurer's denial was mistaken, there is no cause of action if the denial was in good faith.").

For the above reasons, we reverse the summary judgment on the bad faith count.

III. Conclusion

We reverse the final summary judgment and remand with instructions for the trial court: (1) to treat GeoVera's post-suit payment of the appraisal award as a confession of judgment that it breached the policy by erroneously applying the $ 1,000 leakage sublimit in its formal response to the insureds' claim; (2) to allow the insureds' bad faith claim to proceed; and (3) to conduct further proceedings consistent with this opinion.

Reversed and Remanded.

Ciklin and Levine, JJ., concur.

      Most of the cases addressing the confession-of-judgment doctrine involved the application of section 627.428, Florida Statutes. As a surplus lines carrier, however, GeoVera is exempt from the provisions of Chapter 627, including section 627.428, Florida Statutes. See § 626.913(4), Fla. Stat. (2014) (providing that "[e]xcept as may be specifically stated to apply to surplus lines insurers, the provisions of chapter 627 do not apply to surplus lines insurance"). Nonetheless, surplus lines carriers are subject to an attorney's fees statute that is nearly identical to section 627.428. See § 626.9373, Fla. Stat. (2014). Because section 626.9373 is patterned after section 627.428, the confession-of-judgment doctrine applicable to section 627.428 applies equally to section 626.9373. See Capitol Specialty Ins. Corp. v. Ortiz , No. 17-23329-Civ-SCOLA/TORRES, 2019 WL 383868, at *3 (S.D. Fla. Jan. 15, 2019) (explaining that sections 627.428 and 626.9373 "are nearly identical" and that "courts apply the two fee provisions in the same way").

      This $ 10,000 figure consists of the $ 6,600 water-remediation bill plus the $ 3,597.11 repair estimate by GeoVera's adjuster for the ensuing water loss.

      In light of this conclusion, we need not reach the insureds' alternative argument that the affidavits they filed on rehearing created a genuine issue of material fact as to whether they contested GeoVera's adjustment of the claim pre-suit.

      The only reason the claim eventually proceeded to appraisal here was because the parties agreed to a line-item appraisal during the litigation to assist in resolving the coverage dispute. However, the coverage questions ultimately would have been questions for the court-not the appraisers.

      In a long line of cases, Florida courts have held that an insurer waives the requirement of a formal proof of loss when it admits liability in some amount. See Bear v. N.J. Ins. Co. , 138 Fla. 298, 189 So.252, 252 (1939) ; Cincinnati Ins. Co. v. Palmer , 297 So.2d 96, 98 (Fla. 4th DCA 1974) ; English & Am. Ins. Co. v. Swain Groves, Inc. , 218 So.2d 453, 457 (Fla. 4th DCA 1969) ; Llerena v. Lumbermens Mut. Cas. Co. , 379 So.2d 166, 167 (Fla. 3d DCA 1980). By contrast, in Rodrigo v. State Farm Florida Insurance Co. , 144 So.3d 690, 692 (Fla. 4th DCA 2014), we held that "the insurer did not waive the sworn proof of loss requirement by tendering payment because '[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim' does not constitute a waiver of a 'sworn proof of loss' requirement." (quoting § 627.426(1)(c), Fla. Stat. (2007) ). Our resolution of the instant case does not require us to address any inconsistency between Rodrigo and the Bear line of cases.


author: Per Curiam.

text:
    Ernst JUILLET, Appellant, v. Naketrease L. MACKEY, Appellee.
    No. 4D19-65
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Melanie A. Malave, Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee., for appellee.
   Per Curiam.

Affirmed . See Moriarty v. Moriarty , 192 So.3d 680 (Fla. 4th DCA 2016).

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


text:
    Nickolas WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3500
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Appellant, Nickolas White, was convicted of first-degree murder for a homicide he committed as a juvenile. In 2017, appellant was resentenced to life in prison with sentencing review after 25 years. Appellant now appeals that sentence, raising six issues. We reverse as to appellant's first issue and hold that the trial court erred in failing to order a presentence investigation ("PSI") before resentencing him to life in prison. We affirm as to all other issues raised, but write to address appellant's argument that section 921.1401, Florida Statutes, violates the Sixth Amendment.

PSI Issue

We first address appellant's argument that the trial court erred in resentencing him without first obtaining a PSI.

The legality of a criminal sentence is reviewed de novo. State v. Valera , 75 So.3d 330, 331-32 (Fla. 4th DCA 2011).

Florida Rule of Criminal Procedure 3.710 governs presentence investigations. The version of rule 3.710(a) in effect at the time of appellant's resentencing states in relevant part:

No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

Fla. R. Crim. P. 3.710(a) (2017).

Under this version of rule 3.710(a), a PSI is required for a first-time felony offender or juvenile offender where the trial court has sentencing discretion and where probation is not ordered. Hernandez v. State , 137 So.3d 542, 543-45 (Fla. 4th DCA 2014). "The trial court's failure to consider a mandatory presentence investigation report before sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion." Albarracin v. State , 112 So.3d 574, 574 n.1 (Fla. 4th DCA 2013).

In this case, the trial court had the discretion to sentence appellant anywhere between 40 years in prison and life in prison. See § 775.082(1)(b) 1, Fla. Stat. (2017) (prescribing the sentencing range for a juvenile who is convicted of a capital felony and who actually killed, intended to kill, or attempted to kill the victim). Thus, because appellant was a juvenile at the time of the offense and the trial court had sentencing discretion, the trial court's failure to order a PSI before resentencing appellant to life in prison was error. Moreover, we conclude that this error was preserved in appellant's rule 3.800(b)(2) motion, and that the defense never expressly waived the right to a PSI.

The State acknowledges Hernandez and Albarracin , but argues that a trial court's failure to order a PSI should be treated as an error in the sentencing process that is not cognizable in a rule 3.800(b) motion. We reject the State's argument.

Rule 3.800(b) "may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process-that is, orders related to the sanctions imposed." Jackson v. State , 983 So.2d 562, 574 (Fla. 2008). In other words, "rule 3.800(b) is intended to permit defendants to bring to the trial court's attention errors in sentence-related orders , not any error in the sentencing process." Id. at 572. "Sentencing errors" under rule 3.800(b) are errors "related to the ultimate sanctions imposed, whether involving incarceration, conditions of probation, or costs." Id. at 573.

Here, the trial court's failure to order a PSI created an error in the "order entered as a result of the sentencing process." Id. at 574. The trial court's imposition of a life sentence in this case without first ordering a PSI was an error that was apparent on the face of the sentencing order and was related to the ultimate sanction imposed. Stated another way, this issue involves an error in the sentencing order because, contrary to the version of rule 3.710(a) in effect at the time of resentencing, the trial court imposed a sanction greater than probation on a juvenile offender without first ordering a PSI. Therefore, as this court has already held, a trial court's failure to consider a mandatory PSI before sentencing a defendant is a sentencing error that may be preserved via the filing of a rule 3.800(b) motion. Id. at 574 n.1.

The State also argues that even if the trial court erred in failing to order a PSI, any error was harmless because the trial court considered evidence regarding "essentially everything that would have been included in a PSI." We reject the State's harmless-error argument. The version of rule 3.710 in effect at the time of resentencing expressly prohibited the imposition of a sentence other than probation on any juvenile or first-time felony offender until: (1) after a PSI had first been made; and (2) the recommendations of the Department had been received and considered by the trial judge. Accordingly, as a juvenile offender in a case where the trial court had sentencing discretion, appellant had a mandatory procedural right to a PSI, which was never waived on the record. Furthermore, it is possible that the PSI may have included additional information on some of the relevant sentencing factors. Thus, it cannot be said that the error was harmless.

Sixth Amendment Issue

For the trial court's benefit on remand, we also address appellant's argument that section 921.1401, Florida Statutes, violates the Sixth Amendment by allowing the trial court, rather than a jury, to make the finding as to whether life imprisonment is an appropriate sentence for a juvenile offender under the relevant sentencing factors. Because this issue is a pure question of law, our standard of review is de novo. Plott v. State , 148 So.3d 90, 93 (Fla. 2014).

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Stated another way, "any fact that exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict is an element that must be submitted to a jury." Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016) (internal alterations and quotation marks omitted).

However, as the United States Supreme Court explained in Apprendi , nothing in our legal history "suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute." Id. at 481, 120 S.Ct. 2348. "[J]udges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case." Id.

Furthermore, the Supreme Court has expressly rejected the notion that "any fact that influences judicial discretion must be found by a jury," explaining that "broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment." Alleyne v. United States , 570 U.S. 99, 116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

The present case involves the constitutionality of a juvenile sentencing statute that was enacted to satisfy the dictates of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Florida's juvenile sentencing procedure requires a trial court to conduct an individualized sentencing hearing to determine if life imprisonment is an appropriate sentence for a juvenile convicted of a capital felony. §§ 775.082, 921.1401, Fla. Stat. (2017). In determining whether life imprisonment is an appropriate sentence, the court must consider factors relevant to the offense and offender, including various enumerated statutory factors. § 921.1401(2), Fla. Stat. (2017).

Both the First District and the Third District have held that Florida's juvenile sentencing procedure set forth in section 921.1401 does not violate the Sixth Amendment under Apprendi and its progeny. See, e.g. , Simmons v. State , 44 Fla. L. Weekly D659, D659, 267 So.3d 1067, ----, 2019 WL 1065396 (Fla. 1st DCA Mar. 7, 2019) ; Copeland v. State , 240 So.3d 58, 59-60 (Fla. 1st DCA 2018) ; Beckman v. State , 230 So.3d 77, 94-97 (Fla. 3d DCA 2017). Our sister courts reasoned that section 921.1401 does not alter the statutory maximum or minimum that may be imposed on a juvenile offender; nor does it make the imposition of a life sentence contingent on any particular finding of fact. Simmons , 44 Fla. L. Weekly at D659, 267 So.3d at ---- ; Beckman , 230 So.3d at 96. The statutory factors in section 921.1401 are not elements that enhance the prescribed penalty, but rather "are merely sentencing factors which the trial judge may take into consideration when exercising his discretion to impose a sentence within the range prescribed by statute and ensure proportionality." Simmons , 44 Fla. L. Weekly at D659, 267 So.3d at ----.

We reject appellant's attempt to analogize section 921.1401 to Florida's pre- Hurst death-penalty statute. The procedure in section 921.1401 is distinguishable from Florida's pre- Hurst death-penalty statute, as the latter statute unconstitutionally required the sentencing judge to find the existence of an aggravating circumstance that was necessary for the imposition of the death penalty. See Hurst , 136 S.Ct. at 624 ("Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.").

We find Beckman and Simmons to be persuasive and adopt their reasoning as our own. Section 921.1401 does nothing more than require a trial judge to take into consideration traditional sentencing factors-relating both to offense and offender-in imposing a sentence within the range prescribed by statute. Therefore, we conclude that the juvenile sentencing procedure set forth in section 921.1401 does not violate the Sixth Amendment under Apprendi .

Conclusion

In sum, we reverse appellant's sentence and remand with instructions for the trial court to order a PSI before resentencing appellant. See Householder v. State , 231 So.3d 490, 490-91 (Fla. 4th DCA 2017). On all other issues, we affirm.

Affirmed in part, Reversed in part, and Remanded.

Ciklin and Levine, JJ., concur.

      The rule was amended effective January 1, 2019. In re Amends. to Fla. Rules of Criminal Procedure-2018 Regular-Cycle Report , 265 So.3d 494 (Fla. 2018). The rule now states that "[n]o sentence or sentences other than probation or the statutorily required mandatory minimum may be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years ...." Fla. R. Crim. P. 3.710(a) (2019) (emphasis added).

      Based on the jury instructions at trial and the language of the indictment, the jury necessarily found that appellant actually killed the victim.


author: Gross, J.

text:
    Robert BRELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-537
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

We affirm appellant's convictions arising from no contest pleas in four separate cases and write to address his claim that his multiple convictions for leaving the scene of an accident involving property damage violated the double jeopardy clauses of the state and federal constitutions.

There is no double jeopardy violation because appellant's actions resulted in three separate crashes, seconds apart, at different locations in and near a parking lot. Each crash was a distinct criminal act, so no double jeopardy protection was triggered.

In this case, appellant was charged with one count of leaving the scene of an accident for each of the three cars that he hit while fleeing from the police. Section 316.061(1), Florida Statutes, defines the crime of leaving the scene of an accident, in part, as follows:

The driver of any vehicle involved in a crash resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop such vehicle at the scene of such crash or as close thereto as possible, and shall forthwith return to, and in every event shall remain at, the scene of the crash until he or she has fulfilled the requirements of s. 316.062.

§ 316.061(1), Fla. Stat. (2018). The statute speaks in terms of "the scene of such crash" which leads to the conclusion that each crash scene comprises a discrete unit of prosecution.

Appellant relies on Yeye v. State , 37 So. 3d 324 (Fla. 4th DCA 2010), to argue that multiple convictions of leaving the scene of a crash involving property damage under section 316.061 violate double jeopardy. However, Yeye is not controlling because it involved one crash into a parked car which set off a chain reaction involving two other parked cars. Id. at 325. The state charged the defendant with three separate counts of leaving the scene of an accident, one count for each car. Id. We ruled that section 316.061(1) "does not reveal an intent on the part of the Florida Legislature to authorize separate punishments for multiple counts of leaving the scene of an accident in a situation such as this." Id. at 326. Holding that Yeye's multiple convictions of leaving the scene of an accident violated the prohibition against double jeopardy, we explained: "[The defendant]'s single act of driving his car into the three parked cars was a single act. His decision to leave the scene of the chain reaction accident he caused constitutes the commission of one crime." Id.

Unlike Yeye , this case is not about a single crash causing a multiple car chain reaction. While fleeing from the police, appellant crashed into three different cars at three different locations. Similarly, appellant's reliance on Hardy v. State , 705 So. 2d 979 (Fla. 4th DCA 1998), and Hoag v. State , 511 So. 2d 401 (Fla. 5th DCA 1987), is misplaced because both cases involve a defendant's failure to stop at one accident scene. As we wrote in Hardy , the intended "unit of prosecution" under a statute similar to section 316.061(1) "is not the number of victims, but the number of accidents." Hardy , 705 So. 2d at 980.

Affirmed .

Taylor and Levine, JJ., concur.


author: Warner, J. Levine, J., concurring in part and dissenting in part.

text:
    Jeffrey A. HELMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3811
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Jeffrey Helms appeals his conviction for robbery with a firearm, for which he was sentenced to life in prison as a prison releasee reoffender. He argues that the trial court erred in allowing the investigating detective to testify that appellant's girlfriend advised the detective of his cell phone number, as this was improper hearsay. He also argues that the trial court erred in sentencing him as a PRR, as he was neither committed to nor released from the Department of Corrections within three years of the robbery. We agree on both issues and reverse. We affirm as to the remaining issues without further discussion.

In February 2016, a man wearing a red button-down shirt, khaki pants, and sunglasses entered a Walgreens in Jupiter at about 8 p.m., and he robbed the store's cashier at gunpoint. The store's surveillance video, admitted at trial, shows the white male wearing a black baseball cap with a drawing of a white face on it. He approaches the female cashier while he is speaking on a cell phone, and she retrieves cigarettes from behind the store's counter. He fumbles in his pocket, and then the cashier hands him money out of the cash register's drawer. The store's outdoor surveillance footage shows the suspect walking towards the store from outside of the parking lot, and about two minutes later, running out of the store towards the same area.

About three weeks later, the cashier participated in a photo lineup with the investigating detective, and she identified appellant as the robber. The lineup contained six pictures of white males with earrings, but only appellant was wearing a red, collared shirt like the robber. The cashier identified appellant as the perpetrator in the robbery.

Appellant was charged with robbery with a firearm. Prior to trial, he moved to suppress the cashier's identification. Although the trial court found that the lineup was unnecessarily suggestive, it ruled that there was no risk of irreparable misidentification because the cashier was certain of her identification.

In 2017, the case proceeded to jury trial. The cashier testified and explained the incident. She considered herself to have a photographic memory and remembered faces. She described the perpetrator as wearing a red shirt and sunglasses. She stated that her employer instructed employees to concentrate on faces of perpetrators. The cashier also testified regarding the lineup. She identified appellant's picture in the lineup based on her memory, and she did not rely solely on the red shirt to identify him. She testified that he possessed a firearm during the robbery.

During cross-examination, contrary to her earlier testimony, the cashier testified that she had training on how to handle robberies, and the training video instructed her to avoid eye contact with the robber. She saw appellant's eyes only one time when he quickly was turning his head. After the incident, she told the detective that appellant's eyes were blue, but at trial, she said they were bluish green. Also, in her deposition, she testified that she couldn't notice his hair, but right after the robbery, she told the detective that his hair looked dirty blonde. At trial, she stated it was brownish black. Appellant was the only man wearing a red shirt in the photo array, and that fact stuck out in her mind and was "a big deciding factor for" her. In viewing the photo lineup, she looked at the suspects' faces, necks, and shirts to decide, but their faces looked the same. After the lineup, she asked the detective if she got the right guy, and the detective responded in the affirmative.

Appellant's girlfriend also testified at trial. Appellant occasionally stayed overnight at her house in Port St. Lucie. Sometime after the robbery, the girlfriend met with the investigating detective, but she did not remember giving either her or appellant's cell phone number to the detective. She did not remember appellant's phone number.

The investigating detective then testified that she met with appellant's girlfriend a few weeks after the robbery. Regarding the issue on appeal, the detective testified that the girlfriend provided her with appellant's phone number. Based on that information, the detective obtained a search warrant for the phone records that were linked to that number. Defense counsel unsuccessfully objected based on hearsay. At sidebar, counsel argued that the State did not lay the proper foundation to connect the phone number to appellant. He also argued that the girlfriend testified that she did not remember appellant's number, but she did not testify that she gave it to the police. Thus, defense counsel contended that there was no evidence indicating that it was appellant's phone number, and the records linked to the number were not authenticated because the subscriber's name was the name of appellant's mother.

The court found that although appellant's girlfriend either did not remember appellant's number or denied giving it to the detective, pursuant to section 90.614, Florida Statutes (2017), the detective could testify about the statement that was made by the girlfriend to the detective. If the statement was admissible and the phone number was linked to appellant, then the phone records also were admissible. The court admitted the phone records for that number, which included the phone's cell site location information.

Later in trial, before the State's cell phone expert testified about the phone records, defense counsel renewed his objections. He argued that the detective's testimony, i.e., that the girlfriend told the detective appellant's number, was a prior inconsistent statement; however, a prior inconsistent statement admitted under section 90.614 could not be used as substantive evidence if it was not a sworn statement that was given during a prior proceeding. The court overruled the objection, stating that the phone records were self-authenticating.

The cell phone expert then testified that based on the admitted phone records, appellant's cell phone registered off a tower in Jupiter around 7:48 p.m. on the night of the robbery. This was around the time the surveillance video at Walgreen's captured the incident. The expert explained that the cell phone would be in the geographical area of the cell towers sector, which in this case included the location of the Walgreen's. Calls from the phone then were picked up by towers south of Jupiter, showing the phone likely was travelling south, but it eventually moved north, being picked up by a tower in Port St. Lucie. The phone remained in that area until the following afternoon.

Finally, a man who was a neighbor of appellant's family for a few years testified that he saw surveillance photographs from the 2016 robbery. He saw appellant in 2014, and he was certain that appellant was the robber.

The State rested, and the defense unsuccessfully moved for judgment of acquittal. The defense did not present any witnesses. Following closing arguments, the jury asked twice to review the surveillance video of the interaction between the robber and the cashier. It also reviewed the cashier's testimony. After deliberations, the jury found appellant guilty of robbery, concluding that he actually possessed a firearm. The trial court sentenced appellant to life in prison as a PRR. This appeal followed.

Appellant argues that the trial court erred by allowing the investigating detective to testify that the girlfriend gave the detective appellant's phone number, as this was improper hearsay. He asserts that the error was harmful because it allowed the State to introduce evidence of appellant's purported cell phone records. We agree.

We review a trial court's decision on the admissibility of evidence for an abuse of discretion, as limited by the rules of evidence. Browne v. State , 132 So. 3d 312, 316 (Fla. 4th DCA 2014). However, whether evidence falls under the statutory definition of hearsay or is admissible under an exception to the hearsay rule are questions of law reviewed de novo. Id.

The trial court relied on section 90.614, Florida Statutes (2017), in admitting into evidence the girlfriend's statement to the detective regarding appellant's phone number. The court allowed the State to use the statement to admit the phone records that were linked to that number; thus, the State used the statement as substantive evidence. The court erred because the statement could be used, if the State laid the proper foundation, for only impeachment purposes.

Section 90.614(2), Florida Statutes, provides in part:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

(emphasis added). If a prior inconsistent statement was made under oath, it may be admissible as substantive evidence. See § 90.801(2)(a), Fla. Stat. (2017) (providing that a statement is not hearsay if: the declarant testifies at trial; the declarant is subject to cross-examination regarding the statement; and the statement is, "[i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition"); see Castillo v. State , 217 So. 3d 1110, 1114-15 (Fla. 3d DCA 2017) (finding that because the trial witness's prior statement was not made under oath at a prior proceeding, it could not be admitted as substantive evidence, but it could be used for impeachment). Here, the girlfriend's prior statement, in which she gave the detective appellant's phone number, was not given under oath at a prior proceeding. Thus, the statement clearly was hearsay and not admissible as substantive evidence.

The present case is similar to Jackson v. State , 961 So. 2d 1104 (Fla. 5th DCA 2007). There, the defendant was convicted of aggravated battery with a deadly weapon for the stabbing of the victim. Id. at 1105. On appeal, the defendant challenged the admission of an eyewitness's statement to the police, which differed from that witness's testimony at trial. Id. At trial, the witness, who knew both the victim and the defendant, testified that he did not see the defendant stab the victim. Id. at 1106. However, over a hearsay objection, an investigator testified that the witness gave a prior statement to the police in which he claimed that he saw the defendant stab the victim. Id. The trial court found that the statement was admissible as a prior inconsistent statement, and the State addressed the statement twice during closing argument. Id. at 1106-07. The Fifth District held that the prior statement was not admissible as substantive evidence, because it was not given under oath at another proceeding, as required by section 90.801(2)(a), Florida Statutes. Id. at 1107. Furthermore, the State could not use the statement to impeach the witness, as the prosecutor did not lay the proper foundation under section 90.614(2), Florida Statutes. Id. Because there was little physical evidence, no other eyewitness testimony, and the hearsay was used as substantive evidence that the prosecutor stressed during closing argument, the error was harmful. Id.

As in Jackson , here, the prior statement of the girlfriend was improperly used as substantive evidence because it was not given under oath at an earlier proceeding. It was substantive, as the State used it to present the cell phone records, which it utilized to determine the appellant's whereabouts on the evening of the robbery.

We cannot find that the above error was harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So. 2d 1129, 1138-39 (Fla. 1986) (concluding that under the harmless error test, the State has the burden to show "that there is no reasonable possibility that the error contributed to the conviction," and the appellate court must conclude beyond a reasonable doubt that the error did not affect the verdict). During closing argument, the prosecutor stated that the cell tower location information tied all of the evidence together, showing that appellant's phone was in Jupiter at the time of the robbery and that it then travelled north to Port St. Lucie, where he would stay with his girlfriend, who admitted to having a hat that looked like the one worn by the robber. During rebuttal, the State again stressed how the phone records placed appellant in the Jupiter area at the time of the crime. Furthermore, although the dissent argues that the cashier was 100% certain in her identification of appellant, she was impeached with discrepancies in her description of the perpetrator through various statements given at the time of the robbery, during deposition, and at trial. The dissent also notes that there was testimony that appellant's girlfriend had a dark colored sedan like the one observed in the surveillance video, but the video does not show the kind of car in which the perpetrator left the scene. Additionally, the lineup was admittedly suggestive because appellant was the only person wearing a red shirt, and the red shirt was a big deciding factor for the cashier in her identification. Moreover, a jury could conclude that her certainty of the identification at trial was significantly bolstered by the detective telling her that she had identified the correct person in the photo lineup. Despite this impeaching information, the jury may have given the cashier's identification of appellant more weight because of the cell tower location information, providing a "reasonable possibility that the error contributed to the conviction." DiGuilio , 491 So. 2d at 1138.

We thus reverse and remand for a new trial because the court erred in admitting the hearsay evidence of the cell phone number provided by the girlfriend, which was used as substantive evidence to obtain the cell site location information. Although we reverse for a new trial, we also note that based on the supreme court's decision in State v. Lewars , 259 So. 3d 793 (Fla. 2018), appellant does not qualify as a PRR under section 775.082(9)(a) 1, Florida Statutes (2017). In Lewars , our supreme court held that "a defendant must have been incarcerated in and physically released from a prison, and not a county facility operated by the local government, within the statutory period" to qualify as a PRR. Id. at 800-01. Here, although appellant was sentenced for several felony offenses in 2013, he was sentenced to time served, and he never was physically sent to the DOC. Therefore, he did not qualify for sentencing as a PRR.

Reversed and remanded for a new trial.

Gross, J., concurs.

Levine, J., concurs in part and dissents in part with opinion.

Levine, J., concurring in part and dissenting in part.

I agree with the majority that appellant should be resentenced since he was not released from a Department of Corrections facility within the last three years. I also agree that we should affirm on all other issues raised by appellant, including the admission of the photographic lineup. Although the trial court determined that the lineup was suggestive, the trial court also found that there was no risk of irreparable misidentification because "the victim had sufficient time and pa[id] sufficient attention to the robber" and the victim "had no doubt, and was positive about the identification." I even agree with the majority that the introduction of the phone records through appellant's girlfriend was error. Where I part company with the majority is on the issue of harmless error. I would affirm all convictions and reverse only for a resentencing.

In this case, the admission of phone records violative of hearsay is not harmful error. The evidence presented by the state at trial included the following:

• The victim was "very confident" that she identified the individual who had robbed her;
• The victim took only thirty seconds at the photo lineup to identify appellant;
• The victim also identified appellant at trial;
• The victim gave a very detailed description of the person who robbed her. During the suppression hearing, she described him as "a tall, athletic man" with "short dirty blond hair" and "blue green eyes." He was "a little tanned" and "dressed very nicely, like he was going to go out." He wore a "long sleeved red maroon shirt," "a silver chain," and had "a long neck and his ears were kind of short." He looked "very muscular like he went to the gym a lot." He wore a cap and "tan long pants, like dress pants";
• The state introduced a surveillance video of the robbery;
• The victim described the robber as wearing a black hat with a white logo, which appeared to the victim as being a kind of hat worn by skateboarders;
• The victim explained that she was "good with faces" regarding her identification of appellant from the line-up;
• Appellant's girlfriend testified that appellant had a black hat with a white logo on it that previously had been at her home;
• When appellant's girlfriend was shown the surveillance video, an officer described her demeanor as being extremely upset and crying;
• Appellant's girlfriend had a dark-colored sedan like the one observed in the surveillance video;
• A former neighbor of appellant, who had lived across the street from appellant for five years, was so certain that appellant was in the surveillance photos disseminated by police that the former neighbor contacted the police.

The state mentioned the phone records in closing argument, but their utility may have been limited. The testimony at the trial put the time of the robbery as 8:00 p.m. at the Walgreens on 575 West Indiantown Road in Jupiter. However, based on calls and text messages sent to nearby cell towers, the phone records placed appellant's alleged cell phone at different areas during the time at question:

7:48 p.m. near Abacoa and Roger Dean Stadium in Jupiter;
7:55 p.m. near Riviera Beach area;
8:01 p.m. near Mangonia Park area;
8:17 p.m. near Mangonia Park area;
8:35 p.m. near Mangonia Park area;
8:40 p.m. near Palm Beach Lakes Boulevard area.

The cell phone activity placed the phone in Port St. Lucie from 10:47 p.m. until 5:00 p.m. the next day.

The trial testimony showed that a cell phone will typically connect to the closest tower, but a cell phone might connect to a tower farther away if the closest tower is overwhelmed with activity and frequency, such as during rush hour traffic. For example, a cell phone might connect to a tower three quarters of a mile away instead of a tower half a mile away.

Although the records placed appellant's phone in the general area at the time of the robbery, it could be argued that the phone showed activity in different areas of the northern part of Palm Beach County at about the same time as the robbery. In fact, appellant's counsel argued in closing that the phone records here were not a "smoking gun," but rather helpful to appellant:

I just want to take a bit of time to talk about the cell phone records, the State's smoking gun. So at the time of the robbery where all of the witnesses in this case testified 8:00 p.m., right? That's what they testified to. You didn't have anybody from Walgreen's saying any accuracy about any other time or confirming any other time. All of the witnesses, their time was 8:00 p.m.
7:55, Singer Island, right? 8:01, Riviera Beach; 8:17, Riviera Beach; 8:35, Riviera Beach. We're in the Riviera Beach area. Let alone all of [defense counsel's] cross examinations that this is kind of approximate.

On the one hand, the phone records placed appellant in the general area of the crime; on the other hand, the phone records tended to exculpate appellant by placing him in cities away from the actual scene of the crime. See Glendening v. State , 536 So. 2d 212, 218 (Fla. 1988) (stating that admission of exculpatory testimony "unquestionably did not contribute to the conviction and was harmless beyond a reasonable doubt"); Chapman v. California , 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (stating that the purpose of the harmless error rule is to "block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial"). Indeed, "[t]he focus [of the harmless error test] is on the effect of the error on the trier-of-fact." State v. DiGuilio , 491 So. 2d 1129, 1139 (Fla. 1986). Since the evidence of the phone records could have either created reasonable doubt or potentially exculpated appellant, it cannot be said "there is a reasonable possibility that the error [in admitting the phone records] affected the verdict." Id.

Thus, it is hard to imagine that the introduction of the phone records was not harmless error beyond a reasonable doubt. See Livingston v. State , 219 So. 3d 911, 916 (Fla. 2d DCA 2017) (finding admission of hearsay evidence harmless where "[t]he victim gave a detailed in-court description of the person who robbed him, and the victim identified [the defendant] in court as that person with 100% certainty"); Fields v. State , 666 So. 2d 554, 554 (Fla. 3d DCA 1995) ("[I]f there was any error in the admission of this evidence, that error was harmless in light of the solid eyewitness identification of the defendant."); United States v. Simpson , 188 F.3d 516, 516 (9th Cir. 1999) (finding that any error in admitting testimony over evidentiary objection "would have been harmless because the government presented at trial additional identification evidence, including the eyewitness testimony of the teller who was robbed and bank surveillance photographs and video tape footage of the robbery"); cf. Jackson v. State , 598 So. 2d 303, 303 (Fla. 3d DCA 1992) (stating that improper admission of evidence not harmless where "evidence of guilt consisted entirely of non-conclusive eyewitness identification").

Since the phone records did not place appellant at the scene of the robbery at the time of the reported crime, the admission of these records was harmless beyond a reasonable doubt.

      Section 775.082(9)(a) 1.g., Florida Statutes (2017), provides that a defendant who commits a robbery "within 3 years after being released from a state correctional facility operated by the Department of Corrections ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state" qualifies as a PRR.