author: CANADY, Judge. .

text:
    N. Arnold MALONE, Appellant, v. Kelly Y. PERCIVAL, Appellee.
    No. 2D03-3054.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Kelly Y. Percival, pro se.
   CANADY, Judge. .

N. Arnold Malone (former husband) appeals an order awarding attorneys’ fees to Kelly Y. Percival (former wife), as well as an addendum to the final judgment entered in an action for dissolution of marriage. We conclude that the former husband has presented no ground justifying reversal of the order on attorneys’ fees and therefore affirm that order. With respect to the .addendum to the final judgment of dissolution, however, we conclude that reversal is required because the addendum — which purports to correct scrivener’s errors — in fact constitutes an unauthorized amendment of the final judgment.

The judgment of dissolution in this matter was entered on March 4, 2003. On April 9, 2003, the former wife filed a motion to correct scrivener’s errors. The motion requested that the court order the former husband to pay child support until the parties’ son graduated from high school in May 2004, beyond the time set forth in the judgment, which was until the son’s eighteenth birthday in September 2003. In addition, the motion sought inclusion in the judgment of a provision that the former husband provide yearly proof to the former wife that he was in compliance with a provision of the judgment requiring him to maintain life insurance of at least $100,000 to secure support payments, with the former wife as the beneficiary.

On June 18, 2003, the circuit court entered the addendum to the final judgment, which included the provisions sought in the former wife’s motion. In addition, with respect to a provision in the final judgment requiring the former wife to pay the former husband $36,355.80 to buy out his interest in the family homes, the trial court sua sponte included in the addendum the following provision:

That [simultaneously with being paid $36,355.80 as his share of equity in the marital home, the Former Husband shall execute any and all deeds, bills of sale, endorsements, forms[,] convey-anees[,] or other documents, and perform any act necessary or required to carry out and effectuate the purposes and provisions herein set forth. In the event of the failure of the Former Husband to perform as agreed herein, this order shall constitute and operate as such properly executed document. Public and private officials are authorized and directed to accept a properly certified copy herein in lieu of the document regularly required for the conveyance or transfer. However, this executory clause shall not eliminate or diminish either parties’ obligation to properly execute documents or otherwise perform any action required by the terms. and conditions of this Court order.

“A trial court may correct a clerical error ‘at any time on its own initiative’ pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that affect the substance of a judgment, must be corrected within ten days pursuant to Florida Rule of Civil Procedure 1.530[ (g)], or by appellate review.” Bolton v. Bolton, 787 So.2d 237, 238-39 (Fla. 2d DCA 2001). As stated in Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003), “[t]he ‘clerical mistakes’ referred to by Rule 1.540(a) are only ‘errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order.’ Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164 (Fla.1979) (quoting Keller v. Belcher, 256 So.2d 561, 563 (Fla. 3d DCA 1971)).”

Here, the former wife’s motion sought the correction of scrivener’s errors pursuant to rule 1.540(a) rather than seeking to alter or amend the judgment pursuant to rule 1.530(g). At the time the motion was filed — more than a month after entry of the final judgment — the ten-day period after entry of judgment for filing a motion under rule 1.530(g) had long since passed. The trial court thus purported to act under the authority of rule 1.540(a). The changes in the final judgment made by the trial court were, however, beyond the scope of the clerical corrections to final judgments authorized by rule 1.540(a). A change in the amount of child support required to be paid is substantive, not clerical. See State v. Thomas, 675 So.2d 1024, 1025 (Fla. 1st DCA 1996); Peters v. Peters, 479 So.2d 840, 841 (Fla. 1st DCA 1985). The addition of a provision extending support for the parties’ son beyond his eighteenth birthday until his graduation from high school was substantive, not clerical, and thus not authorized by rule 1.540(a). The additional enforcement procedures with respect to the conveyance of the former husband’s interest in the family home and the requirement that he annually document maintenance of the life insurance required by the judgment are also substantive changes in the judgment. See Clearwater Oaks Bank v. Plumtree, ATI So.2d 1023 (Fla. 2d DCA 1985). The provisions in the addendum to the final judgment thus were unauthorized under rule 1.540(a), and the addendum order of the trial court is therefore reversed.

Affirmed in part and reversed in part.

CASANUEVA and SILBERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lawrence VICKERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1249.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.

      Lawrence Vickers, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Defendant, Lawrence James Vickers [‘Vickers”], appeals the summary denial of his rule 3.800(a) motion. Vickers alleged in his motion that he was sentenced in three cases to seven and one-half years as a habitual felony offender for possession of cocaine with intent to sell or deliver, in violation of section 893.13, Florida Statutes (1997).

Vickers argues that the habitual felony offender statute does not authorize habitu-alization for a violation of section 893.13. A habitual felony offender sentence is authorized only when the felony for which a defendant is convicted and one of the two required prior convictions is not a violation of section 893.13. See § 775.084(l)(a)(3), Fla. Stat. (1997).

The trial court’s order speaks only to prior convictions, finding that Vicker’s pri- or record included many qualifying felonies. The trial court did not mention the offenses at conviction or attach any documents to its order.

The State, in its response, acknowledges the correctness of Vickers’ statement of the law and the failure of the trial court to attach any documents to its order as required. The State refers us to the Florida Department of Corrections’ web site, which the State says shows that Vickers was convicted of two offenses in case number 02-482: sale, manufacture or delivery of cocaine, not possession; and battery on a law enforcement officer.

Because the pertinent records are not attached, we have gotten all the way through this appeal without knowing Vicker’s current conviction, prior record, or even what his sentence was. Accordingly, we reverse and remand to the trial court to attach to its order copies of the record sufficient to refute appellant’s claim.

REVERSED and REMANDED.

GRIFFIN, PLEUS and PALMER, JJ., concur.

      . The appealed order implies that Vickers may have been sentenced as an habitual violent felony offender, rather than an habitual felony offender, as the court cites section 775.084(l)(b)l, the habitual violent felony subsection, and states that only one prior violent felony need be established.


author: GRIFFIN, J.

text:
    Joseph M. WRYALS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-03992.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Joseph M. Wryals, Polk City, pro se.
    No Appearance for Appellee.
   ON MOTION FOR REHEARING

GRIFFIN, J.

Appellant, Joseph M. Wryals, has filed a motion for rehearing or for clarification of our per curiam affirmance in this case, seeking either reconsideration or a written opinion. We grant the motion, withdraw our prior decision and issue the following opinion in its stead:

Convicted of sexual battery and five other sexual offenses, Joseph M. Wryals [“Wryals”] appeals the trial court’s order summarily denying his rule 3.853 motion for DNA testing. The trial court ruled that Wryals’ motion, filed on October 30, 2003, was untimely. Florida Rule of Criminal Procedure 3.853(d)(1)(A) provides that a motion for DNA testing must be filed within two years following the date the conviction was affirmed on direct appeal, if an appeal was taken, or by October 1, 2003, whichever occurs later. Wryals’ direct appeal in 5D87-1244 resulted in a per curiam affirmance over fifteen years ago, and he missed the October 1, 2003, cutoff date. However, in Amendments to Florida Rule of Criminal Procedure 3.853(d)(1)(A), 857 So.2d 190 (Fla.2003), the October 1, 2003, deadline of the rule was suspended until “further order” of the court.

Accordingly, we reverse and remand to the trial court for consideration of the merits of the motion.

REVERSED and REMANDED.

SAWAYA, C.J., and PLEUS, J., concur.


author: FLETCHER, Judge.

text:
    Rocco NAPOLITANO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D04-318.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Rocco Napolitano, in proper person.
    Sheron Wells, Assistant General Counsel, Department of Corrections (Tallahassee), for respondent.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   ON MOTION FOR REHEARING DENIED

FLETCHER, Judge.

Rocco Napolitano seeks rehearing of this court’s denial of his petition for mandamus to compel the trial court to direct Napolitano be transferred to serve the remainder of his state sentence in federal custody. We deny rehearing.

Napolitano was not under federal charges and not subject to a federal sentence at the time of his state plea and sentencing. Napolitano was therefore not within the jurisdiction of the federal court system or the Federal Bureau of Prisons. Furthermore, even if Napolitano was subject to a federal sentence, the state court is without authority to order that he concurrently serve his state sentence in federal custody. See Doyle v. State, 615 So.2d 278 (Fla. 3d DCA), rev. denied, 629 So.2d 132 (Fla.1993), cert. denied, 511 U.S. 1007, 114 S.Ct. 1376, 128 L.Ed.2d 52 (1994)(beeause the Department of Corrections has been given authority regarding placement of state prisoners, the trial court does not have the authority to order that a Florida sentence be served concurrently with another jurisdiction’s sentence.) Such an order is deemed a recommendation only. Davis v. State, 852 So.2d 355, 357 (Fla. 5th DCA 2003)(“[a]n order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation.”). Here, Napolitano did not even have a federal sentence to serve, and was in federal custody merely as a witness to a federal offense. Nevertheless, it was agreed by all parties at Napoli-tano’s plea hearing that the sentencing court would issue a recommendation that Napolitano serve his time in a federal facility. This the court did.

Napolitano is also not entitled to relief pursuant to Taylor v. State, 710 So.2d 636 (Fla. 3d DCA 1998). Unlike Napolitano, the defendant in Taylor was subject to a federal sentence as well as a state sentence; concurrent service of those sentences in a federal prison was made a condition of his plea, which condition was violated by the state. Under those circumstances, specific performance of the plea bargain or permission to withdraw the plea was an appropriate remedy. Here, Napolitano is not subject to a federal sentence; the parties requested, and the court made, a recommendation only; and the trial court had no legal authority to enforce the recommendation. Napolitano is therefore not entitled to the relief he seeks.

Rehearing denied.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Michael ROMERO, Appellant, v. Martin HARBIN, Individually, and BUGGY BUS, INC., a Florida corporation, Appellees.
    No. 3D03-2820.
    District Court of Appeal of Florida, Third District.
    April 7, 2004.
    Rehearing and Rehearing En Banc Denied July 2, 2004.
    Charles M. Milligan, Key West, for appellant.
    Sellars, Marion & Bachi, P.A., and Bard D Rockenbach, West Palm Beach, and William E. Calnan, for appellees.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Michael Romero appeals an order dismissing his personal injury action. The trial court granted the appellees’ motion to dismiss for fraud, finding that there had been material misrepresentations and omissions regarding his previous medical history, educational attainment, and previous work history. We affirm on authority of Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001).

Affirmed.

COPE and SHEVIN, JJ., concur.

SCHWARTZ, Chief Judge

(dissenting).

As in Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001)(dissenting opinion), I would reverse because the punishment visited on the very-much-less-than-candid Mr. Romero — depriving him of a plainly meritorious claim for a serious and objective injury — is far too severe for his offense.


author: PER CURIAM. PER CURIAM.

text:
    Felix CORDOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-31.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Order Denying Rehearing July 7, 2004.
    Stratton & Feinstein, P.A., and Darryl C. Dungan, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Affirmed. Wright v. State, 869 So.2d 24 (Fla. 2d DCA 2004) (en banc); Urruchurtu v. State, 858 So.2d 387 (Fla. 3d DCA 2003).

On Rehearing Denied

PER CURIAM.

Felix Cordova moves for rehearing, arguing that he is adversely affected by chapter 99-188, Laws of Florida, and that we should issue an opinion so stating. Defendant-appellant Cordova wishes to pursue further review in the Florida Supreme Court challenging chapter 99-188 on a claim that the enactment violates the single subject rule. Compare State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA) (holding that there is no single subject violation in chapter 99-188), review granted, 854 So.2d 659 (Fla.2003) with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (holding chapter 99-188 invalid on account of single subject violation).

The defendant’s premise is wrong. The defendant is not affected by chapter 99-188 one way or the other.

So far as pertinent here, the defendant entered a guilty plea to the offense of trafficking in ecstasy (MDMA) in violation of section 893.135(l)(j)l.a., Fla. Stat. (2000). On this count he was sentenced to fifteen years in prison with a three year mandatory minimum sentence.

The statute under which the defendant was convicted was created by chapter 2000-320, Laws of Florida. See id. § 4. That statute went into effect on October 1, 2000. See id. § 9. The defendant’s offense date was March 3, 2001.

The defendant was properly convicted and sentenced under the statute enacted in 2000. Chapter 99-188, Laws of Florida, has nothing to do with it. The defendant’s argument is entirely without merit. See Wright v. State, 869 So.2d 24 (Fla. 2d DCA 2004) (en banc); Barber v. State, 864 So.2d 1171 (Fla. 5th DCA 2004); Urruchurtu v. State, 858 So.2d 387 (Fla. 3d DCA 2003).

Rehearing denied.


author: POLEN, J.

text:
    Ted J. LEVERETTE, Appellant, v. Luanne COCHRAN, Appellee.
    No. 4D03-246.
    District Court of Appeal of Florida, First District.
    April 21, 2004.
    Rehearing Denied May 26, 2004.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellant.
    Douglas A. Willis, of Douglas A. Willis, P.A., and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellee.
   POLEN, J.

This is an appeal from a final judgment granting specific performance of a real estate contract. For the reasons discussed below, we reverse that judgment.

Luanne Cochran is a real estate broker. In 1999 she sold homes in a community known as Prosperity Harbor. Ted Lever-ette met Cochran when he purchased a home in the Prosperity Harbor community. At the time, Leverette was renting a home and his lease was about to run out. Leverette’s new home was expected to take up to eighteen months to complete and he was in need of a place to live until his new home was ready.

Cochran introduced Leverette to Barbara Heilman, another real estate agent. Heilman, Leverette, and Cochran reached an agreement that Leverette would purchase a home in Juno Beach from Heilman for $403,000. Leverette would then sell the Juno property to Cochran, for the same price, $403,000, within ten days of closing on his Prosperity Harbor property. However, in the summer of 2001, prior to closing on his Prosperity Harbor home, Leverette listed the Juno Beach property for sale with a broker for $575,000. When Cochran learned of Leverette’s attempt to sell the property, and not abide by their earlier agreement, Cochran initiated a lawsuit alleging breach of contract and seeking specific performance.

Ultimately, the issue of whether a contract existed was sent to a jury. The jury concluded that a valid and binding contract was entered into between the parties for Leverette to sell the Juno Beach property to Cochran. Based on the factual conclusions reached by the jury, the judge entered a final judgment for specific performance.

On appeal, Leverette contends the trial court erred in granting specific performance of the contract where Cochran never pled or affirmatively established that she was ready, willing, and able to perform under the contract. We agree.

This court has reiterated that it is the plaintiffs’ burden of proof to show they are ready, willing, and able to perform the contract in order to establish a prima facie case for specific performance. Hollywood Mall, Inc. v. Capozzi, 545 So.2d 918 (Fla. 4th DCA 1989)(citing Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967)). In Capozzi this court concluded that “the trial court erred in granting specific performance where there was no evidence that the purchaser was ready, willing and able to perform the contract.” Id.

Glave summarily held that in order for a purchaser to obtain specific performance of a real estate sales contract, they must allege and prove that the vendee has either paid the balance, tendered the balance, and was ready, willing, and able to pay such balance or has been excused from such performance. Cochran contends that by virtue of Leverette’s conduct, she was excused from performance. Cochran points to Sisco v. Rotenberg, 104 So.2d 365 (Fla.1958).

In Sisco, the seller acknowledged his refusal to sell the property under an option to buy provision, yet asserted that he was not obligated to do so since the buyer never tendered payment as the provision required. The court ultimately concluded that cash tender would have been futile and as a result was unnecessary.

Sisco is readily distinguishable from the case at bar. Not only did Sisco involve the validity and enforcement of an option contract, the issue in Sisco was whether a purchaser is required to tender payment under the contract, when such a tender would be futile, in order to seek specific performance. The case at bar has nothing to do with tendering payment. Moreover, the Sisco opinion clarifies that in that case the buyer notified the seller of her desire to exercise the purchase option and of her ability to perform her end of the contract. After the notification from the buyer, the seller continued to refuse to sell the property. The record in the case at bar does not indicate that Cochran ever notified Leverette she was ready, willing, and able to perform her end of the contract. The other cases relied upon by Cochran are equally distinguishable. See, e.g., Wilson v. Odom, 215 So.2d 37 (Fla. 1st DCA 1968) (court rejected defense of purchaser’s inability to pay where there was a non-binding modification to the contract at the last minute); Gonzalez v. Archer, 718 So.2d 889 (Fla. 3d DCA 1998) (Shortly after purchaser sought to exercise option to buy, seller notified him that the offer was null and void. Therefore tender of escrow funds would not have been accepted, was unnecessary, and failure to tender funds was not a valid defense in the specific performance action.).

Cochran also points to Heilman’s testimony and contends that there was evidence in the record that she could have afforded the house. Heilman, a close personal friend of Cochran’s, was the real estate agent who originally listed the house. At trial, when discussing when she first listed the house, Heilman testified she was having lunch with Cochran that day and told her about the property because she thought Cochran would like it. At trial, when asked if Cochran did not buy the property herself because she could not afford to, Heilman responded, “I don’t know. I think' — I don’t know. I think she could have bought it if she wanted to.”

This testimony does not indicate Cochran was ready, willing, and able to perform on the contract. In fact, in context, it is clear that this testimony specifically spoke to Cochran’s ability to buy the house when she first found out about the property, not when the scheduled performance on the contract was due. Moreover, there is no testimony, nor any legal authority, offered by Cochran to explain why her ability to perform was not alleged in the complaint as Glave requires.

Because there was no pleading nor evidence that Cochran was ready, willing, and able to perform the contract we reverse the trial court’s order granting specific performance. We are unpersuaded by the other issues raised in this appeal.

REVERSED AND REMANDED.

WARNER and KLEIN, JJ., concur.


text:
    HOSPICE OF PALM BEACH COUNTY, INC., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION and Vitas Healthcare Corporation of Florida, Inc., Appellees.
    Nos. 1D03-1045, 1D03-2468.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Rehearing Denied July 1, 2004.

      R.L. Caleen, Jr. and W. David Watkins of Watkins & Caleen, P.A., Tallahassee, for Appellant.
    Garnett W. Chisenhall, Assistant General Counsel, Tallahassee, for Appellee State of Florida, Agency for Health Care Administration and Geoffrey D. Smith of Blank Meenan & Smith, P.A., Tallahassee, for Appellee Vitas- Healthcare Corporation of Florida, Inc.
   PER CURIAM.

Appellant, Hospice of Palm Beach County, Inc. (HPBC), challenges a determination by appellee, Agency for Health Care Administration (AHCA), that it lacked standing to initiate formal administrative proceedings relating to the licensure of a competing hospice provider, Vitas Healthcare Corporation of Florida, Inc. (Vitas). For the reasons stated below, we reverse on the issue of standing and remand for further proceedings consistent with this opinion. We affirm without discussion the remaining issues raised on appeal.

The dispute in this case arose’ from a transaction between’Vitas and North Bro-ward Hospital District (NBHD). In 1990, NBHD purchased Hospice of Gold Coast Home Health Services (Gold Coast). Through this change in ownership, NBHD obtained the right to provide hospice services in both Broward and Palm Beach counties under the license previously issued to Gold Coast. In 2001, AHCA allowed NBHD to “split” its license into two separate licenses — one allowing hospice operations in Broward County and one allowing operations-in Palm Beach County. This splitting of the license allowed NBHD to offer the Palm Beach hospice for sale. Vitas subsequently outbid HPBC and purchased the hospice from NBHD for $1.8 million.

After losing its bid for the hospice, HPBC attempted to demonstrate to AHCA that NBHD had not actually operated a hospice in Palm Beach County and therefore, the sale to Vitas was a sham amounting to a sale of a license prohibited by law. HPBC asserts on appeal, however, that it was not aware of the situation prior to submitting its own bid for the hospice. When AHCA failed to take any action on its complaints, HPBC filed actions in the circuit court for a writ of mandamus and declaratory relief. Neither of these actions were successful.

On December 9, 2002, AHCA approved Vitas’ license application. On December 12, 2002, the HPBC filed a Petition for Formal Administrative Hearing with AHCA. HPBC sought to contest AHCA’s “preliminary approval of a hospice license and de facto issuance of a Certificate of Need (“CON”), or exemption from CON review, to” Vitas. Generally, the petition alleged that: 1) NBHD circumvented the CON laws and, in effect, sold its license to Vitas; 2) AHCA collaborated with NBHD in the license splitting scheme; 3) the Palm Beach hospice was a sham; 4) a CON review was required because Vitas intended to establish a new hospice in Palm Beach County; and 5) judicial estop-pel barred AHCA from denying a hearing. HPBC sought relief in the form of a section 120.57(1) hearing before an ALJ and the entry of a final order denying Vitas’ application for licensure. AHCA denied the petition finding that HPBC had “no standing to challenge the issuance of the license at issue.”

HPBC appealed the denial of its petition to this court. We relinquished jurisdiction in order to allow AHCA to rule on HPBC’s previously filed motion for reconsideration and suggestion for disqualification of AHCA’s deputy secretary. AHCA once again denied relief finding that HPBC did not have standing to seek revocation of the license granted to the Palm Beach hospice or its successor, Vitas. AHCA also found that HPBC failed to allege facts sufficient to warrant disqualification of the deputy secretary. HPBC took an appeal of this denial as well and we have consolidated the two cases for review.

We agree that HPBC alleged insufficient facts to warrant the deputy secretary’s disqualification. See Bay Bank & Trust Co. v. Lewis, 634 So.2d 672, 678 (Fla. 1st DCA 1994) (finding that “tenuous and speculative” allegations are not sufficient to support disqualification of an agency head). We do not, however, agree that HPBC lacked standing to initiate formal administrative proceedings in this case.

In order for Vitas to operate a hospice in Palm Beach County it must first obtain a license. See § 400.602(l)(a), Fla. Stat. (2002). Such a license is not “subject to sale, assignment, or transfer ... and shall not be valid for any hospice other than the hospice for which originally issued.” § 400.602(4), Fla. Stat. (2002). An entity may, however, qualify for a license simply by purchasing an existing licensed hospice through what AHCA refers to as Change of Ownership licensing. See Fla. Admin. Code R. 58A-2.003(2). In all other cases, an entity wishing to establish a hospice must apply for a license after obtaining a certificate of need (CON) or qualifying for an exemption to CON requirement. See §§ 400.606(5), 408.031-045, Fla. Stat. (2002).

Vitas did not obtain a CON or CON exemption prior to its application for licen-sure. The appellees argue that Vitas did not need to undergo CON review because it had simply purchased an existing hospice which had been “grandfathered” under the CON rules. HPBC contends, however, that because the hospice that Vitas purchased never actually existed, AHCA granted Vitas a “de facto” CON or CON exemption to establish a new hospice.

Based upon the facts before us, we find that AHCA erred in dismissing HPBC’s request for a formal administrative hearing. Whether a party has standing to bring an action is a question of law to be reviewed under the de novo standard. Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003). In determining whether HPBC had standing, the allegations contained in its petition must be taken as true. See Maverick Media Group, Inc. v. Dept. of Transp., 791 So.2d 491, 494 n. 2 (Fla. 1st DCA 2001).

Here, HPBC’s allegations were sufficient to at least raise a factual question as to whether the issuance of a license resulted from the issuance of a de facto CON. HPBC, a hospice provider in Palm Beach County, has statutory standing to intervene in a competitor’s CON proceedings. Section 408.039(5)(c) provides that “[e]xist-ing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need ... to a proposed facility or program within the same district.”

We find persuasive HPBC’s allegation that after AHCA split NBHD’s license, it issued another license to NBHD’s Bro-ward County hospice which authorized it to operate in both Broward and Palm Beach counties. Taking this allegation as true, as we must for purposes of our analysis, the end result of such an action is the establishment of a new licensed hospice provider in Palm Beach County in the absence of CON review as required by section 408.036(e), Florida Statutes.

Although AHCA has already issued a preliminary license to Vitas, this will not deprive HPBC’ of its opportunity to challenge Vitas’ entitlement to a CON or CON exemption. We have previously held that an existing health care provider must be provided with clear point of entry into CON proceedings. See Florida Med. Ctr. v. Dep’t of Health and Rehab. Servs., 484 So.2d 1292, 1296 (Fla. 1st DCA 1986). Because the granting of a de facto CON offers no such clear point of entry into the administrative process, AHCA cannot deny standing to contest such a CON simply because, a license has issued. See Univ. Psychiatric Ctr. v. Dep’t of Health and Rehab. Servs., 597 So.2d 400 (Fla. 1st DCA 1992) (finding allegations that the agency granted a de facto CON were .sufficient to establish standing); Univ. Cmty. Hosp. v. Dep’t of Health and Rehab. Servs., 555 So.2d 922, 922 n. 1 (Fla. 1st DCA 1990) (noting that a competitor may intervene after the agency has determined a CON exemption applies).

Accordingly, we REVERSE and REMAND for further proceedings not inconsistent with this opinion.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Donnell QUARTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0258.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Rehearing Denied July 1, 2004.

      Donnell Quarterman, appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellant’s response to our order to show cause concerning the timeliness of the notice of appeal, we conclude that our jurisdiction was not timely invoked, and therefore dismiss the appeal. Although Florida Rule of Criminal Procedure 3.850(g) does authorize a motion for rehearing of “any order denying a motion under this rule,” the motion Quarterman filed in the circuit court did not seek relief under rule 3.850, but rather sought only an extension of time to file a motion under that rule. Motions for extensions of time for performing acts required or allowed to be done under the rules of criminal procedure are governed by rule 3.050, which does not authorize motions for rehearing of orders denying relief sought under that rule. Because Quarterman’s motion for reconsideration of the denial of his motion for extension of time was not authorized under rule 3.050, it did not operate to postpone rendition under Florida Rule of Appellate Procedure 9.020(h). Accordingly, because appellant did not file his notice of appeal within 30 days of rendition of the order denying his motion for extension of time, we lack jurisdiction to entertain this appeal.

APPEAL DISMISSED.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    John Anthony BOGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1490.
    District Court of Appeal of Florida, First District.
    May 5, 2004.
    John Anthony Bogins, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS and POLSTON, JJ., concur.


author: MONACO, J.

text:
    Annie JACKSON As Personal Representative, etc., Appellant, v. YORK HANNOVER NURSING CENTERS, et al., Appellees.
    No. 5D03-554.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied July 8, 2004.

      C. Samuel Newman and Jennifer Beltz-McCamey of Beltz Ruth Magazine Newman & Kohl, P.A., St. Petersberg, for Appellant.
    Scott A. Mager, Gary S. Gaffney and Elaine J. LaFlamme of Mager & Associates, Ft. Lauderdale, for Appellees.
   MONACO, J.

This appeal concerns the fact that the defendants below (the appellees in this court), York Hannover Nursing Centers, et al., and National Healthcare Corporation (collectively, “Nursing Home”), succeeded in having the Brooksville Regional Medical Center (“Medical Center”), placed on the verdict form that was sent to the jury as a Fabre defendant. After the jury allocated fault between the Nursing Home and the Medical Center, the plaintiff below and appellant before us, Annie Jackson, as personal representative of Annie Johnson, deceased (“Personal Representative”), unsuccessfully moved the trial court for entry of a judgment notwithstanding the verdict so that she could recover the full amount of the verdict. In a nutshell, we are asked whether the Florida Supreme Court’s holding in D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001), applies to the facts of this case. If D Amario applies, an apportionment pursuant to Fabre was improper. We conclude, however, that D'Amario is not applicable, and affirm.

Annie Johnson was admitted to Brooks-ville Nursing Manor, a facility owned by the Nursing Home, on March 19, 1999, for rehabilitation following a stroke. She had previously been hospitalized and treated for her stroke at the Medical Center. The Personal Representative asserted that at the time Ms. Johnson was admitted to the facility owned by the Nursing Home she was not properly assessed for the risk of pressure sores and dehydration. According to the Personal Representative, Ms. Johnson continued to receive inappropriate care and treatment while at the Nursing Home, became severely dehydrated because of a problem with malabsorption of liquids, and died three weeks after admission. The civil action was apparently-brought pursuant to Chapter 400, claiming that the Nursing Home deprived Ms. Johnson of her statutory rights, and that the deprivation was the cause of her death. The Nursing Home raised as an affirmative defense that the Medical Center was negligent in its care and treatment of Ms. Johnson prior to her admission to the facility operated by the Nursing Home, and that the Medical Center’s negligence was responsible for the death of Johnson.

Before commencement of the trial the Nursing Home filed a Notice of Disclosure of Fabre Defendant in which it named the Medical Center as a non-party to be placed on the verdict form. At the conclusion of the trial the Personal Representative moved for a directed verdict on the Fabre defense as to the Medical Center. The Personal Representative argued that there was no testimony in the record indicating that the Medical Center did anything that had any effect on Ms. Johnson in connection with the theory of her ease. The Nursing Home countered that while its own experts did not implicate the Medical Center, the Personal Representative’s expert did.

The Personal Representative’s expert testified that the Medical Center failed to complete an “Input-Output” form which would have identified the malabsorption problem and indicated that Ms. Johnson was dehydrated, an action that in his opinion fell below the standard of care. He further testified that a “transfer and continuity of care form” prepared by the Medical Center at the time Ms. Johnson was transferred to the Nursing Home’s facility omitted information that would have apprised the Nursing Home of Ms. Johnson’s dehydrated state and malabsorption difficulties, another action that fell below the standard of care. The motion for directed verdict was denied.

Ultimately, the verdict form that went to the jury listed the Medical Center as a Fabre defendant. The jury in reaching its verdict assessed 75% of the negligence to the Medical Center and 25% to the Nursing Home. The Personal Representative filed a number of post-trial motions, including a motion for judgment notwithstanding the verdict, by which she sought to have a judgment entered against the Nursing Home for 100% of the verdict, based on the theory that apportionment of fault does not apply to enhanced injury cases. She argued that any condition of Ms. Johnson’s that existed in the Medical Center prior to her admission to the Nursing Home’s facility should be considered to be an “initial injury,” and that any aggravation of that condition would be an “enhanced” injury. She cited D’Amario for support.

The Personal Representative also asserted that in order to be a Fabre defendant, the non-party defendant must be a joint participant in the act for which the damages are claimed. Since this was an action pursuant to Chapter 400, Florida Statutes (1999), and since section 400.023(1) allows only the licensee of a nursing home to be sued for damages resulting from deprivation and/or infringement of a resident’s rights, the Personal Representative argued that the Medical Center could not be a joint participant. In other words, the Medical Center and the Nursing Home could not be joint tortfea-sors in a cause of action under Chapter 400.

Finally, the Personal Representative maintained that even if the Medical Center could be considered to be a non-party pursuant to Fabre, the Nursing Home failed to prove by a preponderance of the evidence all elements of the cause of action for negligence. She argued, -essentially, that the nursing home failed to prove any fault on the part of the Medical Center in causing Ms. Johnson’s injuries. The trial court concluded that D’Amario did not apply, and denied the motion for judgment notwithstanding the verdict.

In D'Amario an intoxicated person was driving a Ford automobile, and the plaintiff was a passenger. The driver lost control, and the car hit a tree. The vehicle then caught fire, and the plaintiff burned to death. At trial Ford blamed the impaired driver. The jury agreed, and a verdict was handed down in favor of the manufacturer. The plaintiffs motion for new trial was granted by the trial court, not because of the apportionment defense, but because the court concluded that it should not have admitted into evidence the driver’s blood alcohol content. The district court of appeal reversed, indicating that Ford properly raised its apportionment defense. The Florida Supreme Court quashed the decision of the district court of appeal, however, and held that in eases dealing with the crashworthiness of vehicles, principles of comparative fault involving the causes of the first collision do not apply to the so-called “second collision.” The fire caused by the lack of crashworthiness of the automobile was considered to .be the second collision. Fabre, therefore, did not apply in crashwor-thiness situations, and apportionment of fault should not have been considered by the jury.

The high court then concluded that it was error to instruct the jury on comparative fault in connection with the cause of the accident, and that no party associated with the first crash could be on the verdict form to reduce the manufacturer’s liability. The rationale was, basically, that jury confusion could result if the jury attempted to ferret out the liability for the underlying accident and injury, and try to factor in liability for the “second collision” or crash-worthiness claim, as well. The Florida Supreme Court summarized as follows:

In such [crashworthiness] cases, the automobile manufacturer is solely responsible for the enhanced injuries to the extent the plaintiff demonstrates the existence of a defective condition and that the defect proximately caused the enhanced injuries. Thus, an automobile manufacturer who allegedly designed a defective product may not be held liable for damages caused by the initial collision- and may not apportion its fault with the fault of the driver of the vehicle who caused the initial accident.

D'Amario, 806 So.2d at 441.

Interestingly, the D'Amario majority analogized a second collision case to a suit involving medical negligence that follows an initial negligently caused injury. In those circumstances the cause of the initial injury that necessitated medical assistance is not ordinarily considered to be a legal cause of injuries resulting from the later medical negligence of a medical care provider; and the initial wrongdoer is not considered to be a joint tortfeasor with the subsequent medical provider.

In other words, in cases involving medical malpractice, the cause of the underlying condition that brought the patient to the professional, whether a disease or an accident, is not to be compared to the cause of the independent enhanced injury allegedly resulting from medical neglect.

D’Amario, 806 So.2d at 435.

Finally, the Court made this critical distinction:

[U]nlike automobile accidents involving damages solely arising from the collision itself, a defendant’s liability in a crash-worthiness case is predicated upon the existence of a distinct and second injury caused by a defective product, and assumes the plaintiff to be in the condition to which he is rendered after the first accident.... Thus, crashworthiness cases involve separate and distinct injuries — those caused by the initial collision, and those subsequently caused by a second collision arising from a defective product. We agree that when viewed in this light, crashworthiness cases may be analogized to medical malpractice cases involving a successive negligent medical provider who is alleged to have either aggravated an existing injury or caused a separate and additional injury.

D'Amario, 806 So.2d at 436-37 (emphasis added). It appears, therefore, that D'Amario only applies in Ms. Johnson’s case if there were two distinguishable injuries, one caused by the Medical Center, and either a second separate and distinct injury caused by the Nursing Home, or an aggravation by the Nursing Home of an existing injury to Ms. Johnson originally caused by the Medical Center.

The limited record that we have of the proceedings below, however, indicates that both the Medical Center and the Nursing Home were dealing with a continuum of the same injury. The testimony reflects that Ms. Johnson was dehydrated while in the Medical Center; was still dehydrated when she left the Medical Center; and continued to be dehydrated during her days at the Nursing Home’s facility. The trial court, in allowing damages to be apportioned by the jury in accordance with Fabre, concluded on the basis of the substantial competent evidence adduced at trial that there was only a single injury, and accordingly, that D'Amario did not apply. We think the trial judge got it right.

We are also unconvinced by the Personal Representative’s argument that because section 400.023(1), Florida Statutes (1999), allows only the licensee of a nursing home to be sued for damages resulting from deprivation or infringement of a resident’s rights, the Medical Center could not be a joint tortfeasor with the Nursing Home. Section 768.81, Florida Statutes (1999), deals with apportionment of damages, and in cases to which this particular section applies, the court must enter judgment against each party liable on the basis of each parties’ percentage of fault, and not on the basis of the doctrine of joint and several liability (with an exception noted regarding economic damages). This section applies to negligence cases, including professional malpractice cases. In Fabre, the Florida Supreme Court interpreted the term, “party,” to include all persons who contributed to the accident “regardless of whether they have been or could have been joined as defendants.”

Here, the assertions against the Medical Center and the Nursing Home both sound in negligence. Moreover, both the trial court and this court have concluded that the Nursing Home and the Medical Center were joint tortfeasors, and were, accordingly, properly within the umbra of Fabre. The term “joint tortfeasors” is usually defined as two or more negligent entities whose conduct combines to produce a single injury. D'Amario, 806 So.2d at 435 n. 12 (citing Davidow v. Seyfarth, 58 So.2d 865, 868 (Fla.1952)); Association for Retarded Citizens—Volusia, Inc. v. Fletcher, 741 So.2d 520, 530 (Fla. 5th DCA), review denied, 744 So.2d 452 (Fla.1999). To be joint tortfeasors each actor must have committed some wrong that results in an injury or damage to another. “Although there is but a single damage done, there are several wrongs.” Phillips v. Hall, 297 So.2d 136, 139 (Fla. 1st DCA 1974)(Boyer, J., concurring specially). Even if two seemingly independent tor-tious acts do not “precisely coincide in time,” the actors can reasonably be considered to be joint tortfeasors if the sequence of their tortious acts produces a single injury. See Leesburg Hosp. Ass’n, Inc. v. Carter, 321 So.2d 433, 434 (Fla. 2d DCA 1975).

Whether defendants are joint tortfea-sors is ordinarily a question of fact determined by the circumstances of the particular ease. Caccavella v. Silverman, 814 So.2d 1145, 1148 (Fla. 4th DCA 2002), review denied, 860 So.2d 976 (Fla.2003); Letzter v. Cephas, 792 So.2d 481, 486 (Fla. 4th DCA 2001). In the instant case, as we have noted, there is only one injury, that being the death of Ms. Johnson by malabsorption of liquids and consequent dehydration, and the jury saw fit to apportion the damages. Moreover, as we have earlier indicated, there was sufficient evidence produced reflecting that the Medical Center and the attending physician at the Medical Center acted in concert with the Nursing Home to cause the single injury. Under these circumstances we conclude that no error was committed by the trial judge in allowing an apportionment of the damages suffered by Ms. Johnson.

Finally, we do not address the issue raised by the Personal Representative regarding whether a cause of action for negligence was proved by the Nursing Home against the Medical Center. As we have not been furnished a sufficient record by the Personal Representative, we are obviously not able to confront this subject. See, e.g., Acosta v. Creative Group Invs., Inc., 756 So.2d 193 (Fla. 3d DCA 2000); Almodovar v. Almodovar, 754 So.2d 861 (Fla. 3d DCA 2000); Scarlett v. Scarlett, 736 So.2d 125 (Fla. 5th DCA 1999); Scotty’s Inc. v. Olivieri, 713 So.2d 1020 (Fla. 5th DCA 1998); Hill v. Hill, 706 So.2d 406 (Fla. 5th DCA 1998).

While there are other issues raised by the Personal Representative, we conclude that none merit reversal.

AFFIRMED.

PETERSON and THOMPSON, JJ., concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . We say "apparently” because a copy of the complaint has not been provided to us in the record on appeal.

      . We are unable to review the denial of the directed verdict because the Personal Representative failed to provide us with a complete transcript of the trial.


author: PADOVANO, J. BOOTH, J.,

text:
    Juan Tirrell CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4563.
    District Court of Appeal of Florida, First District.
    May 18, 2004.

      Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Charlie McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

The defendant, Juan Curtis, appeals his convictions for first-degree murder and armed robbery. We conclude that the trial court erred in excluding evidence that another person had confessed to the crime. Although the confession does not meet all of the technical requirements of the declaration against penal interest exception to the hearsay rule, it was admissible in evidence as a matter of constitutional law. Under the circumstances of this case, the exclusion of the confession violated the defendant’s right to due process of law. For these reasons, we reverse the convictions and remand the case for a new trial.

Juan Curtis was the second suspect tried for the robbery and murder of Mary Ann Stephens. The state originally claimed that a juvenile named Brenton Butler had committed the crimes. Butler had been identified by the victim’s husband and he had confessed to police officers that he shot Mrs. Stephens. The case against Butler proceeded to trial, but he was acquitted. Subsequently, the state accused Curtis and another man, Jermel Williams, of the robbery and murder of Mrs. Stephens. Williams entered a plea to a reduced charge and became a witness for the state.

Before Curtis’ trial, the state moved to exclude the evidence that Brenton Butler had confessed to the crimes. The state argued that Butler’s confession was not admissible as a declaration against penal interest because he was available to testify. Butler had given a deposition in which he repudiated his earlier confession and denied that he shot Mrs. Stephens.

Curtis’ lawyer objected to the exclusion of Butler’s confession to the police. He argued that under the circumstances of the case, the exclusion of the confession would deprive him of his constitutional right to a fair trial. Curtis intended to raise a reasonable doubt by presenting evidence that Butler was the one who committed the crime, and Butler’s confession was to be an important link in that defense. The trial judge agreed with the state and excluded the evidence of Butler’s confession.

By agreement of counsel, the jurors in Curtis’ case were told that Butler was originally charged with the murder of Mary Ann Stephens, that he went to trial, and that he was acquitted. The jurors were also told that Butler filed a lawsuit against the City of Jacksonville alleging that he had been mistreated by the police, and that he was awarded a sum of money as a result of the suit.

In the state’s case in chief, the prosecutor called James Stephens, the victim’s husband. Mr. Stephens testified that the crimes were committed on the morning of May 7, 2000, as he and his wife were walking back to their motel room after breakfast. They were approached by a man who demanded Mrs. Stephens’ purse. Mrs. Stephens backed away from the man, and he pulled a pistol out of his pocket and shot her in the eye. Mr. Stephens described the assailant as a young black man wearing cut off jeans and sneakers in two or three colors of blue. He added that the man was young, about twenty or twenty-one, with very skinny legs.

When asked if he could identify the man who shot his wife, Mr. Stephens said that he could make an identification if he could see the man’s legs. At that point, the prosecutor had the defendant Curtis show his legs to the witness and to the jury. Mr. Stephens then identified Curtis as the man who shot his wife. He added that he also recognized Curtis by his face.

On cross-examination, Mr. Stephens conceded that he had originally identified Brenton Butler as the man who shot his wife. He admitted that he had told police officers he was positive Butler was the one, and that, even after Butler’s acquittal, he expressed his belief that he had not been mistaken in his identification. Defense counsel also established that, after the Butler trial, police officers showed Mr. Stephens several photographs, including a photo of the defendant Curtis. He did not identify Curtis as the assailant at that time.

Jermel Williams testified that he and Curtis were using cocaine on the morning of May 7, 2000. When they ran out, they decided to rob someone to purchase more. According to Williams, Curtis said that he was going to snatch a purse. Williams stayed in the car but he gave Curtis his gun, a loaded .38 derringer. About fifteen minutes later, Curtis returned to the car and said, “Drive.” As they were driving away, Curtis told Williams that, when he snatched the purse, the lady threw coffee on him and the gun went off. They then threw the purse in a dumpster.

Williams told the jury that he had no agreement with the state, and he denied that he had been promised a lighter sentence in return for his testimony against Curtis. He also denied that he was testifying for the state in the hope of receiving a lighter sentence. Although the jurors did not know his fate, Williams later entered a plea to the reduced charge of second-degree murder and was sentenced to ten years in the Department of Corrections.

Mrs. Stephens’ purse was recovered from a dumpster, but not as a result of any information provided by Jermel Williams. It had been discovered and turned over to the police much earlier by two people who were evidently looking through the dumpster for aluminum cans. A police technician discovered that there was a latent fingerprint of value on a plastic telephone card contained in the purse. At trial, a fingerprint expert testified that the print was made by the defendant Curtis.

The state also called a jail inmate, William Johnson, who testified that Curtis had told him that he was the one who shot Mrs. Stephens. At the time of the alleged confession, Curtis was in custody on an unrelated charge. The version of the events recounted by Johnson was similar to the one given by Jermel Williams. According to Johnson, Curtis said that the woman threw coffee at him, and when the coffee hit his neck, the gun went off.

Johnson was facing a possible thirty-year sentence on a charge of sale of cocaine, and he had an offer from the state to plead to fifteen years as a habitual offender. He came forward with the information about Curtis on January 9, 2001, the second day of his own trial. At that time, he entered an unconditional plea of guilty to sale of cocaine, and his sentence was deferred. He remained in the county jail until the Curtis trial. Several days after the trial, he was sentenced to one year in the county jail. With accrued credit, he was released immediately.

The prosecutor called the defendant’s brother, Antoine Bryant, but was unable to get him to repeat the testimony he had previously given to the grand jury. Because Bryant was evasive, the trial judge allowed the prosecutor to read portions of his previous grand jury testimony. The gist of this testimony was that Jermel Williams told Bryant that he and Curtis had robbed a woman, and Curtis got mad at Williams for telling the story. Bryant questioned Curtis about Williams’ statement, and Curtis generally admitted to Bryant that he had committed a robbery.

In his defense, Curtis presented evidence that Mr. Stephens had originally identified Brenton Butler. Officer Thomas Martin of the Jacksonville Sheriffs Office testified that he had observed Butler walking near the scene of the crime and that he detained him for a show-up identification. According to Officer Martin, Mr. Stephens said that “there was no doubt in his mind” that Butler was the shooter. Butler was wearing a pair of shoes that matched the description Mr. Stephens had previously given, and he had $91 in his pocket.

Officer James Williams of the- Jacksonville Sheriffs Office was also present during the show-up identification of Brenton Butler. Officer Williams said that he asked Mr. Stephens, “Are you absolutely sure if this is the individual that you feel shot your wife?” Stephens said, “Yes, I am.” According to Officer Williams, Mr. Stephens then emphasized the point by saying, “I’m not going to send an innocent man to jail.”

At this point in the trial, counsel for the defendant proffered Brenton Butler’s confession. Officer Williams testified in the proffer that Butler had been advised of his rights and that, at first, he denied that he had anything to do with the murder. When the police officers informed him that he had been identified by the victim’s husband, he started crying and said, “If that’s the case, I need a lawyer.” Butler asked to speak with the officers again that afternoon, but again he denied that he had committed the offense. Later in the afternoon, Butler told the officers that he had shot the victim by accident. He said that he put the gun inside the purse and threw the purse into the woods near the motel. The officers went with Butler to search the woods for the purse but did not find it.

After they returned, Butler made a written confession, which differed in some details from his oral confession. In this confession, he said that he was hungry and had no money, so he decided to approach Mr. and Mrs. Stephens to ask them if they had any spare change. Mrs. Stephens gave him a mean look and mumbled a racial slur under her breath. This made him angry, so he demanded her wallet. Mrs. Stephens did not move fast enough, so he pulled out a chrome revolver that he had found several days earlier. He raised the gun to her face quickly and it went off. Then he panicked and grabbed her purse and ran. He told the officers that he had kept the money and that he had placed the purse with the gun inside it on a truck in traffic.

Counsel for the defendant renewed the arguments made before trial in opposition to the state’s motion in limine and added a new argument that the confession should be admitted to corroborate other defense evidence. The trial judge adhered to his earlier ruling and held that the proffered confession by Brenton Butler was inadmissible in evidence.

After the defense rested its case, the state called several rebuttal witnesses who testified that Butler could not have been present at the scene when the murder was committed. Brenton’s father, Andre, testified that he had heard Brenton playing music in his room on the morning of May 7, 2000, and that he was there until about 10:25 a.m., when he and his wife went to church. He also explained that the $91 in cash Brenton had in his possession at the time of his arrest was a payment for his work at a Burger King and that it did not come from the robbery. Brenton’s mother, Melissa, and his brother, Brandon, also testified that Brenton was home at the time of the murder.

The jury found the defendant Curtis guilty of first-degree murder and armed robbery. A few days later, the trial court adjudicated him guilty and sentenced him to life on the murder charge and fifty years on the robbery charge. Curtis then filed a timely appeal to this court.

We have been asked to consider one argument for reversal. Curtis contends that the trial court deprived him of the right to due process of law by excluding Butler’s confession from evidence. This argument is made with an acknowledgment that Butler’s confession did not meet the formal requirements of the declaration against penal interest exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes (2001) excludes from the hearsay rule:

[a] statement which, at the time of its making, was so far contrary to the de-clarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

However, this exception is applicable only when the declarant is unavailable as a witness. See § 90.804(2), Fla. Stat. (2001). Because Butler was available, his earlier statement to the police could not be admitted as a declaration against penal interest.

If the directions we have received from the state legislature regarding the admission of evidence were all that we had to consider, the argument made here would be at an end. But the courts must also consider the constitutional effect of excluding evidence in a criminal trial. In some cases, judges have a duty to admit evidence that does not fit neatly within the confínes of the Evidence Code in order to protect the defendant’s right to a fair trial.

This concept is well established in the law. For example, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court held that a defendant had a constitutional right to impeach a juvenile by showing that he was on probation, even though an Alaska statute prohibited disclosure of that fact. As Chief Justice Burger explained, “The accuracy and truthfulness of [the juvenile’s] testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the juvenile’s] vulnerable status as a probationer, as well as of [the juvenile’s] possible concern that he might be a suspect in the investigation.” Davis, 415 U.S. at 317-318, 94 S.Ct. 1105 (citation and footnote omitted). In the circumstances presented in Davis, the Court concluded that the state’s right to protect the confidentiality of juvenile records must give way to the defendant’s Sixth Amendment right to confront his accusers.

The general principle that state evidence rules must, in somé instances, yield to greater principles established by the Constitution has been applied specifically to require the admission of a confession by a third party. In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court concluded that the defendant should have been allowed to present evidence that someone else had confessed to the crime. The defendant, Chambers, was on trial for murder. Another man, Gable McDonald, had made a series of oral confessions to the crime several hours after it was committed. Later McDonald repudiated these confessions. Chambers called McDonald as a witness, but he yras not permitted to confront him with the oral confessions.

At the time of Chambers’ trial, Mississippi had a declaration against interest exception to the hearsay rule, but it applied only to statements against pecuniary interest, not to statements against penal interest. McDonald’s confessions therefore did not qualify under the exception. Mississippi also had a “voucher rule,” which prohibited a party from impeaching his own witness. This rule effectively thwarted Chambers’ effort to force an admission that McDonald had made a series of oral confessions to the crime. When McDonald was called as a witness at trial, he denied that he had. committed the crime, and Chambers was required under the voucher rule to accept his testimony.

The Supreme Court concluded that McDonald’s oral confessions should have been admitted in evidence, despite the fact that they were inadmissible under state law. The Court reasoned that the exclusion of the confessions denied Chambers the right to due process of law, as well as the right to confront the witnesses against him. The Court rejected the state’s argument that the confessions were inadmissible under the Mississippi hearsay rule, stating that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302, 93 S.Ct. 1038.

Likewise, the Court rejected the state’s argument that'the confessions could not be admitted on direct examination under the Mississippi voucher rule. On this point the Court said, “The ‘voucher’ rule, as applied in this case, plainly interfered with Chambers’ right to defend against the State’s charges.” Chambers, 410 U.S. at 298, 93 S.Ct. 1038.

The Court emphasized that, although McDonald’s confessions were hearsay, they were made and subsequently presented at trial “under circumstances that provided considerable assurance of their reliability.” Chambers, 410 U.S. at 300, 93 S.Ct. 1038. In support of this conclusion, the Court listed four factors that supported the reliability of McDonald’s confessions: (1) each of the confessions was made spontaneously to a friend shortly after the murder was committed; (2) the confessions were corroborated by other evidence; (3) the confessions truly were statements against McDonald’s penal interest; and (4) McDonald was available to testify and could have been cross-examined by counsel for the State. See Chambers, 410 U.S. at 300-301, 93 S.Ct. 1038.

Florida allows litigants to impeach their own witnesses, but that does not necessarily resolve the constitutional problem identified in Chambers. Although a witness may be impeached in Florida by “[a]ny party, including the party calling the witness,” pursuant to section 90.608, Florida Statutes, it is still improper under Florida law for a party to call a witness merely as a device to place the impeaching testimony before the jury. See Morton v. State, 689 So.2d 259 (Fla.1997), receded from on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000). In the present case, Butler testified in his deposition that he did not shoot Mrs. Stephens and that his earlier confession was false. As it turned out then, Curtis was no better off than Chambers. He was precluded, albeit for a slightly different reason, from calling the declarant to the witness stand and confronting him with the confession.

Nor is the due process problem identified in Chambers resolved merely because Florida recognizes an exception to the hearsay rule for declarations against penal interest. If a confession by a third party is critical evidence that should have been admitted in evidence to protect the constitutional rights of the accused, the particular reason for excluding it under state law will make little difference. If the confession was excluded on the ground that it did not meet the requirements of the declaration against penal interest exception, the effect would be the same as if there were no exception at all. Here again, Curtis was no better off than Chambers. It did not help him that Florida generally recognizes an exception for declarations against penal interest, because the exception could not be employed under the facts of his case.

Indeed, the Florida courts have consistently applied the constitutional analysis in Chambers, despite the exception in section 90.804(2)(e), Florida Statutes, for declarations against penal interest. See Grim v. State, 841 So.2d 455, 464 (Fla.2003); Sliney v. State, 699 So.2d 662, 670 (Fla.1997); Gudinas v. State, 693 So.2d 953, 965 (Fla.1997); Hartley v. State, 686 So.2d 1316, 1321 (Fla.1996); Lightbourne v. State, 644 So.2d 54, 57 (Fla.1994). As these opinions implicitly recognize, a trial judge may be required to admit a third-party confession under constitutional principles, even if it does not qualify as a declaration against penal interest under the state law of evidence.

Federal courts have come to the same conclusion. Rule 804(b)(3) of the Federal Rules of Evidence establishes an exception to the hearsay rule for declarations against penal interest. Nevertheless, the federal courts continue to apply the principle in Chambers to determine whether the exclusion of a confession as hearsay deprives the defendant of the right to due process of law. See, e.g., Carson v. Peters, 42 F.3d 384, 387 (7th Cir.1994); United States v. Thomas, 62 F.3d 1332, 1338 (11th Cir.1995).

Like the confessions in Chambers, the confession in this case was made under circumstances that provided an assurance of reliability. The first point the Court made in Chambers was that the confessions were spontaneous. By this, the Court did not mean that the statements had been blurted out, but rather that they were made without any compulsion and without any apparent motive to lie. The same is true of Butler’s confession in this case. He made the confession just a few hours after the murder. The police officers had advised him of his right to remain silent several times, and there is no evidence that they intimidated him.

As several courts have observed, a confession made to a police officer may be considered reliable, because it subjects the declarant to prosecution. See Cunningham v. Peters, 941 F.2d 535, 540 (7th Cir.1991); Rivera v. Director, Dep’t of Corrections, 915 F.2d 280, 282 (7th Cir.1990); People v. Kokoraleis, 149 Ill.App.3d 1000, 1020-21, 103 Ill.Dec. 186, 501 N.E.2d 207, 221 (1986); see also Jones v. State, 709 So.2d 512, 525 (Fla.1998) (equating a confession made to police with a confession made spontaneously to a friend). We would be more concerned if Butler had been bragging to his friends, or if he had something to gain by his statement, or if he had been threatened or coerced in some way. But the record does not disclose the presence of any of these factors. Butler confessed to police officers, knowing that they were not there to help him and with full knowledge of the consequences.

The second factor the Court relied on in Chambers was that the confessions were corroborated by other evidence. Butler’s confession meets that test, as well. The confession is corroborated by the fact that Mr. Stephens positively identified Butler as the assailant. To dismiss this evidence, we would have to assume that Butler not only falsely confessed to murder, but, by some tragic coincidence, he was also mistakenly identified as the killer by an eyewitness to the murder. Under the circumstances, we think that Mr. Stephens’ identification was powerful corroborating evidence. In fact, it would be difficult to imagine a better case for corroboration of a confession than an eyewitness identification of the person who confessed.

There is also little question that Butler’s confession meets the third part of the test in Chambers, in that it was truly, a statement against penal interest. The state does not contest this point. Butler did not attempt to shift part of the blame to someone else. Nor was the statement one that merely implied that Butler was guilty. Butler categorically stated that he was the one who shot Mrs. Stephens. There can be no doubt that this statement was inculpatory.

The final part of the test in Chambers, that the witness is available for cross-examination, is the most perplexing. Section 90.804(2) provides that a declaration against penal interest is admissible if the declarant is unavailable. This requirement is also found in rule 804(b)(3) of the Federal Rules of Evidence and in typical exceptions in other states. The apparent reason for the unavailability requirement is that the hearsay statement is needed all the more if the declarant is not there to testify. See McCormick on Evidence § 258 (John W. Strong ed., 5th Ed.1999). In contrast, the Supreme Court said in Chambers that a court may be required to admit a confession by another person, despite the hearsay rule, if that person is available to testify. The Court reasoned that the opposing party could then confront the witness to uncover a possible explanation for the confession.

These requirements appear to be irreconcilable. If the declarant is available to testify, the confession does not qualify as a declaration against penal interest and it is excluded because it is hearsay. Yet, all other things being equal, the availability of the declarant might be the very thing that requires the court to admit the confession as a matter of constitutional law, despite the Evidence Code.

We have been unable to find the answer to this riddle in any of the court opinions addressing the Chambers case in the context of the declaration against penal interest exception to, the hearsay rule. All we can say for certain is that availability is a key element in the constitutional argument for admitting a confession by another person. That is what the Court said in Chambers, and we are not at liberty to disagree.

Other Florida courts have also concluded that the availability of the de-clarant does preclude the admission of a third-party confession under constitutional principles. In Czubak v. State, 644 So.2d 93, 95 (Fla. 2d DCA 1994), for example, the court noted that, regardless of the provisions of section 90.804, Chambers “requires the admission of such reliable hearsay statements of witnesses to a third-party confession even if the ‘confessor’ was available as a witness at the trial.” (emphasis added). The fact that Butler was available to testify and subject to cross-examination by the state supports the argument made here that his confession should have been admitted as a matter of constitutional law.

The state argues that Butler’s confession was not reliable, because some of the facts were contradicted by other evidence. This argument misses the point. It is true that certain aspects of Butler’s statement, such as the location of the purse and the kind of weapon used, were inconsistent with other facts, but the question is not whether there is some evidence casting doubt on the confession. Rather, the question is whether there is substantial evidence to corroborate the confession. See Rivera, 915 F.2d at 282; United States ex rel. Gooch v. McVicar, 953 F.Supp. 1001, 1009 (N.D.Ill.1997). If so, the confession should be admitted in evidence, and the jurors should be allowed to consider the alleged discrepancies, along with the evidence of corroboration.

In our view, the argument for admitting the confession in this case is even stronger than the one presented in Chambers. The third-party confession in Chambers was offered exclusively by the defense and was never endorsed as reliable by the state. In contrast, Butler’s confession was previously offered by the state as evidence against Butler in his own trial. The prosecutor must have believed then that Butler’s confession was reliable. Now the state argues that the confession fails to meet the test of Chambers because it is unreliable, but the state is plainly not in a good position to make this argument. A prosecutor cannot rely on evidence to obtain a conviction in one case, and then condemn the very same evidence as unreliable in another. Of course, a fact that came to light between the two trials may have changed the prosecutor’s view of Butler’s confession. That may be what happened here, but there is no indication of it in the record.

We have considered the possibility that the admission of Butler’s confession would ultimately make Butler the main feature of Curtis’ trial. The short answer to this potential criticism is that he was already a necessary feature of the trial, given the nature of the defense. Curtis presented evidence that Mr. Stephens had identified Butler, and the state countered that evidence by providing an alibi for Butler. Perhaps if Butler had been called to testify, he would have said that his confession was false and that he was telling the truth when he recanted it. But we could not say that a confession is neutralized merely because it was recanted. It is likely that most jurors would put greater weight on the confession than the subsequent recantation. We have no doubt that, if the defendant were the one who had confessed and then subsequently recanted his confession, the state could make a very effective argument to minimize the recantation.

Taking all of the relevant factors into consideration, we conclude that the exclusion of Butler’s confession denied the defendant his right to a fair trial. The jurors heard a great deal of evidence relating to Butler’s guilt or innocence. They heard from the defense that Mr. Stephens originally identified Butler as the shooter and that he was positive in his identification. They heard from the state that Butler could not have committed the crime, because he was home with his family at the time. The only thing the jurors did not hear is that Butler had confessed to the crime. Under the circumstances, this was a critical piece of evidence. Without it, the jurors could not have considered the remaining facts in a proper context.

Reversed and Remanded.

BROWNING, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, J.,

dissenting.

I find no reversible error in the trial court’s exclusion of the evidence in question and would affirm the judgment of conviction below.

      . We are aware of the fact that Brenton Butler's treatment by the Jacksonville Sheriff’s Office became the subject of a serious public controversy. However, it would not be appropriate for us to take into account the news articles written about the case in evaluating Butler’s confession. Our conclusions are necessarily based on the evidence presented in the record. There was no evidence presented to the jury in Curtis' case to prove or even suggest that Butler's confession was coerced.

      . At least one other court has noted that availability is treated as a positive factor in Chambers but as a negative factor in the declaration against penal interest exception to the hearsay rule. See United States v. MacDonald, 688 F.2d 224, 232 n. 13 (4th Cir.1982). The court did not attempt to explain why that is the case.


author: WOLF, C.J.

text:
    John GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4984.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Shasta W. Kruse, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Appellant, John Garrett, challenges a written order holding him in direct criminal contempt and sentencing him to 180 days in jail. Appellant asserts that the trial court erred in sentencing appellant without offering him an opportunity to present mitigating circumstances. We agree and reverse.

On October 3, 2003, appellant appeared for a jury trial on three separate criminal charges. His court-appointed attorney notified the judge that he was concerned that appellant was so intoxicated that he was not competent to proceed to trial, and the prosecutor stated that the case could be continued. The judge ordered appellant held in custody and dispatched the bailiff to retrieve a breathalyzer machine. The probation officer testified that appellant blew into her machine and it registered a .052 and a .075.

The Court: Okay. Thank you. Let me ask, does the state wish to ask Ms. King any questions?
State Attorney: No, Your Honor.
The Court: [Defense counsel]?
Defense Counsel: No, Your Honor.
The Court: Okay. Mr. Garrett [the defendant], you need to come up here to the microphone right now though. Mr. Garrett, I am ordering you to show cause why I should not hold you in direct contempt of court for coming to court intoxicated?
The Defendant: Your Honor, I apologize to the Court and also to my counsel. I was up all night. I took a shower this morning.
The Court: Okay. I’m not asking you for an explanation. I’m asking why I should not hold you in contempt?
The Defendant: It wasn’t intentional, Your Honor. It was just that I was in fear. That’s all out of fear. I felt as though whatever circumstances come out today that I would feel the impact of whatever circumstances might take place.
The Court: Okay. I don’t find that to be good cause. I find you to be in direct contempt of court, and sentence you to 180 days in the Leon County Jail. Your bond is revoked in the case that is pending before the Court and you’re remanded to the custody of the Sheriff.

The judge later entered a written order of contempt.

Rule 3.830, Florida Rules of Criminal Procedure provides:

A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall he given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

(Emphasis added).

Strict compliance with rule 3.830 is necessary to safeguard procedural due process. Berman v. State, 751 So.2d 612, 613 (Fla. 4th DCA 1999); Cook v. State, 636 So.2d 895, 896 (Fla. 3d DCA 1994). In O’Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987), this court determined that merely asking the defendant if he wished to explain his behavior was insufficient to meet the requirement that the defendant be given an opportunity to present evidence of excusing or mitigating circumstances. In Marshall v. State, 764 So.2d 908 (Fla. 1st DCA 2000), we cited O’Neal, and again reversed an order of direct criminal contempt because the judge “failed to give appellant an opportunity to present excusing or mitigating evidence.”

In the instant case appellant was neither informed that under the rule he could present mitigating circumstances, nor given a separate and distinct opportunity to present mitigating circumstances. In fact, the court specifically told appellant that it was not looking for an explanation. Under these circumstances we cannot conclude that the brief response of appellant substantially reflected what appellant would have presented if he had been given the opportunity contemplated by the rule.

The State also argues that appellant failed to preserve the issue for appellate review. Appellant responds that preservation of error is not required because any defect in the contempt proceeding is fundamental error. The cases relied on by appellant, Hagerman v. Hagerman, 751 So.2d 152 (Fla. 2d DCA 2000), and Hunt v. State, 659 So.2d 363 (Fla. 1st DCA 1995), involve rule 3.840, Florida Rules of Criminal Procedure, involving indirect criminal contempt; however, the State presents no cogent reason why direct criminal contempt should be treated differently from indirect criminal contempt for the purposes of preservation.

We therefore reverse without prejudice to the institution of proper contempt proceedings. Marshall v. State, 764 So.2d 908 (Fla. 1st DCA 2000).

BROWNING and HAWKES, JJ., concur.


author: BROWNING, J.

text:
    Michael Shawn McGOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2503.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Nancy A. Daniels, Public Defender; and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

We treat this as an appeal from Appellant’s resentencing under this Court’s mandate. Appellant argues two issues that have merit, and we reverse.

First, Appellant argues that the trial court erred at resentencing because Appellant was not present or represented by counsel, and we agree. A defendant has the right to be present during resentenc-ing from a meritorious rule 3.800(a) motion, and has the right'to be represented by counsel at such a resentencing. See, e.g., Bines v. State, 837 So.2d 1146 (Fla. 1st DCA 2003). Appellant alleges that he was denied both of these rights, and the record is devoid of contrary evidence. Appellant’s resentencing was more than a ministerial act, such as entering a written sentence where none exists, as in Williams v. State, 697 So.2d 584 (Fla. 4th DCA 1997), or changing the written sentence to conform with the oral pronouncement of sentence, as in Frost v. State, 769 So.2d 443 (Fla. 1st DCA 2000). See Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th DCA 2001) (citing those two cases in support of the proposition that a defendant’s presence is not required when resentenc-ing is merely a ministerial act). Accordingly, the trial court erred, the new sentence must be vacated, and Appellant must be resentenced at a hearing where he is both present and represented by counsel.

Second, Appellant is clearly entitled to resentencing as to his conviction under counts III and IV of the information because of the confusing amended sentencing documents, which do not appear to correct the error, and Appellee’s concession of such point.

REVERSED AND REMANDED.

KAHN and WEBSTER, JJ., concur.


text:
    Don Keanthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3192.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant seeks review of his conviction and sentence for failure to appear under section 843.15(l)(a), Fla. Stat. (2003). The state properly concedes error and we reverse.

A conviction under section 843.15(l)(a), Fla. Stat., requires proof of willfulness beyond a reasonable doubt. Lewis v. State, 380 So.2d 1191 (Fla. 5th DCA 1980). The state failed to present any evidence that Appellant willfully failed to appear. The evidence, viewed in a light most favorable to the state, shows that Appellant was unaware that his hearing date had been moved up from December 5, 2002, to November 26, 2002. “[W]here the evidence is unrefuted that the defendant was not notified to appear in court, the defendant cannot be convicted under the bail jumping statute, [because] his or her failure to appear must not be deemed willful.” 14 Fla. Jur.2d Criminal Law § 285 (2004), citing Lewis.

Accordingly, we REVERSE and REMAND to the trial court to vacate Appellant’s conviction and sentence for failure to appear.

KAHN and WEBSTER, JJ., concur.


text:
    John L. BURTON a/k/a Jamaal Ali Bilal, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3575.
    District Court of Appeal of Florida, First District.
    May 18, 2004.

      David L. Dees, Pensacola, for Appellant.
    Charles J. Crist, Jr., Attorney General and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Mitchell, 866 So.2d 776 (Fla. 1st DCA 2004); Tabor v. State, 864 So.2d 1171 (Fla. 4th DCA 2004). We certify the same question as one of great public importance:

DOES THE RYCE ACT REQUIRE THAT THE CURRENT INCARCERATION BE FOR A SEXUALLY VIOLENT OFFENSE?

WOLF, C.J., ERVIN and VAN NORTWICK, JJ„ concur.


text:
    Mary Taylor CHRISTENSEN, Appellant, v. Robert L. CHRISTENSEN and Advertising Services, Inc., Appellees.
    No. 1D03-5251.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Kimberly L. Boldt, Boca Raton; and William E. Whitlock, Tallahassee, for Appellant.
    William A. Friedlander, Key West; Michael T. Webster, Shalimar; Gregory D. Smith, Pensacola; and C. Ledon Anchors of Anchors, Foster & Mclnnis, Ft. Walton Beach, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of December 30, 2003, and January 29, 2004, the Court has determined that the order on appeal is not a final order because related claims remain pending below. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The appellant’s “Motion for Extension of Time for the Clerk of the Court,” filed on January 26, 2004, is denied as moot.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Benny Boyd MOONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5318.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Benny Boyd Mooney, pro se, petitioner.
    Charles Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 15, 2003, order denying a motion to correct illegal sentence in Dixie County Circuit Court case number 89-11-CF. 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 the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, DAVIS and POLSTON, JJ., concur.


text:
    Valarie Alma CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4834.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Rehearing Denied July 15, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal arises from a final order finding Valarie Ama Curry guilty of trafficking in cocaine. Curry was sentenced to ten years in prison. For the reasons expressed below, we reverse the conviction and order that Curry be discharged.

Curry’s first argument on appeal is that the trial court erroneously denied her motion to dismiss based on objective entrapment in light of the egregious conduct of the agents and officials. As a result of the allegedly egregious conduct, Curry contends her due process rights were violated and the case ought to have been dismissed. We agree.

There are two distinct theories of entrapment, a subjective theory and an objective theory. The subjective test is set forth in section 777.201, Florida Statutes, and is applicable in the absence of egregious law enforcement conduct. However, in the presence of egregious law enforcement conduct, an entrapment defense is to be objectively evaluated under the due process provision of article I, section 9, of the Florida Constitution. Munoz v. State, 629 So.2d 90 (Fla.1993).

This court recently summarized cases that have found entrapment based on the egregious conduct of police officers.

There are several examples of law enforcement conduct that rises to the level of offending due process. In State v. Williams, 623 So.2d 462 (Fla.1993), the Florida Supreme Court held that law enforcement manufacture of crack cocaine for use in a reverse sting operation near a school violated due process. Id. at 463. The court found this conduct to be outrageous, partially because crack cocaine is addictive and deadly. Id. at 466. Additionally, in State v. Glosson, 462 So.2d 1082 (Fla.1985), the court found a contingent fee arrangement for the testimony of an informant a violation of due process, because it “seemed to manufacture, rather than detect, crime.” Id. at 1084 (citing Williamson v. United States, 311 F.2d 441 (5th Cir.1962)).

Farley v. State, 848 So.2d 393 (Fla. 4th DCA 2003).

In Farley, the most recent case out of this court on this issue, we reversed the appellant’s conviction and found that he had established entrapment as a matter of law. In Farley the defendant was targeted by officers in a reverse sting operation looking for individuals involved with child pornography. Farley’s name and personal information were discovered on a list that was generated in relation to the investigation of a child pornography ring out of Texas. The government agent sent Farley spam email attempting to have Farley seek pornographic material. Farley sent some responsive emails describing what he was looking for and eventually ordered some YHS tapes. Farley was arrested after purchasing the tapes from an undercover officer posing as a postal worker. This court found that Farley was objectively and subjectively entrapped. Id.

The Farley opinion specifically noted that “Farley was not involved in an existing criminal undertaking in need of detection by law enforcement; rather, LEACH sought to manufacture crime based on a list of names and addresses of unknown origin.” Id. A similar result was reached in State v. Finno, 643 So.2d 1166, 1169 (Fla. 4th DCA 1994) (Objective entrapment established where government created a loan-sharking scheme where none previously existed.).

Where the government supplies all of the instrumentalities of a crime, controls all of its aspects, and teaches the intended target how to commit the crime for purposes of arresting him, as the trial court found here, there is no crime at all without government involvement. No legitimate objective of government is accomplished by prosecuting a crime so totally and completely orchestrated by the government. We conclude that this activity violates due process.

Id.

In the case at bar, the state argues that entrapment was not established because there was no evidence of inducement. The state further contends that the three step test utilized in a subjective entrapment analysis is applicable. However, as discussed above, the two theories of entrapment are distinct. The state’s analysis is misguided and has no bearing on the issue of objective entrapment.

The facts of this case are akin to those in Farley and Finno in that there is no indication Curry was involved with any criminal undertaking prior to the involvement of law enforcement. In fact, the facts of this case are even more egregious than those in Farley. In Farley the defendant’s name was generated from a list that was discovered as part of the investigation of a child pornography ring in Texas. In that case, there was some tangible information law enforcement could have relied upon in looking to Farley for potential criminal activity. In the case at bar, the officer received all the information regarding Curry from a Cl who was paid by the government and who was not available to testify as to where and why he felt Curry was involved with cocaine trafficking. Moreover, the unrefuted testimony of Curry was that she met and interacted with the Cl for some time before the detectives were involved. Detective Murray specifically instructed the Cl to not contact Curry without police involvement.

Moreover, the Cl is a paid informant. Contingency fees based on the testimony of a Cl have been held to violate due process rights and amount to entrapment. State v. Glosson, 462 So.2d 1082 (Fla.1985). The concern in Glosson was that the practice of paying a Cl a contingency fee may manufacture, rather than detect, crime. Id. at 1084. Although distinguishable, that concern exists here.

In the case sub judice, the conduct of the Cl was egregious. The record demonstrates that the Cl approached Curry some time before the detective was involved with any investigation. The Cl encouraged a romantic relationship with Curry involving sexual activity. The Cl also gave Curry money to help pay her mortgage. When the Cl asked her to help him sell cocaine, she said no. It was only after an abundance of phone calls from the Cl, and later the detective, that she acquiesced. The Cl provided the cocaine and repeatedly met with Curry at her place of employment. In sum, there was no crime without the Cl’s prodding and improper conduct, which rose to the level of egregious. For this reason, Curry’s due process rights were violated. The trial court should have found entrapment as a matter of law and granted the motion to dismiss.

We therefore reverse the conviction and instruct the trial court to proceed in a manner consistent with this opinion.

GUNTHER, POLEN and MAY, JJ„ concur.