text:
    Yale RUDO, Petitioner, v. Leah LEVIN, Respondent.
    No. 4D03-1341.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Brad Culverhouse, Fort Pierce, for petitioner.
    Robin S. Moselle of Jacobson, Sobo & Moselle, Plantation, for respondent.
   PER CURIAM.

A Martin County resident petitions this court for a writ of certiorari, challenging a trial court order directing him to appear before a special master in Broward County for proceedings supplementary. We grant the petition, issue the writ, and quash the order of the trial court to the extent it requires the proceedings to take place in Broward County.

The petitioner had a judgment entered against him in Baltimore County, Maryland, in 1999. The respondent had the foreign judgment domesticated, obtaining a final judgment in Broward County in 2000. A writ of execution issued in December, 2002. The respondent subpoenaed the petitioner for deposition twice before, once in Broward County, on April 10, 2000, and a second time in Martin County, in May, 2001.

In January, 2003, the respondent moved for proceedings supplementary to execution of the judgment. A copy of the motion was served on the petitioner at his address in Martin County. Following a hearing, the trial court rendered an order, which granted the motion for proceedings supplementary, appointed a special master, and ordered the petitioner to appear in Broward County, at a time and date certain.

Petitioner argues that the order requiring his appearance for examination in Bro-ward County constitutes a departure from the essential requirements of law. We agree. Section 56.29(2) specifically provides that “the court shall require the defendant in execution to appear before it or a master at a time and place specified by the order in the county of the defendant’s residence to be examined concerning his or her property.” § 56.29(2), Fla. Stat. (2001) (emphasis added).

The order in this case directs the petitioner to appear outside the county of his residence. In fact, the respondent does not dispute that the petitioner currently resides in Martin County. It appears that the petitioner lived in Broward County when the action for domestication of the foreign judgment was filed, but moved before the motion for proceedings supplementary was filed. The respondent argues that because the petitioner resided in Broward County when the domestication action was filed, it should not now be required to “chase” the petitioner to another county because he has moved in the interim.

“Supplementary proceedings are a creature of statute.... ” Conrad v. McMechen, 338 So.2d 1306, 1307 (Fla. 4th DCA 1976). The statute requires the appearance of the judgment debtor in the county of his residence. It neither prohibits the petitioner from moving nor requires his return in the event of a move. “The mandate of the statute is plain, but the order under review fails to comply.” Id.

Because the error cannot be remedied on appeal, it constitutes irreparable harm. See Patterson v. Venne, 594 So.2d 331 (Fla. 3d DCA 1992). Having satisfied the two requisites for issuance of a writ of certiorari, the petition is granted, the writ issued, and the order of the trial court quashed in so far as it requires the proceedings to take place in Broward County.

STONE, KLEIN and MAY, JJ., concur.

      . The respondent argues that the petition is moot because the deposition date has passed and the petitioner failed to appear during the course of these proceedings. Because this issue is capable of repetition, we do not find the issue moot. Logan v. State, 846 So.2d 472, 473 n. 1 (Fla.2003) (citing N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000)).


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    David HALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5385.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    Rehearing Denied Aug. 26, 2003.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

David Hall appeals his conviction and sentence for attempted first-degree murder. We reject the arguments made by Hall concerning the sufficiency of the evidence and the imposition of discretionary court costs, but we agree that the trial court erred in classifying Hall’s offense as a life felony.

Hall was sentenced to a minimum mandatory life sentence as a prison releasee reoffender, pursuant to section 775.082(9), Florida Statutes (2000). The trial court stated at sentencing that the offense carried a mandatory life sentence.

Hall argues on appeal that the offense should have been classified as a first-degree felony. Hall preserved this argument for review by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 8.800(b)(2). We agree that the trial court erred in sentencing Hall for a life felony.

Attempted first-degree murder is a first-degree felony. See §§ 782.04, 777.04(4)(b), Fla. Stat. (2000). The information charges that Hall committed the offense by stabbing the victim with a deadly weapon, but the verdict form does not reflect a jury finding that Hall used a deadly weapon in the commission of the offense. Therefore, it was error to reclassify the offense to a life felony for the use of a weapon pursuant to section 775.087(l)(a), Florida Statutes (2000). See State v. Tripp, 642 So.2d 728 (Fla.1994). Accordingly, we reverse and remand for the trial court to correct the judgment and resentence Hall for a first-degree felony.

Reversed and remanded.

WHATLEY and COVINGTON, JJ., Concur.


author: KELLY, Judge.

text:
    David R. KEEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5510.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
   KELLY, Judge.

David R. Keen appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion as to six of Keen’s claims, but we reverse and remand on his remaining claim.

In his motion, Keen alleged that the State’s main witness recanted his testimony inculpating Keen for first-degree murder. The trial court denied this claim because, although Keen attached a letter from the witness to his motion, he did not provide a notarized statement from the recanting witness. However, Keen is not required to provide such a statement; he must only provide a brief statement of facts in support of the motion. See Fla. R.Crim. P. 3.850; Smith v. State, 837 So.2d 1185 (Fla. 4th DCA 2003). Keen claimed that the recanting witness originally testified that Keen admitted to planning the murder. He further alleged that absent this testimony the State would have been unable to prove the premeditated intent required for first-degree murder. These allegations are legally sufficient to state a prima facie claim of newly discovered evidence based upon the recantation of trial testimony. See McLin v. State, 827 So.2d 948 (Fla.2002); Padron v. State, 827 So.2d 393 (Fla. 2d DCA 2002); Smith, 837 So.2d at 1186. Because the allegations are not refuted by the record, we reverse and remand for the trial court to either hold an evidentiary hearing or attach portions of the record which conclusively refute Keen’s claim.

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    Horatio E. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0675.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Rehearing Denied Sept. 30, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Banks v. State, 801 So.2d 153 (Fla. 1st DCA 2001), review granted, 826 So.2d 991, 842 So.2d.842 (Fla 2003); Regan v. State, 787 So.2d 265 (Fla. 1st DCA 2001); Vann v. State, 569 So.2d 867 (Fla. 2nd DCA 1990); Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988); Fla. R.Crim. P. 3.850(b).

BOOTH, DAVIS and PADOVANO, JJ., concur.


author: HAWKES, J.

text:
    STATE of Florida, Appellant, v. Christopher HINSON, Appellee.
    No. 1D 02-2071.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Rehearing Denied Sept. 25, 2003.

      Charlie Crist, Attorney General and Robert Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellee.
   HAWKES, J.

The State appeals the imposition of a downward departure sentence upon the revocation of Appellee, Christopher Hin-son’s (Hinson) probation. The State argues the reasons set forth by the trial court as grounds for the downward departure are either legally invalid or unsupported by competent, substantial evidence. We agree and reverse.

In 1995, Hinson was charged in Leon County with two counts of sexual battery with force and violence and one count of robbery. He subsequently pled guilty to one count of sexual battery with force and violence, grand theft, and battery. Adjudication of guilt for sexual battery was withheld, but Hinson was adjudicated guilty of grand theft and battery, and sentenced to three years of probation, 60 days in the Sheriffs Work Program, New Hope counseling, sex offender counseling, and payment of restitution. Hinson absconded without serving any of his probation or complying with any of its terms. Six and one-half years later, in September of 2001, Hinson turned himself in at the Leon County Sheriffs Office on the outstanding violation of probation warrant.

At his violation hearing, Hinson testified that in 1995, he pled no contest to sexual battery. After he was sentenced, he spoke with his probation officer for 15 minutes, left the courthouse, and never went back or reported for probation. In August of 2001, the police came to his home in Orlando and told his mother-in-law they had a warrant for his arrest in Leon County. Thirty-two days after learning that law enforcement was attempting to serve the arrest warrant, Hinson drove to Tallahassee and turned himself in. Hinson admitted he violated his probation and that he has been gone for six and one-half years. He acknowledged he did not do New Hope counseling, sex offender counseling, or serve 60 days in the Sheriffs Work Program. In an apparent attempt to mitigate his violations, he testified he has not been arrested since he left and is now more mature and has a stable residence.

The trial court found Hinson willfully and substantially violated his probation. Over the State’s objection, the trial court imposed a downward departure sentence of six months in jail followed by six months of probation. The trial court set forth the following three grounds to justify departure: (1) Hinson lived at liberty for six and one-half years; (2) Hinson voluntarily surrendered himself on his violation of probation when formally notified of the warrant for his arrest; and (3) Hinson’s violation was unsophisticated, was an isolated incident, and that he had shown remorse, as evidenced by his having lived and worked as a productive member of society using his own name.

“A trial court’s decision whether to depart from the guidelines is a two-part process.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, it must determine whether a valid legal ground and factual support for that ground exists. Id. “Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by ‘a preponderance of the evidence.’” Id. (footnotes omitted). When determining whether valid reasons exist for a downward departure upon revocation of probation, the trial court’s decision must be based upon all of the circumstances through the date of the revocation sentencing. See Franquiz v. State, 682 So.2d 536, 538 (Fla.1996). The statutory grounds for departure are provided in section 921.0016(4), Florida Statutes (1995). However, the list of statutory departure reasons is not exclusive. See id.; State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999). “[E]ven if some of the court’s stated reasons are insufficient, only one valid reason is necessary to sustain a departure.” Randall, 746 So.2d at 552.

Here, the trial court correctly considered all of the circumstances through the date of revocation in determining whether to impose a downward departure sentence. However, none of the reasons given are sufficient. The first reason, that Hinson lived at liberty for six and one-half years (solely due to leaving the area and successfully avoiding arrest and living as a fugitive on the outstanding warrant) is not a valid ground upon which to depart. See §. 921.0016(4), Fla. Stat. (1995). The second reason, that Hinson voluntarily surrendered when formally notified of the warrant for his arrest, is neither a valid ground to depart, nor supported by competent, substantial evidence. Hinson “voluntarily surrendered” only after police arrived at his home in Orlando and formally attempted to serve the warrant. He then took 32 days to drive to Leon County and turn himself in.

The last reason is the only statutory ground provided by the trial court. That ground, that Hinson’s violation was unsophisticated, an isolated incident, and one for which he had shown remorse, is not supported by competent, substantial evidence. Before a departure sentence can be imposed on this ground, proof of each of these three elements must be shown. Failure of any one element is a failure of the ground to justify departure. As for whether the violation was unsophisticated, the uncontested evidence is that, after being sentenced, Hinson immediately absconded, remained at large as a fugitive for six and one-half years, never reported, and never met any of the conditions of his probation. We conclude that success in avoiding arrest for six and one-half years does not serve as competent, substantial evidence to support a finding that the violation was in any way unsophisticated. Moreover, this was not an isolated incident, but rather a continuous, six and one-half year violation that began immediately after Hinson was sentenced. Finally, where this ground ultimately fails is the lack of objective record evidence that Hin-son was in any way remorseful for having committed his crimes of sexual battery with force and violence, grand theft and battery. There is no evidence that Hinson did anything to indicate remorse (i.e., attend counseling, pay restitution, or even apologize). In fact, during his testimony, he does not even express remorse for absconding for six and one-half years. Because of the lack of competent, substantial evidence to support any of these elements, a downward departure cannot be upheld on this ground.

Hinson neither complied nor attempted to comply with any of the conditions of his probation. Instead, after being sentenced to probation, he simply ignored the sentence and did as he chose. Because the reasons given by the trial court to support a downward departure are insufficient, the sentence is REVERSED and the case REMANDED for resentencing within the guidelines.

BOOTH and VAN NORTWICK, JJ., CONCUR.


author: STEVENSON, J. WARNER, J.,

text:
    Beatrice ROSE, Appellant, v. Michael W. FIEDLER, M.D., Charles M. Fischman, M.D., Fischman & Borgmeier, M.D., P.A., Omar David Hussamy, M.D., Omar D. Hussamy, M.D., P.A., and Coastal Orthopedic Center, Appellees.
    No. 4D01-2856.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Donald Alan Tobkin, and Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellant.
    Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, and Lewis W. Murphy of Moss, Henderson, Blanton, La-nier, Kretschmer & Murphy, P.A., Vero Beach, for appellees Charles M. Fischman, M.D., and Fischman & Borgmeier, M.D., P.A.
    Robert D. Henry of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for ap-pellees Omar David Hussamy, M.D., Omar D. Hussamy, M.D., P.A., and Coastal Orthopedic Center.
   STEVENSON, J.

Beatrice Rose, the plaintiff in a medical malpractice suit, suffered a directed verdict in favor of the defendant physicians as a sanction for her trial counsel’s misbehavior during the course of the litigation and at trial. We find that the sanction of a directed verdict, tantamount to a dismissal of the case, was an inappropriate punishment of the litigant where the record does not support a finding that the client herself was personally involved in the attorney’s misconduct. We reverse and remand for the trial court to consider other appropriate sanctions, short of dismissal.

The Proceedings Below

In June of 1995, Rose, who was in her sixties, underwent hip replacement surgery performed by Dr. Omar Hussamy, an orthopedic surgeon. Because of complications following the surgery, Rose filed a medical malpractice suit against a number of medical providers, but proceeded to trial against only Dr. Hassamy and Dr. Charles Fischman, the pulmonologist who treated her both before and after the surgery.

The difficulties between plaintiff’s trial counsel, Donald Tobkin, and the defense attorneys began almost immediately and the pleadings, motions and hearing transcripts attendant thereto total more than 3,000 pages. The vast majority of the motions for sanctions, motions to compel, and motions for protective orders which followed were precipitated by Rose’s counsel’s failure to follow the rules of civil procedure and court orders. Some of the problems were caused by plaintiffs counsel’s failure to follow simple rules of professional courtesy. For instance, the defense lawyers complained to the trial judge when Tobkin served a notice of deposition with no attempt to first coordinate the date with the defense, when Tobkin attempted to “piggy-back” his motions on hearings set by the defendants, and when Tobkin served one of the defendant doctors with a subpoena to appear at a “non-evidentiary” hearing. The bulk of the defendants’ motions were granted. In one instance, the trial judge reserved jurisdiction to assess the amount of the sanction at a later date and, in a second, the court warned that future failures to comply could result in sanctions.

Besieged with motions and hearings resulting from the number of problems which arose between counsel during the pre-trial discovery period, the trial judge entered a case management order and also an order requiring a court reporter to be present at all hearings. Despite the case management order, the discovery motions continued with the trial court granting a motion to compel the plaintiff to answer interrogatories and reserving jurisdiction to award fees and costs.

By this time, it was September of 1998, more than a year after the filing of the complaint. Judge Smith recused himself when he became a patient of Dr. Fischman and Judge Kenney was assigned the case. The discovery motions to compel and for sanctions continued, most being filed by counsel for the defendants. In July of 1999, Judge Kenney intervened, but the problems continued.

Finally, on August 23, 1999, jury selection began. Following jury selection, a discussion ensued between the judge and counsel regarding the pending motions in limine. Subsequently, the judge instructed counsel not to discuss in opening statements any matter that was the subject of a pending motion. About mid-way through his opening statements, Rose’s attorney made statements to the jury regarding the “captain of the ship” doctrine — the subject of a pending motion in limine. The defendants moved for a mistrial and the court reserved ruling.

Following opening statements, the discussion turned to which witnesses Tobkin would call the next day. Tobkin indicated that he intended to read an edited version of Dr. Weiss’s deposition. The defense counsel complained that Tobkin had not provided line and page numbers for Dr. Weiss’s edited deposition despite the judge’s pre-trial ruling that such information be exchanged; the court ordered Tob-kin to provide it by 8 p.m. that evening. The next day, counsel for the defendants reported that Tobkin had not complied with the 8 p.m. deadline; instead, in the courtroom that morning, Tobkin provided attorney Murphy with the information regarding the Weiss deposition and attorney Henry with nothing at all. In response to all of this, the judge ruled that counsel would review Weiss’s deposition over the lunch recess.

As it turned out, Tobkin never got to any of the deposition testimony on that day (August 25th). Instead, he called Dr. Hussamy to the stand. Tobkin questioned Hussamy for nearly a day and a half. Tobkin interrupted his questioning of Hus-samy at one point to complain to the judge that the defense lawyers were making faces at the jurors; the judge instructed the attorneys not to make eye contact with any of the jurors.

Despite the trial judge’s entreaties that the lawyers needed to help expedite the trial, when court reconvened the next morning, Tobkin resumed his examination of Dr. Hussamy, often posing redundant, ■ unnecessary questions:

Q: Is skilled nursing facility a euphemism for a home?
[A relevancy objection here was overruled.]
A: Home to me is a place where somebody lives.
Q: Home is where the heart is?
A: Home is where you live.
Q: Home is where the heart is? How do the terms “home” and “nursing home” differ in your medical parlance?
A: Well, nursing home is a place or a home where you receive nursing and home is a place where you don’t receive nursing; i.e., a home without nursing.
Q: A home is not a house, correct?
A: Well, one goes to one’s home, which is a house; yes.
Q: A home is not a building, is it?
A: I think a home is a house. Yes, it is.

When the trial recessed for lunch and Tobkin still had not finished his examination of Dr. Hussamy, the trial judge asked the attorneys to consider how to address the problem of time as the jury had been told that the case would last seven to ten days, the courtroom had been booked for only ten days, and, near the end of the first week of trial, plaintiffs counsel was still conducting direct examination of the first substantive witness. After lunch, Tobkin questioned Hussamy for another twenty-two pages and then the defendants were permitted to call, out of order, Dr. Taher Husiany, a neurologist who saw Rose during her June 1995 hospitalization.

When the proceedings recessed, the judge instructed counsel to get together over the weekend and resolve the problems with the remaining video depositions, particularly that of Dr. Coburn. When the lawyers returned on Monday morning, the defendants’ attorneys reported that when Tobkin arrived for their meeting, he failed to bring the tapes with him and then left for half an hour to retrieve them. The judge then indicated that he had been reviewing Dr. Coburn’s deposition and inquired what had become of the many objections. The defendants’ attorneys represented that Tobkin had simply taken them out; Tobkin never answered, but stated that the defendants’ attorneys should have brought the objections to the court’s attention. After forty pages of discussion, the judge did not make a ruling, but instead brought the jury in so that the defendants’ expert, Dr. Heidi Stephens, could be called to the stand.

After Dr. Stephens testified, Tobkin sought to show the jury Dr. Cordner’s video deposition. The defendants’ attorneys complained that Tobkin had just provided the page and line numbers that morning and that Tobkin had not indicated that he intended to offer Cordner’s deposition that day. Difficulties also arose because the transcript began at page sixty-six. In light of this, the court inquired whether Tobkin had a live witness. Tob-kin answered in the negative, stating that he had expected the court to approve Cordner’s deposition and that he intended to call Mrs. Rose in the afternoon. This must have been the final straw for defendants’ attorneys because, with that, they asked that the judge prohibit the plaintiff from presenting any further testimony and direct a verdict in their favor as a sanction for plaintiffs counsel’s continued and repeated violation of the court’s orders. The trial judge orally granted the motion, finding that plaintiffs counsel had consistently and egregiously violated the court’s orders.

In the subsequent final judgment explaining its decision to impose the extreme sanction of dismissal, the trial court stated:

Plaintiff did everything possible to thwart a fair and orderly trial of this case. Everything was attempted by surprise.
As a result, the totality of Plaintiff’s continuous, intentional and egregious actions prevented Defendants from the possibility of receiving a fair trial and presenting their defense.
... Despite numerous sanction orders, other orders where sanctions were reserved and other pending motions for sanctions, Plaintiff and her attorney continued to disregard almost every other order of this Court, the Rules of Civil . Procedure and unwritten (but generally followed) principles concerning fairness.
... Declaration of a mistrial with imposition of financial sanctions would not be a fair adjudication of those rights in this case, even if it were possible for the Court to calculate financial and professional losses to these Defendants, which the Court finds to be impossible. It is also important to remember the numerous prior and pending motions and orders reserving jurisdiction for imposition of financial sanctions, which did not deter what took place during this case.
[The Court went on to describe the significant problems in judicial adminis tration caused due to the fact that he was specially assigned to the case and most of the hearings were in St. Lucie County and the trial was held in Indian River County.]
The Court is also convinced that Plaintiff would like nothing better than a declaration of mistrial in this case, even if it were accompanied with some sanctions. She would be given a “second bite at the apple” and the ability to correct all previous mistakes. Defendants complied with the orders of this Court and Plaintiff did not. It would be unduly prejudicial to put Defendants through this again.

Kozel’s Six-Factor Test

Appellant argues that dismissal was too severe a sanction. Our resolution of this issue begins with the decision in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). In Kozel, our supreme court addressed a situation where the attorney for the plaintiff failed to file an amended complaint within the time parameters ordered by the trial court. The trial judge dismissed the case with prejudice as a result. On review by the supreme court based on conflict jurisdiction, the court mandated that the order of dismissal be reversed:

In the instant case, the trial court acted within the boundaries of the law. In our view, though, the court’s decision to dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote. The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation. Fla. R. Civ. Pro. 1.010. This purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the delayed filing of the complaint.
Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.

Id. at 818 (citations omitted)(emphasis added).

The court in Kozel went on to require that the trial judge reconsider the sanction in light of the six-factor test established in the opinion, i.e.,

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noneompliance; and 6) whether the delay created significant problems of judicial administration.

Id. The court stated that “[u]pon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.

Here, review of the record and the trial court’s detailed order demonstrates that all of the factors discussed in Kozel, except for one, weigh heavily in favor of dismissal. Tobkin’s disobedience was willful, deliberate and contumacious (factor 1); TobMn had been previously sanctioned (factor 2); Tobkin’s conduct caused prejudice to the opposing side through undue expense (factor 4); Tobkin offered no reasonable justification for non-compliance (factor 5); and the delay created significant problems of judicial administration (factor 6).

The record on appeal, however, does not support a finding that Rose herself participated in the misconduct or that she was aware in any real sense of the nature or extent of her attorney’s mis-doings; indeed, the record suggests that Rose was in the hospital during much of the trial. Thus, a consideration of Kozel’s factor 3, whether the client was personally involved in the act of disobedience, does not support dismissal. Given our supreme court’s express purpose in Kozel not to promote a policy of dismissing cases because of lawyer disobedience without the client’s involvement, the inclusion of that factor within the court’s six-part test appears to establish an indispensable foundation for dismissal. Moreover, the court in Kozel seemed particularly concerned that, as in the instant case, the client was unaware that the case was on the brink of dismissal:

Granted, the plaintiff is aware of the filing deadlines and is responsible for the action that she initiates. Nevertheless, dismissal is an unusually harsh sanction when neither the court nor the defendant is required to notify the plaintiff that dismissal is pending.

Id. at 818 n. 2.

Indeed, in Schlitt v. Currier, 763 So.2d 491 (Fla. 4th DCA 2000), this court held that absent client participation in the misconduct, Kozel precluded the entry of judgment in favor of the adverse party. In Schlitt, the defendant filed a total of thirteen motions to compel as the result of the plaintiff’s failure to respond to discovery requests and orders setting deadlines for responsive pleadings. Monetary sanctions were entered three times and dismissal was threatened on a number of occasions. Finally, the trial court struck the complaint and entered judgment in favor of the defendants.

After his complaint had been dismissed, Schlitt hired new counsel and sought to vacate the sanctions, attaching an affidavit to the effect that he was unaware of the numerous motions and sanctions. See 763 So.2d at 492. The trial court denied the motion to vacate. On appeal, this court reversed:

In this case, the lengthy history of total non-compliance with numerous court orders to comply with pre-trial discovery would seemingly justify the trial court’s ultimate sanction. Moreover, Schlitt does not dispute that his attorney’s conduct was inexcusable.
Nevertheless, we reverse, as this court has interpreted Kozel as mandating reversal of such extreme sanctions, as an abuse of discretion, where the actions were the fault of the attorney and not the party. See Cole v. Bayley Prods., Inc., 661 So.2d 1299 (Fla. 4th DCA 1995); accord Elder v. Norton, 711 So.2d 586 (Fla. 2d DCA 1998); Walicki v. Waste Management, Inc., 703 So.2d 1095 (Fla. 2d DCA 1997). Here, Schlitt presented an affidavit swearing to complete ignorance of his attorney’s actions.

Id. at 493 (emphasis added).

Just as in Schlitt, Kozel requires a reversal of the dismissal sanction in this case. Accordingly, in the instant case, having found no evidence of client knowledge or involvement in the attorney misconduct, we reverse the dismissal and remand so that the trial court may consider other appropriate sanctions.

Yet, we recognize that, in Kozel, the attorney malfeasance was more in the nature of neglect than disobedience. Here, the trial court found that the attorney’s misconduct was “willful, deliberate and contemptuous.” Further, the trial judge painstakingly described the prejudice resulting to the opposing side and outlined why any sanction short of dismissal would not be a viable alternative. These distinctions cause this court to question whether Kozel’s express desire to discourage the dismissal of lawsuits absent client involvement in the misconduct sanctioned would extend to the circumstances here. Accordingly, we certify the following question to the Florida Supreme Court as one of great importance:

MAY A TRIAL COURT DISMISS A CIVIL ACTION AS THE RESULT OF THE PLAINTIFF’S ATTORNEY’S MISCONDUCT DURING THE COURSE OF THE LITIGATION WHERE A CONSIDERATION OF ALL OF THE KOZEL FACTORS POINT TO DISMISSAL EXCEPT THAT THERE IS NO EVIDENCE THAT THE CLIENT WAS PERSONALLY INVOLVED IN THE ACT OF DISOBEDIENCE?

REVERSED and REMANDED.

TAYLOR, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur only because of Schlitt, which held that Kozel precludes dismissal for attorney misconduct unless it is shown that the client participated in the misconduct. 763 So.2d at 493. As in Kozel, Schlitt involved delays in responding to discovery or amending pleadings, id. at 492, not willful, contumacious trial conduct by the attorney as in this case. Moreover, Kozel listed six factors for the court to consider in determining the sanction to be applied, of which client involvement was only one factor. 629 So.2d at 818. Schlitt has turned Kozel into a five factor test plus one super factor as a condition precedent to the consideration of the other factors.

In this ease, the court detailed at length the grievous conduct of the attorney both prior to, and during, trial. The court’s order recited that “this case presents a unique combination of a party (Ms. Rose) and her attorney (Mr. TobMn) continuing a course of willful, deliberate and contemptuous misconduct, without any reasonable justification or excuse.” There is scant evidence in the record of actual knowledge of the client, despite her failure to obey the court’s orders to attend a summary trial and to answer supplemental interrogatories or her failure to appear at trial. Her attorney explained that she was sick but that was apparently never confirmed on the record. I could locate only one excerpt of her deposition in the voluminous record. At that deposition her attorney and defense counsel bickered and argued over the continuation of the deposition. It is apparent on one occasion that her attorney agreed to a continuation of the deposition but later reneged on the agreement in her presence. Just by listening to this heated exchange, she should have known of her attorney’s antics in this ease.

The trial court also determined that no sanction short of dismissal would be a viable alternative. Unlike the situation in Kozel or Schlitt where the cases were only in the discovery stage, see Kozel, 629 So.2d at 817; Schlitt, 763 So.2d at 492, here, the trial had commenced and was ongoing for several days, with the judge attempting to avert the difficulties that the plaintiffs attorney was creating. Finally, the court determined that nothing short of dismissal with prejudice would suffice to correct the problems. Given his level of disobedience, the court could not expect the attorney’s conduct to improve at a second trial. Moreover, the use of an alternative sanction, such as a mistrial with an assessment of attorney’s fees and costs against the plaintiff and her attorney as a condition to resetting the trial, probably would be tantamount to dismissal with prejudice as a sanction, unless either the client or the lawyer had the ability to pay what would obviously be a very substantial award.

Were it not for Schlitt, I would affirm the trial court’s ruling. Kozel does not command that a case may never be dismissed for attorney misconduct without client participation being shown. 629 So.2d at 818. Client participation may be one factor, but the trial court needs the discretion in egregious cases as this one to utilize the ultimate sanction of dismissal, even where the client does not actually participate in the misconduct. The United States Supreme Court has itself authorized such a result. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Court said:

[W]e have held that clients must be held accountable for the acts and omissions of their attorneys. In Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), we held that a client may be made to suffer the consequence of dismissal of its lawsuit because of its attorney’s failure to attend a scheduled pretrial conference. In so concluding, we found “no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client.” Id., at 633, 82 S.Ct. at 1390. To the contrary, the Court wrote:
“Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Id., at 633-634, 82 S.Ct. at 1390 (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1880)).
This principle also underlies our decision in United States v. Boyle, 469 U.S. 241, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985), that a client could be penalized for counsel’s tardy filing of a tax return. This principle applies with equal force here and requires that respondents be held accountable for the acts and omissions of their chosen counsel.

Here, the gross misconduct of the attorney permeated the entire case, culminating at trial. The court attempted prior solutions and gave many warnings and some sanctions. Faced with this exceptionally contumacious conduct at trial and direct disobedience to several trial rulings, I think the court acted well within its discretion in dismissing this case with prejudice. A mistrial and retrial would not cure the problem, including the additional publicity generated against the defendants and the financial losses they suffered, as noted by the trial court.

The client cannot claim ignorance and then get another opportunity. She hired this attorney and then allowed him to obstruct and obfuscate for over three years. She must take some responsibility to inform herself of her affairs, including this suit. If she in fact suffers as a result of her attorney’s egregious behavior, it is a result of her own choice to hire him and then remain uninformed and apparently uninterested in the manner in which he represented her.

      . The court reviewed Kozel v. Ostendorf, 603 So.2d 602 (Fla. 2d DCA 1992), which conflicted with Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA), review denied, 553 So.2d 1164 (Fla. 1989). The court quashed the Second District's opinion in Kozel.


author: KLEIN, J. KLEIN, J.

text:
    NOVASTAR MORTGAGE, INC., Appellant, v. James P. STRASSBURGER, and Euphemia Strassburger, Appellees.
    Nos. 4D02-4213, 4D02-4280.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Order Granting Rehearing in Part Oct. 1, 2003.
    Gregg W. McClosky and David J. Pas-cuzzi of McClosky, D’Anna, Ioannou & Dieterle, LLP, Boca Raton, for appellant.
    David I. Brodt of Leslie Robert Evans & Associates, P.A., Palm Beach, for appel-lees.
   KLEIN, J.

Novastar appeals an award of attorney’s fees against it, arguing that the fees should not have been awarded, under a provision in the mortgage, to a party who was not a party to the mortgage. We agree, but affirm because the party receiving the fees also prevailed on its offer of judgment.

Novastar loaned money to fund a mortgage, but through mistake or misconduct, was not assigned the note and mortgage. It brought an action against a number of defendants in which it sought damages and foreclosure. In a different foreclosure on the same property, the Strassburgers purchased the property from the lender seeking foreclosure. As a result of that purchase, they became parties in the Novastar action.

Although Novastar prevailed against the title insurer in its action, it did not prevail against the Strassburgers, and the trial court awarded the Strassburgers attorney’s fees based on the attorney’s fee provision in the original mortgage and section 57.105(6), Florida Statutes, which made that unilateral attorney’s fees provision reciprocal.

Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney’s fees under the mortgage. Edwards v. Wills, 686 So.2d 702 (Fla. 2d DCA 1996). We affirm, however, because the Strassburgers were entitled to fees under our offer of judgment statute, section 768.79.

The trial court ruled that this was not a “civil action for damages” under the statute, because it was a foreclosure. Novas-tar concedes, however, that it was seeking damages in the form of reimbursement for attorney’s fees and costs. In addition, the Strassburgers point out that the promissory note secured by the original mortgage had already been paid, and that this lawsuit was only about money.

We agree with the Strassburgers that this was in fact an action for damages and that the offer of judgment statute accordingly applies. Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996)(offer of judgment statute applied in declaratory action to determine whether contract authorized seller to retain deposit, because “the only matter at issue was money.”); Stewart v. Tasnet, Inc., 718 So.2d 820 (Fla. 2d DCA 1998)(ap-plying offer of judgment statute in action seeking the equitable remedy of subrogation because, if successful, it would have resulted in a monetary judgment). Affirmed.

WARNER and SHAHOOD, JJ., concur.

ON MOTION FOR REHEARING

KLEIN, J.

We grant Novastar’s motion for rehearing in one respect. The amount of attorney’s fees must be reconsidered by the trial court on remand because, under section 768.79, Florida Statutes the Strass-burgers are only entitled to attorney’s fees incurred after service of the offer of judgment. The motion for rehearing is otherwise denied.

WARNER and SHAHOOD, JJ., concur.


text:
    Tony VISGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1770.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Carey Haughwout, Public Defender, Patrick B. Burke and Nan Ellen Foley, Assistant Public Defenders, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny rehearing, withdraw our previous Per Curiam Affirmed entered in this case and substitute the following citation opinion in its place.

Affirmed, see Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

FARMER, C.J., KLEIN and SHAHOOD, JJ., concur.


author: PER CURIAM. FARMER, C.J.

text:
    Vernon NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1462.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Opinion on Rehearing Denied Oct. 1, 2003.
    Vernon Nelson, Chattahoochee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Vernon Nelson appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Nelson challenged his consecutive prison terms as a habitual offender in light of Hale v. State, 630 So.2d 521 (Fla.1993). The trial court accepted the state’s position that appellant’s claim was successive. See State v. McBride, 848 So.2d 287 (Fla.2003).

We reverse the circuit court’s order as Nelson’s claim was never considered on the merits. The case is remanded for the trial court to consider whether Nelson’s claim for relief is apparent from the face of the record. Burgess v. State, 831 So.2d 137 (Fla.2002); Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000).

FARMER, C.J., WARNER and SHAHOOD, JJ., concur.

On Motion For Rehearing

FARMER, C.J.

In its motion for rehearing, the state argues as follows:

“The trial court did not need to reach the merits of the appellant’s Hale claim because it had already determined that the claim was successive. This applies whether or not the claim was apparent from the face of the record under Burgess v. State, 831 So.2d 137 (Fla.2002). The claim was procedurally barred and, therefore, the trial court could not proceed to examine the claim on the merits. Burgess simply does not apply to the facts of this case.”

We reject this argument because it is not supported by the record.

Defendant first filed his Hale claim in 1995. It was timely. See Burgess, 831 So.2d at 140 (“defendants had two years from our mandate in [State v.] Callaway[, 658 So.2d 983 (Fla.1995)] to file rule 3.850 motions seeking Hale relief (i.e., until July 20, 1997).”). In its response to the 1995 motion, the state argued that the Hale claim could be raised only in a rule 3.850 motion. The trial court denied the claim based on the state’s response. Hence the record shows that the 1995 Hale claim was not decided on the merits but only on the form of the motion.

Defendant renewed his Hale claim in 1997 under rule 3.850. The state responded that it was a successive motion and should be denied for that reason. The trial court denied the claim for the reasons given in the state’s response. Again the motion was not decided on the merits but solely on the basis of the rule used as his vehicle.

We pause to note the character of the state’s response. Essentially the state argued that the first motion was improper because defendant cited the wrong rule, and the second motion filed under the other rule was improper because it was successive. Putting aside for the moment the differences in what must be shown under rules 3.800 and 3.850, this kind of tactic is unfair. It is hardly seemly for the law to deny relief because the form of the request is improper and then when the form is corrected to say that the motion is successive, or repetitive. This is little more than the “gotcha” school of litigation, roundly condemned in the cases.

Defendant’s present motion is under rule 3.800 and is based on the decision in Burgess. It is that his Hale claim is determinable from the face of the record, namely the trial transcript, where the victim testified that he broke into the property and stole property from it. If so, this would be a classic single episode precluding consecutive sentences for both offenses. In Burgess, the court distinguished its decision from Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000), saying:

“In that case, the district court found that the trial court could have treated an untimely 3.850 motion as a 3.800(a) motion to correct an illegal sentence resulting from a Hale error, ‘because his Hale claim is apparent from the face of the record.’ The court in Valdes, however, did not rely upon inadmissible hearsay contained in police reports, but rather relied upon the facts established in the transcript of the defendant’s jury trial, which was part of the record from the defendant’s previous direct appeal. There is no such record information available to rely on in this case.”

831 So.2d at 142.

In short defendant here argues that he occupies the same place as the defendant in Valdes — that is that his consecutive sentence is illegal because the fact of a single criminal episode may be ascertained from the trial transcript as a matter of law and therefore does not require an evidentiary hearing. If no evidentiary hearing is required to demonstrate the illegality, then relief “at any time” under rule 3.800 is available.

The state’s only position is that the claim was successive. Yet the record shows that defendant’s Hale claim has never been addressed on the merits. In State v. McBride, 848 So.2d 287 (Fla.2003), the court held that while res judicata is not applicable to decisions on motions under rule 3.800, successive motions may be barred under the principle of collateral estoppel. More specifically, the court held that collateral estoppel, precludes a defendant from rearguing in a successive rule 3.800 motion only issues actually decided in a prior motion. 848 So.2d at 291. Defendant has never previously argued that, as permitted by Burgess, he can show the illegality as a matter of law from the trial transcript. The state’s motion for rehearing does not challenge that assertion in any way.

Accordingly, we adhere to our original decision and remand the case to the trial court to determine whether the trial transcript demonstrates that both offenses sentenced as consecutive were from a single criminal episode.

MANDATE ISSUED.

WARNER and SHAHOOD, JJ., concur.

      . See, e.g., Berkman v. Foley, 709 So.2d 628, 629 (Fla. 4th DCA 1998) ("the courts will not allow the practice of the 'Catch-22' or 'gotcha!' school of litigation to succeed.”); M-5 Communications, Inc. v. ITA Telecomms., Inc., 708 So.2d 1039, 1039 (Fla. 3d DCA 1998) (“reversal is also mandated by an application of the anti-gotcha rule in its original and purest form."); Hieke v. State, 605 So.2d 983, 984 (Fla. 4th DCA 1992) ("However, that omission would appear to demonstrate that the public defender’s request for such an instruction at the trial level was not a deliberate 'gotcha maneuver.' "); Chatmon v. Woodard, 492 So.2d 1115, 1116 n. 2 (Fla. 3d DCA 1986) ("We cannot accept a 'gotcha' type stratagem like this one.”).


text:
    John Glen PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1438.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Rehearing Denied Sept. 30, 2003.

      Nancy A. Daniels, Public Defender and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Anne C. Toolan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

This is an appeal from a conviction of first degree murder following a jury trial. Appellant, John Pryor, raises two issues for our consideration. The first is whether the trial judge erred by excluding certified copies of a State witness’s criminal convictions. The witness falsely testified as to the number and nature of his prior felony convictions on both direct and cross examination. In the defense’s case in chief, defense counsel attempted to introduce certified copies of the prior convictions, but the court sustained the State’s objection and excluded the records. The second issue is whether Appellant’s attorney im-permissibly conceded guilt to the jury. Since we find the first issue meritorious, it is unnecessary to reach the second. We reverse Appellant’s conviction and remand for a new trial.

Factual Background

The State, in an apparent attempt to ameliorate the expected effect of the anticipated evidence, asked their eye witness, Robert Lee Gilbert (Gilbert) on direct examination whether he had prior convictions. Gilbert testified “it’s been about 6 or 7 times, mostly for DUI and driving with no license and stuff like that.” On cross, defense counsel asked Gilbert the number of his prior felony convictions. Gilbert replied “It’s been about 5 DUIs.” Defense counsel asked: “DUI is not always a felony, are you counting that as a felony?” Gilbert replied: ‘Teah, that’s after so many of them you go [sic], you know, they turn them into felony [sic] now. It’s a felony now if I just drive.” Defense counsel asked: “So you’ve got maybe 5 or 6 or 7 felony convictions?” Gilbert responded: “That’s why I don’t get up under the wheel of a vehicle. If I go anywhere I get somebody to carry me.”

After the State rested, Appellant sought to introduce into evidence certified copies of Gilbert’s eight felony convictions. The convictions were for: (1) breaking and entering with the intent to commit a misdemeanor, 1967; (2) possession and sale of a controlled substance, 1980; (3) escape, 1985; (4) felony DUI, 1989; (5) battery on a law enforcement officer, 1993; (6) aggravated assault, 1997; (7) felony driving while licence revoked, 1999 and (8) aggravated assault, 1999. The State strenuously objected to the introduction of these convictions for various reasons, including the procedure used to introduce the records, and that the certified copies of convictions were Gilbert’s. Appellant argued Gilbert failed to answer the question correctly, and thus the defense was entitled to introduce the documents.

The trial judge, after finding the convictions were Gilbert’s, concluded the prejudicial effect to the State, of placing the certified copies into evidence, would substantially outweigh their probative value. The court went on to find the 1967 conviction was too remote in time to be used for impeachment. We address two aspects of the court’s ruling: the exclusion of the certified copies of conviction, and the finding that the 1967 conviction was too remote to use as impeachment.

Discussion

The rule is simple. Certified copies of prior convictions are admissible to impeach a witness who falsely testifies as to the number of crimes for which he has been convicted. See § 90.610(1), Fla. Stat. (2001). The witness testifies falsely when the answer varies from the actual number of prior convictions. Thus, a witness who estimates the number of convictions, either above or below the actual number, testifies falsely and the certified copies are admissible. See Perez v. State, 648 So.2d 715 (Fla.1995). Gilbert testified falsely by giving several different answers to questions regarding his past convictions. This false testimony permits the admission of the certified copies.

Not only did Gilbert testify falsely about the number of prior felony convictions, he also lied about the nature of those convictions. Gilbert was not the inoffensive town drunk he passed himself off to be. Where a witness attempts to mislead or delude the jury about his prior convictions, the witness is subject to further questioning concerning his convictions “in order to negate any false impression given.” Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992). The trial court’s ruling on the admissibility of Gilbert’s criminal history kept crucial information from the jury and prevented the defense from emphasizing Gilbert’s actual criminal background in response to the State’s closing argument, which referred to Gilbert as a “drunk” who “told the truth.”

We next turn to the trial judge’s finding that the 1967 conviction was too remote for use as impeachment evidence. In a civil trial, the test for exclusion of this evidence due to remoteness is a requirement that the prior conviction be so remote in time as to have no bearing on the present character of a witness. See § 90.610(1)(a), Fla. Stat. (2001). However, section 90.610 does not provide for exclusion of evidence of even remote convictions in a criminal trial. See § 90.610(1)(a), Fla. Stat.; Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991) (noting that, although section 90.610(1), “precludes evidence in a civil trial of a conviction so remote in time as to have no bearing on the present character of a witness, it does not prohibit such evidence in a criminal trial”)- Although not statutorily recognized in section 90.610, the possibility of remoteness as a basis for exclusion in a criminal case has been recognized by our Supreme Court through the provisions of section 90.403, Florida Statutes. See Riechmann v. State, 581 So.2d 133, 140 (Fla.1991). We therefore conclude that exclusion of a prior conviction as too remote for use as impeachment evidence in a criminal trial must meet the same test as required in a civil trial. Under that test, Gilbert’s 1967 conviction can only be excluded if it has no bearing on his present character. Since Gilbert has continued to acquire felony convictions, it cannot be said that the 1967 conviction has no bearing on his present character. Thus, Gilbert’s 1967 conviction is admissible for impeachment purposes.

Harmless Error

The State argues that, if the trial court erred by improperly excluding the certified copies of convictions, the error was harmless as defined by State v. DiGuilio, 491 So.2d 1129 (Fla.1986). For the trial court’s error to be harmless, the State, as beneficiary, must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See Goodwin v. State, 751 So.2d 537, 541 (Fla.1999) (citations omitted). Gilbert was the State’s eye witness, and he lied about both the number and nature of his convictions. Gilbert’s testimony essentially eliminated Appellant’s self defense and manslaughter arguments. The State compounded Gilbert’s misrepresentation by using it to bolster his credibility during closing argument, and did so after seeing the certified copies indicating the nature and number of Gilbert’s convictions. Had the jury known of Gilbert’s false testimony as to his prior record, it is possible they would have evaluated his credibility differently, and may have acquitted Appellant, or convicted him of a lesser offense. Thus, the error is not harmless because it cannot be said, beyond a reasonable doubt, that it did not contribute to the verdict.

Disposition

Based on the foregoing, we reverse Appellant’s conviction for first degree murder and remand for a new trial.

REVERSED AND REMANDED.

DAVIS and LEWIS, JJ., concur.

      . In Perez, the witness testified on cross-exam that he had been convicted of more than ten felonies. When asked if he had been convicted of more than twenty felonies, the witness answered "[t]hat would be a guesstimation.” Defense counsel then attempted to introduce certified copies of the witness's eighteen prior felony convictions. The trial court sustained the State’s objection and excluded the copies. On appeal, the Florida Supreme Court held the trial court erred by excluding the certified copies of the witness's prior convictions.


author: GODERICH, Judge. SCHWARTZ, Chief Judge

text:
    Richard MERKIN, M.D., Appellant, v. PCA HEALTH PLANS OF FLORIDA, INC., etc., et al., Appellees.
    No. 3D02-1336.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing Denied Oct. 8, 2003.

      Holland & Knight, Daniel S. Pearson and llene L. Pabian, for appellant.
    Young, Berman, Karpf & Gonzalez and Andrew S. Berman, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   GODERICH, Judge.

The third-party defendant, Richard Merkin, M.D., appeals from an order denying his motion to dismiss for lack of personal jurisdiction. We affirm.

In February 1997, Heritage Southeast Medical Group, Inc. [Heritage Southeast], a Florida corporation, entered into agreements with PCA Health Plans of Florida, Inc. and PCA Family Health Plan, Inc. [collectively referred to as “PCA”]. Pursuant to the agreements, PCA made capitation payments based on a percentage of the premium received per health plan member to Heritage Southeast. In exchange, Heritage Southeast agreed to manage, adjust, and pay medical claims for those health plan members.

In June 1998, Heritage Southeast brought suit to enjoin Humana Medical Plan, Inc. [Humana], PCA’s successor in interest, from drawing down on a $12 million letter of credit. In July 2001, Huma-na filed an “Amended Counterclaim” against Heritage Southeast and third-party defendant, Richard Merkin, M.D., the sole officer, director and shareholder of Heritage Southeast, alleging conversion and civil theft.

In its designated “Amended Counterclaim,” Humana alleged that Merkin was subject to personal jurisdiction under the Florida long-arm statute, § 48.193, Fla. Stat. (1999), or alternatively, under the alter ego exception to long-arm analysis. Humana alleged that Merkin owned 100% of the shares of Heritage Southeast, that he was its key officer and director, that he had full and complete control over the corporation and its important decisions, and that he committed a tortious act outside the State that was intended to and did have consequences and caused damage within the State. Specifically, Humana alleged, “[Merkin] decided — upon being made aware that Humana mistakenly paid $22 million to his corporation — that he would not return the money to Humana in Florida, but that Humana would have to follow him from court to court around the country to try to recover the money.” Further, Humana alleged that he instructed his subordinates to concoct any reason to frustrate Humana’s efforts at reclaiming its money. Humana alleged that his “scheme to steal ... constitutes misconduct specifically targeted at a corporation whose principal operation is in Florida and his scheme arose out of Heritage Southeast’s direct and substantial operations within the State of Florida.”

Alternatively, Humana alleged that Merkin used Heritage Southeast as his alter ego by “commingling and pooling its substantial funds with his personal funds and those of other corporations he owns and controls, running the various companies as a single enterprise, and utilizing Heritage Southeast for improper purposes including theft of Humana’s money.” Hu-mana also alleged that “Merkin has not maintained corporate formalities among his various corporations as is evidenced by the fact that employees who worked for Heritage Southeast were paid by Heritage Development Organization, a Nevada corporation, and Heritage Medical Systems, a California limited liability company.” In support of these allegations, Humana filed the deposition testimony of Marion Davis, a regional vice-president of operations and development for Heritage Development Organization.

Merkin filed a motion to dismiss the “Amended Counterclaim” alleging lack of personal jurisdiction. In support thereof, he filed his own affidavit wherein he averred that he was a shareholder of Heritage Southeast and that he had served as its president. Merkin’s affidavit stated, in pertinent part:

8. At the time Heritage Southeast was incorporated, it was not formed for the purpose of hindering or defrauding any of its then existing or potential creditors.
9. In fact, to my best knowledge and belief, Heritage Southeast maintained all of the proper corporate formalities during the time I was a shareholder and president of the corporation.
10. At no time did I commingle any of my personal funds or any of the funds of any other business with which I was associated with the funds of Heritage Southeast.

Merkin also filed the affidavit of an officer of the bank wherein he maintained his personal and corporate bank accounts. The bank officer averred that,

Regardless of the number of accounts opened, all of the accounts for each separate corporation are maintained only under the same tax identification number and are not commingled with any other funds under different tax identification numbers.... As for the accounts under Heritage Southeast Medical Group, all moneys were held under the tax identification number for Heritage Southeast medical and not commingled with any other moneys from any other corporation.

At the hearing, Merkin argued that he was not subject to personal jurisdiction under section 48.193(l)(b) because he did not commit a tortious act within this state as the alleged conversion or civil theft occurred in California. Further, Merkin argued that his affidavits dispelled any alter ego theory. The trial court denied Merkin’s motion to dismiss without elaboration. Merkin’s appeal follows.

Merkin contends that the trial court erred by denying his motion to dismiss because he is not subject to personal jurisdiction under Florida’s long-arm statute, § 48.193(l)(b). Merkin argues that any alleged conversion and civil theft occurred in California where he allegedly exerted wrongful dominion and control over Humana’s property. We agree.

Section 48.193(l)(b) provides long-arm jurisdiction over a non-resident who commits a tortious act within this state. “[A] tort claim ‘is deemed to have accrued where the last event necessary to make the defendant hable for the tort took place.’ As to the tort of conversion, that act constitutes the exercise of wrongful dominion and control over the property to the detriment of the rights of its actual owner.” Envases Venezolanos, S.A. v. Collazo, 559 So.2d 651, 652 (Fla. 3d DCA 1990)(quoting Tucker v. Fianson, 484 So.2d 1370, 1371 (Fla. 3d DCA), review denied, 494 So.2d 1153 (Fla.1986)) (citations omitted).

In the instant case, Humana alleged that it mistakenly wired funds into Heritage Southeast’s California bank account and that Heritage Southeast and Merkin improperly retained it. Therefore, although the funds were wired from Florida, the exercise of wrongful dominion and control over the property to the detriment of its actual owner occurred in California where the funds were received and improperly retained. E.J. Sales & Serv., Inc. v. Southeast First Nat’l Bank of Miami, 415 So.2d 906 (Fla. 3d DCA 1982)(holding that causes of action for money had and received and conversion arose in Orlando when Miami bank mistakenly wired funds to company’s bank account in Orlando); Envases Venezolanos, 559 So.2d at 652-53 (holding that cause of action for conversion arose in Paris when managing agent of Venezuelan corporation improperly directed a French bank to wire money to Miami bank account).

Humana argues that a nonresident does not need to be physically present in Florida to “commit a tortious act” within the state. In doing so, Humana relies on Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 3d DCA 2002), in which the Florida Supreme Court held:

First, in order to “commit a tortious act” in Florida, a defendant’s physical presence is not required. Second, “committing a tortious act” in Florida under section 48.193(l)(b) can occur through the nonresident defendant’s telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications.

Although we agree that this is an accurate statement of the law, we find that it is inapplicable to the facts of this case. First, Merkin did not commit a tortious act in Florida. As discussed earlier, the alleged causes of action for civil theft and conversion arose in California. Next, the alleged causes of action did not arise as a result of any sort of communications made by Merkin into Florida. See Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013, 1017 (Fla. 4th DCA 2003)(hold-ing that communication into Florida must be tortious in and of itself). Rather, the causes of action arose when Merkin exercised wrongful dominion and control over Humana’s funds which were accidentally wire transferred to Merkin’s bank account in California. Therefore, we find that Hu-mana did not satisfy the requirements for personal jurisdiction under Florida’s long-arm statute.

Merkin also contends that the trial court erred by denying his motion to dismiss because he is not subject to personal jurisdiction under the alter-ego theory of long-' arm jurisdiction. We disagree.

The corporate veil may be pierced if the plaintiff can prove “both that the corporation is a ‘mere instrumentality’ or alter ego of the defendant, and that the defendant engaged in ‘improper conduct’ in the formation or use of the corporation.” Bellairs v. Mohrmann, 716 So.2d 320, 323 (Fla. 2d DCA 1998)(emphasis supplied)(citing Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120-21 (Fla.1984)). In Bellairs, the Second District explained that the procedure for determining long-arm jurisdiction set forth in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), is universal and therefore applicable to the alter ego theory. The procedure is as follows:

[A] plaintiff must first allege a jurisdictional basis in his pleading. Then, if the defendant wishes to contest these allegations, he must file an affidavit specifically addressing the allegations. Once a defendant submits an appropriate affidavit, the plaintiff must support his allegations with an affidavit of his own. If no disputed factual issues appear on the face of the opposing affidavits, the trial court can decide the long-arm issue without holding an evidentiary hearing. However, if the opposing affidavits conflict with one another, the trial court must “hold a limited evidentiary hearing in order to determine the jurisdiction issue.”

Bellairs, 716 So.2d at 323 (emphasis added) (citations omitted).

In the instant case, Humana alleged that Merkin used Heritage Southeast as his alter ego by “commingling and pooling its substantial funds with his personal funds and those of other corporations he owns and controls, running the various companies as a single enterprise, and utilizing Heritage Southeast for improper purposes including theft of Humana’s money.” Hu-mana also alleged that “Merkin has not maintained corporate formalities among his various corporations as is evidenced by the fact that employees who worked for Heritage Southeast were paid by Heritage Development Organization, a Nevada corporation, and Heritage Medical Systems, a California limited liability company.” In support of these allegations, Humana filed the deposition testimony of Marion Davis, a regional vice-president of operations and development for Heritage Development Organization.

Following the procedure set forth in Venetian Salami, Merkin then filed his own affidavit and that of his bank officer. These affidavits contested some of the plaintiffs jurisdictional allegations but not all. Although Merkin averred that his corporation was not formed for improper purposes, he failed to address whether it had been used for improper purposes. Further, although he generally averred that Heritage Southeast had properly maintained corporate formalities and that he did not commingle any of his personal funds or those of any other corporation with those of Heritage Southeast, he did not specifically address the allegations that he ran the various companies as a single enterprise and that employees of Heritage Southeast were paid with funds from his other corporation’s accounts. Further, although establishing that Merkin in fact had individual accounts for each of his corporations, the bank officer’s affidavit does nothing to address whether the funds of one corporation were used for the benefit of the other corporations.

For these reasons, we find that Merkin’s affidavits were insufficient to rebut Huma-na’s jurisdictional allegations or to create disputed issues of fact. Accordingly, we affirm the trial court’s denial of Merkm’s motion to dismiss for lack of personal jurisdiction.

Affirmed.

GERSTEN, J., concurs.

SCHWARTZ, Chief Judge

(dissenting).

I do not agree with the majority that Humana made even a prima facie case that Merkin used any of the affiliated corporations for improper purposes so as to justify piercing the corporate veil at all. See e.g. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Moran v. Schurger, 849 So.2d 1184 (Fla. 3d DCA 2003); Mason v. E. Speer & Associates, Inc., 846 So.2d 529 (Fla. 4th DCA 2003). Much less was it demonstrated that the alleged improper conduct subjected him to Florida jurisdiction by substituted service. Because I do agree that the alleged conversion did not occur in this state under section 48.193(l)(b), Florida Statutes (1999), I believe that there remains no valid basis to support the order below.


author: COPE, J.

text:
    Emmett COX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1863.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing and Rehearing En Banc Denied Oct. 8, 2003.

      Emmett Cox, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   COPE, J.

Emmett Cox appeals an order denying his motion to correct illegal sentence. We affirm.

Defendant-appellant Cox contends that he does not qualify as a habitual violent felony offender (“HVO”). He is serving life sentences imposed as an HVO in Miami-Dade County circuit court case number 97-12328.

The defendant has previously raised this claim. However, this court’s previous af-firmance of the denial of relief on this point may have been based on the State’s defense of time bar. This court’s position on time bar in this context was later overturned by the Florida Supreme Court in Bover v. State, 797 So.2d 1246, 1247 (Fla.2001).

We therefore proceed to the merits. We have taken judicial notice of this court’s file in Cox v. State, 796 So.2d 67 (Fla. 3d DCA2001).

The defendant’s argument is that he does not have a proper predicate offense for habitualization. The predicate of1fense was armed robbery in Miami-Dade County circuit court case number 89-47604. The defendant was released from prison on conditional release. While on conditional release, he committed the 1997 offenses of armed robbery and attempted armed robbery.

At sentencing for the 1997 crime, the 1989 conviction was used as the qualifying offense for habitualization as an HVO. The defendant contends that this was impermissible because at the time of the 1997 crime, the defendant was still on conditional release. He argues that it is impermissible to consider the 1989 conviction as a predicate offense, so long as he remained under supervision for that offense.

The 1996 version of the habitual offender statute was in force on the date of the defendant’s offense. It provided, in relevant part:

2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later.

§ 775.084(l)(b)2., Fla. Stat. (Supp.1996).

Under this statute, the 1989 conviction was properly counted as a predicate offense. The defendant committed the 1997 crimes within five years from his release from prison in 1995. The fact that he was on conditional release at the time of the new offenses makes no difference. See Wright v. State, 834 So.2d 879, 880 (Fla. 3d DCA2002).

The defendant argues, however, that conditional release should be viewed as a program under which the defendant is completing his sentence under supervision. See Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999). In substance the defendant appears to argue that conditional release should be viewed as being part of his prison sentence, or “another commitment” under the statute.

Conditional release is not a prison sentence for purposes of the habitual offender statute. Further, it has been held that conditional release is not an “other commitment” under the habitual offender statute. Johnson v. State, 765 So.2d 914, 916 (Fla. 2d DCA 2000). However, assuming for purposes of discussion that conditional release could be so viewed, the HVO sentence was still proper. That is so because under the 1996 statute, habitualization is permissible where the defendant commits a new crime while “serving a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony ....” § 775.084(l)(b)2., Fla. Stat. (Supp.1996).

Under any analysis, the defendant qualifies as an HVO, and the motion to correct illegal sentence was properly denied.

Affirmed.

       The crime date was April 16, 1997.


author: WARNER, J.

text:
    Johnnie L. HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-591.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    Johnnie L. Hayes, Jasper, pro se.
    No appearance required for appellee.
   WARNER, J.

The trial court summarily denied appellant’s motion for postconviction relief. We affirm on all issues and write to address only appellant’s allegation of ineffectiveness of counsel for not objecting to the trial court’s failure to swear the venire prior to voir dire. We hold the motion is facially insufficient to require a response.

In appellant’s motion for posteonviction relief, he claimed, inter alia, that his counsel was ineffective “where counsel failed to properly object to the trial court’s failure to place his panel of prospective jurors under oath prior to voir dire.” He alleges that if counsel had objected, the trial court would have administered the oath and the jurors would have been legally mandated to tell the truth, ensuring an impartial jury. In denying relief on this issue, the trial court determined that the allegations were insufficient and failed to demonstrate prejudice. The trial court also recognized the St. Lucie County Circuit Court’s practice, like most circuit courts, of swearing the venire in the jury assembly room before the jurors are sent to the respective courtrooms.

We agree with the first district’s holding in Lott v. State, 826 So.2d 457, 458 (Fla. 1st DCA 2002), that an ineffective assistance of counsel claim based upon counsel’s failure “ ‘to object when the trial court judge failed to place [the] prospective jurors under oath prior to voir dire’ “ is legally insufficient to warrant further proceedings. The court concluded such a claim did not preclude the likely possibility that counsel failed to object because counsel knew the venire was placed under oath in the jury assembly room. See id. at 458-59; see also Pena v. State, 829 So.2d 289, 293-94 (Fla. 2d DCA 2002). In this case, appellant asserted the identical allegation but failed to preclude the possibility that the jury was sworn elsewhere than in the courtroom.

The court further noted in Lott that a motion alleging failure to swear a jury is also insufficient where it fails to show prejudice entitling the movant to relief. See 826 So.2d at 459. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires that a movant demonstrate both ineffective performance by counsel and that such ineffectiveness actually prejudiced the defendant to such an extent that the result of the proceeding was rendered unreliable or that a different result was likely but for counsel’s deficiencies. Appellant failed to show that the results of the proceeding would have been different or that an unsworn juror lied during voir dire, affecting the jury composition. See Pena, 829 So.2d at 294.

We recede from Fernandez v. State, 814 So.2d 459 (Fla. 4th DCA 2001). In Fernandez, as here, appellant also alleged in his postconviction relief motion that trial counsel was ineffective for not objecting to the trial court’s failure to place prospective jurors under oath prior to voir dire. The trial court summarily denied the motion, and we reversed on the ground that the claim was not refuted on the record. We suggested that such a claim may be legally sufficient. However, we did not address the prejudice prong. See id. at 460. We now consider the first district’s Lott opinion as the correct analysis.

Affirmed.

FARMER, C.J., GUNTHER, STONE, POLEN, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    BRANDSMART and FCCI Insurance Group, Petitioners, v. Thomas SCHAFFER, Respondent.
    No. 1D02-2526.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Rehearing Denied Oct. 1, 2003.

      H. George Kagan, of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Petitioners.
    Gilbert R. Panzer, Jr., West Palm Beach, and Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for Respondent.
   PER CURIAM.

Petitioners seek a writ of certiorari to review an order of the judge of compensation claims compelling discovery. We grant the petition for writ of certiorari and quash a portion of the order requiring the deponent, a non-party employee of petitioner Brandsmart, to answer questions involving personal information.

It appears that questions asking the deponent where she lived, whether she received compensation or other benefit depending on the amount of workers’ compensation benefits or premiums paid, and whether she received money from the workers’ compensation carrier, either were necessary to allow claimant to conduct an appropriate investigation of the deponent or were reasonably calculated to lead to discovery of admissible evidence. Accordingly, with regard to those questions, we conclude that the order of the judge of compensation claims does not depart from the essential requirements of law.

It does not appear, however, that the remaining questions posed at the deposition, which the deponent has now been ordered to answer, are relevant or reasonably calculated to lead to the discovery of admissible evidence. It further appears that these questions were harassing and unreasonably intrusive. Under the circumstances of this particular case, we con-elude that the failure of the judge of compensation claims to analyze the need for the requested discovery was a departure from the essential requirements of law which, if uncorrected, will lead to irreparable harm. The matter is remanded for the judge of compensation claims to reconsider the necessity for any additional discovery.

GRANTED IN PART; DENIED IN PART.

BARFIELD, BROWNING and LEWIS, JJ., CONCUR.

      . See, e.g., Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998)
      ("The constitution of the State of Florida contains an express right of privacy. Although there is no catalogue in our constitutional provision as to those matters encompassed by the term privacy, it seems apparent to us that personal finances are among those private matters kept secret by most people. ... Private financial worth information is thus usually withheld from the world at large unless the courts compel such disclosure. Even then, disclosure is made only so far as necessary.”)

        Alterra Healthcare Corp. v. Estate of Francis Shelley, 827 So.2d 936 (Fla.2002) (In the context of considering a relevancy objection, the trial court can consider the constitutional rights of third parties who would be substantially affected by the outcome of the litigation. As appropriate, the trial court may conduct an in-camera inspection of the subject records and in that context balance the right to privacy and the right to know.)

        . Although the judge of compensation claims did not specifically rule on the motion to compel the deponent to produce her personal tax returns, we note that before ordering production of the tax returns sought, the judge of compensation claims should conduct an in-camera review of the tax returns to ascertain whether the returns contain information relevant to the pending matter. Voytish v. Ozycz, 695 So.2d 1301 (Fla. 4th DCA 1997).


text:
    Louis VEGA, Appellant, v. Glenn and Celeste SHITAMA, Appellee.
    No. 1D03-2642.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Rehearing Denied Oct. 1, 2003.
    Appellant, pro se.
    Christopher J. Nicholas, Tallahassee, for Appellee.
   PER CURIAM.

The Court has determined that because the appellant’s motion for rehearing was not timely served, it did not delay rendition of the final judgment. See Fla. R. Civ. P. 1.530; Fla. R.App. P. 9.020(h). Consequently, the appellant’s notice of appeal was not timely filed and this Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

ERVIN, BARFIELD and DAVIS, JJ., CONCUR.


text:
    Alexander APONTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1858.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Rehearing Denied Sept. 30, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick V. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The State of Florida has moved for rehearing arguing that the cocaine found in a cigarette box in Alexander Aponte’s shirt pocket should not be suppressed pursuant to Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The State further asserts that we erroneously relied upon R.R. v. State, 715 So.2d 1062 (Fla. 5th DCA 1998), in our original opinion. Upon reconsideration we withdraw our original decision and affirm the trial court’s denial of Alexander Aponte’s motion to suppress the contraband.

A police officer saw Aponte standing behind a pick-up truck along with two other persons. As the officer approached, the others walked away leaving Aponte behind. Noticing that a television set was in the bed of the truck, and because they were in a high crime drug area, the officer suspected that Aponte may have been planning to use the television set in exchange for drugs. The officer first engaged Aponte in conversation and then asked his name and what he was doing. Aponte responded by handing the officer a Florida driver’s license. The officer then asked if he could search him and Aponte replied, “Okay.” During the search the officer discovered a cigarette pack in Aponte’s pocket and opened it, revealing crack cocaine. Aponte was subsequently arrested.

In Jimeno, a police officer overheard what appeared to be a drug transaction over a public telephone. Believing that Jimeno might be involved in illegal drug trafficking, the officer followed Jimeno’s car and observed a traffic infraction. He stopped the car and told Jimeno that he stopped him for committing a traffic infraction and that he suspected that Jimeno was carrying narcotics. The officer also requested permission to search the car. Jimeno said he had nothing to hide and gave permission to search the car. The search revealed cocaine inside a folded brown paper bag that had been placed on the floorboard. The United States Supreme Court held that Jimeno’s right to be free from unreasonable searches was not violated and the standard for measuring the scope of a suspect’s consent to search under the Fourth Amendment is that of “objective” reasonableness, i.e., what would a typical reasonable person have understood by the exchange between the officer and the suspect. Jimeno had argued that if the officer wished to search closed containers within a car they must separately request permission to search each container. The Court saw no basis for adding this sort of superstructure to the Fourth Amendment’s basic test of objective reasonableness, but did caution that a suspect may limit as he chooses the scope of the search to which he consents.

Jimeno was followed by U.S. v. Mendoza-Gonzalez, 318 F.3d 663 (5th Cir.2003), in which a general consent was given to a border control officer’s request for a search that did not indicate the expected fruit of the search. The border patrol officer observed Mendoza’s nervous demeanor at a border checkpoint between the United States and Mexico and asked if he could search his truck. Mendoza said, “Sure. Go ahead.” The officer saw an array of mostly white boxes inside the trailer that were “mummified” with cellophane wrapping and laid on top of pallets. On top of the white boxes were a few brown cardboard boxes labeled “Ryder Rental Trucks” that were taped with clear tape over the top. The officer became suspicious of the brown boxes, sliced the tape on one of the boxes with a pocketknife, opened the box and found marijuana. Mendoza did not dispute that he consented to the officer’s request to “look in” the truck, but argued at the suppression hearing that the search of the cardboard box inside of the truck exceeded the scope of his consent.

The Mendoza-Gonzalez opinion recognized that Mendoza’s consent to a general request for a search differed from the consent given in Jimeno where the officer’s request included a stated object to the search: to look for narcotics. Apparently, the initial, but unstated object of the Mendoza search was illegal aliens. Although the search revealed no aliens, it did reveal narcotics. Determining that the primary inquiry in interpreting the scope of consent is what a reasonable, objective, third party observer would have understood the suspect had consented to, not the subjective intent of the enforcement officer, the court concluded that Mendoza’s consent could be viewed by an objective observer as a general consent to search when no particular object of the search had been indicated. Additionally, the court found it significant that Mendoza knew that marijuana was located in the boxes, did nothing to limit his initial consent and made no objections when the officer began opening the boxes. “Mendoza chose not to place any explicit limitations in his response to their general request, which, in this Circuit, is evidence of general consent.” Id. at 667. The court also found important the absence of any attempt to require significant force to unseal the boxes. The single piece of clear tape was interpreted as an attempt to keep the flaps of the box closed to prevent the contents from spilling out and being damaged in transit, rather than any attempt to send any particular message of an expectation of privacy.

A Florida court has considered a similar situation to the instant case and found that a police officer was unjustified in opening a cigarette pack to find contraband. In Jimenez v. State, 643 So.2d 70 (Fla. 2d DCA 1994), the defendant was subjected to a pat-down search as a condition of admission to a dance being held in a National Guard Armory. Many of the attendees did not speak English and as Jimenez approached the checkpoint, he raised his arms indicating to the officer that he was consenting to the pat-down. When the officer found two cigarette packs in a shirt pocket, he attempted to remove them and Jimenez grabbed the officer’s hand. The officer removed Jimenez’s hand, opened one of the packs and found white powder that later tested positive for cocaine. The court held that it was improper for the officer to continue the search over Jimenez’s objections which were apparently communicated through his non-verbal gesture of grabbing the officer’s hand.

Less effort was required by the officer herein to lift the contents out of Aponte’s pocket and open the lid of the previously opened and unsealed box to observe the contraband than was required in Mendo-zcu-Gonzalez where the officer had to cut tape binding flaps of a cardboard box before the contraband could be observed. Also significant is the absence of any verbal or non-verbal attempt by Aponte to limit the search once he gave a general consent to the search of his person. In our view, Aponte’s general consent to the search followed by inaction to stop or limit the search could be interpreted by a reasonable officer to be within the bounds of the original consent.

By contrast, R.R. v. State, 715 So.2d 1062 (Fla. 5th DCA 1998), involved a consensual pat-down for weapons in which the officer determined that a bulge in R.R.’s pants was a cigar tube. The officer asked to “see” the cigar tube and when the defendant complied, the officer not only looked at it, but opened it to find contraband. This court held that consent to “see” the object did not amount to a consent to search its contents. The case was determined by the language used by the officer, that is his desire to simply look at the cigar tube, not to search the contents. R.R. is not dispositive of the instant case.

We affirm the trial court’s denial of the motion to suppress and affirm the conviction and sentence.

AFFIRMED.

PETERSON, PLEUS and MONACO, JJ., concur.