text:
    Darius CHAMBERS v. STATE.
    CR-02-1312.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Darius Chambers, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

Darius Chambers appeals the district court’s summary dismissal of his Rule 32, Ala. R. Crim. P., petition. As best we can discern, Chambers’s petition sought post-conviction relief from both his April 17, 1998, conviction for possession of a forged instrument and the February 8, 2002, revocation of his probation. Chambers entered a guilty plea to possession of a forged instrument and was placed on probation. His direct appeal challenging his conviction for possession of a forged instrument was affirmed by an unpublished memorandum. Chambers v. State (CR-97-1575), 744 So.2d 960 (Ala.Crim.App.1998) (table), and the certificate of judgment was issued on October 20, 1998. Chambers’s probation was revoked on October 26, 2001. His appeal from the revocation of his probation was affirmed. Chambers v. State (CR-01-1047, August 9, 2002), 868 So.2d 483 (Ala.Crim.App.2002) (table). The certificate of judgment was issued on August 27, 2002. The instant petition was filed on March 18, 2003.

On the checklist provided on the Rule 32, Ala. R. Crim. P., form, Chambers checked the following as possible grounds in support of his petition: 1) “the Constitution of the United States or the State of Alabama requires a new trial”; 2) “[cjon-viction obtained by a violation of the protection against double jeopardy”; 3) “[d]e-nial of effective assistance of counsel”; 4) “[t]he court was without jurisdiction to render the judgment or to impose the sentence” because Chambers was not given notice that his sentence for possession of a forged instrument would be enhanced under the Habitual Felony Offender Act; 5) “[t]he sentence imposed exceeds the maximum allowed by law” because Chambers should have been sentenced as a first-time offender; 6) “[pjetitioner is being held in custody after his sentence has expired”; and 7) “[njewly discovered material facts exist which require that the conviction or sentence be vacated.” In the memorandum in support of his petition, Chambers asserted the following: 1) that Chambers was not allowed to call witnesses at his probation-revocation hearing; 2) that Chambers’s attorney did not interview him or visit him before the probation-revocation hearing; 3) that the record incorrectly reflects that Richard Izzi was appointed to represent Chambers at his revocation hearing; and 4) that Chambers did not agree to the term of probation imposed. A second petition, also dated March 18, 2003, which is identical to the original petition, is also included in the record. However, attached to this petition is an “addendum to Rule 32 petition.” (C.R. 43.) In the addendum Chambers asserted: 1) that the State did not give notice that it would seek to impose the Habitual Felony Offender Act; 2) that Chambers should be sentenced as a first-time offender, and, thus, that his 15-year sentence exceeds a lawful sentence; 3) that the State did not prove that Chambers was represented by an attorney in his prior conviction; 4) that a jury did not hear evidence of his prior convictions, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and 5) that the record is devoid of certified copies of alleged prior convictions.

The circuit court treated Chambers’s petition as challenging convictions in case no. DC-97-8419 (second-degree theft of property) and case no. DC-98-1450 (second-degree possession of a forged instrument), and without answer from the State, entered a judgment on the case action summary sheet in both cases stating: “3/31/03. The new rule 32 which has been filed has been considered and reviewed and is Denied.” (C.R. 1 and 10.)

On appeal Chambers contends that the circuit court erred in summarily dismissing his Rule 32 petition before receiving a response from the State; erred in summarily dismissing his petition without making written findings of fact; and erred in summarily dismissing his petition because his claim that his probation was revoked absent the record reflecting he was advised of the rules governing supervised probation had merit.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

By accepting the petition as a challenge to both case no. DC-97-8419 and case no. DC-98-1450, the circuit court permitted Chambers to challenge multiple convictions in a single Rule 32 petition. Rule 32.1, Ala. R. Crim. P., as amended August 1, 2002, requires the dismissal without prejudice of a petition challenging “multiple judgments entered in more than a single trial or guilty-plea proceeding.” Thus, because the face of the petition stated that Chambers was challenging his conviction for possession of a forged instrument (DC-98-1450), the circuit court must vacate its ruling as to the convictions for second-degree theft of property (DC-97-8419).

Likewise, Chambers’s arguments pertaining to the revocation of his probation cannot be presented in the instant Rule 32 petition, which purported to challenge his conviction and sentence for possession of a forged instrument. Thus, these arguments are not properly before this Court and will not be addressed. A challenge to the revocation of his probation should be presented in a separate Rule 32, Ala. R. Crim. P., petition. See Rule 32.1, Ala. R. Crim. P.

We find as follows regarding the claims raised by Chambers on appeal that are properly before us.

The circuit court need not require a response from the district attorney before it denies a Rule 32 petition. attorney.’ Bishop v. State, 608 So.2d 345 (Ala.1992) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala.Cr.App.1991) (Bowen, J., dissenting)).”

“ “Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district

Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992); see Rule 32.7(d), Ala. R. Crim. P. Here, none of the claims presented in Chambers’s petition or the addendum to his petition was pleaded with any specificity. The claims were clearly bare allegations, unsupported by any factual basis; accordingly, the claims failed to satisfy either the pleading requirements of Rule 32.3, Ala. R. Crim. P., or the specificity requirements of Rule 32.6(b), Ala. R. Crim. P. In particular, there was no indication that Chambers was improperly sentenced as a habitual felon or that his sentence exceeds the maximum sentence allowed by law. Thus, summary dismissal of Chambers’s petition was appropriate. Moreover, the record reflects that the claims, as best we can discern them, do not impugn the jurisdiction of the court to render judgment or impose sentence. Instead, the record reflects that the claims were viable at trial, but were not raised at trial or on appeal. Thus, they are precluded from review by Rule 32.2(a)(3) and (5), Ala. R. Crim. P. Kuk v. State, 602 So.2d 1213 (Ala.Crim.App.1992).

Chambers contends that the trial court failed to issue specific findings of fact concerning the dismissal of his petition. Rule 32.9(d), Ala. R. Crim. P., requires the circuit court to make specific findings of fact only after an evidentiary hearing or the receipt of affidavits in lieu of a hearing.

Chambers claims that the trial court erred in summarily dismissing his petition because, he says, his allegation that his probation was revoked absent the record’s reflecting he was advised of the rules governing supervised probation had merit. As stated above, this claim is not properly before this Court. Moreover, we note that this claim was raised for the first time on appeal. The new claims that petitioner presents for the first time on appeal are not properly before us. See Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997)(holding that “[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition”).

For the foregoing reasons, the circuit court’s summary dismissal of Chambers’s Rule 32, Ala. R.Crim. P., petition as it challenges Chambers’s conviction and sentence in DC-98-1450 is affirmed. However, this case is remanded with directions to the trial court to vacate its judgment summarily dismissing Chambers’s Rule 32, Ala. R. Crim. P., in case DC-97-8419, as that case was not challenged in Chambers’s petition.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; BASCHAB, J., concurs in the result.

      . Chambers received split sentences following an August 1997 conviction for second-degree theft of property (DC-97-8419), and an April 1998 conviction for second-degree possession of a forged instrument (DC-98-1450). Each sentence provided for a five-year probationary period to follow the portion of the sentence requiring incarceration. Probation in both cases was revoked on February 8, 2002.

      . Chambers added a notation on the form next to the grounds 4 and 5 listed here to apprise the' court of his specific complaint.

      . Chambers received a 15-year split sentence after his conviction for possession of a forged instrument. He received a 10-year split sentence after his conviction for theft of property.

      .The circuit court's reference to the "new” Rule 32 petition appears to be a reference to the petition filed with the addendum to the Rule 32 petition.

      . "A petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.” Rule 32.1, Ala. R. Crim. P., as amended August 1, 2002.

      . The face of Chambers's petition reflects that Chambers was challenging convictions in case no. DC-97-8419 (second-degree theft of property) and case no. DC-98-1450 (second-degree possession of a forged instrument). However, Chambers also stated on the face of the petition that the "[njature of the offense involved (all counts)” was merely "criminal possession of a forged instrument (second degree.)” (C.R. 21 and C.R. 35).

      .In particular, the addendum to his original petition, which the circuit court considered to be Chambers’s "new” petition and the petition it appears the circuit court reviewed, appears to challenge only Chambers’s conviction and sentence for possession of a forged instrument.

      . The Court of Criminal Appeals can take judicial notice of its own records. Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987). This Court's unpublished memorandum affirming Chambers’s conviction for second-degree criminal possession of a forged instrument, Chambers v. State, 744 So.2d 960 (Ala.Crim.App.1998)(table), reflects that Chambers was sentenced as a habitual felon with three prior felony convictions. Nothing in Chambers's Rule 32, Ala. R. Crim. P., petition suggests otherwise.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4740.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2003.
   PER CURIAM.

Thomas Martin appeals the trial court’s denial of his petition for writ of habeas corpus filed pursuant to Florida Rule of Criminal Procedure 3.850(h). We reverse and remand for an evidentiary hearing.

In his petition, Martin claims that he hired counsel for the purpose of filing a motion for postconviction relief pursuant to rule 3.850 and that she failed to do so. Attached to Martin’s petition is a letter from his attorney in which she responds to Martin after receiving a copy of a complaint Martin filed with the Florida Bar. The trial court correctly concluded that based on the contents, of the attorney’s letter combined with the allegations in Martin’s petition “there appears to be an evidentiary issue as to whether [counsel] was in fact retained to file a 3.850 motion.”

However, instead of ordering an eviden-tiary hearing, the trial court concluded “the need for a hearing is obviated” because “this court has already addressed the issues to be raised.” The trial court then undertook to address the issues yet again “in the interests of at last resolving this matter.” In its order, the trial court purports to identify the issues that Martin seeks to raise in his potential rule 3.850 as being related to gain-time, based on references to “volumes of writing” and motions that appear in the trial court record that are neither attached to the trial court’s order nor included in the record on appeal. The trial court also places significance on the fact that Martin signed a plea agreement to a specified term of incarceration in which he indicated that no one promised him anything to entice him to agree to the sentence. The plea agreement is attached to the trial court’s order. However, such an acknowledgment by a defendant does not preclude a claim of affirmative misadvice by trial counsel regarding gain-time entitlement. See Scurry v. State, 702 So.2d 568 (Fla. 2d DCA 1997); Regan v. State, 730 So.2d 828 (Fla. 1st DCA 1999).

We appreciate the trial court’s frustration with this case and the attempt to resolve this matter without further delay. However, on the record before this court, we are unable to determine exactly what Martin’s underlying postconviction claim is and whether the trial court has, in fact, already addressed it either in a previous order or in the order on appeal.

In this appeal, we are called upon to address the denial of Martin’s petition for writ of habeas corpus. Martin alleges that he hired counsel to file a postconviction claim and that no such claim was filed. Whether counsel actually agreed to file a claim and failed to do so is the issue raised in Martin’s petition for habeas corpus which has yet to be addressed.

Accordingly, we reverse the trial court’s order denying Martin’s petition for writ of habeas corpus and remand for the trial court to conduct an evidentiary hearing to determine whether Martin’s attorney agreed to file a timely rule 3.850 motion for postconviction relief but failed to do so.

Reversed and remanded with directions.

FULMER, STRINGER, and COVINGTON, JJ., Concur.


author: CANADY, Judge.

text:
    OSMO TEC SACV CO., a Florida corporation; Roger Biset; and Jose Cervera, Appellants, v. CRANE ENVIRONMENTAL, INC., a Delaware corporation, Appellee.
    No. 2D03-498.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.
    Daniel Joy of Law Office of Daniel Joy and Thomas C. Valentine of Valentine & Gorman, Sarasota, for Appellants.
    Lawrence P. Bermis and Michael S. McCauley of Kirkland & Ellis, Los Ange-les, CA, and Digna B. French of Steel Hector & Davis LLP, Miami, for Appellee.
   CANADY, Judge.

The appellants, Osmo Tec SACV Co., Roger Biset, and Jose Cervera, appeal an order finding them in contempt for violating an injunction entered in a lawsuit to which they were not parties. Because we conclude that the appellants did not violate the injunction, we reverse.

I. BACKGROUND

The injunction that the appellants were found to have violated resulted from litigation filed by Crane Environmental, Inc., the appellee, against Edward Closuit, My-riam Murphy, and Andalite Industries, Inc., who are not parties to this appeal. Crane Environmental’s suit alleged violations of noncompete agreements entered in connection with Crane Environmental’s purchase of Environmental Products USA, Inc. (EP USA), a company that manufactured water filtration systems. Closuit and Murphy, who are husband and wife, both had roles in the leadership of EP USA before it was sold, and both served terms as its president. As a part of the sale of EP USA, a number of persons, including Closuit and Murphy, agreed to five-year noncompete agreements with Crane Environmental. After the sale, Crane Environmental employed Closuit for a short time, but ultimately his relationship with Crane Environmental soured and his employment ended.

Shortly following Closuit’s departure from Crane Environmental, Closuit and Murphy reentered the water filtration business. They incorporated Andalite Industries and registered “Haliant Technologies” as a fictitious name for the corporation. Under that name, Andalite Industries began selling water filtration systems similar to those produced by EP USA and Crane Environmental.

Crane Environmental filed suit and requested a temporary injunction to prevent violation of the noncompete agreement. The trial court entered a temporary injunction, requiring that “Andalite Industries/Haliant Technologies” cease its business operations pertaining to reverse osmosis water filtration systems, “whether through Haliant or a third party.” Further, the court required that “Andalite Industries/Haliant Technologies” cease and desist from soliciting Crane Environmental employees and from using Crane Environmental’s proprietary information and marketing materials with depictions of Crane Environmental products. Closuit and Murphy were not personally enjoined by the order.

After this injunction was issued, Murphy and Closuit entered into negotiations with Crane Environmental concerning an orderly shut-down of Andalite Industries’ water filtration business under the terms of the temporary injunction. At the same time, Closuit and Murphy made arrangements— without informing Crane Environmental— to sell the assets of Andalite Industries’ Haliant Technologies division to Osmo Tec. Osmo Tec purchased virtually all of the assets used by Andalite Industries for its water filtration business. The purchase agreement transferred various items of capital equipment and inventory and also provided for the transfer of intangible property, including the fictitious name “Haliant Technologies” and the internet address and telephone numbers used in Andalite Industries’ water filtration business.

When it discovered that Andalite Industries had sold these assets, Crane Environmental moved to have Closuit, Murphy, Andalite Industries, and the appellants held in contempt for violating the temporary injunction. This motion was filed in conjunction with the lawsuit against Clo-suit, Murphy, and Andalite Industries to which the appellants were not parties. In the motion for contempt, Crane Environmental argued that Osmo Tec was in contempt for continuing Andalite Industries’ water filtration business. Crane Environmental also moved for a contempt order against Biset and Cervera, alleging that Biset managed Osmo Tec’s operation and that Cervera was the owner of Osmo Tec.

At the contempt hearing, where the appellants were represented by counsel, the trial court orally concluded that the appellants should be held in contempt, noting that the appellants had knowingly purchased “as [a] going concern” a business that the court had effectively ordered shut down. In its written order (the order on appeal), the court stated that Haliant Technologies’ existence as a business was “the fruit of illicit conduct” and that the appellants had actual knowledge of the injunction enjoining its operations. The contempt penalty imposed against the appellants was an additional injunction specifically enjoining the appellants from “conducting business operations pertaining to [a] membrane-based water purification business through the name Haliant, Hali-ant Technologies!,] or any derivative thereof’ and also enjoining the use of any of the assets acquired from Andalite Industries in furtherance of a water purification business. The injunction also prohibited the appellants from using the internet address, telephone numbers, software, customer lists, and other intellectual property obtained from Andalite Industries.

II. ANALYSIS

Florida Rule of Civil Procedure 1.610(c) provides:

Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.

Two provisions of this rule are particularly pertinent here: (1) an injunction is binding and enforceable against “persons in active concert or participation with” the parties named in an injunction if those persons have “reeeive[d] actual notice of the injunction,” and (2) “[e]very injunction ... shall describe in reasonable detail the act or acts restrained.”

Corollary to the requirement that enjoined acts be described “in reasonable detail” is the rule that a contempt sanction may not be imposed for the violation of an injunction unless the purportedly contemptuous act clearly contravenes the injunction. See Power Line Components, Inc. v. Mil-Spec Components, Inc., 720 So.2d 546, 548 (Fla. 4th DCA 1998) (“A party may not be held in contempt of an injunction that is ambiguous and could reasonably be interpreted in two ways.”). Moreover, “[a]n essential finding to support contempt is the party’s intent to violate the court order at issue.” Merrill Lynch Trust Co. v. Alzheimer’s Lifeliners Ass’n, 832 So.2d 948, 954 (Fla. 2d DCA 2002) (citing Power Line Components, 720 So.2d at 548).

The appellants do not dispute that they had knowledge of the injunction at issue in this case prior to their purchase of assets from Andalite Industries. Nor do they contest that the assets that Osmo Tec purchased from Andalite Industries permitted the continuance of Andalite Industries’ Haliant Technologies’ operations essentially without interruption. Instead, they contend that the injunction enjoining “Andalite Industries/Haliant Technologies” from continuing operations did not prohibit the sale of the assets of Andalite Industries to a third party. We agree.

If the trial court intended to prohibit the sale of Andalite Industries’ assets, the temporary injunction does not reflect that intention. The temporary injunction is devoid of a description “in reasonable detail” of the conduct for which the trial court has held the appellants in contempt; there is no basis for concluding that the appellants intended to violate the injunction. Accordingly, the contempt order must be reversed.

From a review of the transcript of the contempt hearing, it is apparent that the trial court’s rationale for finding the appellants in contempt was its belief that the purpose of the injunction was to destroy the ongoing operations of a company that had grown as a result of violations of a valid noncompete agreement. However, that purpose was not reflected in the written order imposing the injunction. The temporary injunction specifically enjoined neither the sale of any asset of Andalite Industries nor the use of the name of Haliant Technologies by any third parties — such as the appellants — in connection with a water filtration business.

Our conclusion is not altered by the fact that the injunction specifically enjoined the activities of “Andalite Industries/Haliant Technologies” and Osmo Tec acquired and used the trade name Haliant Technologies. Obviously Andalite Industries, a Florida corporation, could properly be enjoined. Haliant Technologies, a fictitious name, had no independent legal existence and could not be enjoined; any reference to Haliant Technologies was simply a reference to Andalite Industries. See Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 539 (Fla. 2d DCA 2000) (noting that “[a] fictitious name is just that — a fiction involving the name of the real party in interest, and nothing more”). And the reference to Ha-liant Technologies in the injunction was not sufficient to prohibit the use of that name by a third party such as Osmo Tec.

Additionally, we address the language of the injunction that prohibited Andalite Industries from continuing its water filtration business “whether through Haliant or a third party.” There is no evidence that the sale of assets was an attempt by An-dalite Industries to continue to participate in the water filtration business through a third party. Although Andalite Industries maintains a security interest in the assets it sold to Osmo Tec, this was a natural consequence of the parties’ decision to privately finance the transaction. The amount to be paid to Andalite Industries under the asset purchase agreement is fixed and is not contingent on Osmo Tec’s profits. Under the sale agreement with Osmo Tec, Andalite Industries is not continuing its involvement in the water filtration business.

III. CONCLUSION

Because the provisions of the prior injunction did not prohibit the conduct for which the trial court found the appellants to be in contempt, we reverse the trial court’s contempt order in its entirety and remand for the entry of an order denying the motion for contempt against the appellants.

Reversed and remanded.

VILLANTI and WALLACE, JJ„ concur.


author: SILBERMAN, Judge. ALTENBERND, Chief Judge,

text:
    Mark ONDREY, Petitioner, v. Florence PATTERSON, as Personal Representative of the Estate of John W. Patterson, deceased, Respondent.
    No. 2D03-2338.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
    Rehearing Denied April 30, 2004.

      Thomas E. Spencer, Sr. Assistant County Attorney, Clearwater, for petitioner.
    Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Petersburg, for respondent.
   SILBERMAN, Judge.

Florence Patterson, as the personal representative of the estate of her son, John W. Patterson, sued Mark Ondrey, a corrections officer with the Pinellas County Sheriffs Office, and others, for the wrongful death of Mr. Patterson. Mr. Patterson committed suicide while he was being held in the Pinellas County Jail. In a motion for summary judgment, Corporal Ondrey alleged that the principles of sovereign immunity and qualified immunity precluded suit against him. The trial court denied Corporal Ondrey’s motion. We have certiorari jurisdiction to review the denial of a motion for summary judgment on the issue of immunity. See Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002); Stephens v. Geoghegan, 702 So.2d 517, 521 (Fla. 2d DCA 1997). Based on the record before us, we conclude that the trial court did not depart from the essential requirements of law; therefore, we deny Corporal Ondrey’s petition.

Mr. Patterson turned himself in to the Pinellas County Jail after he learned that there was a warrant for his arrest for violation of probation. Booking officers were provided with various medications that had been prescribed to Mr. Patterson for depression and bipolar disorder with psychotic features. Mr. Patterson disclosed a prior suicide attempt, and a psychiatric assessment was performed. The assessment records reflect that Mr. Patterson was anxious, manic, and fearful and that he displayed some confusion. Prior to going to the jail, Mr. Patterson had been hospitalized for depressed mood and suicidal ideation, but the intake records noted that he was not demonstrating suicidal or violent ideation.

Mr. Patterson was held at the jail in a psychological observation unit from September 28,1999, until his death on October 1, 1999. Corporal Ondrey was on duty in the unit between 3:30 p.m. and 11:45 p.m. on September 30, during which time he had contact with Mr. Patterson..

In his affidavit and deposition testimony, Corporal Ondrey acknowledged that he observed Mr. Patterson weaving something with a shoelace and that he asked Mr. Patterson what he was doing. Mr. Patterson told Corporal Ondrey that he was weaving a cross. Corporal Ondrey took the shoelace away as contraband. Corporal Ondrey testified that shoestrings and other items of clothing are used by inmates to try to commit suicide. He stated that he had been trained on how to assess inmates for suicidal ideation, plan, and execution. To prevent suicides, a detention officer monitors inmates and provides to them care, custody, and control. If an inmate posed a suicide risk or expressed suicidal thoughts, the officer would contact the medical staff and document the inmate’s statements. Corporal Ondrey testified that Mr. Patterson gave no indication that he was contemplating suicide and that he was unaware of any information that Mr. Patterson was suicidal or had a history of psychological symptoms.

On September 30, 1999, Tajhon Wilson was an inmate in a cell neighboring Mr. Patterson’s cell. Mr. Wilson testified in deposition that he saw Mr. Patterson using a rosary with very strong string to try to commit suicide. Mr. Patterson told Mr. Wilson that he “couldn’t take it no more,” and Mr. Wilson reported this to Corporal Ondrey. Mr. Wilson observed Corporal Ondrey go to Mr. Patterson’s cell, and he heard Mr. Patterson tell Corporal Ondrey that he “can’t take it” and that he was going to commit suicide. According to Mr. Wilson, Corporal Ondrey responded, “Don’t tell me nothing like that. You ain’t attempting suicide. Don’t tell me nothing like that. You will be all right.” Corporal Ondrey took the rosary, counseled Mr. Patterson for another minute, and left the area.

Mr. Wilson testified that Mr. Patterson then tied a shoelace to a towel rack. Mr. Wilson told Corporal Ondrey, who responded, “Don’t worry about it, he will be all right.” Mr. Wilson learned the next morning that Mr. Patterson had committed suicide by hanging himself with a shoelace tied to the towel rack during the early morning hours of October 1.

Corporal Ondrey disputed Mr. Wilson’s testimony. He stated that he had no reason to believe that Mr. Patterson was suicidal and that he did not have any conversations with Mr. Wilson concerning Mr. Patterson.

In count two of its complaint, the estate alleged that Corporal Ondrey “was acting, or omitting to act in the scope of his employment or function” with the sheriffs office. The complaint asserted that Corporal Ondrey was liable for Mr. Patterson’s wrongful death by willfully and wantonly disregarding Mr. Patterson’s human rights and safety by; among other things, failing to act in a manner that would have prevented Mr. Patterson’s suicide. In count eight, the estate brought a claim pursuant to 42 U.S.C. § 1983 and alleged that Corporal Ondrey violated Mr. Patterson’s constitutional rights by being “reckless and deliberately indifferent,” by ignoring that Mr. Patterson. was “vulnerable and an obvious and imminent risk of suicide or harm to himself,” and by failing to take action to prevent Mr. Patterson’s suicide.

In his motion for summary judgment, Corporal Ondrey asserted that he was immune from suit. The trial court denied the motion, finding that Mr. Wilson’s deposition testimony raised a substantial question of material fact as to the issues of qualified immunity under 42 U.S.C. § 1983 and sovereign immunity under section 768.28(9)(a), Florida Statutes (1999). In reviewing the trial court’s ruling on Corporal Ondrey’s motion we are required to view all of the facts and inferences in the light most favorable to the estate as the nonmoving party. See Stroud v. Strawn, 675 So.2d 646, 647 (Fla. 2d DCA 1996).

With respect to sovereign immunity, section 768.28(9)(a) provides the following:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, ■ or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. ... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(Emphasis added.) The issue for summary judgment with respect to Corporal Ondrey’s defense of sovereign immunity was whether he showed as a matter of law that he did not act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights or safety so that he could not be held personally liable for Mr. Patterson’s death.

Because the trial court’s order comes to this court on a petition for certiorari review, Corporal Ondrey must establish that the trial court departed from the essential requirements of law, resulting in material injury that cannot be corrected in a post-judgment appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). The jurisdictional threshold of whether there is material injury that cannot be corrected in a later appeal has been met. See Bd. of Regents, 826 So.2d at 387 (recognizing that a defendant claiming qualified or sovereign immunity would suffer material harm, irreparable on appeal after judgment, if the defendant were required to go to trial because the defendant could not later be reimmunized from suit). Thus, we must determine whether Ondrey has established that the trial court’s order constitutes “a violation of a clearly established principle of law that resulted in a miscarriage of justice.” Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639 (Fla. 2d DCA 2003) (citing Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

Pursuant to section 768.28(9)(a), an employee such as Corporal Ondrey does not have sovereign immunity protection if he acts in bad faith, with malicious purpose, or in wanton and willful disregard of human rights, safety, or property. This court has previously stated that an employee’s conduct must be something greater than gross negligence in order to be actionable under section 768.28(9)(a). See Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 592-94 (Fla. 2d DCA 2003).

Mr. Wilson’s testimony, even though disputed by Corporal Ondrey, is evidence that Corporal Ondrey disregarded the danger that Mr. Patterson posed to himself. According to Mr. Wilson, Mr. Patterson specifically told Corporal Ondrey that he was going to commit suicide; Corporal Ondrey offered Mr. Patterson a few words of comfort and took away a shoelace or rosary; Mr. Patterson then tied a shoelace to a towel rack, and Mr. Wilson notified Corporal Ondrey; and Corporal Ondrey responded that Mr. Wilson should not worry about it, and he did not return to Mr. Patterson’s cell or remove the shoelace. Corporal Ondrey took no further action such as notifying medical personnel or others of his interaction with Mr. Patterson and his purported discussions with Mr. Wilson. The estate argues that this evidence supports its claim that Corporal On-drey wantonly and willfully disregarded Mr. Patterson’s rights and safety by not preventing Mr. Patterson from committing suicide or from using items that could be used to effect his suicide.

The trial court found that Mr. Wilson’s deposition testimony raised a substantial question of material fact for resolution by the jury concerning Corporal Ondrey’s immunity. Assuming that a jury believes Mr. Wilson’s testimony, we agree with the trial court that the jury could conclude that Corporal Ondrey’s failure to act under the circumstances amounted to a wanton and willful disregard of Mr. Patterson’s safety.

The dissent suggests that an employee such as Corporal Ondrey should not lose sovereign immunity protection unless the employee’s conduct approaches conduct that lies outside the course and scope of employment. The dissent’s analysis here is that the governmental employer should have the exposure for liability and Corporal Ondrey should be immune.

We cannot agree with the dissent’s position because under section 768.28(9)(a), an employee is liable for acts or omissions that are committed within the scope of employment but are committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety; or property. Conversely, the statute frees the governmental employer from liability for acts that are committed outside- of the employee’s course and scope of employment or are committed by the employee in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Accordingly, we conclude that the trial court did not depart from the essential requirements of law in denying Corporal Ondrey’s motion for summary judgment as to sovereign immunity.

With respect to Corporal On-drey’s claim of qualified immunity under section 42 U.S.C. § 1983, “[t]he doctrine of qualified immunity insulates government officials from personal liability for money damages for actions taken pursuant to their discretionary authority.” Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990). Qualified immunity applies in situations where the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Deliberate indifference to a prisoner’s psychiatric needs can amount to a violation of a prisoner’s right not to be subject to cruel and unusual punishment under the Eighth Amendment. Greason, 891 F.2d at 834.

The record evidence reflects a genuine issue of material fact: whether a reasonable person in Corporal Ondrey’s position would have known that his actions and omissions, under all of the circumstances, amounted to a deliberate indifference to Mr. Patterson’s psychiatric needs and constitutional rights. See id. at 834 — 35. Accordingly, the trial court did not depart from the essential requirements of law by denying Corporal Ondrey’s motion for summary judgment as to qualified immunity-

Regarding the other issues raised in Corporal Ondrey’s petition, we deny relief without discussion.

Petition denied.

DAVIS, J., Concurs.

ALTENBERND, C.J., Concurs in part and dissents in part with opinion.

ALTENBERND, Chief Judge,

Concurring in part and dissenting in part.

I concur with the court’s decision denying certiorari review of the defenses raised as to 42 U.S.C. § 1983. I dissent as to the denial of review of the defense of sovereign immunity brought pursuant to section 768.28(9), Florida Statutes (1999). In my opinion, the evidence in this case, in the light most favorable to the plaintiff, reveals only that Corporal Ondrey made an error assessing the gravity of Mr. Patterson’s condition. The evidence does not establish the type of claim that creates liability for a government employee while relieving a governmental subdivision of such liability.

I accept the facts as stated by the majority’s opinion. I would point out that Corporal Ondrey did not know all of the information provided to the booking officer or to other employees of the sheriff. He is a 32-year-old deputy assigned to supervise people in the county jail. He is a graduate of a correctional academy, not a trained psychologist or psychiatrist. He had contact with Mr. Patterson during a single work shift at the jail.

I agree that these facts establish a cause of action against the Pinellas County Sheriffs Office, as a governmental subdivision, sufficient to permit a jury to decide that Corporal Ondrey was negligent and that his negligence was a legal cause of Mr. Patterson’s death. See Beard v. Hambrick, 396 So.2d 708 (Fla.1981). I simply disagree that these facts permit a claim against Corporal Ondrey, individually, for which the sheriff would not be liable.

When the Florida Legislature created a limited waiver of sovereign immunity, it sought to protect government employees from personal liability. To that effect, the legislature enacted section 768.28(9)(a), which is quoted in the majority opinion. Pursuant to this statute, in order for Corporal Ondrey to be liable individually and for the sheriff to be free from liability, either the estate or the sheriff must establish that Corporal Ondrey acted “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human ... safety.” See § 768.28(9). No one seriously suggests that Corporal Ondrey acted with malicious purpose. I agree that the type of conduct that establishes “wanton and willful disregard of human safety” is more difficult to define. See Ingram v. Pettit, 340 So.2d 922, 924 (Fla.1976) (explaining the difficulty of dividing negligence into degrees); see also Fleetwood Homes of Fla., Inc. v. Reeves, 838 So.2d 857, 866 (Fla. 2d DCA 2002).

In the context of this statute, “wanton and willful disregard of human safety” should involve conduct of the type that at least approaches conduct that is “outside the course and scope of his or her employment.” See § 768.28(9), Fla. Stat. (1999). In other words, it should be limited to the most extreme misconduct that still manages to fall within the governmental employee’s scope of employment. Under the facts in this case, it is obvious that Corporal Ondrey was well within the course and scope of his employment. In hindsight, it clearly would have been better had he decided to transfer this man to the area designed for suicidal prisoners. However, Corporal Ondrey’s behavior demonstrates only that he misjudged Mr. Patterson’s level of depression, nothing more. His statement to Mr. Patterson that he was not ready to die may have been inadequate lay therapy, but I see nothing in these facts that creates an issue of willful and wanton disregard of human safety. In other contexts, willful and wanton negligence is a high standard that requires conduct more culpable than gross negligence. See Sierra v. Associated Marine Inst., Inc., 850 So.2d 582 (Fla. 2d DCA 2003); Fleetwood Homes, 833 So.2d at 866; W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 34, at 212-14 (5th ed. 1984) (“The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a higher degree of danger is apparent.”). If anything, the willful and wanton disregard standard under this statute should be more protective of the governmental employees than these common law corollaries. See generally Rupp v. Bryant, 417 So.2d 658, 671 (Fla.1982) (Boyd J., dissenting).

I am inclined to believe that the major difference between my approach to this case and that of the majority hinges on the role of the trial judge as gatekeeper in this context. This statutory waiver of sovereign immunity was designed to provide a level of protection for injured plaintiffs while simultaneously protecting public employees from unlimited personal liability. This statute protects public employees in a fashion similar to the protection provided by private employers for their employees through the purchase of liability insurance coverage. By protecting the state employee from personal liability, the statute encourages state employees to provide honest, unfettered testimony concerning claims against the state. The statute contemplates that state employees -will rarely be named parties in these cases and will rarely need to retain separate counsel to protect them from a form of personal liability that also creates immunity for the state. These public policies can only be achieved if the trial court acts as a gatekeeper, dismissing actions against state employees except in the extraordinary case that falls within the statutory exception. I join with Judge Orfinger in the belief that relief should be granted to state employees in cases such as this. See also Lemay v. Kondrk, 860 So.2d 1022 (Fla. 6th DCA 2008) (Orfinger J., dissenting).

I would grant relief as to this claim.

      . In this case the lawyer representing Corporal Ondrey also represents the sheriffs office. The sheriff here supports Corporal Ondrey. In another case, a sheriff could argue against his own employee and could make the argument made by the estate in this case.


author: TAYLOR, J. FARMER, C.J.,

text:
    Alberto ELIAKIM, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3393.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Rehearing Denied October 1, 2004.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Alberto Eliakim appeals his conviction for trafficking and possession of 3,4 methy-lenedioxymethamphetamine (MDMA). We affirm on all issues raised by appellant, but write to address his contention that the trial court erred in not allowing him to cross-examine the state’s witness about her past drug dealing activities with the co-defendant and with persons arrested pursuant to her substantial assistance plea agreement.

According to the trial testimony, Detective Eddie Marill of the Sunrise Police Department learned through Officer Bruce Goldstein of the Coral Springs Police Department that an informant could purchase a large quantity of MDMA pills (Ecstasy) from Kelly Martelo, a resident of Sunrise. At the request of Sunrise police officers, the informant called Martelo to set up a controlled purchase of sample pills. Mar-telo left a sample Ecstasy pill for the informant under the front door mat of her residence. Soon after the informant obtained the sample, he and Martelo made arrangements for him to purchase one thousand pills from Martelo.

Detectives Marill and Goldstein obtained a search warrant for Martelo’s apartment, and, on the day scheduled for the transaction, officers set up surveillance of Martelo and her residence to determine the source of the pills. Around 11:00 a.m., Martelo called the informant to advise him that she was going to pick up the pills and that they would be ready for him within an hour. Surveillance officers observed Martelo driving her gold Camry to co-defendant Ana Jorquera’s residence in North Laud-erdale. When she arrived, Martelo picked up Jorquera and drove her back to Mar-telo’s house. Jorquera then left Martelo’s house driving Martelo’s car. She drove into the parking lot of an Albertson’s shopping plaza. There, she made a phone call at a phone booth. A few minutes later, a blue BMW driven by appellant parked next to her vehicle.

Appellant got into Jorquera’s car. After a brief conversation with Jorquera, appellant went to the trunk of his BMW, retrieved a yellow envelope, and handed the envelope to Jorquera through the passenger side window. Appellant then returned to the BMW and followed Jorquera back to Martelo’s apartment. Jorquera went inside Martelo’s apartment, carrying the yellow envelope, while appellant parked in an adjacent complex. He exited his vehicle and began pacing up and down the street near Martelo’s residence.

After Jorquera entered the residence, Officer Marill gave the signal to move in and execute the warrant. Appellant was detained at his car, handcuffed, and ordered to sit on the ground. After reading appellant his Miranda rights, an officer obtained appellant’s- consent to search the BMW. In the trunk, the officer discovered twenty Ecstasy pills that were later determined to have markings similar to those of the pills seized in Martelo’s house. Appellant was arrested and transported to the Sunrise Police Station. He was charged with trafficking in amphetamine and possession of MDMA, along with Jorquera and Martelo.

Martelo entered into a substantial assistance plea agreement with the state and testified at the joint trial of appellant and co-defendant Jorquera. She testified that she was contacted by Jason Cannon, who said he wanted to buy a large quantity of Ecstasy pills. Fortuitously, around the same time, Martelo received a phone call from Jorquera, who said she had Ecstasy pills for sale. After advising Jorquera that she needed a sample, Martelo drove Jor-quera to a Taco Bell in Sunrise, where appellant was waiting outside. Appellant provided the sample pill to Jorquera, who in turn handed it to Martelo. Martelo left the pill under her doormat for Cannon. Afterwards, Martelo and Cannon made arrangements to deliver 1000 pills to Cannon.

On the day scheduled for the sale, Mar-telo picked up Jorquera and the two went to Martelo’s apartment. While Martelo remained at home, Jorquera took Mar-telo’s car to pick up the pills. When Jor-quera returned about twenty minutes later, Martelo observed someone following Jorquera in a blue BMW. She confronted Jorquera about this as Jorquera entered the apartment. After initially denying that anyone had followed her, Jorquera admitted that her boyfriend, appellant, had followed her. To ease Martelo’s concerns, Jorquera telephoned appellant and told him to move his car.

Jorquera came inside the apartment carrying a yellow manila envelope, which contained several Ziplock baggies filled with Ecstasy pills. Moments later, police officers. arrived and arrested Jorquera and Martelo.

After the state concluded its direct examination of Martelo, Jorquera’s attorney moved for a severance, based on discussions he had with appellant’s counsel concerning his plans for cross-examining Mar-telo. Appellant’s counsel had advised him that he intended to cross-examine Martelo about her long history of drug dealing with Jorquera. The state objected to the severance motion and to any inquiry into Mar-telo’s prior drug transactions with Jorqu-era. Before ruling on the motion, the court first questioned appellant’s counsel regarding the relevancy of any prior drug transactions between the two women. Counsel explained that appellant’s defense was mere presence and that he needed to cross-examine Martelo about her prior drug dealings with Jorquera to “establish that Ms. Jorquera is a drug dealer and my client is an innocent bystander.”

Through proffered testimony, the court heard that Martelo had sold Ecstasy to Jorquera six or seven times in the past and had bought cocaine and Ecstasy from Jorquera over a period of three or four years. During that time, Martelo had seen appellant only twice: once at a funeral and later at Taco Bell during the Ecstasy sample exchange.

After hearing the proffered testimony, the court sustained the state’s relevancy objection and denied the severance motion as moot. The court determined that any prior drug activities between Martelo and Jorquera were irrelevant. It further ruled that any prior drug activities between Martelo and Cannon were not proper subjects of cross-examination. Noting appellant’s objection, the court stated:

The ability to cross-examine does not preclude the court’s ability to determine what’s relevant and what is not relevant. And the court does not find the evidence that you’re trying to bring up by way of prior dealings to be relevant to the proceedings. What Mr. Eliakim is being accused of has nothing to do with the prior relationship of Ms. Jorquera and Ms. Martelo or Ms. Martelo and this gentlemen by the name of Jason.

A trial judge has broad discretion in determining limitations to be placed on cross-examination. Geralds v. State, 674 So.2d 96(Fla), (1996); Jones v. State, 580 So.2d 143 (Fla.1991). Although wide latitude is permitted on cross-examination in a criminal trial, a determination as to the scope of cross-examination lies within the sound discretion of the trial court. White v. State, 817 So.2d 799 (Fla.2002)(citing Ray v. State, 755 So.2d 604, 610 (Fla.2000) and Chandler v. State, 702 So.2d 186 (Fla.1997)). A decision to admit or exclude evidence will not be overturned absent a showing of an abuse of discretion. Traina v. State, 657 So.2d 1227 (Fla. 4th DCA 1995)(citing Rivera v. State, 561 So.2d 536, 540 (Fla.1990) and State v. Ayala, 604 So.2d 1275, 1276 (Fla. 4th DCA 1992)). “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Id. (citing Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000)).

Appellant argues that evidence of previous joint criminal activity between Martelo and Jorquera, which did not include him, would have supported his defense theory that the two women committed the present drug offense without him. Defense counsel asserted below that this evidence was admissible to “establish that Ms. Jorquera is a drug dealer and my client is an innocent bystander.” The trial court properly rejected this argument. Evidence of the co-defendants’ drug dealing history was inadmissible under sections 90.404(1) and (2), Florida Statutes. See Espinosa v. State, 589 So.2d 887 (Fla.1991)(holding that in murder prosecution evidence of the co-defendant’s violent history to place blame on him was inadmissible as both bad character or trait evidence and as similar fact evidence since it was offered solely to prove the co-defendant’s bad character or propensity).

Generally, any evidence relevant to prove a material fact at issue is admissible unless precluded by a specific rule of exclusion. Section 90.404, Florida Statutes, is the evidentiary rule of exclusion pertinent to appellant’s proffer. In this case, if appellant sought to introduce evidence that Jorquera was a drug dealer to prove that she, and not he, was Martelo’s sole supplier, then this evidence was clearly inadmissible under section 90.404(1), Florida Statutes. That section states that “[ejvidence of a person’s character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion.” The exceptions listed in subsections (a), (b), and (c) do not apply here.

If appellant intended to present this evidence as similar fact evidence of other crimes, wrongs, or acts to prove that the two women followed their usual inclination to engage in drug exchanges together, then the evidence was inadmissible under section 0O.4O4(2)(a), Florida Statutes, which codifies the Williams Rule. This rule provides that:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Here, appellant failed to demonstrate how evidence of the co-defendants’ previous joint criminal activity was probative as to any of the issues enumerated in section 90.404(2). When questioned by the trial judge about its relevancy, appellant simply stated the evidence was “completely relevant to show their complicity in drug dealing.” Clearly, this evidence would have served solely to demonstrate the co-defendants’ propensity to engage in drug deals together.

In State v. Savino, 567 So.2d 892 (Fla.1990), the supreme court stated that the test for admissibility of “reverse” Williams Rule evidence is relevancy. “If a defendant’s purpose is to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense.” Id. at 894. The court added that “[ejvidence of bad character or propensity to commit a crime by another would not be admitted; such evidence should benefit a criminal defendant no more than it should benefit the state.” Id.

Here, appellant’s purpose was to shift suspicion from himself as the source of the drugs to Jorquera and establish his status as an innocent bystander. However, evidence of Jorquera’s prior drug dealings with Martelo failed to meet Savihó’s test for reverse Williams rule evidence. Such evidence would not have been admissible had Jorquera been on trial alone. For, other than proving Jorquera’s. propensity to engage in drug sales with Martelo, it lacked any logical tendency to prove or disprove a material fact in issue. Appellant was unable to demonstrate how this evidence bore on any issue material to whether he participated in this drug transaction or how it cast reasonable doubt on his own guilt. See Rivera v. State, 561 So.2d 536, 539 (Fla.1990)(acknowledging that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of a,defendant’s guilt, it is error to deny its admission,” but adding that the admissibility of reverse Williams Rule evidence “must be gauged by the same principle of relevancy as any other evidence offered by the defendant”). Moreover, this “similar crimes” evidence was too general in nature and devoid of “a close similarity of facts, a unique or ‘fingerprint’ type of information” for the evidence to satisfy Savino’s relevancy requirement. 567 So.2d at 894.

We can find no abuse of discretion in the exclusion of this collateral crime evidence. See White, 817 So.2d at 799 (finding no abuse of discretion in the trial court’s limiting the admission of collateral evidence concerning the factual details underlying the co-defendant’s unrelated murder conviction); Jones, 580 So.2d at 145 (holding that evidence regarding witnesses’ convictions for drug-related offenses and violence against police did not meet test for reverse Williams Rule evidence); Rivera, 561 So.2d at 540 (holding that trial court did not abuse its discretion in excluding proffered reverse Williams rule evidence); Traina, 657 So.2d at 1227 (holding that exclusion of reverse Williams Rule evidence was not an abuse of discretion given factual distinctions between third party’s crimes and charged offense).

Appellant complains that the court unfairly restricted his cross-examination of Martelo merely to avoid prejudice to co-defendant Jorquera. On the contrary, the trial court never needed to reach the issue of prejudice to Jorquera because it determined from the outset that the evidence was irrelevant. Under section 90.403, Florida Statutes, the court is required to conduct a balancing test to determine if relevant evidence is inadmissible because outweighed by prejudice. See Savino, 567 So.2d at 894 (discussing that only after the relevance requirement is satisfied is prejudice or confusion determined).

We next address appellant’s second point that the trial court erred in restricting his cross-examination of Martelo regarding her prior drug dealings with persons arrested pursuant to her substantial assistance plea agreement. Jorquera’s attorney cross-examined Martelo first. He questioned her extensively about her substantial assistance plea agreement, focusing upon benefits that flowed from the agreement, such as favorable treatment on her bond and sentence in this case, as well as on subsequent criminal charges and probation violations. He also questioned her about drug deals and arrests she brought about pursuant to her plea agreement. Martelo testified that she helped law enforcement make drug arrests of two persons.

When appellant’s counsel cross-examined Martelo, he questioned her about the nature of her relationship with these persons she “set up.” Martelo described them as “acquaintances.” When appellant’s counsel attempted to delve more deeply into Martelo’s prior relationship with these people and elicit evidence of any prior drug involvement between them, the state objected on relevancy grounds. Discerning appellant’s strategy to compare Martelo’s prior relationship with these persons to her prior drug dealings with Jor-quera, the state accused counsel of attempting to circumvent the court’s earlier ruling precluding evidence of Martelo’s prior drug involvement with Jorquera. The court sustained the objection, but clarified that appellant could elicit the names of the persons arrested pursuant to her plea obligations, the general nature and length of her relationship with them, the circumstances of their arrests, and the charges for which they were arrested. In addition, the court ruled that appellant could elicit details regarding any benefits Martelo received from her plea agreement, including any immunity she was offered.

While a trial judge has broad discretion in determining limitations to be placed on cross-examination, great latitude should be allowed in cross-examination of an accomplice who testifies for the prosecution. See Rowe v. State, 413 So.2d 1272 (Fla. 1st DCA 1982). Contrary to appellant’s contention that his cross-examination of Martelo was unfairly restricted, the record demonstrates that appellant was allowed to question Martelo extensively on the pertinent details of her plea agreement and establish her motive or bias in testifying against appellant. Accordingly, we do not find that the trial court’s ruling prevented effective impeachment of Martelo or placed undue restriction on the development of appellant’s defense.

In sum, we conclude that the trial court did not abuse its discretion in disallowing the reverse-Williams Rule evidence or in limiting the scope of appellant’s cross-examination concerning the state witness’s plea agreement. Moreover, considering the evidence admitted regarding appellant’s active participation in the charged offenses, we find that there is no reasonable possibility that the errors complained of contributed to appellant’s conviction. See Goodwin v. State, 751 So.2d 537, 541 (Fla.1999).

AFFIRMED.

GROSS, J., concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

As I see it, the crucial holding of the majority goes something like this. A defendant who claims that he was merely present at the scene of a drug transaction between two other people, and that he was not a participant, should be barred as a matter of evidentiary rule from cross-examination to show that these same two people were recently involved in several other identical or similar transactions. The rationale for excluding this evidence is that such cross-examination shares the unique dangers of unreliability ordinarily attributed to traditional propensity evidence. With respect, the standard of review used to reach that conclusion, as well as the analysis, appear to me unjustifiable. I think the evidence should have been admitted.

In concluding that the trial judge properly barred the cross-examination, the majority defers to the trial judge under the standard of review known as “abuse of discretion.” To be sure, there are any number of supreme court holdings that abuse of discretion is the proper standard. See, e.g., White v. State, 817 So.2d 799 (Fla.2002) (“[the • ajdmission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.”). In fact over the years the supreme court has almost routinely — i.e., usually without explanation — used some variation of this formulation as the evidence standard of review. See also Zack v. State, 753 So.2d 9, 16 (Fla.2000) (“A trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion.”); Kormondy v. State, 845 So.2d 41, 52 (Fla.2003) (“Limitations on the examination of a particular witness are controlled in the sound discretion of the trial court, and the trial court’s ruling in this area will only be reversed if the aggrieved party demonstrates an abuse of that discretion.”); Anderson v. State, 841 So.2d 390, 401 (Fla.2003) (“Absent a clear showing of abuse of discretion by the trial court, a ruling on admissibility of such evidence will not be disturbed.”).

With complete respect for the supreme court, I should like to suggest the possibility that the court may have erred in adopting abuse of discretion as the primary or only standard of review for evidence decisions. For I have come to believe that the standard of review for rulings on evidence ought to be primarily de novo or, under certain circumstances, a mixture of de novo and abuse of discretion. This conclusion emerges from a consideration of the unique role of evidence and is explained in the following paragraphs.

The law of evidence regulates the flow of “knowledge” to the finder of fact. It is predicated on the recognition that fact-finding in courts requires some limitation on what should be submitted as “facts” to judges and juries. Some information may be unlikely to advance the search for truth; some truthful information may waste the time and attention of the fact-finder or deflect the consideration of the final outcome; some truthful information may unduly slant the outcome for or against a party. The recognition of the need to have some limits on the information given to fact-finders thus proceeds on the basis that such information must be reliable to the mission of truth seeking and pertinent to the inquiry. To that end, Judges struggled over the centuries to devise provisions to assure that the information, if believed and accepted, would be reasonably likely to yield the truth and a reliable outcome. Over time, these provisions came to be referred to as “rules” of evidence.

More recently these judge-made “rules” were adopted into bodies of evidence law, e.g., Federal Rules of Evidence, or even codified into statutory law, e.g., the Florida Evidence Code. See Ch. 76-237, Laws of Fla. In adopting the Florida Evidence Code “to the extent that it is procedural” the supreme court said:

“It is generally recognized that the present rules of evidence are derived from multiple sources, specifically, case opinions of this Court, the rules of this Court, and statutes enacted by the legislature. Rules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.”

In re Florida Evidence Code, 372 So.2d 1369, 1369 (Fla.1979). In short, the court understood that it was adopting rules of evidence, not suggestions for the exercise of discretion.

Truth be told, the Florida Evidence Code, like its federal counterpart, frames many of its rules as “general principles and ‘standards’ rather than inflexible rules of law.” Margaret A. Berger, The Federal Rules of Evidence: Defining and Refining the Goals of Codification, 12 Hofstra. L.Rev. 255 (1984). Yet any generality in these rules does not make them any less rule-like or introduce an indeterminacy of the kind normally associated with trial court discretion. Thus whether one thinks of evidence provisions as “rules” or instead as “principles” or “standards”, the effect is the same. They are intended to operate very much like rules to specify what information may be given to juridical fact finders to ensure general reliability of outcome. The fact-finder will be able to discern the truth and arrive at an outcome in which all can have confidence.

The rules of evidence thus specify what constitutes the knowledge on which we predicate all decision making .within the judicial system. They are intended to be applied universally within the judicial system unless different rules are specifically established for particular tribunals or subjects. If they are the rules of knowledge, these rules should not be different from case to case, or Judge to Judge, or Court to Court — as they are under the notion that these are discretionary rulings. Rules of knowledge for the judicial system should not be idiosyncratic. They are either universal, or they should not be used as rules of knowledge.

In a great sense, all knowledge is like scientific evidence because science is but one branch of knowledge. Yet as to review of scientific knowledge decisions by trial judges, the supreme court has recognized the fault inherent in the abuse of discretion standard:

“We find that the ábuse-of-discretion standard is incorrect.
“There are good reasons why the determination of general acceptance in the scientific community should not be left to the discretion of the trial court. Foremost is the fact that the general acceptance issue transcends any particular dispute. As one court put it, ‘[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future cases.’
“Application of less than, a de novo standard of review to an issue which ■transcends individual cases invariably leads to inconsistent treatment of similarly situated claims.” [e.s.]

Brim v. State, 695 So.2d 268, 274 (Fla.1997).

Except for limited areas — e.g., individual prejudice outweighing the importance of relevant evidence — any decision on a rule of evidence as to what is permissible knowledge in the legal system “transcends any particular dispute.” Rules of knowledge are universal or they are not “rules” of knowledge. Treating the admission of evidence, universally or even primarily, as subject to the individual discretion of trial judges serves only to make the flow of knowledge subject tó the personal philosophies and experience of differing trial judges, without the possibility of correction in the appellate system. That in turn means that permissible knowledge within the judicial system may differ from courtroom to courtroom, from courthouse to courthouse. There are many things about the law that should be determinate and thus predictable, so that people may order their affairs and make decisions about the commitments of families and businesses and their resources. But few of these necessarily determinate aspects of the legal system are more fundamental than the basis for the very knowledge that the system will act upon.

Many of the rules of evidence on their face demonstrate the universality of epistemological prescriptions in the search for rehable and trustworthy knowledge. See, e.g., § 90.402 (“All relevant evidence is admissible, except as provided by law.”); § 90.802 (except as provided by statute hearsay is categorically inadmissible); § 90.901 (authentication or identification required). Indeed it is with an appropriate regard for the universality of evidence rules that the supreme court has itself recognized that any discretion in the admission or exclusion of evidence must be assessed for compliance with the Florida Evidence Code. Johnston v. State, 863 So.2d 271, 278 (Fla.2008) (“The trial court’s discretion is limited by the rules of evidence.”); see also Sybers v. State, 841 So.2d 532, 545 (Fla. 1st DCA 2003) (“However, when ruling on evidentiary matters, ‘a trial court’s discretion is limited by the rules of evidence’.”); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (“The standard of review for admissibility of evidence is abuse of discretion. However, a trial court’s discretion is limited by the rules of evidence. [c.o.]”); Taylor v. State, 601 So.2d 1304 (Fla. 4th DCA 1992) (“[T]he trial court’s discretion here was narrowly limited by the rules of evidence.”). If discretion is “limited” by the rules of evidence, is there really any discretion to refuse evidence that is allowed by one of the rules? If not, why continue with the standard of review as abuse of discretion?

A trial court might be said to have a kind of discretion in deciding whether proposed evidence fits within specified factual requirements for admission or falls within some exception to a general rule. For example, a court may have discretion in deciding whether a specific declaration factually qualifies as an excited utterance. Yet if the court finds the out-of-court declaration to be an excited utterance, there is no discretion to exclude it if it is relevant. For this exception to the hearsay rule, the court’s decision might be subject to review under a mixed standard of de novo and abuse of discretion.

Another example of limited and specific discretion in the admission or exclusion of evidence is found in section 90.403, which provides:

“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

At least initially, the trial judge has discretion here. But, even still, it is not an unlimited discretion — as the adjectives and adverbs attest. And in any case, the issue as to when prejudice from relevant evidence becomes “unfair” ought to be circumscribed by principles and standards built up by appellate decisions, rather than confined to the individualized concerns of every trial judge:

“the fact that ‘the [trial] court’s discretion is equitable in nature ... hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.’ In some instances the need for uniformity and predictability demand thorough appellate review.... An appellate court must carefully scrutinize the nature of the trial court’s determination and decide whether that court’s superior opportunities of observation or other reasons of policy require greater deference than would be accorded to its formulations of law or its application of law to the facts. In cases within the former categories, ‘abuse of discretion’ should be given a broad reading, in others a reading which scarcely differs from the definition of error. Above all, an appellate court should consider whether the lawmaker intended that discretion should be committed solely to the trial judge or to judges throughout the judicial system.” [e.s.]

Henry J. Friendly, Indiscretion About Discretion, 31 EmoRY L.J. 747, 783-84 (1982).

There is not a single word in the Florida Evidence Code intimating that the Legislature “intended that discretion [in the admission or exclusion of evidence] should be committed solely to the trial judge.” There is, however, a clause in our state constitution creating a right to appellate review. Art. V, § 4(b), Fla. Const. (“District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court, [e.s.]”); see Amendments to Fla.R.App.P., 696 So.2d 1103, 1104 (Fla.1996) (“the language of article V, section 4(b), [is] a constitutional protection of the right to appeal. However, we believe that the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants’ legitimate appellate rights.” [e.s.]).

Defenders of the system of broad appellate deference to individualized decisions on evidence should confront the question whether this standard of review has a tendency to “thwart the litigants’ legitimate appellate rights.” 696 So.2d at 1104. Many cases turn directly on some specific piece of evidence admitted or excluded. If there are good reasons for admitting or excluding a piece of evidence, the reasons should be equally good in most, even if not all, cases having the same or similar circumstances. This thought undoubtedly lay behind the supreme court’s own determination that (“[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” [e.s.]). Rivera v. State, 561 So.2d 536, 539 (Fla.1990). I therefore believe that it is time for the supreme court to rethink its formulation of the sole standard of review for the admission or exclusion of evidence.

It is time to retreat from the notion of broad discretion in trial judges and to adopt a standard recognizing that most evidence decisions express a system-wide application as to what is permissible evidence in our courtrooms. In doing so, the court should also consider why it believes that it is better for most evidence applications to be developed by trial judges without meaningful resort to the additional resources and differing perspectives that appellate judges may bring:

“[T]here are structural reasons for preferring appellate court decisions as a general rule.... Not only are counsel in a position to present more refined issues, but the appellate court itself has more time and resources for research and discussion. Also of considerable significance is the collegial and pluralistic nature of the appellate court.... [T]he discussion and debate among judges which attends the creation of an appellate opinion illuminates the relevant issues such that the panel’s collective decision is often superior to what would have been the product of any single panel member.... [T]he challenge of thoughtful debate is perhaps the best test for the soundness of legal rules.”

Hurtado v. Statewide Home Loan Co., 167 Cal.App.3d 1019, 1024, 213 Cal.Rptr. 712 (Cal.App.1985). I suggest that this case, on this issue, presents an appropriate occasion for the court to take up these issues.

I now turn to an analysis of the exclusion of the evidence in the present case. I begin by observing that a defendant has a very strong interest in showing bias and that the witnesses in the case against him are untruthful. Defense counsel’s essential role in most criminal trials is to chip away at the state’s case by building reasonable doubts in the chain of evidence. And so I challenge the conclusion that under the Evidence Code a defendant cannot be allowed to add to that doubt by producing evidence that two co-defendants recently committed a number of similar crimes and were therefore more likely to have done the crime on trial.

Reading section 90.404(2) to categorically exclude such defensive Williams rule evidence is to wrench the rule from its purposive moorings — namely, that it would be a denial of due process to convict a defendant of a specific crime charged merely because he is thought generally likely to commit such sins. The statute is founded on the premise that, if the evidence does more than show mere propensity, if it actually tends to show that someone else did the crime on trial, then there is no danger of convicting someone because of mere propensity. Yet the majority’s categorical reading is to interpret the unmoored rule’s text with a literalism ill-suited to its purpose.

The statutory text in question says:

“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”

§ 90.404(2)(a), Fla. Stat. (2003). The drafters of this rule explained that their purpose was:

“to closely paraphrase the language used in Williams v. State, 110 So.2d 654, 663 (Fla.1939) [sic—1959?]. There the court, in finding admissible evidence relating to the commission by the defendant of another crime, stated:
‘Evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion. This rule we hold applies to relevant similar fact evidence ... even though it points to the commission of another crime’.” [e.s.]

Fla. Stat. Ann. § 90.404, Law Revision Council Note (West 1976).

A further explanation from Williams itself adds the following:

“Let us begin with a reminder that we here deal with so-called similar fact evidence which tends to reveal the commission of a collateral crime. Our initial premise is the general canon of evidence that any fact relevant to prove a fact in issue is admissible into evidence unless its admissibility is precluded by some specific rule of exclusion. Viewing the problem at hand from this perspective, we begin by thinking in terms of a rule of admissibility as contrasted to a rule of exclusion.” [e.o.]

Williams v. State, 110 So.2d 654, 658 (Fla.1959). Paradoxically, the method in this case seems to be the converse of Williams: the initial premise is to ignore the general canon of admissibility of all relevant evidence and then to search for a rule of exclusion.

As the Williams court also showed, the first question in regard to the admissibility of this evidence is to ask whether it is relevant to a fact in issue. Here it surely is relevant to the defense that the co-defendants themselves perpetrated the crime, that defendant was by circumstances placed unsuspectingly at the scene. Proof that the co-defendants have committed several recent identical drug transactions places this evidence well outside of propensity and clearly within relevancy to the defense that the other persons at the scene were the only participants in the crime.

Espinosa v. State, 589 So.2d 887 (Fla.1991), is irrelevant to the circumstances sought to be established through cross-examination in this case. The evidence to be admitted there was that a co-defendant had a general “long history” of violent behavior before coming to America. Is this not openly and unabashedly propensity evidence, without any conceivable tendency to tie the co-defendant to the specific crime in question? In contrast, the evidence offered in the present case is that the two other persons had committed the same crime on several recent occasions. Why wouldn’t this fact if true tend to make defendant’s claim of mere presence more likely true?

I do not overlook the supreme court’s decision in State v. Savino, 567 So.2d 892 (Fla.1990). I do however focus on the specifics of the case. There defendant sought to show the mother’s guilt for the death of the child by offering “the wife’s alleged abuse of a one-month-old child, in a different state, in a different marriage, and in a different manner.... ” 567 So.2d at 894. The trial judge excluded the evidence. As the supreme court explained:

“If a defendant’s purpose is to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense. Evidence of bad character or propensity to commit a crime by another would not be admitted; such evidence should benefit a criminal defendant no more than it should benefit the state.”

567 So.2d at 894. Later the court said:

“Section 90.402, Florida Statutes (1987), provides that all relevant evidence is admissible except as provided by law. Section 90.403, Florida Statutes (1987), however, provides that relevant evidence is inadmissible when outweighed by prejudice, confusion of issues, misleading the jury, or presenting of cumulative evidence. One does not reach prejudice until relevancy is established; to be relevant similar-fact evidence of other crimes must be of such nature that it would tend to prove a material fact in issue. Thus, we disagree that the degree of similarity for such crimes to be relevant should be modified when identity is sought to be proved, even though it is less likely that prejudice would occur when evidence of other crimes is sought to be introduced by a defendant. Only after the relevance requirement is satisfied is prejudice or confusion determined.”

567 So.2d at 894.

An essential aspect of the supreme court’s review of Savino was its holding that it is not any easier for a defendant to make use of exculpatory Williams rule evidence than it is for the State to make use of inculpatory Williams rule evidence. Yet the majority inexplicably converts that into a holding in this case that it should be harder for a defendant to use Williams rule evidence for exoneration than for the state to convict. I think that conclusion conflicts with the supreme court’s Rivera decision that (“where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” [e.s.]). 561 So.2d at 539.

Properly understood, Savino does not really purport to bar all similar crimes evidence adduced by a defendant to show that co-defendants actually committed the crime. It actually stands only for a narrower proposition: that evidence of a single, seven-years earlier, event with some similarities to the crime on trial is not sufficient to pass beyond mere propensity and tend to prove that she was more likely to have been the one who killed the later child.

The present case, unlike Savino, involves several recent identical drug transactions between the same two people. The quality of the evidence proffered in the current case thus moves beyond simple propensity and partakes of that essential ingredient of all relevant evidence — namely, a capacity “tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2003). The court reads section 90.404 as if it were unhinged from its purpose. The reading is well outside the specific holding in Savino that defensive Williams rule evidence is barred only when it shows mere propensity but, as with the state’s use to prove guilt, is admissible when relevant to prove a fact in issue. I conclude that the evidence proffered here was “of such nature that it would be admissible if that person were on trial for the present offense.” 567 So.2d at 894.

I would reverse for a new trial.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Now codified at Ch. 90, Fla. Stat. (2003).

      . "See H.L.A. Hart, The Concept of Law 121-32 (1961). As Professor Hart points out in his chapter on Formalism and Rule Scepticism:
      ''[C]ourts deciding a later case may reach an opposite decision to that in a precedent by narrowing the rule extracted from the precedent, and admitting some exception to it not before considered, or, if considered, left open. This process of ‘distinguishing’ the earlier case involves finding some legally relevant difference between it and the present case, and the class of such differences can never be exhaustively determined. On the other hand, in following an earlier precedent the courts may discard a restriction found in the rule as formulated from the earlier case, on the ground that it is not required by any rule established by statute or earlier precedent. To do this is to widen the rule. Notwithstanding these two forms of legislative activity, left open by the binding force of precedent, the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule. They can now only be altered by statute, as the courts themselves often declare in cases where the 'merits' seem to run counter to the requirements of the established precedents.”

        Concept of Law, at 131-32.

      . Personally I think it is incorrect to characterize judicial fact finding as “discretionary” in nature. Whether to believe a witness as to a foundation fact necessary for the admission of certain testimony may be up to the judge, but that is a credibility determination rather than an act of true discretion. See Bouvier’s Law Dictionary 804 (8th ed.1914) (“discretion” is "[t]he power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.”); and see Canakaris v. Canakaris, 382 So.2d 1197, 1-203 (Fla.1980) ("Judicial discretion is defined as: 'The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.' 1 Bouvier's Law Dictionary and Concise Encyclopedia 804 (8th ed.1914).”).

      . I would not be candid if I implied that I thought this part of the court’s holding in
        Savino was correct. Frankly, I doubt that it is. The due process dangers of using propensity evidence to convict a defendant because he "is the kind of person who commits such crimes” are all but nonexistent when a defendant seeks to use such evidence to exonerate himself by proof that other persons at the scene have recently committed a string of such crimes. The effect of this evidence is not to convict anyone but to acquit the not guilty. There is no good reason to read the rule in this regard as the court did in Savino.


author: NORTHCUTT, Judge.

text:
    Andres ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1135.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.
   NORTHCUTT, Judge.

Andres Ortiz, also known as Andres Ortiz Hernandez, appeals the order denying his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2001). We reverse because the record does not conclusively show that Ortiz is entitled to no relief.

Ortiz was convicted by a jury of five counts of capital sexual battery and one count of kidnaping. This court reversed one sexual battery conviction and affirmed the others. Hernandez v. State, 586 So.2d 1344 (Fla. 2d DCA 1991). Subsequently, Ortiz filed a facially sufficient motion for DNA testing of the anal, vaginal, and oral swabs from the rape kit, the victim’s clothing, and the victim’s saliva. In response to the circuit court’s order to show cause, the State conceded that Ortiz was entitled to DNA testing of everything except the victim’s saliva sample, which would not contain Ortiz’s DNA.

Despite this concession, the circuit court denied the motion, stating that “there is no reasonable probability that the Defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” The circuit court concluded that Ortiz “and all the witnesses put the Defendant with [the] victim all night long. The State’s own expert witness (crime lab analyst in serology) testified she would have eliminated the Defendant from the case, which did not sway the jury in favor of the Defendant.” The court concluded that “a reasonable jury deduced the consistent testimony of the victim and the witnesses was overwhelming enough to convict the Defendant of the charged crimes[;] consequently a DNA test would not change the outcome.”

On appeal from the summary denial of a rule 3.853 motion, “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. RApp. P. 9.141(b)(2)(D). Thus, we may affirm the summary denial in this case only if the record conclusively shows that there is no reasonable probability that Ortiz would have been acquitted or would have received a lesser sentence if favorable DNA evidence was admitted at trial. Our record is limited to Ortiz’s motion with an attached transcript of the State’s closing argument, the show cause order, the State’s response, and the circuit court’s order with attachments. See Fla. R.App. P. 9.141(b)(2)(A).

From this limited record, we cannot say there is no reasonable probability that the jury would have reached a different verdict if presented with DNA evidence that excluded Ortiz. Although it was undisputed that the victim was sexually assaulted, the trial was a credibility contest between Ortiz and the victim regarding whether Ortiz was the perpetrator of the assaults. Ortiz has alleged that, according to the medical testimony, the semen found in the victim could have been placed there as many as three days before, and that penetration could have occurred within a day or two. These facts were consistent with Ortiz’s defense that the victim was assaulted by someone else before she left with Ortiz. Ortiz has also alleged that the State’s blood grouping tests excluded him as the perpetrator but that the State discredited this evidence in closing argument.

Because rule 3.853 and section 925.11 are fairly new, there is little case law interpreting and applying their provisions. We have held that identity is at issue even when the victim provides a positive identification. Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002). Although Ortiz was apparently known to the victim, his identity as the perpetrator was at issue, and DNA testing would speak directly to this point because semen was recovered from the victim.

The circuit court denied the request for DNA testing because the jury had not been swayed by the blood grouping tests, essentially finding that DNA evidence would have been cumulative. But the circuit court did not address the State’s effort to discredit the blood grouping test results in closing argument. We do not agree that DNA evidence would have been cumulative for two reasons. First, as attested by the very existence of rule 3.853, DNA evidence is qualitatively different in kind than other forms of evidence, including blood grouping evidence. Second, the State impeached the blood grouping tests by arguing that the sample was too small for an accurate result. In Taylor v. State, 522 So.2d 418 (Fla. 5th DCA 1988), the Fifth District held that although newly discovered testimony would have been consistent with testimony at trial by several defense witnesses, it was not cumulative because the newly discovered testimony was offered by the only independent defense witness. The other defense witnesses were either drinking buddies or relatives of the defendant, and their bias in favor of the defendant was emphasized by the State. See also State v. Wells, 538 So.2d 1292 (Fla. 2d DCA 1989) (quashing order that precluded State from introducing first victim’s testimony and holding that it was not cumulative to second victim’s testimony because first victim would rebut the impeachment of the second victim and strengthen the State’s case).

Given the allegations by Ortiz as to the time span during which the sexual batteries could have occurred, the exculpatory nature of the blood grouping tests, and the State’s attack on the weight of that evidence, the record before us does not conclusively show that there is no reasonable probability DNA evidence would exonerate Ortiz.

Rule 9.141(b)(2)(D) directs us to reverse an order summarily denying postconviction relief when the record does not conclusively show that the defendant is entitled to no relief. It further directs us to remand “for an evidentiary hearing or other appropriate relief.” In this case, DNA testing is the appropriate relief. Accordingly, we reverse and remand for DNA testing of the specified evidence minus the victim’s saliva, as conceded by the State’s response to the circuit court’s show cause order.

Reversed and remanded.

CASANUEVA and KELLY, JJ„ Concur.

      . Ortiz attached a transcript excerpt reflecting that the State argued as follows:
      Now what's the importance of all this [blood testing]? If this case were about a girl who is abducted in the dark by someone she cannot see and does not know ... and there is no evidence on the identity of that perpetrator and if the State seeks to prove its case solely through scientific evidence then maybe we’ve got to depend on this and maybe we've got to try and argue how reliable it is. But think about science for a minute. We don't have any 101 percent sciences, we have sciences, they are a body of knowledge about a specific thing. This is serology as a science. But it's not 110 percent.... So that the only way you can believe that [the crime lab analyst] is correct about there being a sufficient sample of semen to find the blood group substance, the only way is that she was raped before [Ortiz] got her.... This one factor doesn't change an abiding conviction of guilt in this case. What it does is it makes it a curious piece of evidence. It makes you wonder whether [the crime lab analyst] is correct in her opinion that there was a sufficient sample....


author: WALLACE, Judge.

text:
    Edward M. WILLITS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5162.
    District Court of Appeal of Florida, Second District.
    April 7, 2004.
    Rehearing Denied April 28, 2004.
   WALLACE, Judge.

Edward M. Willits challenges the order of the trial court summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the sentence imposed on Willits exceeds the statutory maximum, we reverse as to his first claim. We affirm without comment as to his second claim.

On March 30, 1994, pursuant to a plea of no contest, Willits was sentenced to a term of natural life with a minimum mandatory of three years for the armed robbery, thirty years with a three-year minimum mandatory for the aggravated battery, and thirty years for the possession of a firearm by a felon. He had been designated as a habitual felony offender pursuant to section 775.084, Florida Statutes (1993). All sentences were to run concurrently. The sentencing documents for the armed robbery charge reflect that Willits was ordered to pay a fíne of $268 plus $13.40 as the 5% surcharge required by section 960.25, Florida Statutes (1993), as well as $273.45 plus other fees as ordered by the court as restitution.

Willits is correct in claiming that his sentence for armed robbery is illegal because section 775.084 does not authorize any fines. The imposition of a fine in addition to the habitual offender sentence exceeds the maximum allowed by the statute and must be reversed. Floyd v. State, 739 So.2d 1241 (Fla. 2d DCA 1999); Webster v. State, 705 So.2d 970 (Fla. 2d DCA 1998). On remand, the trial court must strike the $268 fine plus the 5% surcharge. Willits’ presence at the resentencing is not required.

Reversed in part; affirmed in part; and remanded.

WHATLEY and VILLANTI, JJ., concur.