author: BENTON, J.

text:
    FIRST UNION NATIONAL BANK, Appellant/Cross-Appellee, v. Helen J. TURNEY, Appellee/Cross-Appellant.
    No. 1D00-2803.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2002.
    Virginia B. Townes, Stacey L. Cole, of Akerman, Senterfitt & Eidson, P.A., Orlando and E. Lanny Russell, of Smith, Hulsey & Busey, Jacksonville, for Appellant/Cross-Appellee.
    Thomas S. Edwards, Jr., of Peek, Cobb, Edwards & Ashton, P.A., Jacksonville and James L. Ford, Sr., Atlanta, for Appel-lee/Cross-Appellant.
   ON MOTION FOR STAY WITHOUT POSTING BOND

BENTON, J.

We have for consideration appellant’s motions to stay issuance of mandate (if rehearing motion is denied), appellant’s motion for expedited consideration of its motion to stay mandate, and appellee Helen J. Turney’s response to appellant First Union’s motion for stay of mandate and motion for expedited stay of mandate. First Union’s motion for rehearing was denied on January 17, 2002, after which First Union timely filed a notice to invoke discretionary jurisdiction, seeking review in the Supreme Court of Florida of our decision in First Union National Bank v. Turney, 824 So.2d 172(Fla. 1st DCA 2001), notice to invoke discretionary jurisdiction filed, No. SC02-197 (Fla. Jan. 29, 2002). Since the record has not been transmitted, we still have jurisdiction over procedural matters “subject to the control of the [supreme] court.” Fla. R.App. P. 9.600(a). See also Fla. RApp. P. 9.310(a).

First Union seeks a stay of the mandate without having to post a bond. As a national banking association, First Union is insulated by statute from any “attachment, injunction, or execution ... before final judgment in any suit ... in any State ... court.” 12 U.S.C. § 91. Construing an analogous Louisiana statute, the Fifth Circuit has interpreted “the term ‘final judgment’ as used in 12 U.S.C. § 91 to mean a judgment on the merits which is no longer subject to examination on appeal.” State Bank & Trust Co. of Golden Meadow v. D.J. Griffin Boat, 926 F.2d 449, 451 (5th Cir.1991) (citing United States v. Lemaire, 826 F.2d 387, 390 (5th Cir.1987) (similarly construing 12 U.S.C. § 91)).

First Union has no further appeal as of right, and does not argue otherwise. Instead, it contends that it is entitled to a stay on account of the (putative) possibility of discretionary review of our final judgment in the Turney case, see Jollie v. State, 405 So.2d 418, 423 (Fla.1981) (“A decision of a district court of appeal is ‘final’ when it has been disposed of by that court on rehearing or the time for seeking rehearing has expired.”), affirming the final judgment entered in the Circuit Court for the Fourth Judicial Circuit. As support for the proposition that 12 U.S.C. § 91 applies to discretionary review, First Union cites one case, Ann Baker v. The National State Bank, No. L-00160-93 (N.J. Sup.Ct. Middlesex County. Sept. 13, 1996).

The Ann Baker decision does not support First Union’s contention that 12 U.S.C. § 91 authorizes or requires the grant of a stay on account of the mere possibility of discretionary review. It makes no mention of discretionary review whatsoever. Cf. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (requiring state prisoner to seek discretionary review, if available, in order to. exhaust state remedies for purposes of 28 U.S.C. § 2254); Gilbride, Heller & Brown, P.A. v. Watkins, 783 So.2d 224, 225-26 (Fla.2001) (holding statute of limitations in malpractice case runs from the date Florida Supreme Court denies discretionary review, if sought); Wilson v. Clark, 414 So.2d 526, 530 (Fla. 1st DCA 1982) (stating cause of action survives “until a timely filed petition for review in the Florida Supreme Court is acted upon”).

But the merits of First Union’s contention that the possibility of discretionary review necessitates a stay need not be reached in the present case, because First Union has failed to make out any basis for discretionary review of the decision in Turney, in any event. As its only argument that the prerequisites for discretionary review by the Supreme Court of Florida exist, First Union contends that the decision in Turney conflicts directly and expressly with the decision in First Union National Bank v. Whitener, 715 So.2d 979 (Fla. 5th DCA 1998). This asserted direct and express conflict is spurious for reasons the Turney decision itself develops in some detail. We conclude that 12 U.S.C. § 91 does not apply.

It is, of course, ultimately for our supreme court to decide whether to examine the merits of the final judgment First Union asks it to review. Compare Beaty v. State, 701 So.2d 856, 857 (Fla.1997), mth The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988) (holding that the Florida Supreme “Court has the final and inherent power to determine what constitutes express and direct conflict”). But review under Article V, section 3(b)(3) of the Florida Constitution (requiring express and direct conflict) is unavailable “where the opinion below establishes no point of law contrary to a decision of th[e Supreme] Court [of Florida] or another district court.” Id. at 289.

Both the supreme court’s jurisdiction to decide whether express and direct conflict exists and its authority to review orders under Florida Rule of Appellate Procedure 9.310(f) militate in favor of a ten-day stay, in order that the supreme court can fully exercise its jurisdiction in this matter. Absent action by the supreme court, the mandate will issue ten days hence. No motion for rehearing will be entertained. First Union is also free during this ten-day period to post a “good and sufficient bond” as contemplated by Florida Rule of Appellate Procedure 9.310(b)(1) on the conditions specified in Florida Rule of Appellate Procedure 9.310(c).

It is so ordered.

BOOTH and BROWNING, JJ., concur.


source: Caselaw Access Project

author: ORFINGER, R.B., J.

license: Public Domain

text:
    Horace GRANT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D01-3701.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2002.
    Rehearing Denied May 17, 2002.

      James M. Russ of Law Offices of James M. Russ, P.A., and Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Petitioner.
    Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, R.B., J.

Horace Grant seeks certiorari review of an amended order compelling him to answer questions for the statewide prosecutor relating to an ongoing criminal investigation. While Grant raises several issues, only one merits discussion.

The Office of the Statewide Prosecutor (OSP) filed an information against Paul James Veigle and Seminole Entertainment, Inc. d/b/a Rachel’s World Class Men’s Club (“the Rachel’s case”), charging various offenses including racketeering and money laundering. The OSP served Grant with a subpoena seeking to take a pretrial discovery deposition concerning the Rachel’s case. At the deposition, the assistant statewide prosecutor attempted to question Grant about his activities and observations at Rachel’s. Despite the OSP’s assertion that section 914.04, Florida Statutes (2001), conferred use and derivative use immunity on him, Grant refused to answer the questions asserting his right to remain silent under the United States and Florida Constitutions. The State then filed a motion to compel Grant to answer the questions, and for the costs associated with the failed deposition. Grant responded by asserting that section 914.04 does not give the OSP the authority to confer immunity on a witness. The trial court entered an amended order granting the OSP’s motion to compel and motion for sanctions, and Grant filed the instant petition seeking certiorari review.

Pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(3), this court has certiorari jurisdiction to review an order of the circuit court which allegedly invades an individual’s privilege against self-incrimination. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987).

The Fifth Amendment to the United States Constitution provides that “[n]o person shall be compelled in any criminal case to be a witness against himself....” Similarly, Article I, Section 9 of the Florida Constitution provides that “[n]o person shall be ... compelled in any criminal matter to be a witness against oneself.” Of course, the protections provided by the Fifth Amendment and Article I, Section 9 are not implicated if the witness is granted immunity. In Florida, the statute dealing with immunity from criminal prosecution is section 914.04. That statute provides that:

No person who has been duly served with a subpoena or subpoena duces te-cum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of the person may tend to convict him or her of a crime or to subject him or her to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against the person upon any criminal investigation or proceeding. Such testimony or evidence, however, may be received against the person upon any criminal investigation or proceeding for perjury committed while given such testimony or producing such evidence or for any perjury subsequently committed.

(Emphasis added).

Grant contends that the trial court departed from the essential requirements of the law by holding that the OSP is equivalent to a state attorney, and may grant immunity under section 914.04. Grant argues that because immunity is a creature of statute, section 914.04 must be strictly construed. See Randall v. Guenther, 650 So.2d 1070 (Fla. 5th DCA 1995). In support of his argument, he points out that the immunity statute specifically refers to “any court having felony trial jurisdiction, grand jury or state attorney,” and consequently, the omission of the OSP from the statute must be viewed as a limitation of the statewide prosecutor’s ability to grant immunity under the statute.

The State argues that the trial court correctly found that section 16.56(3), Florida Statutes (2001), confers the powers granted to state attorneys on the OSP, and authorizes the OSP to utilize the immunity provisions of section 914.04. We conclude that the trial court correctly held that the immunity provisions of section 914.04 apply when a party is subject to an investigatory subpoena issued by or at the request of the OSP.

Section 914.04 automatically grants use immunity to one who testifies under the circumstances delineated therein. See Jenny v. State, 447 So.2d 1351 (Fla.1984). The statute provides that immunity is granted when a person is called before “any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, or trial .... ” § 914.04, Fla. Stat (2001). While the statute does not specifically include the OSP, section 16.56(3), Florida Statutes (2001), authorizes the OSP to exercise all powers granted by law to state attorneys.

Grant argues that the omission of the OSP from the statute should cause us to conclude that the OSP is without the authority to confer immunity based on the rule of statutory construction expressio unius est exclusio alterius (the expression of one thing excludes things not mentioned). This is not, however, a rule of law; rather, it is an aid to help us determine legislative intent. See 2A Norman J. Singer, Statutes and Statutory Construction, § 47.23, at 318 (6th ed.2000). The rule will be disregarded when an expanded interpretation of a statute will accomplish beneficial results, where its application would thwart the legislative intent made apparent by the entire act, or serve the purpose for which the statute was enacted. Id. at 324.

The purpose of section 914.04 is to aid the State in the prosecution of crimes. See Fountaine v. State, 460 So.2d 553, 554 (Fla. 2d DCA 1984). The statute should be liberally construed to effectuate the purpose for which it is designed. See Tsavaris v. Scruggs, 360 So.2d 745, 749 (Fla.1977); State v. Schell, 222 So.2d 757, 758 (Fla. 2d DCA 1969); State v. Buchanan, 207 So.2d 711, 716 (Fla. 3d DCA 1968). Section 16.56(3) specifically authorizes the OSP to conduct hearings, summon and examine witnesses, require the production of physical evidence, and “confer immunity.” The statute further authorizes the statewide prosecutor to “exercise such other powers as by law are granted to state attorneys.” § 16.56(3), Fla. Stat. (2001) (Emphasis added).

We observe the basic rule of statutory construction that statutes, which relate to the same or closely related subjects or objects, are regarded as in pari materia, and must be construed together and compared with each other. Ferguson v. State, 377 So.2d 709, 711 (Fla.1979); Alachua County v. Powers, 351 So.2d 32, 40 (Fla.1977). The doctrine of in pari materia requires courts to construe related statutes together so that they will illuminate each other and are harmonized. Singleton v. Larson, 46 So.2d 186 (Fla.1950). This rule requires us to construe sections 914.04 and 16.56(3) together and to harmonize them, if possible. It is clear from reading these statutes in pari mate-ria, with a focus on the legislative purpose and statutory scheme, that a person who is called before the OSP in the course of an investigation is entitled to use immunity. The OSP has been given the same powers as state attorneys. The logical reading of these statutes is that immunity extends whether the investigation is by a state attorney or the OSP. The inclusion of the power to grant immunity to the OSP in section 16.56(3) should be read to include the self-executing use immunity provided for in section 914.04, when the OSP compels a person to testify in a criminal proceeding or investigation.

CERTIORARI DENIED.

PETERSON and PLEUS, JJ., concur.

      . It is well-settled that "immunity from prosecution must derive from a specific statutory or constitutional provision.” Randall v. Guenther, 650 So.2d 1070, 1072 (Fla. 5th DCA 1995) (quoting Stancel v. Schultz, 226 So.2d 456, 459 (Fla. 2d DCA 1969)). See State v. Schroeder, 112 So.2d 257, 261 (Fla.1959) ("Immunity from prosecution is a creature of statute”); State v. Polnac, 665 So.2d 1095 (Fla. 3d DCA 1996); see also 21 Am. Jur.2d Criminal Law 211 (1981) ("[Ijmmunity from prosecution must have its source and sanction in the law. A witness may insist that his immunity have a basis more substantial than the grace or favor of the prosecutor”).
      A grant of immunity under any statute must be coextensive with that protection under the Fifth Amendment. Murphy v. Waterfront Comm., 378 U.S. 52, 78[, 84 S.Ct. 1594, 12 L.Ed.2d 678] (1968). See New Jersey v. Portash, 440 U.S. 450[, 99 S.Ct. 1292, 59 L.Ed.2d 501] (1979). Thus, a promise of use immunity is binding and the State is "prohibited from making any such use of compelled testimony and its fruits.” Murphy, 378 U.S. at 79[, 84 S.Ct. 1594], (Emphasis supplied). Accordingly, section 914.04 immunity from use and derivative use "is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453[, 92 S.Ct. 1653, 32 L.Ed.2d 212] (1972).


author: HAZOURI, J.

text:
    Izel JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2224.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2002.
    Rehearing Denied Aug. 14, 2002.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Gary K. Milligan, Assistant Attorney General, Fort Lauder-dale, for appellee.
   HAZOURI, J.

Appellant, Izel Jackson, was charged by information with delivery of cocaine during an undercover transaction that was alleged to have occurred on December 29, 2000. At the conclusion of a jury trial, appellant was convicted of delivery of cocaine and sentenced to fifteen years in state prison as a habitual felony offender.

Jackson appeals from his conviction and sentence and raises two points on appeal: 1) that the trial court erred in denying his requested jury instruction on knowledge of the illicit nature of a substance in a delivery of cocaine prosecution and 2) that the trial court erred in overruling his objection and in denying his motion for mistrial due to improper arguments made by the prosecutor during closing arguments. We reverse on both grounds and remand for a new trial.

During the jury charge conference, defense counsel sought a jury instruction that the state must prove that appellant knew the illicit nature of the substance he allegedly delivered. In support of this request, the defense relied upon the Florida Supreme Court’s decision in Chicone v. State, 684 So.2d 736 (Fla.1996). The trial court’s failure to so instruct the jury in the instant case resulted in reversible error. See Scott v. State, 808 So.2d 166 (Fla.2002).

In Scott, our supreme court reiterated its holding in Chicone that:

[g]uilty knowledge of the illicit nature of the possessed substance is an element of the offense of possession of a controlled substance. The State has the burden of proof in any prosecution to demonstrate each element of the offense beyond a reasonable doubt.. See Jackson v. State, 575 So.2d 181 (Fla.1991); Butler v. State, 715 So.2d 339 (Fla. 4th DCA 1998). Since knowledge is an element of the offense, the State has the burden of proving the defendant’s possession was knowing. Moreover, the jury is entitled to be instructed on the elements of an offense. In Gerds. v. State, 64 So.2d 915 (Fla.1953), we held:
It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.
Id. at 916. See also State v. Delva, 575 So.2d 643 (Fla.1991). Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.

Id. at 170-71. In its answer brief, the state acknowledges the Florida Supreme Court’s decision in Scott but seeks to distinguish this case on the ground that appellant was charged with delivery not possession of cocaine.

Our court has rejected this distinction in the case of Gary v. State, 806 So.2d 582 (Fla. 4th DCA 2002). In Gary, the defendant was convicted of delivery of cocaine. This court reversed the defendant’s conviction because of the trial court’s denial of a requested Chicone jury instruction. We explained:

In Chicone v. State, 684 So.2d 736 (Fla.1996), the supreme court held that guilty knowledge is an essential element of the crime of possession and that the State is required to prove that the defendant knew of the illicit nature of the substance possessed. While Gary was charged with delivery, not possession, this distinction is not significant as this court has held that “guilty knowledge” is also an element of the crime of delivery. See Ryals v. State, 716 So.2d 313 (Fla. 4th DCA), review denied, 727 So.2d 910 (Fla.1998), receded from on other grounds in Hampton v. State, 796 So.2d 1260, 1260 n. 1 (Fla. 4th DCA 2001); see also Jenkins v. State, 694 So.2d 78, 80 (Fla. 1st DCA 1997). Clearly, then, Gary was entitled to the requested Chi-cone instruction.

Id. at 583. Further, this court in Gary, citing Scott, held that the failure to instruct the jury on a requested Chicone instruction cannot be considered harmless error. Hence, the trial court reversibly erred in this case in denying appellant’s requested jury instruction on knowledge of the illicit nature of the substance delivered.

Addressing appellant’s second point on appeal, we note that during the state’s case-in-chief, the primary witness against appellant was Detective Melvin Brimm. Brimm testified that he encountered appellant while working undercover on December 29, 2000. Brimm drove to a convenience store located at 401 N.W. 27th Avenue where he saw four or five black males standing around outside the convenience store. Brimm was driving an unmarked police car and dressed in plain clothes. Brimm asked the men, “Is anyone holding anything?” which is a common street phrase used to ask whether anyone is selling drugs. A man Brimm later identified at trial as appellant said, “I’ll take care of you.” As appellant walked across the street to a telephone booth, Brimm transmitted to the “takedown team,” which was waiting to make an arrest, a description of the clothing being worn by appellant. After concluding the drug transaction, Brimm drove away from the scene and then transmitted the signal to the arrest team.

Brimm was not a witness to the actual apprehension of appellant and did not see appellant again until his trial. When Brimm testified at trial, he made an in-court identification. During cross examination, defense counsel challenged the reliability of Brimm’s identification. On cross examination, Brimm admitted that his testimony was based upon his report and that there was no physical description of appellant given in his report. He acknowledged that although he identified appellant in court, he was unable to do so upon being asked at a pretrial deposition.

In closing argument, the prosecutor argued to the jury that Brimm was in fact a critical witness in the state’s case and the weight given to Brimm’s identification of appellant in large measure depended upon the jury’s belief in Brimm’s credibility. In closing argument, the prosecutor made the following comment:

He’s [Brimm] worked in narcotics interdiction, he testified, for the last ten years. That included his training, his arrests, and his ability to identify narcotics on the street level.
So we look at — we start with the very notion that this is Detective Brimm. He is the one that you focus on first. When you focus on Detective Melvin Brimm, I ask you, ladies and gentlemen, to think about this question.
What evidence was presented in this case that makes you believe Detective Brimm was incorrect, not what evidence is before you—

(Emphasis added). Defense counsel objected and at sidebar the following colloquy occurred:

Defense counsel: Judge, at this point I’m moving for a mistrial. I believe Mr. Frein just shifted the burden about what evidence we would have to prove. Defense doesn’t have to prove anything. Prosecutor: That’s why I didn’t say they had to prove anything. I would never use those words.
Defense counsel: The inference is the burden is shifting to the defense.
The Court: No, he never shifted the burden. The motion for mistrial is denied. The objection is overruled. As long as counsel talks about what the evidence is, all he’s talked about is what the evidence is. He hasn’t shifted the burden.
Defense counsel: Not what the evidence did not show, there was no evidence that the defense did this or that, that’s what the inference is. I don’t want any mention of that.
Prosecutor: I didn’t mention that. I wouldn’t do that. I did not do that.

Appellant asserts that the trial court abused its discretion in denying his motion for mistrial. The state responds that the trial court was correct in its ruling because the prosecutor was only discussing what the evidence in the ease consisted of, which was proper.

The standard when reviewing prosecutorial comments is set forth in Breedlove v. State, 413 So.2d 1, 8 (Fla.1982), as follows:

Wide latitude is permitted in arguing to a jury. Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. The control of comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of such discretion is shown. A new trial should be granted when it is “reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done.” Each case must be considered on its own merits, however, and within the circumstances surrounding the complained-of remarks.

Id. (citations omitted). The supreme court explained the proper parameters of closing argument in Bertolotti v. State, 476 So.2d 130 (Fla.1985):

The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.

Id. at 134. In Jackson v. State, 575 So.2d 181 (Fla.1991), the supreme court held that “the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Id. at 188.

In the instant case, the comment “[w]hat evidence was presented in this case that makes you believe Brimm was incorrect, not what evidence is before you” appears, despite the prosecutor’s protestation to the contrary, to be a comment that shifts the burden to appellant to present evidence to show Brimm was incorrect. The state has the burden of proving that appellant was the perpetrator and the defense was that the state had not done that just on the basis of the testimony presented by the state. The prosecution’s comment suggests that appellant has to present a witness to show that Brimm was incorrect in his identification of appellant. The trial court abused its discretion in overruling defense counsel’s objection.

Having determined that the prosecutor impermissibly shifted the burden of proof, we must determine whether it was harmless error. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The prosecutor relied heavily on Brimm’s identification of appellant as the perpetrator and made Brimm’s credibility a “focus” of his closing argument. In cross-examining Brimm, defense counsel raised serious questions about the reliability of Brimm’s identification of appellant. Therefore, the state has failed to sustain its burden of proving that this error was harmless beyond a reasonable doubt.

Based upon the foregoing, appellant’s conviction is reversed and the case is remanded for a new trial.

WARNER and STEVENSON, JJ., concur.


author: FARMER, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. John M. HAIRE and Patricia A. Haire, et al., Appellees.
    No. 4D02-2584.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2002.

      Arthur J. England, Jr., Elliot H. Scherker and Elliot B. Kula of Greenberg Trau-rig, Miami, for appellant.
    Edward A. Dion, County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrudders, Assistant County Attorney, Broward County; Robert A. Duvall, Assistant County Attorney, Miami; Donald J. Lunney, City Attorney, Plantation; Gordon B. Linn, City Attorney, Pompano Beach; Michael J. Pawelc-zyk, Assistant City Attorney, Fort Lauder-dale; Daniel L. Abbott, City Attorney, Hollywood; Samuel S. Goren, City Attorney, City of Coral Springs; Monroe D. Kiar, Town Attorney, Town of Davie; for appellees.
   FARMER, J.

The Department of Agriculture and Consumer Services (DOA) appeals an order of the circuit court granting a temporary injunction. In the process the court held unconstitutional various aspects of the 2002 amendments to sections 581.184 and 933.02 dealing with DOA’s authority to eradicate citrus canker. See Ch.2002-11, Laws of Fla. The order concludes that the statutory amendments impair important constitutional rights of property owners of citrus trees throughout the state. The order also finds that the 1,900-feet zone prescribed by the statute for the elimination of healthy trees exposed to citrus canker is implicitly irrational in that it is not based on acceptable scientific principles or methodology. It enjoins DOA from enforcing the statute as written and places several limitations on its power to seek search warrants in its eradication program.

DOA has suggested an immediate transfer of this appeal under Florida Rule of Appellate Procedure 9.125 to the Supreme Court. DOA makes the following argument for such extraordinary treatment:

“There exists an emergency in Florida as a result of the continuing spread of citrus canker which is threatening the state’s $9 billion citrus industry. A delay in the recommencement of the [DOA eradication] Program, particularly given the heightened] risk of long distance spread of the canker bacteria during Florida’s rainy summer months, potentially will add millions of dollars to the eradication costs and will result in more citrus trees being removed than if [DOA] is able to proceed expeditiously. After nearly two years of litigation, and although [DOA] has requested expedited consideration at every step, this situation remains unresolved and the program remains at a virtual standstill.
“The plaintiffs in this case have crippled [DOA’s] effort to eradicate citrus canker, and caused [DOA] to divert significant time and money to court proceedings rather than Program implementation. In the meantime, interruptions to eradication efforts have allowed the citrus canker bacteria to spread from Miami-Dade County to Broward County to Palm Beach County, and northward, at alarming rates. The canker spreads most rapidly in windy and rainy weather, and the worst season for inhibiting the spread is Florida’s rainy summer. After nearly two years of litigation in administrative and judicial forums, the eradication program is still at a virtual standstill. [DOA], and the citrus industry of Florida, need a determination by the state’s court of last resort as to whether the program can go forward.”

The department adds that by transferring this appeal now the Supreme Court will then have before it both aspects of the litigation against the program, including the third district’s decision regarding the state’s obligation to pay compensation for all trees destroyed. See Patchen v. State Dep’t of Agric. & Consumer Serv., 817 So.2d 854 (Fla. 3d DCA 2002).

Appellees respond that a transfer to the Supreme Court at this time would be improvident. They argue that the order in question is nonfinal, merely granting a temporary injunction to preserve the status quo. Only after a trial, they say, will the record be fully enough developed for a decision by the court of last resort. It is indeed true that the injunction entered by the trial court is labeled “temporary” in the injunction itself, as well as in three later orders clarifying it in various respects. Nonetheless we conclude that the order is, as DOA argues, a partial final judgment on the constitutionality of certain aspects of the citrus canker statutory amendments.

There is no doubt from a careful reading of the 31-page order granting the temporary injunction that constitutionality issues have for all practical purposes been finally declared and adjudicated by the trial judge. For a long time now, this court has required that a party seeking an injunction before trial demonstrate that there is a substantial likelihood that the party will succeed on the merits of its claim to in-junctive relief. See, e.g., Reinhold Constr. Inc. v. City Council, Vero Beach, 429 So.2d 699 (Fla. 4th DCA 1983); 3299 N. Federal Highway, Inc. v. Board of County Comm’rs of Broward County, 646 So.2d 215, 222 (Fla. 4th DCA 1994); Infinity Radio Inc. v. Whitby, 780 So.2d 248 (Fla. 4th DCA 2001); Yachting Promotions, Inc. v. Broward Yachts Inc., 792 So.2d 660 (Fla. 4th DCA 2001). Although the requirement of a “substantial likelihood of success” was not mentioned in the partial final order, we have no reason to suppose that the trial judge did not consider it. In fact when the entire order is considered it is apparent that he concluded that plaintiffs were clearly entitled to an injunction as regards the search warrants newly allowed by the 2002 statutory amendments. Appellees acknowledge that there is nothing left to decide as regards the constitutional “search and seizure” issue. We therefore regard that issue as having been finally decided and now subject to plenary review.

We do not have much in the way of guidance as to when and under what circumstances we should exercise our discretion under rule 9.125 to send a case immediately to the Supreme Court for resolution. When we do so, we thereby bypass the constitutional right to review in the district courts of final judgments of the circuit courts. Thus it should be rare that we consider doing so.

The two reported decisions under rule 9.125 each have their own features. One involved issues relating to death penalty applications, a subject within the Supreme Court’s exclusive jurisdiction. See State v. Hootman, 697 So.2d 1259 (Fla. 2d DCA), revieio granted, 699 So.2d 1375 (Fla.1997). In fact, the primary reason given by the second district for the transfer in Hoot-man was the Supreme Court’s death penalty jurisdiction. The demise of citrus trees is, however, understandably not included within that subject. The other decision, Bismark v. State, 796 So.2d 584 (Fla. 2d DCA 2001), involved an issue that conceivably affected every plea in criminal eases within this state. The effect of that decision on the administration of justice would seem manifest.

This court had its own experience under rule 9.125, of course, in an immediate transfer in the 2000 Presidential Election Cases. It is not necessary today that we explore the justification for that transfer, beyond averring the undeniable singularity of those cases. In short, the Presidential Election Cases do not offer much in the way of guidance for today’s question.

Apart from DOA’s argument for an immediate transfer is the impact of both the timing and the effect of any decision we may make. The amount of time that we as a reflective and contemplative institution might ultimately take to reach a final decision is uncertain — even if we were to expedite the case. During the time we take to review the matter, DOA will be limited by the terms of the injunction in its enforcement of the new legislative provisions. Moreover, DOA argues that citrus canker cases can hardly be expected to be limited to south Florida because the blight is spreading steadily northward, and news accounts at the very time we write this opinion report the finding of at least one infected tree in the Orlando area. Surely, whether we ultimately sustain the trial judge’s decision or agree with DOA, a substantial number of Florida residents, not to mention the trees, will be significantly and adversely affected. Whatever we do will affect the handling of citrus canker cases filed throughout the state.

In any event, no matter how many people or businesses or eases are affected, our word is most unlikely to be the final one. Whether we agree that the statutory scheme as regards the search and seizure issues is invalid or not, we will almost certainly certify the case to the Supreme Court as being of great public importance. Hence the time spent on our decision here will likely be seen in the end by many as superfluous.

Upon consideration, therefore, we hereby certify that this appeal requires immediate resolution by the Supreme Court because the issues pending in this district court are of great public importance or will have a great effect on the proper administration of justice throughout the state.

KLEIN and STEVENSON, JJ„ concur.

      . We recognize that other constitutional issues, especially those relating to whether the state has properly concluded that there is a sufficient public purpose in taking healthy trees uninfected with citrus canker, are not yet ripe for review.

      . We have deliberately made no decision on the pending motion to review the trial court’s decision to vacate the stay of its temporary injunction and the motion for leave to appear as amicus curiae. It seems more appropriate for those matters to be decided by the court passing on the merits.


author: WARNER, J.

text:
    Eddie C. EDMOND, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1130.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2002.
    Alan H. Schreiber, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR RELINQUISHMENT

WARNER, J.

After appellant filed an appeal from his resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), he filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). The trial court failed to rule on the motion within sixty days. Pursuant to rule 3.800(b), if the trial court fails to do so, the motion is deemed denied. No motion for extension of the sixty day time period was requested. Appellant now requests that this court relinquish jurisdiction so the trial court can rule on the motion to correct the sentence.

In Mcguire v. State, 779 So.2d 571, 572-74 (Fla. 2d DCA 2001), while the second district determined that the appellate court and trial court have concurrent jurisdiction to grant an extension of the sixty day time requirement prior to the expiration of the period, the court agreed with the fifth district’s holding in Kimbrough v. State, 766 So.2d 1255, 1257 (Fla. 5th DCA 2000), that “a trial court cannot extend the time to resolve a 3.800(b) motion after the motion has already been automatically denied by the expiration of the sixty-day period.” Because by rule the motion is deemed already denied, even if this court relinquished jurisdiction, the trial court could not now rule on the motion. We therefore deny the motion for relinquishment of jurisdiction.

This case will proceed as an appeal of the resentencing and denial of the motion to correct sentence pursuant to rule 3.800(b).

STONE and FARMER, JJ., concur.


text:
    William Garcia SANTIAGO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D02-1832.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2002.
    John H. Lipinski of Law Office of John H. Lipinski, Miami, for petitioner.
    No response required for respondent.
   WARNER, J.

We deny the petition seeking relief for ineffective assistance of appellate counsel in petitioner’s direct appeal of his conviction for trafficking in cocaine.

As to petitioner’s claim that counsel failed to raise as an issue that the prosecutor improperly bolstered the police officer’s testimony, he fails to establish that the issue was properly preserved or that it constituted fundamental error. In any event, on the merits, the comments did not constitute improper bolstering. See Reyes v. State, 700 So.2d 458, 461 (Fla. 4th DCA 1997). Although petitioner further argues that appellate counsel failed to argue error as to other comments in the prosecutor’s closing argument, these issues were in fact raised on direct appeal or were not preserved by timely objection at trial.

Petitioner faults appellate counsel for failing to raise that the trial court improperly had “ex parte time” with a juror and that the jury instructions were misleading. However, again, because these issues were not preserved for appeal, nor would they constitute fundamental error, they cannot be raised on appeal, and thus, cannot be grounds for ineffective assistance of appellate counsel. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000).

Petitioner’s final claim of ineffective assistance is that appellate counsel faded to raise an issue based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as to his conviction. Specifically, he questions whether the jury found him guilty by unanimous verdict, as the general verdict did not specify whether the jurors believed he sold, manufactured, delivered, or purchased the cocaine. First, Apprendi does not apply to this claim, as it relates to submitting facts to a jury that increase a defendant’s penalty. See id. at 490, 120 S.Ct. 2348. Second, the issue is without merit. See Griffin v. United States, 502 U.S. 46, 49, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); accord San Martin v. State, 717 So.2d 462, 470 (Fla.1998) (“While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evi-dentiary support when there was an alternative theory of guilt for which the evidence was sufficient.” (footnotes omitted)).

Petition denied.

GUNTHER and SHAHOOD, JJ., concur.


author: PER CURIAM.

text:
    Richard KAYFETZ, Appellant, v. A.M. BEST ROOFING, INC., Appellee.
    No. 3D00-3278.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2002.
    Rehearing, Rehearing En Banc and Certification of Conflict Denied Dec. 20, 2002.

      Rosen, Slaton & Clark and Bret Clark, Miami, for appellant.
    Yernis & Bowling and Scott A. Forman, North Miami, for appellee.
    Before COPE, LEVY, and SORONDO, JJ.
   CORRECTED OPINION

PER CURIAM.

Plaintiff Richard Kayfetz’ home sustained damage from Hurricane Andrew. After some faulty construction was done on his roof, he “pulled” a building permit himself and hired Defendant A.M. Best Roofing Company to reconstruct the roof correctly. The Defendant’s workers placed an unsecured ladder against the house and ascended to the roof. Having obtained permission from Defendant to climb onto the roof, Plaintiff followed the workers up the ladder. When Plaintiff descended from the roof, the ladder fell to the ground. Plaintiff was injured and taken to the hospital. He filed a suit against A.M. Best, alleging that it was negligent for failing to properly position, secure, or maintain the ladder. He also argued that the rubber footings on the base of the ladder were excessively worn.

At the trial, Plaintiff called an expert witness who testified that ladders are typically secured by nailing them in place or by having somebody hold the ladder while it is in use. The court precluded Plaintiffs expert from testifying that the bearing pads were well worn and that, in his opinion, the use of the ladder by Defendant was “careless or stupid”. Plaintiff claims that the trial court erred by limiting the testimony of his expert. We find that the record reveals no improper limitation as to this witness.

Defendant called its own expert witness. Over the objection of Plaintiff, he testified that under the South Florida Building Code, the permit holder is essentially a contractor who is responsible for the equipment and the safety of materials and people on the job site.

The jury returned a verdict in favor of Defendant. A final judgment was rendered accordingly. Plaintiff appeals, claiming that the trial court erred by permitting Defendant’s expert to testify as to his opinion of Plaintiffs responsibilities under the South Florida Building Code, essentially instructing the jury on the issue of legal liability in this case. We agree and reverse the final judgment entered below.

Under the facts of the instant case, regardless of the responsibilities Plaintiff had as a permit holder under the South Florida Building Code, Defendant’s expert should not have been permitted to instruct the jury as to how the rules set out in the code applied to the facts before them. This case is basically a simple negligence case in which the jury was asked to determine if Defendant was negligent by allowing Plaintiff to use an unsecured ladder with allegedly worn friction pads. Under Florida law, to recover on his negligence claim, Plaintiff merely needed to prove that (1) Defendant owed him a legal duty; (2) Defendant breached that duty; (3) he suffered injury as a result of that breach; and (4) the injury caused damage. See Jackson v. Sweat, 783 So.2d 1207 (Fla. 1st DCA 2001).

In all likelihood, the testimony of Defendant’s expert led the jury to incorrectly conclude that Plaintiffs obligations under the South Florida Building Code excused Defendant of its responsibilities under Florida tort law. It was error for the trial court to allow this testimony. At trial, over Plaintiffs objection, the court supplemented the standard negligence jury instruction with the following language:

With respect to the condition of the ladder, defendant had a duty to warn plaintiff of a hidden or latent defect in the ladder, if there was any such defect, and defendant had knowledge of it. Defendant had no duty to warn of any readily observable or patent defect in the ladder, that is, a condition which a mere casual looking-over will disclose.

This jury instruction should not have been given. First, the ladder was already in place at the time that Plaintiff used it, therefore, there would have been no reason for the Plaintiff to pick up the ladder and examine the feet. Second, this was a product liability instruction and this was not a product liability case. Therefore, it was error to read this instruction to the jury. Accordingly, the final judgment is reversed and the case remanded for a new trial.

Reversed and remanded.

      . The trial judge precluded this because the condition of the pads was obvious to the jury, who were able to observe the ladder when it was brought to the courtroom.

      . Defendant’s expert was asked: "And you’ve told us that in your opinion, based on the South Florida Building Code and the fact that [plaintiff] pulled the permit, that it was his responsibility to have somebody secure the ladder, correct?” Defendant’s expert answered: "Yes.”
      In substance, the expert’s testimony told the jury that the only person responsible was the plaintiff, and this necessarily informed the jury that the defendant roofer owed no duty of care to the plaintiff.


text:
    STATE of Florida, BOARD OF EDUCATION, Appellant, v. Jacqueline AZER and Saber Samaan, Appellees.
    No. 1D02-1899.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2002.
    Rehearing Denied Sept. 30, 2002.
    Louis F. Hubener, Deputy Solicitor General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellant.
    William L. Sundburg of Sundburg & Hessman, Tallahassee for appellee Jacqueline Azer; Laureen Galeoto of Broad & Cassel, Tallahassee, for appellee Saber Sa-maan. .
   PER CURIAM.

Relying upon Florida Rule Appellate Procedure 9.130(a)(3)(C)(vii), the Board of Education seeks review of a non-final order by which the trial court determined that the Board is not entitled to immunity as to various counts of a complaint arising under federal law. But the rule specifically limits its application to claims of “absolute or qualified immunity in a civil rights claim arising under federal law....” As was recently observed by the fourth district, these words are intended to cover only the kind of immunity — absolute or qualified — claimed by individual officials who are not entitled to the “constitutional design” immunity protected by the Eleventh Amendment. See Jenne v. Maranto, 825 So.2d 409(Fla. 4th DCA 2002). The Board is obviously not an individual official lacking entitlement to constitutional design immunity. Accordingly, because the rule does not provide a basis for our exercise of jurisdiction, and because the Board does not wish this court to review the non-final order pursuant to our certiorari jurisdiction, this appeal is dismissed and the Board’s pending motions are denied as moot.

ALLEN, C.J., BOOTH and BROWNING, JJ., concur.


text:
    Ali MAKSAD and Ann Knowles Maksad, Appellants, v. Stewart M. KASKEL, M.D., Stewart M. Kaskel, M.D., P.A., a Florida corporation, Joseph A. Colletta, M.D., Joseph A. Colletta, M.D., P.A., a Florida corporation, Neil M. Carpenter, M.D., and Tenet Health System Hospitals, Inc., d/b/a West Boca Medical Center, a foreign corporation, Appellees.
    No. 4D01-3290.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2002.
    Rehearing Denied Nov. 27, 2002.

      Philip D. Parrish of Philip D. Parrish, P.A., Law Office of Orlando R. Ruiz and Law Office of Jugo & Murphy, Miami, for appellants.
    Mark Hicks and Dinah Stein of Hicks, Anderson & Kneale, P.A., Miami, for ap-pellees Stewart M. Kaskel, M.D. and Stewart M. Kaskel, M.D., P.A.
    Michael K. Mittelmark and Marc T. Mil-lian of Michaud, Buschmann, Mittelmark, Millian, Blitz & Warren, P.A., Boca Raton, for appellees Joseph A. Colletta, M.D. and Joseph A. Colletta, M.D., P.A.
    Louise H. McMurray and Michael A. Petruecelli of McIntosh, Sawran, Peltz & Cartaya, Miami, for appellee West Boca Medical Center.
   WARNER, J.

Appellant, Dr. Ali Maksad, raises various claims of error in the conduct of this medical malpractice action in which the jury found no negligence on behalf of his medical providers. We affirm.

Appellant, a cardiovascular surgeon who was self-medicated all of his life, retired and chose a primary care physician, Dr. Kaskel. During his first visit in September 1995, Dr. Kaskel noted signs suggesting a diagnosis of peripheral vascular disease, including a lack of pedal (foot) pulses but only treated appellant for a rash. In addition, due to the lack of other symptoms, Dr. Kaskel did not perform a detailed vascular examination or refer appellant to a vascular specialist.

In the ensuing months, appellant began experiencing increasing foot pain, despite taking Talwin (a powerful painkilling narcotic) for an unrelated problem. Appellant went to see Dr. Kaskel on November 15th and advised him of the pain he was experiencing on the bottom of his foot. Believing the pain was exertional, Dr. Kaskel recommended rest and referred appellant to an orthopedist. The pain increased, so appellant phoned Dr. Kaskel on November 17th and was prescribed moderate pain medication. By November 19th, the pain was so severe that appellant decided to go to the emergency room at West Boca Medical Center (“the hospital”). The testimony conflicted as to whether appellant noticed the severe pain around midnight or once he awoke that morning between 8:00 and 10:00 a.m. Regardless, appellant walked into the emergency room at 2:00 p.m.

The emergency room physician immediately diagnosed a vascular problem and contacted the hospital’s on-call vascular surgeon, Dr. Colletta, a board certified general surgeon. After examining appellant and reviewing his tests, including one indicating that severe muscle damage had already occurred, Dr. Colletta advised appellant there was an arterial blockage requiring an emboleetomy (a procedure to take out the blood clot). Dr. Colletta performed the emboleetomy, administered urokinase (a chemical to treat blood clots), and also performed a fasciotomy (opening the leg to relieve pressure buildup from the return of blood). Although stimulation of the open leg indicated the muscles may already have been dead, Dr. Colletta still believed the foot was viable and could be saved by the urokinase, so he decided not to perform an arterial bypass.

Members of Dr. Colletta’s practice group, including its board certified vascular surgeon, Dr. Motta, monitored appellant over the ensuing days and were initially encouraged. However, by November 22nd, Dr. Motta noticed a “foot drop,” and by November 25th, appellant’s foot had zero motor function. Because appellant’s life was at risk due to the insufficient blood flow and resultant muscle necrosis, another member of their practice group amputated appellant’s leg on November 27th.

Appellant sued Dr. Kaskel, Dr. Colletta, and the hospital for medical malpractice. He alleged Dr, Kaskel failed to diagnose his vascular problem and refer him to a specialist. He alleged Dr. Colletta failed to properly treat him by not performing an arterial bypass, which he believed would have saved his leg. Finally, he claimed the hospital improperly credentialed Dr. Colletta to perform vascular surgery and, instead, should have had a board certified vascular surgeon on call who could have performed an arterial bypass. The defendants all denied liability and asserted comparative negligence as an affirmative defense.

As can be expected in a medical malpractice action, the testimony of the experts at trial was conflicting. Appellant presented Dr. Gerald Sydorak, who testified that the defendant doctors’ treatment fell below the standard of care and contributed to the preventable amputation. As to Dr. Kaskel, Dr. Sydorak opined he should have either ordered vascular tests or referred appellant to a vascular specialist. As to Dr. Colletta, Dr. Sydorak believed his treatment on November 19th, including the embolectomy and urokinase administration, was appropriate but criticized Dr. Colletta for not performing a bypass when the leg began to deteriorate.

Both Dr. Kaskel’s and Dr. Colletta’s experts testified that their treatment was appropriate. Dr. Eugene Oddone testified that, given appellant’s complaints and symptoms, Dr. Kaskel’s diagnosis of an orthopedic problem was appropriate and that a vascular referral was not required. Dr. Richard McCann testified that appellant’s delay in seeking treatment when the pain became severe on November 19th made salvaging his leg unlikely. Because a muscle cannot recover from a lack of circulation for more than four to six hours, and tests upon appellant’s arrival at the hospital indicated significant muscle death, the deep leg muscles were likely irretrievable upon his delayed presentation. According to Dr. McCann, a bypass was never medically indicated.

As to the hospital’s negligence, the court refused to allow Dr. Sydorak to give his opinion. It found that he failed to establish his expertise in evaluating the standard of care for hospital credentialing in general and, in particular, the credentialing process in Florida hospitals. In spite of the lack of expert testimony, the court denied a motion for directed verdict on the credentialing claim against the hospital. Consequently, the court permitted Dr. Col-letta to testify at length about his general surgical training which, according to the American Board of Surgery, “includes vascular surgery as one of the primary components.” Dr. Colletta testified that, earlier in his career, he had performed 100 to 150 of the type of bypass appellant claimed he should have performed in this case. However, since Dr. Motta joined his practice group, only five to ten percent of Dr. Colletta’s practice now involves vascular surgery.

At the conclusion of the evidence, the trial court denied appellant’s motion for directed verdict on his comparative negligence. It also denied his request for a jury instruction that violating section 766.110, Florida Statutes (1995), regarding hospital procedures for selecting staff members, was evidence of negligence on the ground that the theory had not been pled. The jury returned a verdict finding no negligence on the part of any of the defendants, and the court entered judgment accordingly.

As a consequence of the jury’s verdict, we can summarily dispose of three issues. Appellant claims the court should have granted a directed verdict on his comparative negligence. However, since the jury did not find any of the defendants negligent, it never reached the comparative negligence issue. Thus, any error in denying appellant’s motion was harmless, and this issue is moot. See Kinnebrew v. KMart Corp., 755 So.2d 187, 188 (Fla. 3d DC A 2000). Even if we addressed the merits, we would still affirm because of the testimony that appellant’s own actions in delaying his presentation to the hospital caused damage to his leg.

The jury’s verdict also moots appellant’s two issues relating to the hospital. Because Dr. Colletta was not negligent, the hospital’s credentialing of him could not have proximately caused appellant’s injuries. Thus, any error by the court in refusing to permit Dr. Sydorak’s credentialing testimony and in refusing to give the section 766.110 jury instruction is irrelevant.

Appellant next claims the court improperly permitted Dr. Colletta to bolster himself by testifying he has been voted a “top ten doctor” and has never had a bad outcome in a surgery case. This issue was not preserved. Appellant objected after Dr. Colletta already testified that no one has ever complained about his surgeries. In addition, Dr. Colletta testified to his status as a “top ten doctor” both before and after appellant’s objection.

Even if preserved, the court did not err in allowing the testimony. In Insinga v. LaBella, 543 So.2d 209, 211-14 (Fla.1989), the supreme court held that a hospital could be liable for negligently granting privileges to independent contractor doctors. The court concluded hospitals have a duty to ensure that the doctors they have providing medical care have sufficient skill and qualifications. In order to refute a corporate negligence claim of this type, a hospital must be allowed to demonstrate the privileged doctor’s credentials. That is exactly what occurred in this case. While that same 'evidence also had the indirect effect of bolstering Dr. Colletta’s credibility, which admittedly is generally improper, see, e.g., Liberatore v. Kaufman, 27 Fla. L. Weekly D1549, D1550 (Fla. 4th DCA July 3, 2002), that prejudicial effect did not outweigh the probative value in this case. Therefore, the trial court did not abuse its discretion in permitting Dr. Colletta to testify about his qualifications.

Appellant attempts to frame the issue in.a different way. He argues his claim against the hospital did not rest on Dr. Colletta’s qualifications as a general surgeon but, instead, on Dr. Colletta’s lack of qualifications as a vascular surgeon. Thus, evidence of Dr. Colletta’s qualifications as a general surgeon were irrelevant and erroneously admitted. Appellant’s argument is unavailing. The hospital defended at trial that it properly credentialed Dr. Colletta because general surgeons are qualified to perform vascular surgery. To support that defense, it was entitled to demonstrate that Dr. Colletta was an eminently qualified general surgeon. Moreover, some of the testimony appellant challenges actually revealed that Dr. Colletta has not only had no complaints about his surgeries in general but also has had no complaints about his vascular surgeries. Admitting such testimony was not error.

Appellant next complains that the court erroneously allowed the defense to cross-examine Dr. Sydorak about appellant’s self-medication by obtaining prescriptions from other physicians. Considerable testimony at trial revolved around appellant’s self-medication with Talwin. He initially raised his Talwin use in his own testimony, discussing his self-medication and manner of obtaining prescriptions from doctor-friends. Appellant thus opened the door to cross-examination of Dr. Sydorak regarding Talwin use that may be relevant to issues in this case, such as Talwin masking pain. That masking could have caused delays in seeking medical attention and inhibited precise pain descriptions. However, appellant appropriately objected when the defense cross-examined Dr. Sydorak about whether it was wrong for other physicians to write appellant Talwin prescriptions without examining him. The trial court erroneously overruled the objection. While that specific cross-examination may have been outside the relevant issues for trial, we conclude that the reference was slight and the error was harmless.

Finally, appellant seeks a new trial based upon numerous improper comments during closing arguments, including disparaging comments about his case. Generally, a mistrial or new trial should be granted only when counsel’s arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial. See Jeep Corp. v. Walker, 528 So.2d 1203, 1204 (Fla. 4th DCA 1988); accord Goodwin v. State, 751 So.2d 537, 547 (Fla.1999). We have carefully read the entire closing argument. While a few words and phrases in Dr. Colletta’s two hour closing argument and one word of the hospital’s closing argument may be objectionable, in the trial court’s view they did not justify a' new trial. We agree.

We affirm the final judgment.

HAZOURI and MAY, JJ., concur.

      . The parties' experts also disagreed over whether Dr. Kaskel should have advised appellant of his lack of pedal pulses and whether Dr. Colletta should have used an ankle brachial index to ascertain the blood pressure in appellant's ankle.

      . This duly has been codified in what is now section 766.110(1), Florida Statutes (1995).


text:
    Michael OWENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-0434.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2002.
    Michael Owens, pro se, petitioner.
    Robert A. Butterworth, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the order rendered on or about September 6, 2001, denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 96-12404-CF-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D).

PADOVANO, LEWIS and POLSTON, JJ., concur.


text:
    Pablo Ivan GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1063.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2002.
    Rehearing and Rehearing En Banc Denied Dec. 20, 2002.

      Pablo Ivan Gomez, in proper person.
    Robert A. Butterworth, Attorney General, for appellee.
    Before JORGENSON, COPE and GODERICH, JJ.
   PER CURIAM.

Pablo Ivan Gomez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Gomez alleges that he was offered a favorable plea bargain of three to four years in circuit court case number 97-39198, and seven years in circuit court case number 93-28897. He asserts that his defense counsel advised him to reject the offer, because defense counsel assured him that a pending motion to suppress evidence would be successful. The defendant says that he turned down the plea offer but the motion to suppress, heard in 1998, was unsuccessful. Gomez v. State, 748 So.2d 352 (Fla. 3d DCA 1999).

In 1999, the defendant entered into a plea bargain for seven years incarceration in the 1997 case and seventeen years in the 1993 case. He maintains that his counsel rendered ineffective assistance by advising him to reject the original plea bargain.

Because the present record does not conclusively refute the defendant’s claim, see Fla. R.App. P. 9.141(b)(2)(D), we reverse this part of the order denying the Rule 3.850 motion and remand for an evi-dentiary hearing or other appropriate relief. See Brown v. State, 787 So.2d 170 (Fla. 2d DCA 2001); Garcia v. State, 736 So.2d 89 (Fla. 4th DCA 1999). See generally Cottle v. State, 733 So.2d 963 (Fla.1999); State v. Moses, 682 So.2d 595 (Fla. 3d DCA 1996).

We affirm the denial of postconviction relief on the defendant’s remaining points.

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

       Although the defendant attempted to file the Rule 3.850 motion in both his 1993 and 1997 cases, through a combination of clerical errors it appears the motion was filed only in the 1993 case and not in the 1997 case. We treat the motion and order as having been filed in both cases, and this court’s remand for further proceedings covers both cases.


text:
    Bennie R. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1928.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2002.
    Rehearing Denied Nov. 5, 2002.

      Bennie R. Johnson, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) as we did in Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), and once again certify conflict with Batchelor v. State, 729 So.2d 956, 958 (Fla. 1st DCA 1999), State v. Freeman, 775 So.2d 344 (Fla. 2d DCA 2000); and, Negron v. State, 799 So.2d 1126 (Fla. 5th DCA 2001).

KLEIN, SHAHOOD and TAYLOR, JJ., concur.


text:
    MCI EXPRESS, INC., Betty Myers, and Donald Kaplan, as Assignee, Appellants, v. FORD MOTOR CO. and Ford Motor Credit Co., Appellees.
    No. 3D00-3420.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 2002.
    Rehearing and Rehearing En Banc Denied Dec. 27, 2002.

      Adorno & Zeder, and Raoul G. Cantero, III, Tallahassee, and Natalie J. Carlos, Miami, for appellants.
    Carlton Fields, and Wendy F. Lumish, Miami, for appellees.
    Before GERSTEN, GREEN and SORONDO, JJ.
   PER CURIAM.

MCI Express, Inc. (“MCI”), Betty Myers, individually, and Donald Kaplan, as assignee, appeal the trial court’s orders of final judgments in favor of defendants Ford Motor Co. (“Ford”) and Ford Motor Credit Co. (“Ford Credit”). We reverse.

FACTS

MCI, a company in the long-haul trucking business, leased forty-six Aeromax A-95 trucks from Ford. The trucks consistently suffered from driveline and vibration problems. MCI reported driveline failures in twenty-one of their trucks, as well as other problems allegedly caused by the vibrations (such as cracks in the windshields, tire wear, etc.). MCI sued Ford and Ford Credit for breach of express and implied warranties, fraud and/or misrepresentation, negligence, and rescission of contract (specifically against Ford Credit). MCI alleged that its trucks suffered from several manufacturing and design defects, that the drivelines would fail and fall off the trucks, and that the driveline malfunctions caused severe vibration, damaging other parts of the vehicles. Ford Credit then filed a counterclaim against MCI, including counts of breach of contract, re-plevin and wrongful detention.

During the seven-week trial, Ford produced evidence showing that while there had been some problems with the drive-lines on the Aeromax trucks, the damages claimed by MCI were not attributed to a design defect but to poor maintenance, abusive driving practices, and outright sabotage. MCI had a high turnover of truck drivers and maintenance workers and often failed to carry insurance on the trucks. Additionally, the company’s maintenance records showed large gaps between service on the trucks.

At trial, MCI’s counsel brought forth a bag of tape recordings during the testimony of Roy Bray, MCI’s CEO. The tapes contained conversations between Bray and the truck lessors regarding the terms of the lease agreements. One of the tapes was inadvertently included and contained conversations between Myers (MCI’s president) and Bray. Both Bray and Myers testified that the conversations on that tape occurred several years before MCI leased the Ford trucks. One of the conversations on the tape concerned a vision Bray allegedly had in church of his mother waving at him, which MCI argues places the tape between 1988 and 1989, years before MCI leased the first Ford truck in question.

Ford objected to the introduction of the tapes, as they had not had the opportunity to listen to them. The trial judge and MCI’s counsel agreed that the tapes would be marked for identification, but not introduced into evidence at that time, and Ford was given an opportunity to listen to and transcribe them. During the last week of trial, Ford offered the tapes into evidence during its examination of Myers. The one tape inadvertently produced was played in the judge’s chambers and the judge ruled that the tape itself would be admitted as an admission against interest.

On the tape, Bray and Myers discuss the possibility of committing insurance fraud. The court excluded this particular conversation as inadmissible character evidence, but admitted the portion of the tape concerning the church vision and a derogatory statement made by Bray regarding his truck drivers. MCI requested that this reference to his drivers as “Goddamn Cubans,” be substituted with the word “drivers.” MCI argued that any probative value the derogatory, ethnically charged comment might have was outweighed by the prejudice resulting from allowing the jury to hear it since five of the jurors were Hispanic. The court found Bray’s opinion of his drivers was relevant to rebut his prior testimony that he had good drivers and refused to redact the phrase from the conversation, allowing the tape, (excluding the insurance fraud conversation), to be played for the jury.

Ford made an edited version of the tape (without the insurance fraud conversation) to send to the jury for its deliberations. Inexplicably, the jury ended up with both the edited and unedited tapes. The court gave a general curative instruction, stating that the tape that the jurors had listened to had been inadvertently delivered and included inadmissible material that should be disregarded and that the court would give them an edited tape to review.

The jury returned a verdict in favor of Ford on all of MCI’s claims and in favor of Ford Credit, specifically, for its breach of contract claim against MCI. MCI filed a motion for a new trial, which was denied. The court entered a judgment in Ford’s favor and MCI appeals.

MCI contends that the jury’s consideration of the excluded conversation regarding insurance fraud and Ford and Ford Credit’s exploitation of the “Goddamn Cubans” slur, was so prejudicial that MCI should be granted a new trial. Ford and Ford Credit maintain that MCI did not properly preserve the issue for appellate review, and that the jury’s consideration of the inadmissible conversation was not so prejudicial as to warrant a new trial.

ANALYSIS

I. PRESERVATION

The first issue raised on appeal is whether MCI waived its right to a mistrial by coupling the motion for same with a request that the court reserve ruling until after the jury returned a verdict. Upon discovering that the jurors had heard the unedited tape, which included the insurance fraud conversation, MCI’s counsel moved for a mistrial. The conversation between MCI’s counsel and the trial judge, in pertinent part, went as follows:

MCI’s COUNSEL: What I would ask the Court would be whether the Court would consider if we did move for a mistrial—
THE COURT: If you did?
MCI’s COUNSEL: If we did move for a mistrial whether the Court would consider reserving ruling on that, allow this Jury go to verdict [sic ], there may be a verdict that is satisfactory to the Plaintiff in which case this issue would not come up or at least we wouldn’t have an issue to raise on appeal.
Absent that, and candidly with the Court, if the Court does not do that we would not move for a mistrial just because we cannot afford the delay.
MCI’s COUNSEL: If you are not going to reserve I will not take a chance moving for a mistrial in the event Your Honor will grant it. I am being completely straight up.
THE COURT: My inclination is I would not grant a mistrial and I would not take under consideration.
MCI’s COUNSEL: Would not grant a mistrial?
In which case we would move for a mistrial, Your Honor. MCI’s COUNSEL:
THE COURT: Denied.

Ford argues that MCI failed to properly preserve this issue for appeal when it announced it did not want a mistrial and would not ask for one if the court were inclined to grant it before the jury returned a verdict. We disagree.

A motion for mistrial, coupled with a request that the court reserve ruling until the jury returns a verdict does not constitute a waiver. Ed Ricke & Sons, Inc. v. Green By and Through Swan, 468 So.2d 908, 910 (Fla.1985). According to Ford, however, the supreme court’s refusal to change the general procedure for a party to preserve a motion requires that there at least be a willingness on the part of the moving party to accept a mistrial. Here, MCI openly admitted that it would not ask for a mistrial if the court would grant it and was only seeking to preserve error. Ford contends that MCI failed to properly follow procedure because instead of coupling the motion for mistrial with a request that the court reserve ruling, MCI merely stated that if the court were inclined to grant the mistrial and would not agree to reserve ruling then it would not move for a mistrial.

Ford analogizes this situation to that in Saxon v. Chacon, 539 So.2d 11 (Fla. 3d DCA 1989), claiming that MCI wanted to take its chances with the jury and could not thereafter move for a mistrial. In Saxon, however, the trial court expressly asked plaintiffs counsel if he wanted to move for a mistrial, indicating that he would be inclined to grant one. Id. at 12. Plaintiffs counsel stated that he would not move for a mistrial “at this time.” Id. The facts in the present case are distinguishable, as MCI did not refuse to move for a mistrial, but merely did so on the condition that the trial court reserve ruling until after the jury returned its verdict.

While concern for the need to follow proper procedure to preserve issues for appeal is well founded, there are other important policy considerations. One of the policies driving the Ed Ricke decision was a desire to discourage trial attorneys from deliberately making prejudicial remarks during closing arguments in cases where the outcome was uncertain so as to force the opposing counsel to make a motion for a mistrial. Ed Ricke, 468 So.2d at 910. This concern was reiterated in Ricks v. Loyola, 822 So.2d 502 (Fla.2002), which held that granting trial judges the discretion to wait until after the jury returns a verdict before ruling on a motion for a mistrial will discourage trial attorneys from engaging in such manipulative tactics. Id. at 505. Ricks established that it is within a trial court’s discretion “to determine whether it is the best use of judicial resources to let the case go to jury to see if the verdict cures the need for a new trial.” Id. at 507. Given the Florida Supreme Court’s ruling in Ricks, MCI properly moved for a mistrial and preserved this issue for appellate review.

II. THE TAPE RECORDING

Ford first introduced the tapes into evidence during the testimony of Betty Myers, MCI’s President, on September 25, 2000—more than six weeks after trial began and just two days before closing arguments commenced. After hearing the tape in chambers, the judge ruled that the tape itself could be admitted into evidence as an admission against interest, but excluded the portion of the tape regarding insurance fraud despite Ford Credit’s objection that it was relevant as it related to the conduct of MCI’s business affairs.

The trial court correctly excluded the insurance fraud conversation. See Fla. Stat. § 90.404(1) (2000). The jurors, however, heard the unedited tape, including the presumably excised conversation. “It is generally reversible error to deliver to the jury room any materials which have not been admitted into evidence where the materials are of such character as to influence the jury.” Sayih v. Perlmutter, 561 So.2d 309, 312 (Fla. 3d DCA 1990); see also Keen v. State, 639 So.2d 597, 599 (Fla.1994) (defendants are entitled to a new trial unless there is no reasonable possibility that the unauthorized materials in the jury room affected the verdict).

Evidence that suggests past criminal conduct is of such a character as to influence a jury, particularly where the credibility of a witness or a party is an important issue. See Fischman v. Suen, 672 So.2d 644, 646 (Fla. 4th DCA 1996) (new trial granted after plaintiff violated an order in limine prohibiting him from mentioning that his former employer had allegedly requested he commit medicare fraud).

In this case, the credibility of MCI’s principals was crucial in determining whether they had lied about having experienced drivers and maintaining their vehicles on a regular basis. The excised portion of the tape recording MCI’s President and CEO contemplating committing insurance fraud, then, was of such an incriminating nature as to influence the jury. There can be no doubt that the jury’s consideration of the unedited tape containing the insurance fraud conversation was highly prejudicial, which was precisely why the trial court excluded it in the first place. See Policari v. Cerbasi 625 So.2d 998, 999 (Fla. 5th DCA 1993)(new trial warranted where the jurors had seen a newspaper article stating that the plaintiffs’ medical witness had been charged with criminal racketeering for insurance fraud).

The trial court erred in admitting any portion of the tape, as it was completely irrelevant to the case and highly prejudicial to MCI. On the tape, Myers and Bray also discuss whether to purchase new or old trucks. Bray tells Myers, “But I just don’t see spending no $100,000 to turn loose with a bunch of Goddamn Cubans to beat it to death in a month’s time.” There was considerable discussion regarding the admissibility of the “Goddamn Cubans” comment. Both Ford and Ford Credit argued that the comment directly contradicted earlier testimony that MCI had good drivers and had never heard of its drivers wrecking the trucks or being inexperienced. Over MCI’s objection, the trial judge ultimately accepted Ford’s argument that the comment was relevant “because he [Roy Bray] has made a point about saying that they had good drivers and here he is saying that he has drivers that will beat the equipment.”

The trial judge’s decision to leave the sentence intact instead of replacing the phrase “Goddamn Cubans” with the word “drivers,” or even, “Goddamn drivers,” rested primarily on his concern that he did not want to be an editor. Despite MCI’s repeated objections that any probative value of allowing the comment would be outweighed by the prejudice that would result from having the five Hispanics on the jury hear it, the trial judge decided that “on balance” he was satisfied that Bray was talking about his employees in their capacities as drivers.

Ordinarily, racial slurs and ethnic epithets are so prejudicial as to render them inadmissible, unless the probative value outweighs any prejudice that may result from having the jury hear them. Fla. Stat. § 90.403 (2000); see State v. Gaiter, 616 So.2d 1132, 1133 (Fla. 3d DCA 1993)(trial court did not abuse its discretion in ruling that the probative value of the racial slurs uttered by defendant was substantially outweighed by the danger of unfair prejudice); La Reina Pharmacy, Inc. v. Lopez, 453 So.2d 882, 884 (Fla. 3d DCA 1984)(where plaintiffs credibility was crucial to the trial, her reference to Cubans working at an unemployment office as “scum” had the effect of prejudicing the jury against her); Simmons v. Baptist Hosp. of Miami, Inc., 454 So.2d 681, 682 (Fla. 3d DCA 1984)(where plaintiffs medical witness was subjected to cross-examination which implied that he was a racist who blamed his failure to pass the medical exam on “brown-skinned” foreigners who had more time to study, a new trial was warranted). Inappropriate, highly inflammatory remarks which seek to prejudice the jury against a party, when properly preserved, usually warrant new trials. See McBride v. State, 338 So.2d 567, 568 (Fla. 1st DCA 1976)(trial court abused its discretion in failing to grant motion for mistrial where testimony elicited by prosecutor as to obscene slur allegedly uttered by defendant was undoubtedly offensive to at least two members of the jury).

In this case, MCI objected to the admissibility of the entire tape, and especially to the “Goddamn Cubans” comment. With regards to highly prejudicial and improper remarks, this Court has stated that there is a difference in the way the matter comes to the jury’s ears. Stanton v. State, 349 So.2d 761, 765 (Fla. 3d DCA 1977)(finding that while the question implying unethical conduct in “gypsy practice” was highly prejudicial and improper, there was no fundamental error where defense objection had been sustained and there was no request for instruction or mistrial). Here, Ford introduced the tapes into evidence just a few days before the seven-week trial ended. The tape was played for the jury during the testimony of MCI’s President. For the jury to actually hear Bray, MCI’s CEO, refer to his own employees as “Goddamn Cubans” was highly prejudicial and could only inflame the jurors against MCI. Because the comment, “Goddamn Cubans,” could easily have been rephrased without altering the meaning of the sentence, or detracting from its ostensible relevance, any probative value was outweighed by the prejudice that resulted from having the jury hear it. This is particularly so given the way the derogatory remark was exploited by Ford Credit.

III. EXPLOITATION OF THE ETHNIC EPITHET

Over MCI’s objection, the trial judge ruled that the “Goddamn Cubans” comment would not be redacted because Bray was talking about his drivers and their mechanical ability to operate the trucks. For the remainder of the trial, however, Ford Credit exploited the phrase “Goddamn Cubans,” taking it out of its arguably acceptable context. The tape, excluding the insurance fraud conversation, was played for the jury for the first time during Myers’ testimony. During cross-examination, Ford Credit began disparaging the character of MCI’s principals:

Q. Miss Myers, is it true that at some time during the course of business of MCI, Mr. Bray told you that his Cuban drivers here in Miami would wreck his trucks within one month’s time.
A. Let’s distinguish the trucks.
Q. No, let’s not. Did he say, yes or no, that your Goddamn Cuban drivers would wreck those trucks within a month’s time?
A. He made the statement....

(Emphasis added).

The next day, a husband and a wife were called to the stand by MCI. The husband, Rolando Alvarez, had been a former truck driver for MCI and the wife, Eva Alvarez, was currently employed in the office. Mr. Alvarez testified that he had never heard Bray make a derogatory comment about anyone’s race, nationality, sex or religion. Ford Credit’s short cross-examination of Mr. Alvarez, however, focused entirely on Bray’s use of the phrase “Goddamn Cubans”:

Q. I represent Ford Motor Credit.
A. Nice to meet you.
Q. Do you consider the term Goddamn Cuban to be deroyatory if somebody said that to you?
A. I believe so.
Q. Me too.
A. You play around sometimes.
Q. I understand but what about if you-well let me ask you, so when you were asked have you ever heard Mr. Bray or Ms. Myers use a derogatory term, if you had heard them refer to their drivers as Goddamn Cubans you would have said yes, I have heard them use derogatory terms?
A. I guess so, but I never heard it.
Q. Never happened?
A. No.
Q. And of course, you don’t know whether they referred to their drivers in private as Goddamn Cubans?
A. No, sir.
Ford Credit’s counsel: No further questions.

(Emphasis added).

Eva Alvarez was then called to the stand. Ford’s cross-examination consisted of a few questions regarding whether she had ever heard MCI’s principals use “derogatory comments” in private conversations that would “show a total absolute unequivocal disrespect for certain groups of people.” This was the extent of Ford’s reference to Bray’s use of the phrase “Goddamn Cubans.”

Ford Credit, however, again made several references to the “Goddamn Cubans” comment and the cross-examination of Mrs. Alvarez revolved primarily around the derogatory remark:

Q. Are you Cuban?
A. Yes, I am.
* * * *
Q. Did you testify that you never heard either Roy or Betty use derogatory terms towards anyone?
A. No.
Q. You never heard them refer in conversations with each other in a derogatory manner?
A. No.
Q. Do you consider the term Goddamn Cubans a derogatory statement?
A. Yes.
Q. If they were, if in a conversation one of them was referring to the other, in talking to the other referred to MCI’s drivers as Goddamn Cubans could you consider that derogatory?
A. Yes.
Q. If I played you a tape with a voice on it and Roy Bray is referring to his MCI drivers as Goddamn Cubans, you wouldn’t believe it?
A. No, he don’t normally have Cubans driving for him.

(Emphasis added).

Ford Credit’s blatant exploitation of the phrase “Goddamn Cubans” during cross-examination of the last two witnesses, exacerbated the prejudicial impact of the comment. Ford Credit repeated and highlighted the “Goddamn Cubans” comment, thus painting Bray as a bigot, and by extension MCI as a company owned and run by bigots, rather than using it for its ostensible purpose as a commentary on Bray’s opinion of his drivers’ mechanical abilities. The blatant exploitation of the ethnically charged comment in front of a jury in which five Hispanics were serving, was highly inflammatory and unfairly prejudicial.

IV. CONCLUSION

We conclude that the trial court abused its discretion in failing to grant MCI’s motion for new trial. The jury’s consideration of the inadmissible insurance fraud conversation and the ethnic epithet, as well as Ford Credit’s exploitation of same were so unfairly prejudicial as to require a new trial.

Accordingly, we reverse and remand the cause for a new trial.

      . We note that the introduction into evidence of a racial or ethnic slur is not per se reversible error. See Jones v. State, 748 So.2d 1012, 1023 (Fla.1999)(where witness indicated that defendant used a racial slur but it was not repeated or subsequently highlighted, it was harmless error, although better practice would have been to omit the statement).


author: PER CURIAM. SORONDO, J. PER CURIAM. NESBITT, Senior Judge,

text:
    The STATE of Florida, Appellant, v. K.W., a juvenile, Appellee.
    No. 3D01-1497.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 2002.
    Order Denying Rehearing Dec. 26, 2002.
    Robert A. Butterworth, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellee.
    Before FLETCHER and SORONDO, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The State appeals an order granting juvenile KW.’s motion to suppress. At issue was a pill bottle taken from a pair of orange shorts which the youth had taken off in the front yard of his home. We affirm the trial court’s ruling.

Officer John Rojas received a radio dispatch to be on the look out for a youth wearing all orange clothing and waiving a gun. Rojas went to the vicinity of the incident and eventually, spotted a youth wearing orange shorts, but not displaying a gun. Rojas followed the youth as far as he could before the youth suspected he was being pursued. At that point, the youth ran several blocks and the officer followed. There, in the front yard of the home in which the juvenile apparently lived, the youth dropped his orange shorts. At that point, a women presumed to be the youth’s mother exited the house, picked up the shorts and took them to a washing machine located outside the home. Officer Rojas went into the washing machine, and retrieved a pill bottle from the shorts. The officer admitted that he had not observed any bulge in the youth’s waistband, nor had he observed the youth abandon anything during the pursuit. On these facts, we agree with the appellee that the officer did not have probable cause to detain the youth or confiscate the pill box. See U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)(A warrantless search or seizure without probable cause is unlawful, and the fruits of such a search are inadmissible and must be suppressed.)

Affirmed.

SORONDO, J.

(dissenting).

The trial court determined the facts to be the following:

On February 15, 2001, Miami Dade Police Officer John Rojas received a dispatch that a black male wearing all orange clothes was waiving a gun in the air at the intersection of Northwest 62nd Street and 31st Avenue. Officer Rojas drove to the intersection, but did not see anyone at the intersection matching the description. Officer Rojas looked south on Northwest 31st Avenue, and saw respondent, who was wearing all orange clothing, walking down the street. Officer Rojas followed the respondent in his vehicle. When the respondent turned to walk east into an alley, Officer Rojas exited his vehicle and began to follow the respondent on foot. While following the Respondent, Officer Rojas did not observe any gun or bulge on the Respondent. The Respondent’s hands were empty.
While walking in the alley, the Respondent turned around, made eye contact with Officer Rojas, then began running down the alley. The Respondent then jumped a fence of a residence, ran into the front yard, and took his shorts off, discarding them in the front yard. At no point during this encounter did Officer Rojas order the Respondent to stop. At the front of the yard, which turned out to be the residence of the Respondent, another police officer arrived and detained the Respondent. Simultaneously, the Respondent’s mother picked up the Respondent’s shorts and put them inside a washing machine located on the side of the house. Officer Rojas retrieved the shorts from the washing machine, felt a bulge or hard object in the pocket, and pulled out a pill bottle. Officer Rojas stated that he did not think that the hard object he felt was a gun. The Respondent was arrested after the discovery of the drugs inside the pill bottle. No gun was found.

On these facts, the trial judge suppressed the narcotics confiscated from respondent’s shorts. In her analysis, the judge focused on the fact that “Officer Rojas relied upon an unsubstantiated anonymous tip to detain and search respondent,” and that the officer “did not independently observe the Respondent engage in any suspicious or illegal conduct.” Citing J.L. v. State, 727 So.2d 204 (Fla.1999). The court went on to conclude that “[mjerely walking down the street, and then running upon seeing a police officer, without any direction to stop, is not enough to justify a Terry stop.” Finding that there was no reasonable suspicion for the stop, the trial court suppressed the fruits of the defendant’s “seizure.”

I disagree with the lower court’s conclusion because I do not believe that this case is properly analyzed under the anonymous tipster line of cases. Instead, I believe this case involves an abandonment which is comparable to that in the case of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Like the respondent in the present case, Hodari fled at the approach of an unmarked police vehicle. As he ran, Hodari was looking behind himself and was unable to see that a police officer was approaching him from another direction. When he realized his predicament, he threw away a small rock of crack cocaine, moments before he was tackled and handcuffed by the officer. The United State Supreme Court framed the question before them as “whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield.” Id. at 626, 111 S.Ct. 1547. The Court held that it did not. The Court went on to reason that because the contraband was abandoned during the chase, it was not a fruit of the seizure. Id. at 629, 111 S.Ct. 1547. Likewise, in the present case, before respondent was detained by police, he voluntarily removed and discarded his shorts. Accordingly, the contraband discovered therein was not a fruit of the seizure of respondent, and the Fourth Amendment of the United States Constitution was not violated.

Because I believe the motion to suppress should have been denied, I respectfully dissent.

ON REHEARING DENIED

PER CURIAM.

The State’s Motion for Rehearing of this court’s opinion filed September 30, 2002, is denied.

NESBITT, Senior Judge,

specially concurring.

I concur with the majority decision, but write separately to explain why I believe the trial court properly granted the juvenile’s motion to suppress. While I do not question consideration of California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690(1991), I conclude affirmance is nonetheless mandated, where the boy shed his shorts on his own property and the shorts were immediately placed in the family washing machine. Under the facts at hand, I find that O’Shaughnessy v. State, 420 So.2d 377(Fla. 3d DCA 1982), as cited by the juvenile, supports the conclusion that the shorts should not be viewed as abandoned property subject to police inspection.

[T]he test to be applied in determining whether a person has abandoned property is an objective one' — the words used, the conduct exhibited, and other objective facts such as where and for what length of time the property is relinquished and the condition of the property. United States v. Kendall, [655 F.2d 199 (9th Cir.1981) ] supra, United States v. Williams, 569 F.2d 823 (5th Cir.1978); Morton v. State, [284 Md. 526, 397 A.2d 1385 (1979) ].
The burden is on the state to establish abandonment and it has been said that the proof thereof must be by ‘clear, unequivocal and decisive evidence.’

O’Shaughnessy v. State, 420 So.2d at 379.

When addressing an abandonment issue, the question is whether, under the totality of the circumstances, a defendant has a reasonable expectation of privacy in the invaded property. See Kelly v. State, 536 So.2d 1113 (Fla. 1st DCA 1988). “Whether property has been ‘abandoned’ for search and seizure purposes is viewed primarily as a question of intent, to be inferred from the words and actions of the parties and other circumstances surrounding the purported abandonment.” Kelly, 536 So.2d at 1114. See State v. Kennon, 652 So.2d 396, 397-98 (Fla. 2d DCA 1995)(citing 1 Wayne R. LaFave, Search and Seizure § 2.6(b) (2d ed.1987) wherein the author observes: “In the law of search and seizure, ... the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.... In essence, what is abandoned is not necessarily the defendant’s property, but his reasonable expectation of privacy therein.”) See also 14 Fla. Jur.2d, Abandoned Property § 633.

Admittedly, not every seizure of property occurring under the curtilage of one’s home negates the finding of a valid abandonment of the property at issue. See State v. Duhart, 810 So.2d 972, 973-74 (Fla. 4th DCA 2002)(coneluding that the Fourth Amendment is not necessarily a protection in areas of the home which are open and exposed to public view); Koehler v. State, 444 So.2d 1032 (Fla. 1st DCA 1984)(no expectation of privacy on unenclosed front porch which was exposed to public view); State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976)(no reasonable expectation of privacy on front porch of home where delivery men and others were free to observe plants thereon). Nonetheless, considering the instant facts, I conclude that the order under review must be affirmed based on the juvenile’s “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576(1967). The State failed to establish abandonment by clear, unequivocal, and decisive evidence. See Kelly, 536 So.2d at 1113; O’Shaughnessy, 420 So.2d at 377. The evidence at issue was properly suppressed.

      . Respondent argues that he was not abandoning his shorts because he was at the back yard of his own house. He further suggests that the fact that his mother immediately picked up the shorts and threw them in the washing machine speaks to his reason for removing his shorts. I am unpersuaded with this argument for two reasons. First, it is difficult to believe that respondent customarily disrobes in his back yard to make his clothing available for washing. Even if he did practice this unusual custom, it is still difficult to believe that he was thinking of his shorts' need for washing at the precise moment when he was being chased and apprehended by the police. Second, I am amazed that his mother, seeing that her son was being grabbed by a uniformed police officer, and seeing a second uniformed officer racing into her property, could think only of cleaning her son's discarded shorts. In my view, her act of picking up the shorts and throwing them in the washer was an act without meaning for purposes of this analysis and does not change the nature of respondent's abandonment of the shorts and its contents.


text:
    Brian FOREMAN, Appellant, v. STATE of Florida, Appellee.
    No. 02-1281.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2002.
    James B. Gibson, Public Defender and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Collins v. State, 766 So.2d 1009 (Fla.2000); Leonard v. State, 760 So.2d 114 (Fla.2000).

GRIFFIN, SAWAYA and PLEUS, JJ., concur.