source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    BULKMATIC TRANSPORT COMPANY, et al., Appellants, v. Darryl C. TAYLOR, Appellee.
    No. 1D02-1158.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.

      David B. Shelton, J. Scott Kirk, and Christopher T. Hill, of Rumberger, Kirk & Caldwell, Orlando, for Appellants.
    P. Scott Russell, IV, of Dunlap and Russell, P.A., Jacksonville; Lawrence J. Na-jem, of Ossi, Butler, Najem & Rosario, P.A., Jacksonville, for Appellee.
   LEWIS, J.

Appellants, Bulkmatic Transport Company (“Bulkmatic”) and Stephen Farnham, appeal the trial court’s order granting ap-pellee, Darryl C. Taylor, a new trial. On appeal, appellants contend that the trial court erred in granting appellee a new trial because the four grounds relied upon by the trial court, both individually and in combination with one another, did not warrant such a result. We agree and, therefore, reverse the trial court’s new trial order and remand with directions to reinstate the jury’s verdict.

As a result of an accident that occurred on Old Kings Road in Duval County between appellee and Farnham, an employee of Bulkmatic and the driver of Bulkmatic’s tractor-trailer, appellee brought suit against appellants. The accident occurred before the tractor-trailer reached the two weight-restricted bridges on Old Kings Road, which has a thirty-five-mile-an-hour speed limit. In Count I of his complaint, appellee asserted that Bulkmatic was vicariously liable for Farnham’s negligent operation of the tractor-trailer. In Count II, appellee asserted that Bulkmatic was liable for the negligent hiring, training, and supervision of Farnham. In Count III, appellee asserted that Farnham was negligent in his operation of the tractor-trailer.

Prior to trial, appellee filed á motion in limine in which he sought an order prohibiting appellants from making “[a]ny challenge to opposing counsel to tell the jury why certain witnesses did not testify, or any reference to what uncalled witnesses would have testified to if called,” which the trial court granted. Appellee also filed a Motion for Entry of Default Judgment or Other Appropriate Sanctions for Spoliation of Evidence in which appellee alleged that, while he had repeatedly requested “any on board computer data” from the tractor-trailer, appellants had failed to produce any such evidence. Specifically, appellee sought any data from the tractor-trailer’s electronic control module, which is otherwise known as the “black box.” During the hearing on the latter motion, appellee’s counsel stated, “At this juncture, we will concede that the [appellee] can probably go forward with a prima facie ease so that ... the willful destruction of this evidence will not in and of itself — I’m not going to argue that you should strike the pleading of the [appellants] at this juncture.” Ap-pellee’s counsel contended that “a rebutta-ble presumption of negligence shifting the burden to the [appellants] should be held and a jury instruction should be read to the jury,” that appellants’ comparative negligence defense should be stricken, and that appellants’ accident reconstructionist, Stephen Chewning, should be stricken from appellants’ witness list. Following both counsels’ arguments, the trial court found that Chewning’s failure to preserve the black box data exhibited willfulness and bad faith that prejudiced appellee. Because the trial court determined that striking Chewning would be inappropriate under the circumstances and would be “overkill,” the court concluded that the appropriate sanction would be to strike appellants’ comparative negligence defense. The trial court ruled that it would allow appellee to raise the issue of the black box during the trial and the fact that any data contained therein was not preserved.

Prior to voir dire, appellee’s counsel explained to the trial court that Farnham had a multi-year history, beginning in 1995, of not paying attention to Bulkmatic’s policies and procedures and that, two weeks prior to the accident at issue, Marty Gribben, Farnham’s supervisor, warned Farnham about driving on Old Kings Road with a heavy load. Appellee’s counsel also informed the trial court that Gribben had testified in his deposition that Farnham always took shortcuts and that he had a history of driving fast around the terminal. While the trial court initially ruled that it would generally allow this type of testimony, the trial court subsequently ruled that it was only going to allow the one warning given to Farnham by Gribben two weeks prior to the accident. According to the trial court, it believed that its earlier ruling was overbroad.

During voir dire, appellee’s counsel informed the prospective jurors that they were going to be instructed that when a professional driver in the employment of his or her company causes harm, the driver’s employer would be responsible for that harm. In response, prospective juror Yawn stated that, while he thought that a company is responsible for its employees, he did not know if that is 100% responsibility; it depended upon the situation as to who it was and how much responsibility it was. Prospective juror Vanskoi stated that she did not think that it was fair for a company to be held 100% accountable for the actions of its employees and that she would be uncomfortable applying such a rule. Appellee’s counsel then asked the venire whether anyone thought that there had to be some limit on human damages even if he or she was convinced that someone had sustained total damages of two million dollars. Prospective juror Banana stated that it would bother her because of an increase in her insurance rates. Van-skoi stated that her concern was “whether it’s more subjective than objective damages.” When questioned by appellee’s counsel as to whether anyone else had a concern with the subjective versus the objective, prospective juror Riggins replied, “I’d have to go along with that.”

In response to appellee’s counsel’s question as to whether they could apply an analytical framework without limitation to fix what can be fixed and balance what cannot be fixed even if it results in a very large number, Vanskoi stated that she could not do so. Riggins responded, “That’s tough for me because I don’t know the facts of the case. I don’t know what you’re going to be telling us. And it would have to be a pretty convincing argument.” When specifically asked by appellee’s counsel if she would have a problem with rendering a verdict in the amount of one dollar in favor of appellee if she found that he had sustained that amount in damages, Riggins replied, “No, I would not.” When asked if she would have a problem with rendering a verdict in the amount of two million dollars if she believed the evidence established two million dollars or more in damages, Riggins responded, “Perhaps.” Appellee’s counsel then stated, “So we don’t actually start out completely on an even playing field, at least in that respect?” Riggins replied, “There are a whole bunch of variables that play typically in one way or another; it’s just difficult for me to sit here and tell you that I would have no problem doing that because I don’t know that.” Prospective juror McDonald also stated that he would have a problem with being responsible for saying something of that magnitude and that he had a problem with holding an employer responsible for the acts of its employees. When appellants’ counsel subsequently asked the ’ venire if everyone would be willing to give an award, be it one hundred thousand dollars or three million dollars, if the evidence justified it, the prospective jurors nodded affirmatively. When asked if anyone would be hesitant in giving ap-pellee what he deserved, no prospective juror responded.

Thereafter, appellee’s counsel made his challenges for cause. The trial court granted counsel’s first challenge for cause as to a doctor who had stated that she had difficulty with the greater weight of the evidence rationale. Counsel successfully challenged McDonald for cause on the ground that he had a problem with large damage awards and with holding an employer responsible for the acts of its employees. Counsel also successfully challenged Banana for cause based upon her statement about her insurance rates. As to Vanskoi, counsel successfully challenged her for cause as she had averred that she had a problem holding an employer liable for its employees’ acts and with awarding a large verdict.

With regard to appellee’s challenge as to Riggins for cause, counsel contended that, when asked whether the two sides would be starting out on an even playing field, Riggins candidly said no. The court responded that it did not have Riggins saying that in its notes and that, short of that, it thought that she had said that it would be a tough job but that she could do it. After setting forth that the court reporter would attempt to find Riggins’ statement and after a brief recess, the trial court denied the challenge as to Riggins for cause. The court also denied two challenges for cause as to Yawn and prospective juror White.

When asked if he wished to exercise any peremptory challenges, appellee’s counsel renewed his challenge as to Riggins for cause, which the court again denied. Counsel then utilized one of his peremptory challenges on Riggins, while once again renewing his challenge for cause. According to counsel, he needed to state for record purposes whom he would have used his peremptory challenges on had he received his challenges for cause. Counsel continued that he would have utilized one challenge to remove Yawn and another to remove prospective juror Solano, whose husband had recently passed away and whose son had once driven trucks as his occupation.

During the trial, appellee called two eyewitnesses who testified that Farnham’s tractor-trailer crossed the center line and collided with appellee’s vehicle. One of these witnesses, Timothy Smith, a UPS driver, testified that he was driving at approximately forty miles per hour behind the tractor-trailer, which had to be traveling at fifty-five or sixty miles per hour. Appellee then played the videotaped deposition of Gribben, wherein Gribben testified that Farnham had been warned or counseled two weeks prior to the accident at issue about using Old Kings Road as a shortcut. Gribben further testified that he had sent Farnham a message that if he got caught going over weight-restricted bridges with a load that was too heavy, he would probably be paying a large fine and be looking for another job.

Appellants subsequently played a portion of Gribben’s deposition. When asked if he had said that Farnham was regarded as “something of an icon,” Gribben replied, “That’s correct.” Gribben further testified that “[ejveryone had a high regard for him, yes.” Shortly thereafter, appellee’s counsel asked to approach the bench, contending that the trial court had previously ruled that any reputation evidence about Farnham would be inadmissible. According to counsel, appellants had placed Farn-ham’s reputation at issue by playing this portion of Gribben’s deposition. Appellants’ counsel responded that he had shown appellee’s counsel the portions he planned to play at trial and that appellee’s counsel could have objected at that point. After appellee’s counsel explained that appellants’ counsel had given “it to [him] before lunch,” and that he had gone through the testimony as quickly as possible, the trial court set forth that it would instruct the jury to disregard any testimony about Farnham’s reputation but that it would not allow the “other stuff’ to be introduced. In response to appellee’s counsel’s statement that an instruction would reinforce what the jurors had already heard, the trial court asked appel-lee’s counsel if he wanted the court to do nothing or to instruct the jury, to which counsel replied, “Why don’t we just leave it alone.”

John Murdoch, appellee’s consulting engineer specializing in accident reconstruction and forensic engineering, next testified. When asked if he had made any determinations regarding the speed of Farnham’s tractor-trailer using engineering principles, Murdoch testified that he calculated the speed at 41.6 miles per hour, which, in his opinion, was a minimum speed based solely upon the length of the skid mark that was present on Old Kings Road. According to Murdoch, the tractor-trailer could have easily reached a speed of fifty miles per hour or more. Murdoch further testified that he believed that the tractor-trailer crossed the center line into appellee’s lane of traffic at the point of initial contact.

On cross-examination, Murdoch testified that the major issue in the case was in what lane the impact occurred. When questioned as to whether his speed calculation was based upon his accident reconstruction analysis, Murdoch responded affirmatively. According to Murdoch, he made his evaluation regarding the skid mark from what Farnham had said about his braking prior to the accident. Wfiien questioned as to whether there was an accident reconstruction calculation to compute how fast and how hard the tractor-trailer could turn for given speeds, Murdoch responded affirmatively but stated that he had not done those computations. When questioned if he knew how long it would take the tractor-trailer to make a certain maneuver at 41.6 miles per hour, Murdoch replied that he did not know because he had not calculated it in this case. The rest of Murdoch’s cross-examination testimony consisted of his opinions regarding the effect of tire and gouge marks on the determination of the impact of the two vehicles, the location of the debris from the accident, the maneuverability of the tractor-trailer, and his animated accident reconstruction.

Appellee subsequently called Steven Rickard, a consultant and instructor in commercial motor vehicle accident investigation and reconstruction, for the purpose of explaining the alleged significance of the black box data to the jury. According to Rickard, the black box provides a printout of the speed of a vehicle when the driver brakes or decelerates at a particular rate of speed in a second; on the box at issue, the deceleration setting was eight miles per hour per second, which would constitute a hard-braking event. According to Rickard, the black box will only store two hard-braking events at a time. When asked if the circumstances surrounding the accident at issue would have qualified as a critical or hard-braking event that would have been recorded, Rickard responded affirmatively. Rickard further testified that the critical event data for the accident at issue was not present when the box was downloaded due to the length of time between the accident and the downloading.

On cross-examination, Rickard testified that he had neither been to the accident scene nor reconstructed the accident. Rickard further testified that the collision itself would not have caused the black box to activate. When questioned as to whether a vehicle traveling at forty-one miles per hour that took 190 feet to stop would result in a hard-braking incident, Murdoch testified that “[i]t may not be. It may be. There’s too many variables.”

After the close of appellee’s case, the trial court directed a verdict as to Count II of appellee’s complaint in favor of appellants. Farnham subsequently testified that, as a result of appellee crossing the center line on the day in question, he pulled his foot off of the accelerator, started to the shoulder of the road, and decided just to “cover the brake” for fear of losing control of his vehicle. Farnham further testified that he had been warned about using Old Kings Road when his tractor-trailer was too heavy. According to Farn-ham, he was making it up to thirty or thirty-five miles per hour when he noticed appellee’s van straddling the center line.

Following Farnham’s testimony, the trial court set forth that it had looked over appellee’s requested jury instructions and was denying such. According to the trial court, the request listed appellee’s special requested jury instruction regarding the presumption of negligence for the failure to preserve the black box data. In denying the request, the trial court stated, “I think it goes too far in this case to do that under the circumstances.”

Stephen Chewning, appellants’ accident reconstructionist, subsequently testified that he flew to Florida two weeks after the accident with equipment capable of downloading black box data. . However, because he viewed rolling tire marks at the scene of the accident, which were inconsistent with hard braking, he decided not to download the tractor-trailer’s black box data. According to Chewning, if the tractor-trailer’s brakes had been applied hard enough to trigger the black box, there would have been furrows in the grass. Chewning testified that he calculated the speed of the tractor-trailer at approximately thirty-five miles per hour. Chewning further testified that, based upon his accident reconstruction, it was absolutely impossible that the tractor-trailer was in appellee’s lane at initial contact and then at the point of maximum engagement.

During closing argument, appellants’ counsel stated:

Mr. Butler [appellee’s counsel] brought up what is called a 2.2 instruction, credibility. You look at the witnesses and you can evaluate them and — and you can, and you should do that. There were a lot of witnesses that didn’t testify: Dr. Salam, the psychiatrist; Allen Long; the fiancé, Deborah Davis, who was there that day; Tina Shephard, Mr. Taylor’s fiancé, and most importantly the plaintiff himself, also.
This is the jury instruction, and the Judge is going to read it, and just — it just says that in determining the believability you can look at demeanor, frankness, intelligence, the interest they have in the outcome, the ability to know the facts and remember the facts, and the ... reasonableness of the testimony, in the light of all the evidence in the case,.... And — and we didn’t — we didn’t have the opportunity to do that with these witnesses, and more importantly, Mr. Taylor. But — but we did have an opportunity to look at the others. And I ask you to apply these criteria to all of them, including Mr. Farn-ham.

Appellee’s counsel made no contemporaneous objection to this portion of opposing counsel’s closing argument. Thereafter, the jury found no negligence on appellants’ part.

Following the verdict, appellee moved for a new trial, which the trial court granted. In the trial court’s Order Granting Plaintiffs Amended Motion for New Trial, the court set forth that the case was a close one that could have resulted in a verdict for either side. According to the court, the ultimate question for the jury’s determination was whether the tractor-trailer crossed into appellee’s lane of travel. As its first ground for granting a new trial, the court set forth that it previously erred in failing to excuse venire woman Riggins for cause after she gave an indication that she could not be fair to both sides and stated that she could not award two million dollars even if the evidence justified it. Within this finding, the court also set forth that, while appellee did not overtly request an additional peremptory challenge, appellee had stated those perempto-ries he would have used had he been granted the challenge for cause on Rig-gins. As its second ground, the court set forth that it previously erred in fading to allow appellee to offer testimony regarding Farnham’s driving history with Bulkmatic and that appellants had violated the court’s ruling on a motion in limine by introducing evidence that Farnham was a “highly regarded longtime employee who was an icon of the company.” According to the court, appellee’s evidence would have shown that Farnham continually took shortcuts and repeatedly violated Bulk-matic’s company policy. As its third ground, the court set forth that after it found that Chewning, appellants’ expert reconstructionist, exhibited willful and wanton behavior in failing to preserve critical black box data, it should have, at a minimum, given appellee’s requested jury instruction concerning a presumption of negligence and, perhaps, not have allowed Chewning to testify. According to the court, the significance of the speed and braking issues did not become clear until appellants impeached appellee’s expert re-constructionist regarding his guesswork about speed and braking. The court further set forth that, had the black box data not been destroyed, appellee’s expert would not have had to guess about the speed and braking. As its fourth and final ground, the court set forth that appellants violated the court’s order regarding item number nine of appellee’s motion in limine by commenting on the failure of certain witnesses to testify during closing argument. The court concluded that “[t]he above referenced errors, both individually and in combination, were substantially prejudicial to [appellee], who did not -receive a fair trial as a result.” This appeal followed.

Generally, the granting of a new trial is within the sound discretion of the trial court, which is reversible only upon a showing of an abuse of discretion. Am. Employers’ Ins. Co. v. Taylor, 476 So.2d 281, 283 (Fla. 1st DCA 1985). However, if the trial court’s ruling is grounded on a question of law, the appellate court is on the same footing as the trial court in determining the correct law to be applied, and the broad discretion rule loses much of its force and effect. Id. In other words, “[w]hen the issue under review is essentially legal, the ruling is not entitled to the broad deference generally afforded a trial court’s decision to override a jury’s verdict in cases where the court found the verdict contrary to the manifest weight of the evidence.” Heckford v. Fla. Dep’t of Corr., 699 So.2d 247, 249 (Fla. 1st DCA 1997) (citations omitted). “While it is difficult to categorize any trial error as purely legal, ‘a trial judge’s discretion progressively diminishes as an issue becomes increasingly legal.’ ” Id. (quoting Tri-Pak Mach., Inc. v. Hartshorn, 644 So.2d 118, 119-20 n. 1 (Fla. 2d DCA 1994)).

Because the trial court in the instant case did not base its new trial order on a finding that the verdict was contrary to the manifest weight of the evidence, but instead based such upon four grounds that are essentially legal in nature, the trial court is not entitled to the broad deference generally afforded to trial courts when they rule on a motion for new trial. See Hartshorn, 644 So.2d at 120-121 (applying a less deferential standard of review in evaluating the trial court’s order granting the appellees a new trial based upon the trial court’s “four legal rulings,” which included two rulings that the court should have given two special jury instructions, a ruling that the court erred by permitting cross-examination of a witness, and a ruling that it erred in prohibiting certain cross-examination of the appellant’s medical expert); see also Heckford, 699 So.2d at 250-51 (applying a less deferential standard of review in evaluating the trial court’s order in which the court granted the appellee a new trial based upon its finding that the admission of a certain doctor’s report constituted error); Sebring Assocs., Ltd. v. Aumann, 673 So.2d 875, 876 (Fla. 2d DCA 1996) (holding that the trial court’s discretion in granting a new trial becomes limited when the decision turns on a question of law where the trial court granted a new trial because it found that the jury had been improperly impaneled); Taylor, 476 So.2d at 283 (applying a less deferential standard of review in evaluating the trial court’s order in which the court granted the appellee a new trial based upon its determination that the jury had been misinstructed).

As its first ground for granting appellee a new trial, the trial court found that it previously erred in not granting appellee’s challenge as to Riggins for cause. Appellants contend that a new trial was not warranted based upon this ground because appellee failed to preserve the issue by not requesting additional peremptory challenges. In Van Poyck v. Singletary, 715 So.2d 930, 931 (Fla.1998), the supreme court concluded that it is reversible error when a challenge for cause is improperly denied, and the defendant then exhausts his peremptory challenges on venire persons who should have been dismissed for cause and a request for additional peremptory challenges is denied. See also Taylor v. State, 796 So.2d 570, 572 (Fla. 2d DCA 2001) (holding that a defendant who challenges his conviction based upon a claim that he was improperly forced to exhaust his peremptory challenges must identify a specific venire person whom he would have removed peremptorily and that the defendant must have requested an additional peremptory strike to remove the objectionable venire person); Hutchinson Island Club Condo. Ass’n v. Degraw, 774 So.2d 37, 37 (Fla. 4th DCA 2000) (reversing an order granting the appellee a new trial and concluding that the denial of challenges for cause argument also failed for lack of preservation as the appellee failed to request additional peremptory challenges); Aumann, 673 So.2d at 876 (concluding that the trial court erred as a matter of law in granting the appellees a new trial as the appellees failed to request additional peremptory challenges once they exhausted their initial compliment of strikes and as they failed to identify the objectionable juror whom they would have stricken peremptorily); Dobek v. Ans, 560 So.2d 328, 329 (Fla. 4th DCA 1990) (noting that in Hill v. State, 477 So.2d 553 (Fla.1985), the supreme court, albeit by dictum, indicated that an appellant must show an exhaustion of all peremptory challenges and a denial of a request for additional challenges and affirming the final judgment because the appellant failed to make a specific request for additional peremptory challenges); Jenkins v. Humana of Fla., Inc., 553 So.2d 201, 202 (Fla. 5th DCA 1989) (holding that its previous decision in Auriemme v. State, 501 So.2d 41 (Fla. 5th DCA 1986), wherein the court held that a party need not seek additional challenges in order to preserve the error resulting from a trial court’s improper refusal to grant a challenge for cause, was in direct conflict with Hill and thereby receding from Auriemme to the extent that it was in conflict with its decision).

In contrast to the foregoing decisions, in City of Live Oak v. Townsend, 567 So.2d 926. 927 (Fla. 1st DCA 1990), which appel-lee relies upon, this Court noted that, because of the responses to the questions asked during voir dire, the appellant’s counsel challenged eight prospective jurors for cause in the eminent domain proceeding. Because the trial court denied all eight challenges, counsel used his remaining peremptory challenges to excuse four of those eight prospective jurors. Id. at 927. Before the jury was sworn, counsel unsuccessfully renewed his request that the four jurors, whom he had peremptorily challenged, be excused for cause. Id. According to this Court, a review of the record reflected- that each of the eight prospective jurors who were challenged for cause should have been excused. Id. at 928. While noting that counsel did not specifically request additional peremptory challenges “in so many words,” this Court determined that, had his renewed challenges for cause towards the four prospective jurors been granted, his peremptory challenges would have been restored and available to challenge the other four venire persons who were seated as jurors. Id. Thus, this Court viewed counsel’s “unavailing renewed cause challenges as the functional equivalent of a request for additional peremptory challenges which was denied, thereby entitling him to raise the matter on appeal,” and concluded that to hold otherwise would be to embrace form and eschew substance. Id.

Although appellee argues that Townsend is controlling as to this issue, we disagree and find Townsend factually distinguishable from the facts of the instant case. While this case is similar to Toum-send, in that appellee’s counsel also failed to request additional peremptories and repeatedly renewed his challenges for cause, this case is distinguishable from Townsend, in that, here, the trial court granted four of appellee’s counsel’s challenges for cause. Furthermore, the trial court properly denied the challenges for cause as to Riggins, as to Yawn, and as to White, an insurance adjuster. Neither Riggins’ statement that it would have to be a convincing case for her to award a large verdict nor Yawn’s statement that, while he did not know if a company would be 100% liable for its employees, he thought companies are responsible for their employees and that it would depend upon the situation warranted a striking for cause. Moreover, although counsel set forth that he would have used one of his peremptories to strike Solano, whose husband had recently passed away and whose son had driven a truck in the past, such factors would not have warranted a striking for cause either. Thus, there is no indication in this case, as there was in Townsend, that there was considerably more than a reasonable doubt as to the impartiality of the challenged prospective jurors and that such doubt was harmful and manifest to appellee. Therefore, because Townsend is distinguishable from the facts presently before us and because appellee’s counsel failed to request additional peremptory challenges, which would have given the trial court the opportunity to either grant or deny the request, we hold that this issue was not preserved. As such, the trial court erred in determining that appellee was entitled to a new trial on this ground. See Degraw, 774 So.2d at 37; Aumann, 673 So.2d at 877.

As its second ground in support of its new trial order, the trial court found that it previously erred in failing to allow appellee to offer testimony regarding Farnham’s driving history with Bulkmatic and that appellee’s evidence would have shown that Farnham continually took shortcuts and repeatedly violated Bulk-matic’s company policy. According to the trial court, appellants violated an order in limine by introducing evidence that Farn-ham was an icon at Bulkmatic. On appeal, appellants contend that appellee failed to preserve this issue for purposes of a new trial and that, even if the issue was preserved, the irrelevant evidence was introduced during the course of the trial, obviating the need for a new trial.

In support of their argument that appel-lee failed to preserve this issue, appellants rely upon the Third District’s decision in Allstate Insurance Co. v. Hinchey, 701 So.2d 1263, 1264 (Fla. 3d DCA 1997), wherein the Third District reversed the trial court’s order granting a new trial because the violation of the motion in li-mine had been invited and because ample evidence existed to support the jury verdict. There, prior to the trial, the parties agreed to a motion in limine excluding the hospital records that indicated that the appellee consumed four alcoholic drinks on the night of the accident. Id. at 1264-65. When the appellee’s counsel cross-examined the appellant’s witness and asked if there was anywhere in the records that suggested that the appellee was intoxicated, the witness mentioned the one reference regarding the four drinks. Id. at 1265. Following the jury verdict in favor of the appellant, the trial court granted the appellee a new trial based upon the appellant’s witness’s testimony. Id. In reversing, the Third District concluded that, not only did the appellee invite the testimony and fail to object to its admission, she also rejected the court’s offer to provide a curative instruction. Id. In other words, counsel was gambling that the jury would return a favorable verdict. Id.

In contrast to Hinchey, here, appellee’s counsel did not invite Gribben’s testimony that Farnham was considered an icon. It was appellants’ counsel that played that portion of Gribben’s deposition testimony. Moreover, while appellee’s counsel did not immediately object to this testimony, counsel did request a sidebar shortly thereafter during which he averred that the testimony placed Farnham’s reputation at issue. Cf. Hargrove v. CSX Transp., Inc., 681 So.2d 345, 346 (Fla. 2d DCA 1994) (holding that the appellee’s objection was untimely because it was not made until after the jury delivered an adverse verdict). Thus, because the instant case is distinguishable from Hinchey, appellee properly preserved this issue.

Turning to the merits of this second issue, pursuant to section 90.401, Florida Statutes (2000), relevant evidence “is evidence tending to prove or disprove a material fact.” “All relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2000). Section 90.404(1), Florida Statutes (2000), provides that “[ejvidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion,” except when addressing the character of the accused, the character of the victim, or the character of a witness. See also Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So.2d 596, 599 (Fla. 3d DCA 2000). When evidence of a person’s character or a trait of the person’s character is admissible, proof of such may be made by testimony regarding the person’s reputation. § 90.405(1), Fla. Stat. (2000). Specific instances of conduct may serve as proof of a person’s character or a trait of that character when the character or the trait is an essential element of a charge, claim, or defense. § 90.405(2), Fla. Stat. (2000).

As set forth in section 90.404(1), evidence of Farnham’s character or a trait of his character, such as violating company policies by continually taking shortcuts, is inadmissible to prove action in conformity with his character on a particular occasion, such as the day of the accident. For example, testimony that a person exceeded the speed limit on a limited number of occasions is not admissible to prove that the person exceeded the speed limit at the time in question. See Charles W. Eh-rhardt, Florida Evidence § 404.3 (2002 ed.). However, character evidence in civil actions is admissible when it is relevant and offered to prove an issue other than that the person acted in conformity with his or her character. See id.

The trial court was initially correct when it ruled that only Gribben’s warning two weeks prior to the accident would be admissible, as evidence of Farnham’s driving history or record would be inadmissible for purposes of proving that he acted in conformity with such on the day the accident occurred. Furthermore, even if the trial court erred in not allowing appel-lee to introduce evidence to rebut Grib-ben’s icon testimony, a trial court’s error in the acceptance or rejection of evidence does not necessarily constitute harmful error. See Midtown Enters., Inc. v. Local Contractors, Inc., 785 So.2d 578, 580 (Fla. 3d DCA 2001). It is only “when a substantial right of the party is adversely affected” that a trial court may grant a new trial on this basis. § 90.104(1), Fla. Stat. (2000); see also Parsons v. Motor Homes of Am., Inc., 465 So.2d 1285, 1290 (Fla. 1st DCA 1985). When a trial court is asked to grant a new trial on the basis of evidentia-ry errors, the court, in essence, sits as an appellate court and can only reverse itself if the error was substantially prejudicial. Midtown Enters., Inc., 785 So.2d at 580.

In the instant case, the jury was informed several times throughout the trial that Gribben had warned Farnham two weeks prior to the accident not to use Old Kings Road because of the weight restrictions on its bridges. Not only did Gribben testify regarding this warning, Farnham also testified about this warning and that he used a certain route that included Old Kings Road a great deal. With regard to appellee’s evidence that Farnham had a history of speeding around the terminal, the jury heard evidence throughout the trial that Farnham was speeding immediately prior to the accident. Timothy Smith, an eyewitness, testified that he estimated that Farnham was traveling at a rate of fifty-five or sixty miles per hour on Old Kings Road, which has a thirty-five-mile-an-hour speed limit. Murdoch calculated Farnham’s speed at 41.6 miles per hour, which was a minimum speed, and testified that Farnham could have easily been traveling in excess of fifty miles per hour. Based upon this testimony, any error that the trial court may have made in prohibiting appellee from introducing reputation testimony to rebut Gribben’s icon testimony did not substantially prejudice appellee. As such, the trial court erred in reversing itself on this issue. See Midtown Enters., Inc., 785 So.2d at 580.

As its third ground in support of its new trial order, the trial court determined that, after it found that Chewning exhibited willful and wanton behavior in failing to preserve the black box data, it should have, at a minimum, given appellee’s requested jury instruction concerning a presumption of negligence and, perhaps, not allowed Chewning to testify, notwithstanding its previous decision to only strike appellants’ comparative negligence defense. According to the trial court, the significance of the speed and braking issues did not become clear until appellants impeached Murdoch, appellee’s accident reconstructionist, regarding his guesswork about speed and braking. Appellants aver that a new trial was not warranted on this ground because appellee’s ability to establish a prima facie case was in no way hindered by the lack of the black box data.

In Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 599 (Fla.1987), the supreme court held that, in order for a court to shift the burden of producing evidence when a defendant causes the negligent loss or destruction of records, a plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his or her ability to establish a prima facie case. See also Jordan v. Masters, 821 So.2d 342, 347 (Fla. 4th DCA 2002) (indicating that a Valcin rebuttable presumption would have been proper had the appellant offered evidence to support the existence of the videotape and had he established that the missing videotape was essential to proving a prima facie case of sexual abuse); Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So.2d 346, 349 (Fla. 4th DCA 2001) (holding that the Valcin doctrine is applied when, through the defendant’s negligence, essential records are missing or inadequate and such absence or inadequacy hinders the plaintiffs ability to establish a prima facie case).

Here, when requesting potential sanctions, appellee’s counsel stated, “At this juncture, we will concede that the [appel-lee] can probably go forward with a prima facie case.... ” Furthermore, when appellants moved for a directed verdict as to all three counts, appellee’s counsel argued that there was “more than sufficient evidence as to the actions of Mr. Farnham on the day of the accident, so that the jury should consider whether or not his actions were negligent.” The trial court then denied appellants’ motion as to counts one and three. Cf. Palm Beach Roomer, Inc. v. McClure, 727 So.2d 1005, 1007 (Fla. 5th DCA 1999) (holding that a directed verdict is proper where the evidence and reasonable inferences therefrom, considered in a light most favorable to the nonmoving party, fail to establish a prima facie case of the claim asserted). Although appellee asserts on appeal that the adverse jury verdict evidences that his ability to prove liability was severely prejudiced, the adverse jury verdict evidences that appellee failed to prove his case by a preponderance of the evidence, not that he was unable to establish a prima face case.

Moreover, while the trial court found in its new trial order that the significance of the speed and braking issues did not become clear until appellants impeached Murdoch, the trial court denied appellee’s request for a presumption of negligence jury instruction after Murdoch testified, setting forth that “I think it goes too far in this case to do that under the circumstances.” Yet, interestingly, the trial court subsequently decided, after the jury returned a verdict in favor of appellants, that such a presumption had, in fact, been warranted. The trial court’s finding that Murdoch would not have suffered through such a withering cross-examination had the black box data not been destroyed is also erroneous as the issue of whether the black box actually recorded anything on the day of the accident was not conclusively established at trial.

In addition, Murdoch did not testify that the lack of the black box data precluded him from rendering his opinion as to how the accident occurred or in calculating the speed of Farnham’s tractor-trailer. Murdoch unequivocally testified that he calculated the speed of the tractor-trailer at 41.6 miles per hour based upon engineering principles. Cf. Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088, 1092 (Fla. 4th DCA 2001) (holding that the appellant’s ability to proceed against the ap-pellee for products liability was hampered as the appellant’s expert stated that he could not determine whether a defect was present in the soda bottle, nor could he attribute any defect to mishandling without evaluating the bottle); Sponco Mfg., Inc. v. Alcover, 656 So.2d 629, 630-31 (Fla. 3d DCA 1995) (holding that the appellee’s motion for default, a drastic sanction, was properly granted as the appellee’s expert convinced the trial court that, in the absence of the crucial evidence, the appellee was no longer able to proceed against the appellant). Therefore, because appellee’s ability to establish a prima facie case was not hindered by the lack of the black box data, if any such data existed, the trial court was correct in initially denying ap-pellee’s request to give a presumption of negligence jury instruction. The trial court was also initially correct in declining to strike Chewning from appellants’ witness fist as “the exclusion of a witness’ testimony is a drastic remedy which should be utilized only under the most compelling circumstances.” Vega v. CSCS Int'l, N.V., 795 So.2d 164, 167 (Fla. 3d DCA 2001) (citations omitted). As such, the trial court’s third ground in support of its new trial order did not warrant a new trial.

As its fourth ground in support of its order granting appellee a new trial, the trial court set forth that appellants violated the court’s order in limine by commenting on the failure of certain witnesses to testify during closing argument. Appellants’ counsel stated:

Mr. Butler [appellee’s counsel] brought up what is called a 2.2 instruction, credibility. You look at the witnesses and you can evaluate them and — and you can, and you should do that. There were a lot of witnesses that didn’t testify: Dr. Salam, the psychiatrist; Allen Long; the fiancé, Deborah Davis, who was there that day; Tina Shephard, Mr. Taylor’s fiancé, and most importantly the plaintiff himself, also.
This is the jury instruction, and the Judge is going to read it, and just — it just says that in determining the believability you can look at demeanor, frankness, intelligence, the interest they have in the outcome, the ability to know the facts and remember the facts, and the ... reasonableness of the testimony, in the light of all the evidence in the case,.... And — and we didn’t — we didn’t have the opportunity to do that with these witnesses, and more importantly, Mr. Taylor. But — but we did have an opportunity to look at the others. And I ask you to apply these criteria to all of them, including Mr. Farn-ham.

Appellants contend that a new trial was not warranted based upon these comments because appellee failed to preserve the issue by not contemporaneously objecting to such and because the comments did not satisfy the four-part test as set forth in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

In Murphy, the supreme court addressed the issue of what a party must demonstrate to receive a new trial based upon an unobjected-to closing argument. Id. at 1028. According to the supreme court, a complaining party must first establish that the argument was improper. Id. In determining whether an argument is improper, a trial judge must be mindful that the purpose of closing argument is to help the jury understand the issues in a case by “ ‘applying the evidence to the law applicable to the case.’ ” Id. (quoting Hill, 515 So.2d at 178). Once the complaining party establishes that the argument was improper, it must then establish that the argument was harmful. Id. at 1029. Harmfulness carries a requirement that “the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. “Passing remarks of little consequence in the scope of a lengthy trial find little sympathy if no contemporaneous objection is voiced.” Id. at 1029-30. In other words, “the improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at

1030. Once the argument is established to be improper and harmful, the complaining party must then establish that the argument is incurable, i.e., that “even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative means could not have eliminated the probability that the ... argument resulted in an improper verdict.” Id. The final element of the four-part test is that the complaining party must establish that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial. Id. If the trial court finds that all of these criteria have been met, it must enter an order granting a new trial specifically identifying both the improper arguments of counsel and the actions of the jury resulting from those arguments. Id. at 1031.

On appeal, appellee concedes that the trial court did not find appellants’ counsel’s closing argument to be incurable or to have so impaired the fairness of the trial that the public’s interest in our system of justice required a new trial, the third and fourth elements of the Murphy test. Moreover, appellee does not attempt to establish that the comments at issue satisfied these elements, which, under the facts of this case, would be a futile exercise. Thus, because appellee’s counsel failed to object to the comments at issue and because the third and fourth elements of the Murphy test have not been satisfied, the trial court erred in granting appellee a new trial on this ground.

Accordingly, the trial court erred in granting appellee a new trial because the four grounds in support of the trial court’s order, both individually and in combination with one another, did not warrant such a result. We, therefore, reverse the trial court’s order and remand with directions to reinstate the jury’s verdict.

REVERSED and REMANDED with directions.

WOLF, C.J. and POLSTON, J., concur.

      . For instance, juror Johnson made it clear that he had a strongly fixed opinion that a landowner is entitled to something extra if his land was taken against his will and that he would give the landowner something extra even if the judge told him that that would be improper. Id. at 928. The other seven prospective jurors gave similar responses when questioned. Id.

      . We note that, contrary to the trial court's order granting appellee a new trial, Riggins did not state that she could not award two million dollars even if the evidence justified it.


author: PER CURIAM.

text:
    Angel DIAZ and Nancy Diaz, Appellants, v. E.E. QUIGLEY and C.L. Quigley, Appellees.
    No. 02-3915.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.
    Ainslee R. Ferdie, Coral Gables, for Appellants.
    Roy V. Andrews, Lindsay, Andrews & Leonard, P. A., Milton, for Appellees.
   PER CURIAM.

AFFIRMED. See Saggese v. Dept. of Revenue of the State of Florida, 770 So.2d 1244 (Fla. 4th DCA 2000).

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Donald Gene MATHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3826.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

AFFIRMED. Brannon v. State, 850 So.2d 452 (Fla.2003).

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Eric McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2546.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.
    Nancy A. Daniels, Public Defender and James C. Banks, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Trisha Meggs Pate, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals a jury verdict convicting him of sexual battery with a firearm, burglary of a dwelling with a person assaulted, and armed burglary of a dwelling. Because there was only one entry, the dual convictions and sentences on the two burglary charges cannot stand. See Docanto v. State, 811 So.2d 790 (Fla. 4th DCA 2002); Hawkins v. State, 436 So.2d 44 (Fla.1983). Appellant received concurrent life sentences on both burglary charges. Accordingly, reversal of one is required. We therefore remand with instructions for the trial court to vacate the conviction and sentence on one of the burglaries.

REVERSED and REMANDED with instructions.

WOLF, C.J., BROWNING and HAWKES, JJ., Concur.


text:
    James BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3227.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.

      Nancy A. Daniels, Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Anne C. Conley, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of his timely motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(J). Appellant pled guilty to grand theft auto, providing false identification to a police officer, and fleeing and attempting to elude a police officer. After the trial court accepted his plea, Appellant, through counsel, filed a motion to withdraw plea. Simultaneously, counsel filed a certificate of conflict and motion to withdraw. At the hearing held on the motions, the trial court only addressed Appellant’s motion to withdraw plea. The certificate of conflict and motion to withdraw was not discussed. Subsequently, at the hearing, Appellant expressly disagreed with his counsel as to what happened while counsel was advising him concerning the plea.

We take no position on the merits of Appellant’s motion to withdraw his plea. However, a hearing on a motion to withdraw plea is a critical stage in criminal proceedings, and Appellant is entitled to conflict-free counsel. See Rodgers v. State, 765 So.2d 195 (Fla. 1st DCA 2000). Because it was apparent by counsel’s certificate of conflict and motion to withdraw, and Appellant’s express disagreement with counsel at the hearing, that counsel and Appellant had taken adversarial positions, the trial court was required to appoint conflict-free counsel to advise Appellant on his motion to withdraw plea. Jones v. State, 827 So.2d 1086, 1087 (Fla. 1st DCA 2002); see also Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002). Accordingly, the order denying Appellant’s motion to withdraw plea is reversed and the case remanded for appointment of conflict-free counsel and a new hearing on Appellant’s motion.

REVERSED and REMANDED.

WOLF, C.J., BROWNING and HAWKES, JJ., concur.


text:
    Dino LEWIS, Petitioner, v. James CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D02-3664.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.

      Dino Lewis, pro se, petitioner.
    Louis A. Vargas, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

By petition for writ of certiorari, Dino Lewis seeks review of an order of the circuit court which denied his petition for writ of mandamus which sought recalculation of his release date. Because Lewis is entitled to relief pursuant to Bolden v. Moore, 28 Fla. L. Weekly D187, — So.2d -, 2003 WL 69560 (Fla. 1st DCA Jan.8, 2003), revieiv pending, Crosby v. Bolden, No. SC03-0137, 848 So.2d 1153 (Fla. July 11, 2003), we grant the petition.

In circuit court case number 95-31807, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Subway Store on April 17, 1995. In circuit court case number 95-31817, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Pizza Hut on April 8, 1995. On all four counts, Lewis was sentenced as an habitual offender and received seven-year sentences, less credit for time served prior to sentencing, all counts running concurrent to any active sentence. The circuit court imposed three-year minimum mandatory terms on the two armed robbery counts.

Lewis was eligible to receive incentive gain time while serving the firearm sentences, but not while serving the three-year mínimums for the armed robbery counts. As a result, the release dates for the firearm counts were earlier than the release dates for the armed robbery counts. The Department of Corrections tolled the time for conditional release supervision to begin on the firearm counts for 344 days while Lewis completed the incarcerative periods for the armed robbery sentences.

Lewis was released to conditional-release supervision, but was later revoked. In calculating Lewis’s new release date, the Department added the 344 days which had been tolled. Lewis’s release date should be recalculated without the addition of the 344 days. In Bolden, this court held that in calculating a new release date following revocation of conditional release supervision, the Department could not consider as tolled the time served following expiration of the incarcerative portion of one sentence while the inmate awaited expiration of the incarcerative portion of a related sentence which arose from the same criminal episode. Here, the individual firearm and armed robbery sentences in the separate cases arose from the same criminal episode: the separate robberies of the Pizza Hut and Subway.

Although we grant the petition, we note that this court stayed issuance of the mandate in Bolden pending disposition of the Supreme Court review in that case. Accordingly, the time for service of a motion for rehearing is extended to 10 days after disposition by the Supreme Court of Bol-den.

PETITION GRANTED; TIME FOR REHEARING EXTENDED.

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    Victor C. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5214.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.
    Appellant, Pro se.
    Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Victor C. Rodriguez appeals the summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Rodriquez alleged his trial counsel was ineffective for (1) failing to make a motion to sever the offenses for which Appellant was charged, (2) failing to object, and preserve for appeal, erroneous jury instructions given by the trial court, (3) failing to object to the admission of collateral crime evidence committed by an accomplice as well as hearsay statements made by a non-testifying accomplice to the police, and (4) failing to object to the sufficiency of evidence presented as to value of stolen items supporting conviction for grand theft.

The appellant has stated facially sufficient claims that are not refuted by the record. We REVERSE the summary denial of postconviction relief and REMAND this case to the trial court to either attach portions of the record conclusively refuting these claims or hold an evidentiary hearing.

REVERSED AND REMANDED.

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Jerome O'NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2156.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Giselle Lylen Rivera,. Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged his trial counsel affirmatively mi-sadvised him regarding his eligibility for gain time. Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim, we reverse.

The trial court concluded that the appellant was not entitled to relief because he was fully advised as to the length of his sentence and attached portions of the sentencing hearing to support its conclusion. However, the appellant is not alleging ineffective assistance of counsel for failure of trial counsel to advise him of the potential length of his sentence, but instead for trial counsel’s misadvice regarding how much of the imposed sentence he would actually serve. Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record. See Jordan v. State, 833 So.2d 266 (Fla. 3d DCA 2002); Wilson v. State, 760 So.2d 237 (Fla. 2d DCA 2000); Little v. State, 673 So.2d 151 (Fla. 1st DCA 1996).

Accordingly, we reverse the trial court’s order and remand with instructions to either hold an evidentiary hearing or attach portions of the record conclusively refuting the appellant’s claim.

REVERSED and REMANDED.

ALLEN, DAVIS and BENTON, JJ., concur.


author: ROSENBERG, ROBERT A., Associate Judge.

text:
    Allen Thomas LUDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-2780.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Rehearing Denied Dec. 15, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for Appellee.
   ROSENBERG, ROBERT A., Associate Judge.

Allen Thomas Luda appeals his conviction and sentence and the denial of his Motion For New Trial. This Court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.140(b)(1)(A). Luda was convicted of one count of sexual battery upon a child less than twelve by a person eighteen years old or older and three counts of indecent assault.

Luda raises four issues on appeal:

I. The trial court reversibly erred in clearing the courtroom when minor victims testified.
II. The trial court reversibly erred in denying appellant’s motion to suppress his September 22 statements to police.
III. The trial court reversibly erred by allowing the State to elicit hearsay from an expert, in sexual abuse examination, which identified appellant as the perpetrator named by a minor victim and included her accusatory statements.
IV. The Florida Sexual Predators Act is unconstitutional.

This court is unpersuaded by appellant’s contentions on issues I, II and III. On issue IV, this court has recently determined that the Florida Sexual Predators Act, section 775.21, Florida Statutes, is constitutional. See Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). Accordingly, we affirm the trial court.

STONE and POLEN, JJ., concur.

      . Since the right to a public trial is a constitutional right, courts have held that before a trial court orders closure, it must satisfy the four prerequisites enunciated in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced. Second, the closure must be no broader than necessary to protect that interest. Third, the trial court must consider a reasonable alternative to closing the proceedings. And, fourth, the court must make findings adequate to support the closure. See Pritchett v. State, 566 So.2d 6, 7 (Fla. 2d DCA 1990). Compare Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999).`
      A defendant, however, can waive his right to a public trial by failing to object. See Evans v. State, 808 So.2d 92 (Fla.2001); see also Alvarez v. State, 827 So.2d 269 (Fla. 4th DCA 2002).
      In the instant case, Luda's attorney generally objected to the closure. But, he did not request that Luda's family members be allowed to remain in the courtroom and did not draw the trial court’s attention to the language of section 918.16, Florida Statutes (1998), that exempts the parties' immediate families from exclusion from the courtroom. An objection must be specific enough to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. See Williams v. State, 414 So.2d 509, 511 (Fla.1982); see also Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001) (holding that an issue is preserved for appeal if the attorney’s articulated concern is sufficiently specific to inform the trial court of the alleged error); Minor v. State, 763 So.2d 1169, 1171 (Fla. 4th DCA 2000) (holding that appellant provided only general objections which, for the most part, did not give the trial court the opportunity to address the complaint he now makes on appeal).
      In the matter before this court, the issue of closure was not specifically preserved for appellate review.


author: KAHN, J.

text:
    Walter D. MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-697.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Rehearing Denied Dec. 8, 2003.

      Appellant Walter D. Morrison, pro se, Raiford.

      Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, Walter Morrison, filed a series of motions, amended motions, and addenda seeking postconviction relief from his 1998 robbery conviction. In these various pleadings, appellant alleged 14 instances of ineffective assistance of counsel and one instance of error stemming from the trial court’s failure to provide the defense with notice and an opportunity to be heard before responding to an inquiry from the jury during deliberations. The trial court summarily denied relief on all of these claims. Three of appellant’s claims of ineffective assistance will require further attention from the trial court. No error appears as to the remaining claims.

Drawing from the allegations in Morrison’s motion, on December 4, 1997, someone robbed the Panama Bar and Lounge in Jacksonville. The only eyewitness to the robbery was Teri Gilley, the bartender and cashier. Several days after the robbery, Gilley identified Morrison from a photographic line-up and later testified at trial, providing an in-eourt identification of appellant. During her testimony, Gilley described the robber as being around 5' 7" tall and average build with shoulder length hair and no facial hair. The theory of the defense rested upon misidentification and alibi. Morrison claims he is 5' 9" tall and 210 pounds and that, at the time of the robbery, he had short hair and a thick mustache. Because no physical evidence linked Morrison with the robbery, the result of the trial depended upon the jury’s assessment of the credibility of the appellant’s witnesses versus that of Gilley. Consequently, the three issues upon which we reverse call into question defense counsel’s choices regarding selection and examination of defense witnesses.

To state a facially sufficient claim of ineffective assistance of counsel, the convicted movant must have alleged deficient performance on the part of trial counsel and prejudice resulting from that deficient performance. See Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s performance is deficient if it falls below “ ‘an objective standard of reasonableness based on ‘prevailing professional norms.’ ” Id. To establish prejudice, the appellant must show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceedings. See id. If the movant’s claims are facially sufficient and not conclusively refuted by the record, the cause must be remanded for the trial court to either hold an eviden-tiary hearing or to attach record portions conclusively refuting the appellant’s allegations. See, e.g., Griner v. State, 774 So.2d 793, 794 (Fla. 1st DCA 2000).

The second ground for relief raised by appellant’s motion, 1(A)(2), alleged that trial counsel rendered ineffective assistance by failing to interview and call several potential witnesses. Appellant’s trial counsel, in fact, called three witnesses in an effort to show that appellant did not match the description given by Gilley at the time of the robbery. All three of these witnesses, however, could be characterized as either a friend or relative of the appellant and two of these witnesses were impeached by previous convictions involving dishonesty. Nonetheless, the trial court concluded that testimony provided by the additional witnesses would have been cumulative and that appellant had failed to allege that these witnesses were not also susceptible to impeachment.

In the motion, appellant claims he identified to counsel by name or contact information 10 to 15 convenience store employees who had observed him before and after the date of the robbery while he serviced various stores in the course of his employment as a plumber. According to Morrison, these witnesses would have been disinterested, having nothing more than a business relationship and no apparent reason to fabricate testimony. Given the defense strategy, we discern no readily apparent trial tactic by' which reasonable counsel would have not at least investigated the possibility of additional witnesses whose credibility could not have been easily challenged. Cf. Terrero v. State, 839 So.2d 873, 875 (Fla. 3d DCA 2003) (holding that “failure to call a disinterested witness to a crime where identification is 'an issue and there is no corroborating evidence of guilt constitutes extraordinary circumstances” justifying postconviction relief).

The third and fourth grounds for relief raised in the appellant’s motion, 1(B)(1) and 1(B)(2), each alleged ineffective assistance of counsel in dealing with rehabilitation of impeached defense witnesses. On direct examination, trial counsel asked defense witness Ann Almon whether she had previously been convicted of a crime of dishonesty. Almon answered that she had eight convictions occurring ten years earlier. The record reveals that trial counsel failed to bring out that Almon’s convictions were for tendering worthless checks rather than some more onerous crime, such as perjury, which may be inferred by the phrase “crime of dishonesty.” Appellant alleged that reasonable counsel would have chosen to engage in anticipatory rehabilitation. Anticipatory rehabilitation is a proper trial tactic which allows a party presenting the testimony of a witness to “delve into the nature or circumstances of the [prior] convictions for. the purpose of rehabilitating the witness by attempting to diminish the effect of the disclosures.” Lawhorne v. State, 500 So.2d 519, 522 (Fla.1986).

Appellant’s other claim regarding counsel’s failure to rehabilitate a defense witness involved the testimony of his sister-in-law, Joan Cannoe. On cross-examination by the state, Cannoe testified that she had previously been convicted of a crime of dishonesty. As in the case of anticipatory rehabilitation, inquiry into the nature and circumstances of prior convictions is proper when a party’s witness is impeached on cross-examination. See Lawhorne, 500 So.2d at 521. Appellant alleges that counsel should have brought out on re-direct that Cannoe’s sole conviction was for shoplifting some ten years earlier.

The trial court summarily denied relief on each of these claims finding that trial counsel’s decision not to attempt rehabilitation was a trial tactic and was therefore not susceptible to an ineffective assistance of counsel claim. A determination that counsel’s action was based upon strategy or tactics, however, is generally inappropriate without an evidentiary hearing. See Jackson v. State, 789 So.2d 1218, 1219 (Fla. 1st DCA 2001); Williams v. State, 642 So.2d 67, 68-69 (Fla. 1st DCA 1994). Because appellant’s defense relied so heavily upon the credibility of his witnesses, we are unwilling to assume that trial counsel’s decision to forego any effort to rehabilitate two of the three defense witnesses was simply a trial tactic.

Accordingly, we reverse the trial court’s order with respect to the appellant’s second, third, and fourth grounds for relief (grounds 1(A)(2), 1(B)(1), and 1(B)(2)) and remand with directions for the trial court to either attach portions of the record conclusively refuting appellant’s entitlement to relief or to hold an evidentiary hearing. We affirm the trial court’s order in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

WEBSTER, and POLSTON, JJ., CONCUR.


author: HAZOURI, J.

text:
    SUBWAY RESTAURANTS, INC., Appellant, v. Homer THOMAS, Appellee.
    No. 4D02-3627.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Denied Dec. 22, 2003.
    Robert D. McIntosh and Rachel M. Coe of Adorno & Yoss, P.A., Fort Lauderdale, for appellant.
    Kenneth D. Cooper of Kenneth D. Cooper, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Subway Restaurants, Inc., appeals from the trial court’s final judgment awarding attorney’s fees to Homer Thomas pursuant to section 57.105(6), Florida Statutes (2002). We reverse.

Subway filed suit under their franchise agreement to evict Thomas, a franchisee of Subway, from the premises of Thomas’s Subway franchise. A default judgment was entered against Thomas which was later vacated. Thomas subsequently filed suit against Subway for wrongful eviction, violation of Thomas’s civil rights, and breach of contract based upon the lease and the franchise agreement. Thomas made a demand for attorney’s fees. Subway’s suit for eviction was consolidated with the action filed by Thomas. Thomas prevailed in his suit and recovered damages from Subway. This court affirmed that decision in Thomas v. Doctors Associates, Inc., 856 So.2d 1129, 2008 WL 22399708 (Fla. 4th DCA Oct.22, 2003).

Thomas then filed his motion for entitlement to reasonable attorney’s fees as the prevailing party. After a hearing on the motion, the trial court granted the motion and found that Thomas was entitled to his attorney’s fees. Thereafter, Thomas was awarded fees in the amount of $360,000.

Subway raises three points on appeal. Subway first argues that the trial court erred in awarding attorney’s fees, to Thomas under section 57.105(6) because the provision for attorney’s fees to the prevailing party on an action under a contract is only mutual as to the specific terms of the attorney’s fees provision in the contract. In particular, the entitlement to attorney’s fees applied only to claims for recovery of unpaid rents, which was not the basis upon which Thomas prevailed. We agree and therefore, it is unnecessary to discuss the other two issues raised as to the amount of fees awarded.

The contract in this case allows for the recovery of attorney’s fees under the following circumstances: “Lessee agrees to pay the cost of collection and reasonable attorney’s fees on any part of said rental that may be collected by suit or by attorney, after the same is past due.” Based on this provision, the trial court awarded Thomas his fees under section 57.105(6) which provides:

(6) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

In Anderson Columbia Co. v. Department of Transportation, 744 So.2d 1206 (Fla. 1st DCA 1999), Anderson brought an action against the Department for breach of a construction contract and prevailed in the trial court. However, the trial court denied Anderson’s request for attorney’s fees. Under the construction contract, Anderson was required to furnish the Department with a bond which became part of the construction contract. If Anderson breached the contract and the Department brought an action on the bond, the Department had the right to recover attorney’s fees under the following contract provision:

Default by Contractor: In case of default on the part of the Contractor, actions for all expenses incidental to ascertaining and collecting losses under the bond, including accounting, engineering and legal services, together with any and all costs incurred in connection with renegotiation of the contract, shall lie against the bond.

Id. at 1206. In its claim for attorney’s fees before the trial court, Anderson argued that “although its action against FDOT was not on the bond, under the broad provisions of section [57.105(6)], recovery of attorney’s fees is permitted ‘in any action’ in which it prevailed under the contract.” Id. at 1207.

On appeal, the district court affirmed the trial court’s finding that the Department’s right to recover was limited to the extent of ascertaining and collecting losses under the bond. Anderson’s action was not on the bond but on the contract. Therefore, because the contractual provision limited fees to bond actions, Anderson was not entitled to fees under the statute.

This court considered the same issue in Indemnity Insurance Co. of North America v. Chambers, 732 So.2d 1141 (Fla. 4th DCA 1999). In that case, Indemnity’s insured, Unidas, made payment for personal injury and property damages caused by Chambers while driving a vehicle rented from Unidas. Indemnity then filed a sub-rogation claim against Chambers. Indemnity voluntarily dismissed its complaint against Chambers and the trial judge awarded fees to Chambers under Florida Rule of Civil Procedure 1.420(d) and section 57.105(6). On appeal, this court reversed and stated:

We hold that the trial court erred in determining that the provision for prevailing party attorney’s fees in the underlying rental contract included attorney’s fees incurred in the event of liability for personal or property damage. The contract provided for attorney’s fees for collection of charges due under the agreement; the term “charges,” in the contract, clearly did not include costs of reimbursement for personal injury or property damages caused by the renter.

Id. at 1143.

Anderson and Chambers control the decision in the instant case. The attorney’s fee provision in the lease limited Subway’s entitlement to attorney’s fees to actions for the collection of overdue unpaid rents. Subway brought an action to evict Thomas from the premises and never sought to collect rents that were overdue. Thomas’s action against Subway was for wrongful eviction and for breach of contract for evicting him. These actions never triggered Subway’s limited entitlement to attorney’s fees. Therefore, Thomas was not entitled to his fees under section 57.105(6).

REVERSED.

STONE and SHAHOOD, JJ., concur.


text:
    Darryl VALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3809.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Denied Dec. 17, 2003.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Darryl Valley was charged with and convicted of one count of strong arm robbery and one count of burglary with assault. We hold that the trial court erred in admitting certain collateral crime evidence and permitting an investigating police officer to testify to the identity of the defendant through the use of hearsay.

The charges against Valley arise from a robbery that occurred on November 27, 1999 next to a drive-through automated teller machine (ATM). At approximately 9:10 p.m., Christy Gentry drove up to the ATM to conduct a transaction. A man in a hooded sweatshirt approached her vehicle and told her, “this is a robbery.” The assailant then got into the back seat of her car and told her to run an account balance. The assailant demanded money and jewelry from Gentry and she complied. Thereafter, the assailant exited the car and fled on foot.

Gentry was unable to identify her assailant due to the fact that his face was partially concealed by the hooded sweatshirt. She could only generally identify the man as a black male, fairly tall, with a “smushed” nose. However, the police were able to obtain fingerprints from the rear window of her car near where the assailant entered.

Approximately a month later, on December 23rd, Officer Steve Powser was conducting surveillance of the ATM and the surrounding area due to prior incidents in the area. He observed a silver vehicle driving slowly by the bank watching a female at the drive-through ATM. Officer Powser stopped the vehicle. Inside the vehicle was Valley and a female companion. They told Officer Powser that they were lost and looking for the mall. While speaking to Valley, Officer Powser observed a hooded sweatshirt in the backseat of the vehicle. Valley was not arrested at that time. However, Officer Powser ran a criminal history check on Valley and obtained a copy of his fingerprints. Valley’s fingerprints matched the prints taken from the victim’s vehicle. Charges were then filed against Valley.

Prior to trial, the State filed a Notice of Intent to use evidence of other crimes and bad acts. The State indicated its intent to offer evidence about: 1) charges filed against Valley in another robbery/burglary that occurred at the same ATM on November 23, 1999 (four days before the robbery in the instant case); 2) an attempted robbery that occurred on December 19,1999; and 3) the incident on December 23, 1999 where Officer Powser observed Valley driving suspiciously around the parking lot next to the ATM. The trial court held a hearing and ultimately determined, over the objection of the defense, that the evidence was admissible.

During trial, Gentry testified regarding the circumstances of the robbery. However, she was unable to identify Valley as her assailant. The State entered into evidence testimony establishing that the fingerprints taken from the victim’s car matched those of Valley.

The State also presented the testimony of Elizabeth Bonet, the victim of the November 23rd robbery. Bonet testified that at approximately 9:45 p.m., she drove up to the same ATM. A man in a hooded sweatshirt rushed up, grabbed her hands and told her to empty out her account. The assailant then proceeded to open up the back door of her car and get into the back seat. After she withdrew money and gave it to him, he exited the car and fled on foot. The victim was unable to identify Valley as her assailant. However, she generally described the assailant as a young black man, approximately 5'10", wearing a dark colored hooded sweatshirt.

The State then offered into evidence photographs taken from a camera located at the ATM that had filmed the November 23rd robbery. Detective Michael Jasinski was called to the stand and testified that after he received Valley’s name as a suspect from Officer Powser, he took a photograph to Valley’s last known place of employment. He testified that a Mr. Bett, a previous co-worker of Valley’s, was able to identify the man in the photograph as Valley. Valley objected to this testimony as hearsay. The trial court overruled the objection.

The State’s final evidence linking Valley to the robbery was Officer Powser’s testimony regarding the circumstances of December 23rd where he observed Valley driving around the parking lot suspiciously and the subsequent stop. Based on this evidence, the jury found Valley guilty of both counts. He was subsequently sentenced to life in prison.

Valley argues that he is entitled to a new trial because the trial court erred in allowing Detective Jasinski to testify regarding the identification made by Mr. Bett on the basis that it is inadmissible hearsay. He also argues that the trial court erred in allowing evidence relating to the November 23rd robbery and the December 23rd incident with Officer Powser on the basis that it is inadmissible collateral crime evidence.

We first address Detective Jasin-ski’s testimony that Mr. Bett identified the man in the photograph of the November 23rd robbery as Valley. Pursuant to section 90.801, Florida Statutes, (2002), an out of court statement of identification is hearsay unless the declarant testifies at trial and is subject to cross-examination. In the instant case, Mr. Bett did not testify at trial and therefore was not subject to cross-examination. Detective Jasinski’s testimony was clearly hearsay. The State argues that the testimony was not hearsay because it was not admitted to prove the truth of the matter asserted, but rather to establish the sequence of events during the investigation and to explain why the police focused on Valley. The State did not present this theory below, therefore the trial court did not have the benefit of this argument and was unable to weigh the prejudicial effect. In addition, without an awareness of this alleged basis for admissibility, Valley was unable to request a limiting instruction. Furthermore, the State utilized the testimony for the truth of the matter asserted during closing argument when it told the jury to rely on Mr. Bett’s identification.

The State argues that even if the admission of the testimony was erroneous, it was harmless error since the photograph itself was admitted into evidence. The State contends that the jury could see for itself whether it was Valley in the photograph. Therefore, Mr. Bett’s identification was harmless. It may have been harmless error had the State not used Mr. Bett’s identification to bolster its case during closing argument. During closing, the State told the jury that if it was not sure that it was Valley in the photograph, it should “listen to Mr. Bett.” In addition, the State argued, “Mr. Bett knows that’s him.” Since identification was the contested focus of the trial, we cannot say that the error was harmless beyond a reasonable doubt. See Goodwin v. State, 751 So.2d 537, 542 (Fla.1999) (applying harmless error test established in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), burden is on the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict).

We next address Valley’s argument that the trial court erred in allowing testimony and evidence relating to the November 23rd robbery and the December 23rd incident with Officer Powser. Section 90.404(2)(a), Florida Statutes (2002), codifies the standard for admission of collateral crime evidence as established in Williams v. State, 110 So.2d 654 (Fla.1959). It provides:

Other crimes, wrongs, or acts.—

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.

If the sole relevancy of each of the above incidents to each other is to establish the propensity or bad character of Valley, they are inadmissible.

The material issue sought to be proved by the State’s notice of intent to use similar fact evidence was the defendant’s identity. The State sought to prove Valley was the assailant in Gentry’s case by showing his modus operandi, i.e., the circumstances of both Bonet’s case and Gentry’s case.

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.

Drake v. State, 400 So.2d 1217, 1219 (Fla.1981).

A mere general similarity will not render the similar facts legally relevant to show identity. See Chandler v. State, 702 So.2d 186, 192 (Fla.1997). In order for collateral crime evidence to qualify as “similar,” the facts and circumstances must establish a sufficiently unique pattern of criminal activity when all of the common points are considered together. The cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to the defendant as the perpetrator. Id. at 193.

The admission of evidence relating to the November 23rd robbery was not error. Photographs taken from the surveillance camera of the November 23rd robbery link Valley to the crime. There were many similarities between the two robberies. The robberies took place at the same location, at approximately the same time of night, four days apart from each other. The victims gave similar descriptions of their assailants and both stated that the assailant was wearing a dark colored hooded sweatshirt. In addition, the sequence of events in both robberies was very similar: the assailant approached the rear of the vehicle, got in the back seat behind the driver’s side, demanded money, but did not produce a weapon, and fled on foot. When all of these similarities are considered together they become a unique pattern of criminal activity.

However, the admission of evidence relating to the December 23rd incident with Officer Powser was error. Officer Powser testified that on December 23rd he was conducting surveillance of the ATM and surrounding area. He observed a silver vehicle containing Valley and a female companion slowly circling the area and acting suspiciously. He stopped the vehicle and while speaking with Valley he observed a hooded sweatshirt in the back seat. There are not sufficient similarities between this incident and the robbery that would make this testimony admissible. The State offered this testimony to place Valley at the scene and to connect him with the hooded sweatshirt. The erroneous admission of collateral crime evidence is presumed prejudicial because of the danger that a jury will take the bad character or propensity to commit a crime as evidence of guilt of the crime charged. In the instant case, this testimony was harmful error. During closing argument, the State argued:

The clincher is what are the chances that this happened? And also, three weeks later, Darryl Valley just happens to be with his girlfriend sitting in the car, who won’t tell him where the mall is, with a dark sweatshirt on the back seat or a hooded sweatshirt. Going back to that exact ATM. I mean this man was at the ATM. This man was at the ATM. This man was at an ATM.

The State clearly focused on Officer Pow-ser’s testimony as part of its case. Since the State felt this testimony was “the clincher," we can hardly say that its admission was harmless beyond a reasonable doubt. We reverse and remand for a new trial.

REVERSED.

STONE and SHAHOOD, JJ., concur.

      . Evidence of this robbery was never presented by the State at the hearing on the Notice of Intent and was never admitted during trial; therefore, there is no issue relating to this evidence.


author: HAWKES, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Paula GORDON, Respondent.
    No. 1D03-0449.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    Rehearing Denied Dec. 8, 2003.

      Judson M. Chapman, Assistant General Counsel; Dept, of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    David M. Robbins, and Susan Z. Cohen; Epstein & Robbins, Jacksonville, for Respondent.
   HAWKES, J.

The issue before us involves Respondent, Paula Gordon’s plea to the criminal charge of driving under the influence of alcohol (DUI), and the administrative procedure that resulted in the suspension of her privilege to drive. Petitioner, the Department of Highway Safety and Motor Vehicles (the Department), seeks certiorari review of the trial court’s grant of certiora-ri to Gordon, after the trial court concluded the Department was bound by the plea agreement entered between Gordon and the assistant state attorney. We find the trial court departed from the essential requirements of law by granting Gordon’s petition for writ of certiorari.

Pursuant to a plea agreement with the state attorney’s office, Gordon pled no contest and was convicted for her second DUI. Both the assistant state attorney and defense counsel represented to the court that Gordon’s conviction occurred more than five years after her first conviction. Accordingly, Gordon was sentenced consistent with the mandatory minimum penalties for a second DUI committed more than five years from her previous offense, and her drivers’ license was revoked for only six months. Her plea agreement with the state attorney’s office only resolved her criminal case. Any bargain a defendant may strike in a plea agreement in a criminal case has no bearing on administrative consequences that flow from the defendant’s actions. See generally, State v. McFarland, 28 Fla. L. Weekly D2298, — So.2d -, 2003 WL 22259634 (Fla. 1st DCA, Oct. 3, 2003).

The record indicates Gordon’s DUI convictions were actually only one year and two months apart. The Department notified Gordon that her license was administratively revoked for five years, as required by section 322.28(2)(a)2., Florida Statutes (2000).

Gordon sought certiorari review, arguing that, because the Department was an agent of the State of Florida, it was bound by the plea agreement between Gordon and the state attorney’s office. The trial court agreed, and ordered the Department to reinstate Gordon’s driver’s license. In so doing, the trial court departed from the essential requirements of law.

The administrative revocation of a driver’s license for DUI is not “punishment” of the offender. See Dep’t of Highway Safety & Motor Vehicles v. Grapski, 696 So.2d 950, 951 (Fla. 4th DCA 1997). Rather “it is an administrative remedy for the public protection that mandatorily follows conviction for certain offenses.” Id. (quoting Smith v. City of Gainesville, 93 So.2d 105, 107 (Fla.1957)); see also Dep’t. of Highway Safety and Motor Vehicles v. Vogt, 489 So.2d 1168, 1170 (Fla. 2d DCA 1986). When a driver’s license revocation is made mandatory by statute, revocation is an administrative function rather than the imposition of a criminal sentence. See Grapski, 696 So.2d at 951.

Here, Gordon had two DUI convictions within a five year period. Thus, the statute mandated her driver’s license be suspended for at least five years. See § 322.28(2)(a)2., Fla. Stat. Based on the plain language of the statute, a criminal sentence is separate and distinct from a mandatory administrative revocation. See id. Accordingly, the administrative revocation, which is designed to protect the public, cannot be negotiated away as part of a criminal sentence in a plea agreement.

The Department’s Petition for Writ of Certiorari is GRANTED, and the case REMANDED for the trial court to reinstate the Department’s Order of Revocation.

BROWNING, and POLSTON, JJ., Concur.


text:
    Cedernier JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Rehearing Denied Dec. 16, 2003.
    Cedernier Joseph, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without discussion the trial court’s summary denial of the first eight grounds of Appellant’s motion for post-conviction relief. The state properly concedes, as it did below, that Appellant is entitled to resentencing for the reasons asserted in grounds nine and ten of his motion. We therefore affirm in part and reverse in part, remanding for the trial court to resentence Appellant in accordance with his ninth and tenth grounds for relief, and also, as pointed out in Appellant’s tenth ground, in accordance with this court’s mandate in Appellant’s direct appeal, case no. 4D00-254, issued on December 29, 2000.

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

GUNTHER, POLEN and TAYLOR, JJ., concur.