author: COPE, J.

text:
    Jean Berton SAINT-FLEUR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-715.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2002.
    Paul J. Kneski, Miami, for appellant.
    Richard E. Doran, Attorney General, Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   COPE, J.

Jean Berton Saint-Fleur appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court declined to grant relief under Peart v. State, 756 So.2d 42 (Fla.2000). We affirm and certify a question.

Defendant-appellant SainL-Fleur entered into a plea bargain in 1992 in Miami-Dade County Circuit Court case numbers 91-21423 and 91-25036. He received consecutive life sentences.

The defendant states that during the plea colloquy, the trial court failed to warn him that deportation could result from his plea. The court reporter’s notes of the plea colloquy have apparently been destroyed, so no transcript of the plea is available. For present purposes we accept as true the defendant’s assertion that he was not warned about the immigration consequences of his plea.

The defendant filed a motion for post-conviction relief in 2001, asserting that the Immigration Court entered an order dated January 3, 2000, which orders the defendant to be deported to France or Haiti. The documentation indicates that this deportation order was based on the convictions entered in circuit court case numbers 91-21423 and 91-25036.

The trial court denied relief, stating:

The defendant has failed to establish a prima facie case under Peart v. State, 756 So.2d 42 (Fla.2000) that he has been prejudiced by any failure to advise him of his immigration consequences. The defendant is serving a life sentence and there is no evidence that he is eligible for parole.

By subsequent order the court clarified that the ruling was “without prejudice to the Defendant to again seek Postconviction Relief only in the event he is ever paroled.” This appeal follows.

We agree with the trial court. The defendant entered his plea to crimes committed in 1991. The offenses are covered by the sentencing guidelines.

Under the guidelines, a life sentence is for a term of natural life without the possibility of parole. See § 921.001(10), Fla. Stat. (1991); Wemett v. State, 567 So.2d 882 (Fla.1990); Hurd v. State, 807 So.2d 753 (Fla. 3d DCA 2002). Since the defendant is serving a life sentence and there is no prospect for release, the deportation order is entirely immaterial.

Further, where a defendant enters a plea in exchange for a sentence of life imprisonment without the possibility of parole (or where such a sentence is one of the options allowed under the plea agreement), it is implausible to say that the possibility of deportation would have stopped the defendant from entering into the plea. If an agreed sentence is for life imprisonment, there is no realistic possibility of deportation. To hold a Rule 3.850 evidentiary hearing in this situation would be a useless act.

This court has previously considered Peart-based postconviction claims for defendants who had received life sentences, but those cases are distinguishable. In Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002), this court did not reach the claim of that defendant for relief from his life sentence, because the notice of deportation proceedings also listed another conviction (which did not involve a life sentence) which the defendant had not attacked. Thus, this court declined to entertain that defendant’s claim. Id. at 925.

In Saldana v. State, 786 So.2d 643 (Fla. 3d DCA 2001), the defendant was serving a life sentence in federal custody. The defendant claimed that he would be eligible for release from the federal life sentence and, upon release, would be subject to deportation. This court declined to entertain a claim for relief from the defendant’s earlier state convictions because deportation proceedings had not formally been initiated and because the federal immigration inquiry made no mention of the defendant’s earlier state convictions. Id. at 644.

By contrast, the present case squarely presents the question whether a defendant is entitled to a hearing on a postconviction claim that he was not warned of immigration consequences of his plea, where he is serving a sentence of life without parole. We agree with the trial court that no hearing is called for.

Because this issue needs to be authoritatively resolved, we certify that we have passed on the following question of great public importance:

WHERE AN INMATE IS SERVING A SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE AND THE IMMIGRATION AND NATURALIZATION SERVICE INITIATES DEPORTATION PROCEEDINGS, IS THE INMATE ENTITLED TO A HEARING ON HIS CLAIM THAT IN THE PLEA COLLOQUY, THE TRIAL COURT FAILED TO WARN HIM THAT THE PLEA MAY SUBJECT HIM TO DEPORTATION?

Affirmed; question certified.

      . The defendant states that the agreement was for consecutive life sentences in the event that he failed to return from a furlough which the court granted, but if he returned, then the sentence would be for a term of years.


source: Caselaw Access Project

author: PER CURIAM. COPE, J.

license: Public Domain

text:
    Benjamin GADSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1973.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 22, 2003.
    Benjamin Gadson, in proper person. Richard E. Doran, Attorney General, for appellee.
    Before JORGENSON, COPE and GODERICH, JJ.
   PER CURIAM.

Affirmed.

JORGENSON and GODERICH, JJ., concur.

COPE, J.

(concurring).

One of the claims of defendant-appellant Benjamin Gadson is that his habitual offender sentences should not have been consecutive, as he contends that the three counts on which he was sentenced all arose from the same criminal episode. See Hale v. State, 630 So.2d 521 (Fla.1993). The Hale decision was announced after the defendant’s sentences were imposed in 1991.

This particular claim had to be raised under Florida Rule of Criminal Procedure 3.850, and the present motion is time-barred as to that claim. See Dixon v. State, 730 So.2d 265 (Fla.1999). Assuming that all three counts arose from the same criminal episode, the only avenue available to the defendant at this point would be an application for relief from the Pardon Board.


author: PER CURIAM.

text:
    Derrick Navarra MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-716.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

Because, as the state concedes, the trial judge should have excused a particular juror for cause, Chavers v. State, 827 So.2d 279 (Fla. 4th DCA 2002); Polite v. State, 754 So.2d 859 (Fla. 3d DCA 2000), and the defendant properly preserved the error in accordance with Trotter v. State, 576 So.2d 691 (Fla.1990), cert. denied, 522 U.S. 876, 118 S.Ct. 197, 139 L.Ed.2d 134 (1997); see Wilson v. State, 753 So.2d 683 (Fla. 3d DCA 2000), review denied, 773 So.2d 59 (Fla.2000), the judgment below is reversed for a new trial.


author: PER CURIAM. COPE, J. JORGENSON, J.

text:
    MIAMI DADE COUNTY, Florida, Appellant, v. ASSOCIATED AVIATION UNDERWRITERS, et al., Appellees.
    No. 3D01-3523.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied March 26, 2003.
    Greenberg Traurig, Elliot H. Scherker, Peter M. Gillon and Mitchell J. Rotbert (Washington, D.C.), and Reginald L. Bouthillier, Jr. (Tallahassee), for appellant.
    Steel Hector & Davis, Alvin B. Davis, John T. Butler and Gabriel E. Nieto, Miami; Lord Bissell & Brook, Gary Wester-berg, Don W. Fowler, and Christopher R. Barth (Chicago, Illinois); Siboni Hamer & Buchanan and Michael C. Siboni (Ocala); London Fischer and Julius A. Rousseau, III (New York, New York); and Phelps Dunbar and Jay Russell Sever (New Orleans, Louisiana), for appellees.
    Before JORGENSON, COPE and GODERICH, JJ.
   PER CURIAM.

In the underlying declaratory action, Miami Dade County appeals from final orders denying insurance coverage. After carefully reviewing the record, we find that the policies at issue were unambiguous and that Miami Dade County was not an “additional insured” under some of the policies and that the pollution exclusion precluded coverage under the other policies where the County was listed as an insured. Further, we find that the remaining issues lack merit.

Accordingly, the orders under review are affirmed.

COPE, J.

(specially concurring).

I agree with the result, but disagree on some of the reasoning.

For the years 1990-92, Miami Dade County was listed as an additional insured on the insurance policies issued by the appellees to Pan American World Airways (“Pan Am”). The liability policies covered, among other things, Pan Am’s operations at the Miami International Airport. The policy years at issue on this appeal are 1970-71 and 1987-92.

For the pre-1990 policy years, the County was not listed as an additional insured. However, the effect of the County’s bankruptcy settlement with Pan Am was to assign to the County Pan Am’s claims under the insurance policies. Thus, the County has stepped into Pan Am’s shoes with respect to the already-accrued claims.

On the merits, the pollution exclusions for the policy years now before us exclude the County’s claims. The policies at issue here were, at a minimum, of a unique character such that they did not require approval by the Florida Department of Insurance. See § 627.410(1), Fla. Stat. Summary judgment was correctly entered in favor of the appellees.

JORGENSON, J.

(dissenting).

Because the pollution exclusions do not apply and the County was an assignee under the bankruptcy settlement agreement, I respectfully dissent.

Appellees are barred from relying on the pollution exclusion because they failed to submit the form for the various exclusions to the Florida Department of Insurance as required under Section 627.410, Florida Statutes (2001). Section 627.410(1) provides:

No basic insurance policy or annuity contract form, or application form where written application is required and is to be made a part of the policy or contract, or group certificates issued under a master contract delivered in this state, or printed rider or endorsement form or form of renewal certifícate, shall be delivered or issued for delivery in this state, unless the form has been filed with the department at its offices in Tallahassee by or in behalf of the insurer which proposes to use such form and has been approved by the department. This provision does not apply to surety bonds or to policies, riders, endorsements, or forms of unique character which are designed for and used with relation to insurance upon a particular subject ...

• Appellees make several arguments as to why § 627.410 does not apply, of which only two merit a brief discussion: that the policies were not delivered in Florida and that the policies were of so unique a character as to avoid the filing requirements.

Appellees first claim that § 627.410 does not apply because the policies were issued to Pan American World Airways (Pan Am) at its principal place of business in New York and not delivered or issued for delivery in Florida. This position is wholly contrary to the decision in East Coast Ins. Co. v. Cooper, 415 So.2d 1328 (Fla. 3d DCA 1982), where this Court held that “[t]he fact that the policy was actually delivered in [another state] is not significant to our determination that it was ‘issued for delivery’ to a Florida resident.” Id. at 1325. See also Aperm of Florida, Inc., v. Trans-Coastal Maintenance Co., 505 So.2d 459, 462 (Fla. 4th DCA 1987) (interpreting the holding in Cooper to say that “if it is found that the policy was written to cover risks that would occur in Florida, then it will be assumed the policy was issued for delivery in Florida”).

Furthermore, the policies were not of such a unique character as to avoid the filing requirement of § 627.410. See Deni Assocs. of Fla. Inc., v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998) (pollution exclusions are in widespread use throughout the country); American Mut. Fire Ins. Co. v. Illingworth, 213 So.2d 747, 750 (Fla. 2d DCA 1968) (the fact that a standard exclusionary form “is written on a certain person does not give it a unique character”). Therefore, I would find that the pollution exclusions are inapplicable.

As to the bankruptcy settlement, I agree with Judge Cope that the effect of the settlement was to assign to the County Pan Am’s claims under the insurance policy. The settlement approved by the bankruptcy court provides:

In consideration of the foregoing ... Dade County and each of its agencies and subdivisions, shall and each hereby does release Pan Am from any and all claims of any nature whatsoever relating to or arising out of the occupation and use by Pan Am of the buildings and premises at MIA which are the subject of this agreement, excepting ... any claim for any amounts which are (A) recovered by Pan Am or (B) recoverable — -from any insurance company, except an insurance company affiliated with Pan Am, that provides or may provide insurance coverage for environmental damages to the properties at MIA caused by Pan Am.

(emphasis added).

Randle Carpenter, an attorney for the County in the settlement negotiations, testified in his deposition that during negotiations with Pan Am, the County made it clear that it wanted to be able to pursue Pan Am’s insurance companies for any claims which Pan Am might otherwise have been able to pursue in its own right. Carpenter further testified that Pan Am agreed to this condition and drafted the aforementioned provision with the intent of incorporating this condition into the settlement agreement.

Appellees point to the absence of the word “assignment” from this provision. However, “courts of equity can recognize certain kinds of instruments as valid equitable assignments, where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust. ... No particular words ... [are] necessary to effect an equitable assignment .... ” Giles v. Sun Bank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA 1984). “Any words or transactions showing an intention on one side to assign and on the other to receive, if supported by a valuable consideration, will operate as an effective equitable assignment.” Asphalt Paving, Inc. v. Ulery, 149 So.2d 370, 375 (Fla. 1st DCA 1963). “The true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee.” McClure v. Century Estates, 96 Fla. 568, 120 So. 4, 10 (1928). In my view it is clear that in exchange for the release, Pan Am assigned to the County its claims under the policies. I would reverse.


text:
    Jolitha BECKFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1606.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Sandra R. Braverman, Assistant Attorney General, for appellee.

      Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge.
   CONFESSION OF ERROR

PER CURIAM.

The State having correctly conceded that the trial court did not have jurisdiction over the defendant as to counts 3 and 4, the order revoking probation and imposing the 24-months sentences of imprisonment is reversed as to said counts 3 and 4 and the case is remanded for resentencing.


text:
    Jeffrey R. HASTINGS, Petitioner, v. Hon. Barry KRISCHER, State Attorney, Respondent.
    No. 4D02-2426.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Rehearing Denied April 7, 2003.
    Jeffrey R. Hastings, Daytona Beach, pro se.
    No response required for respondent.
   PER CURIAM.

By order dated September 6, 2002, this court denied the pro se petition for writ of mandamus filed by Jeffrey R. Hastings (Petitioner). Petitioner sought to compel State Attorney Barry Krischer (Krischer) and the circuit court to “obey the law” concerning habitualization and to resen-tence him without habitualization, citing the failure to comply with the procedural requirements of section 775.084, Florida Statutes (1979), at his 1980 sentencing. Concurrent with the denial of his petition, this court ordered Petitioner to show cause why he should not be prohibited from filing any further pro se petition or appeal raising issues that were previously raised in any prior petition or appeal. Petitioner has now filed his response, which merely duplicates some of his earlier arguments.

In L.T. Case No. 79-3126, Petitioner was charged by indictment with six counts of first degree murder and three counts of attempted first degree murder, all alleged to have occurred on August 13, 1979, in connection with the alleged dumping overboard of nine Haitians during a smuggling operation from the Bahamas to Florida. A jury convicted him in 1980 of six counts of manslaughter and three counts of simple assault, all lesser included offenses. Petitioner was determined to be a habitual offender and was sentenced to thirty years for each manslaughter, the sentences to be served consecutively, for a total sentence of 180 years. (The sentences for the assaults have been fully served and are not at issue.).

The mandate issued in his direct appeal on April 26, 1982. A long history of pro se collateral attacks on his convictions and sentences ensued. He filed the instant petition for writ mandamus with this court on June 17, 2002. In it, he sought to compel the state attorney to comply with section 775.084, Florida Statutes (1979), by giving notice that an enhancement hearing would be held, and with section 775.084(3)(b), by serving written notice of the state’s intent to habitualize. Petitioner also sought to compel both the state attorney and the trial court to comply with section 775.021(1)(language susceptible of differing constructions should be construed favorably to accused) and (4)(providing separate sentencing for each offense committed in a criminal episode, excluding lesser included offenses, with sentences to be either concurrent or consecutive), and with Hale v. State, 630 So.2d 521 (Fla.1993)(holding habitual offender statute did not authorize imposition of consecutive habitual felony offender sentences for multiple crimes committed during single criminal episode), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). As support for his argument that the six manslaughter counts arose from the same criminal episode for purposes of precluding consecutive habitual sentencing, Petitioner attached affidavits from his trial counsel and himself, stating that the state and trial court agreed prior to trial that the offenses arose from a single incident (for purposes of denying his request for severance of the counts for separate trials).

Clearly, mandamus is not available to remedy alleged errors in a criminal case where the avenues of direct appeal and motions for postconviction relief provide an adequate remedy. See Jacobs v. State, 827 So.2d 294 (Fla. 5th DCA 2002); Donald v. State, 755 So.2d 816 (Fla. 1st DCA 2000)(denying petition for writ of mandamus complaining of actions or omissions of trial judge and defense counsel in criminal prosecution, for which direct appeal and postconviction relief are adequate remedies).

In this case, if there had been any defect in the giving of notice that the state would seek to enhance Petitioner’s sentence under the habitualization statute, or in its giving notice of a hearing on that issue, so that Petitioner arguably was prejudiced in his ability to prepare his defense, his attorney should have preserved the error for appeal and the issue should have been raised on direct appeal. If trial counsel failed to preserve the error, then Petitioner’s remedy would have been a timely motion pursuant to rule 3.850, Florida Rules of Criminal Procedure. See Fla. R.Crim. P. 3.850(b). If trial counsel preserved the error but appellate counsel failed to raise it on appeal, the remedy would have been a timely petition alleging the ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c)(4). Such defects in procedure would not make the resulting habitual sentence “illegal” so as to be susceptible to challenge at any time. Compare Carter v. State, 786 So.2d 1173 (Fla.2001)(holding that imposition of habitual offender sentence may be challenged pursuant to rule 3.800(a) at any time where no judge could have inflicted the sentence under any set of factual circumstances, such as when the felony was one for which the statute did not provide for habitualization at the time the offense was committed), with Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000)(affirming order summarily denying rule 3.800(a) motion; claim that state failed to serve notice of intent to habitualize required evidentiary hearing, thus, motion to correct allegedly illegal sentence could not be used to resolve issue of notice), and Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000)(mere allegation of defective habitualization process does not constitute illegal sentence).

Even if it could be considered, Petitioner cannot be entitled to relief from his misreading the 1979 version of section 775.021(4) as precluding consecutive sentencing whenever a defendant is found guilty of a lesser included offense; the provision merely precludes sentencing a defendant for an offense as well as sentencing him/her for any lesser included offense(s) for which he/she could also have been found guilty.

Finally, the argument that Petitioner’s six manslaughter offenses were committed within a single criminal episode so as to preclude consecutive habitual sentencing under Hale was decided on the merits in a rule 3.850 motion, which he timely filed within two years after the issuance of State v. Callaway, 658 So.2d 988 (Fla.1995)(announcing the retroactive application of Hále ). The trial court’s finding that the record demonstrated conclusively that Petitioner had committed six separate and distinct acts of manslaughter, as demonstrated by the state’s response and attachments, was affirmed by this court on the merits, although per cu-riam and without opinion, in Closed Case No. 4D97-825. Hastings v. State, 701 So.2d 881 (Fla. 4th DCA 1997)(Table).

In response to this court’s order to show cause, Petitioner merely reasserts the same issues, arguing that they were not addressed on the merits. He emphasizes that he did not receive notice of the state’s intent to seek habitual sentencing or notice of the enhancement hearing, citing cases in which such defects resulted in reversal on direct appeal. By motion to supplement his response, he asks this court to treat the instant mandamus petition as a rule 3.800(a) motion and direct the trial court to address it on the merits.

The notice issues raised by Petitioner are not ones that can be considered on the merits at this late date. Further, if there was evidence in the record bearing on the question of whether Petitioner’s offenses were committed in one criminal episode, it should have been raised in the rule 3.850 motion in which that issue was addressed on the merits. The law of the case doctrine applies to a rule 3.800(a) motion when the defendant seeks to litigate a specific issue adversely decided in an earlier postconviction proceeding, even if the issue pertains to the legality of the sentence, see Raley v. State, 675 So.2d 170, 173-74 (Fla. 5th DCA), cause dismissed, 678 So.2d 1287 (Fla.), appeal dismissed, 683 So.2d 484 (Fla.1996), so long as the earlier motion was considered on the merits and not denied on procedural grounds, cf. Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999)(consideration not barred by law of the case because motion was first denied on procedural grounds).

After due consideration, we conclude that Petitioner should be barred from any further pro se filings in this court, either an appeal or an original petition, raising the same issues as previously raised in any prior petition or appeal, as his repetitive duplicative filings have impeded this court’s ability to devote its resources 'to the consideration of legitimate claims. We hereby prohibit Petitioner from filing any petition or appeal that raises such issues in this court unless such filing is signed by a member of The Florida Bar. If Petitioner violates this prohibition, he will face sanctions. See Prince v. State, 719 So.2d 346 (Fla. 4th DCA 1998), review denied, 732 So.2d 328 (Fla.1999).

FARMER, STEVENSON and MAY, JJ., concur.

      . In 1985, Petitioner filed a rule 3.850 motion for postconviction relief in which he raised the same grounds as were raised in his direct appeal. The trial court denied the motion and this court affirmed per curiam without opinion. Hastings v. State, 482 So.2d 361 (Fla. 4th DCA 1986)(Table).
      On December 7, 1989, Petitioner filed a petition for writ of habeas corpus with the circuit court, raising some of the issues previously raised on appeal and in the rule 3.850 motion; he later filed an amendment to raise double jeopardy and receiving a disparate sentence from his black co-defendant, who was sentenced to only fifteen years concurrently for the same offenses; he later filed “supplemental authority,” asserting his sentences should be concurrent because all charges occurred in the same episode. The trial court denied the petition, finding it procedurally barred.
      On May 11, 1990, Petitioner filed a rule 3.800(a) motion and supplemental authority, arguing that his consecutive habitual sentences should be concurrent. The trial court denied the motion and this court affirmed per curiam without opinion. Hastings v. State, 576 So.2d 1326 (Fla. 4th DCA 1991)(Table).
      On July 12, 1993, Petitioner filed a motion to vacate defendant's status as a habitual offender, arguing that one of the prior convictions originally used to classify him as a habitual offender, L.T. Case No. 80-696, had been vacated. The trial court denied the motion, the motion for rehearing, and the supplement to motion for rehearing, and this court affirmed per curiam without opinion. Hastings v. State, 626 So.2d 1384 (Fla. 4th DCA 1993)(Table).
      On August 30, 1993, Petitioner filed a petition for writ of habeas corpus in this court, alleging the ineffective assistance of his appellate counsel. After issuing an order to show cause, this court denied the petition. (Closed Case No. 4D93-2581).
      On November 15, 1993, Petitioner filed a rule 3.800(a) motion, arguing that his consecutive sentences should be concurrent because they arose from a single episode, the court failed to make necessary findings, a qualifying conviction was vacated, and habitual sentences may not be made consecutive under Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). The trial court denied the motion and this court affirmed. Hastings v. State, 642 So.2d 762 (Fla. 4th DCA 1994)(Table).
      On October 3, 1994, Petitioner filed another rule 3.800(a) motion, contending that his consecutive habitual sentences should be concurrent and that Hale should be applied retroactively. The trial court denied the motion.
      On February 10, 1995, Petitioner filed another rule 3.850 motion, arguing that the consecutive sentences were illegal under Hale and Callaway v. State, 642 So.2d 636 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla.1995), which the trial court apparently denied as successive. This court reversed and remanded because there were no record attachments demonstrating that the six drownings could be considered separate for purposes of consecutive sentencing. See Hastings v. State, 670 So.2d 1176 (Fla. 4th DCA 1996). The state then submitted a second response, to which Petitioner responded with several motions, including a motion to vacate his status as a habitual offender, based on the vacation of L.T. Case No. 80-696. The state filed another response addressing, inter alia, that claim, asserting that the conviction in L.T. Case No. 80-696 was not necessary to support Petitioner's habitualization. The trial court denied the motion, making a finding that the record demonstrated conclusively that Petitioner had committed six separate and distinct acts of manslaughter. It also found that the state's response and attachments demonstrated that Petitioner was not entitled to further relief. Petitioner appealed and this court affirmed per curiam without opinion. Hastings v. State, 701 So.2d 881 (Fla. 4th DCA 1997)(Table).
      On January 30, 1996, Petitioner wrote a letter to the trial court, claiming that DOC incorrectly determined that his sentences in L.T. Case No. 79-3126 did not commence until April 4, 1985, rather than the date of sentencing. The trial court treated the letter as a motion for credit for time served and ordered a response. After holding a status conference, the trial court denied his letter/motion for clarification based on the state’s response which indicated that the instant sentences were consecutive to Petitioner's five-year sentences in L.T. case nos. 74-179 and 73-787, which did not expire until April 4, 1985. This court affirmed per curiam without opinion. Hastings v. State, 693 So.2d 558 (Fla. 4th DCA 1997)(Table).
      On December 2, 1997, Petitioner filed a rule 3.850 or rule 3.800(a) motion for post-conviction relief, in which he again sought to vacate his habitual offender status and sentences based on the “newly discovered evidence” of the vacated conviction in L.T. Case No. 80-696. Also filed was a sworn memorandum of law which mentioned that Petitioner was never served written notice of ha-bitualization, did not know why he was to appear in court the day of the habitualization hearing, and was not allowed a continuance to prepare for it. In its response, the state argued, inter alia, that Petitioner should be prohibited from filing any future pro se pleadings and warned that future pleadings could expose him to the loss of gain time pursuant to section 944.28(2)(a). On August 25, 1998, Petitioner filed a response to the state’s response, complaining that the issue raised had never been addressed on its merits. In an order dated August 26 and entered August 27, 1998, the trial court summarily denied Petitioner's motion for postconviction relief and his motion for evidentiary hearing and new habitual and resentencing hearings, and prohibited him from filing any future pro se motions, adopting the state's response and exhibits. This court affirmed per curiam without opinion. Hastings v. State, 729 So.2d 937 (Fla. 4th DCA 1998)(Table), writ dismissed, 729 So.2d 917 (Fla.1999)(Table).
      On June 23, 1999, Petitioner filed in the supreme court a pro se letter to Justice Barbara Pariente’s staff attorney, which was treated by the supreme court as a petition for writ of habeas corpus and was transferred to this court. In the letter, Petitioner sought relief from his habitualization in the instant case based on his conviction in L.T. Case No. 80-696, which he argued was then under appeal and which did not become final until November 4, 1981. This court summarily denied the petition. (Closed Case No. 4D99-3148).
      On June 5, 2000, Petitioner wrote a letter to Judge John Phillips, asking him to issue an amended commitment to DOC, stating that Petitioner's sentences commenced service on June 24, 1980. In response, Judge Richard I. Wennet issued an order, stating that the court had reviewed the letter and attached documents and ordered that the letter failed to invoke the jurisdiction of the court, but that it would remain a part of the court file. In response to that order, Petitioner filed in Judge Wennet’s division a motion to amend commitment or clarify starting date of sentence, in which he requested an order to the effect that his sentences in L.T. Case No. 79-3126 commenced on the date of imposition of sentence, June 24, 1980. On August 9, 2000, Judge Wennet issued an "order striking defendant's motion to proceed on appeal in for-ma pauperis.” The body of the order reflected that what was actually being stricken was Petitioner’s motion to be declared indigent filed July 28, 2000. It explained that "The August 26, 1998 order, affirmed on February 19, 1999, precluded the defendant from filing any further motion in this proceeding as he has abused the judicial process.” Petitioner filed a notice of appeal from the order dated August 9, 2000, which was set up in this court as a petition for writ of certiorari, Case No. 4D00-3242.
      On August 15, 2000, Petitioner filed a motion to clarify court’s order of August 9, 2000, in which he explained that he had never filed a motion to proceed on appeal in forma pau-peris in this case; all he had filed was a request for the court to clarify the date his sentence started. He also argued that the trial court went too far in barring him from filing pro se motions, a show cause order and response being necessary before such sanctions may be imposed. In an order dated August 31, 2000, the trial court struck the motion to clarify court's order of August 9, 2000, and directed the clerk of the court not to accept any pro se motions from Petitioner, pursuant to the August 26, 1998 order. Petitioner filed a notice of appeal from the August 31 order, which was set up in this court as a second petition for writ of certiorari, Case No. 4D00-3237. The two petitions were consolidated and Petitioner was ordered to file a petition and appendix. Petitioner filed a petition in which he argued that he did not file a motion to proceed on appeal in forma pau-peris, he did not receive due process in being barred from further pro se pleadings, and he was serving an illegal sentence in that his sentences should have been made concurrent and as such they would have expired in 1994. This court issued an order to show cause and in a lengthy opinion issued June 30, 2001, this court denied the petition. This court concluded that even though the record did not demonstrate that Petitioner was afforded notice and an opportunity to be heard before the order of August 26, 1998, was entered, that order had been appealed and affirmed and the law of the case doctrine precluded Petitioner from raising issues which could have been raised in the prior appeal. With respect to his consecutive sentencing, this court pointed out that Petitioner had raised the issue numerous times previously and that his arguments were considered and the sentences affirmed. See Hastings v. State, 789 So.2d 1108 (Fla. 4th DCA 2001).
      On September 27, 2000, Petitioner filed a petition for writ of mandamus, seeking to compel Judge Wennet to issue an order that his sentence commenced on the date of imposition, June 24, 1980, and the reversal of the order barring any further pro se motions, which this court summarily denied. (Closed Case No. 4D00-3413).
      On August 25, 2000, Petitioner filed a petition for writ of habeas corpus with the supreme court, which transferred it to the circuit court as a rule 3.800(a) motion. He argued that (1) his sentences should have been imposed concurrently pursuant to Hale and also because he interpreted the wording of section 775.021(4) at the time of the offense to preclude consecutive sentencing for lesser included offenses; (2) he was being illegally detained because he was not given written notice of the state’s intention to habitualize him; and (3) the trial court erred in allowing into evidence the taped and written statements of his non-testifying co-defendant, implicating him, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He asked that the court order his sentences be imposed concurrently and that he be discharged because once corrected, his sentences would have expired years ago; he also argued that a new trial was warranted on the fundamental error of denying him a severance and the admission of the co-defendant's testimony. The petition was summarily denied as legally insufficient and this court affirmed per curiam without opinion. Hastings v. State, 827 So.2d 1008 (Fla. 4th DCA 2002)(Table).

      . (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
      § 775.021(4), Fla. Stat. (1979)(emphasis added).


text:
    In re the ESTATE OF Carlos Rumaldo HERRERA, Teresa Guerrero, As Personal Representative, Appellant, v. BERLO INDUSTRIES INC. and Jaffer Associates, Inc., Appellees.
    No. 3D01-2689.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Rehearing and Rehearing En Banc Denied March 26, 2003.

      Kenneth D. Cooper (Fort Lauderdale), for appellant.
    Kubicki Draper, and Angela C. Flowers, and Barbara E. Fox, Miami, for appellees.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

The Estate of Carlos Rumaldo Herrera and Teresa Guerrero as Personal Representative (“Herrera”) appeals a summary judgment in favor of appellees, Jaf-fer Associates, Inc. (“Jaffer”). We affirm the trial court’s order because Herrera has not established the existence of a genuine issue of material fact. See Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105 (Fla. 4th DCA 2000).

In addition, we reject Herrera’s argument that summary judgment was error because discovery had not been completed. Summary judgment may be granted, even though discovery has not been completed, when the future discovery will not create a disputed issue of material fact. See A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So.2d 301 (Fla. 5th DCA 2001); see also Crespo v. Florida Entm’t Direct Support Org., Inc., 674 So.2d 154 (Fla. 3d DCA 1996) (“A trial court has the discretion to deny a continuance of a summary judgment hearing where the outstanding discovery items are immaterial to the disposi-tive issues in the case.”). Here, future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling.

Lastly, Herrera seeks to raise issues which were not raised in the trial court. However, issues not presented in the trial court cannot be raised for the first time on appeal. See Gisela Invs., N.V. v. Liberty Mut. Insur. Co., 452 So.2d 1056 (Fla. 3d DCA 1984). Thus, Herrera is precluded from raising new arguments on appeal.

Affirmed.


text:
    David MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2734.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    David Moore, in proper person.
    Charlie Crist, Attorney General and John Barker, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

This is an appeal from the denial of a motion to correct an illegal sentence imposed after the revocation of the appellant’s probation. The state commendably and correctly concedes that not only was the sentencing guideline scoresheet incorrectly calculated, but there are a host of other errors which are apparent from the face of the record such as the miseharac-terizations of the degrees of the various felonies committed by the appellant and, the omission of some of the appellant’s prior convictions. Moreover, as a result of the miscalculations in the scoresheet, it appears that the trial court imposed a departure sentence for which no reasons were given, without being aware that it was doing so.

For these reasons, we therefore reverse and remand for a resentencing hearing. Since the trial court believed that the sentence imposed was within the guidelines and did not consider whether a departure sentence was warranted, upon remand, we agree with the state that the trial court is not precluded from considering whether a departure sentence is warranted. See State v. Betancourt, 552 So.2d 1107, 1108 (Fla.1989).

Reversed and remanded for further proceedings.


text:
    Kevis McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-741.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Rehearing Denied April 7, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm as to all issues raised by appellant. In the third issue appellant argues that this case should be remanded to the trial court for a ruling on appellant’s motion to withdraw his plea in three separate cases.

The notice of appeal filed in this ease divested the trial court of jurisdiction to enter any further rulings, including appellant’s motion to withdraw plea. We, accordingly, affirm this issue without prejudice to any right appellant might have to raise this issue in any motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Wilson v. State, 814 So.2d 1203 (Fla. 2d DCA 2002).

AFFIRMED.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Timothy E. WHITE, Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Appellee.
    No. 1D02-3692.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    Rehearing Denied March 21, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; and Louis A. Vargas, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellants response to this Court’s order to show cause, dated November 15, 2002, the appeal of the circuit court’s order entitled “Order Denying Petition for Writ of Habeas Corpus ad Testificandum” is hereby dismissed for lack of jurisdiction. Appellant’s motion to consolidate is denied as moot.

The appellant has sought review of an order denying his Petition for Writ of Ha-beas Corpus ad Testificandum. The appellant’s petition below is essentially a motion for an inmate to appear at a hearing, which should not be confused with a Petition for Writ of Habeas Corpus ad Subji-ciendum. See Black’s Law Dictionary 715 (7th ed.1999). Therefore, the instant order does not constitute an end to the judicial labor in this case and is not appealable as a final order. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).

Appellate jurisdiction to review nonfinal orders is limited to those orders identified in Florida Rule of Appellate Procedure 9.180. Nonfinal orders that “concern venue” are one category of appealable nonfinal orders. See Fla. R.App. P. 9.130(a)(8)(A). The appellant argues that his petition sought a court order allowing him to appear at a hearing on a motion for change of venue, therefore the order denying the motion concerns venue and should be ap-pealable. However, “[t]his rule enables a party to seek review of an adverse decision on venue.... ” Management Computer Controls, Inc. v. Charles Perry Construction, Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999); Kerr Const., Inc. v. Peters Contracting, Inc., 767 So.2d 610 (Fla. 5th DCA 2000). This rule does not extend to appeals of nonfinal orders where venue may be impacted by the order but the order itself does not concern venue. See Y.H. v. F.L.H., 784 So.2d 565 (Fla. 1st DCA 2001); Wetherington v. State Farm Mutual Auto. Ins. Co., 661 So.2d 1276, 1277 (Fla. 2d DCA 1995). Thus, the instant order denying appellant’s petition does not concern venue within the meaning of Rule 9.130(a)(3)(A).

DISMISSED.

KAHN, BENTON and LEWIS, JJ., CONCUR.


text:
    Robert C. NORRIS, Appellant, v. WILLIAM LEHMAN AND ASSOCIATES, INC., d/b/a William Lehman Mitsubishi, Appellee.
    No. 3D02-435.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Salas, Ede, Peterson & Lage and Douglas E. Ede; Philip D. Parrish, for appellant.
    Francine D. Holbrook, for appellee.
    Before SCHWARTZ, C.J., FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Nat’l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001)(en banc); Alech v. Gen. Ins. Co., 491 So.2d 337 (Fla. 3d DCA 1986).


text:
    Rosa Elena RIVERA, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D02-1860.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.

      Rosa Elena Rivera, in proper person.
    Kevin Kenneally, Legal Services of Greater Miami, Inc., for appellant.
    Sandra A. Piligian, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

This is an appeal from an agreed motion to vacate final order in this cause where the transcript of the proceedings below contains numerous errors and is woefully insufficient to provide a proper record for purposes of an appeal. We treat this as a confession of error and vacate the final order below and remand with instructions that the administrative hearing officer conduct a new hearing.

Reversed and remanded with instructions.


author: PETERSON, J. GRIFFIN, J.,

text:
    CAPE PUBLICATIONS, INC., etc., et al., Appellants, v. Kathy REAKES, Appellee.
    No. 5D01-1693.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Rehearing Denied March 18, 2003.

      Jack A. Kirschenbaum of Gray, Harris & Robinson, P.A., Melbourne and Robert C. Bernius of Nixon Peabody, LLP, Washington, D.C., for Appellants.
    Douglas R. Beam of Douglas R. Beam, P.A., Melbourne, and James R. Dressier, Cocoa Beach, for Appellee.
   PETERSON, J.

Melinda Meers and Cape Publications, Inc., d/b/a Floridá Today appeal a $400,000 judgment for defamation following a jury trial. Phil Currie also appeals a $500 judgment for defamation and Florida Today appeals a $10,000 judgment for conversion.

Employed as a reporter by Florida Today, a Florida newspaper, Kathy Reakes and another reporter, John McAleenan, were assigned the task of investigating Anita Gonzalez, who was under arrest for murder at the time. Reakes and McA-leenan were working on a “color piece” to provide some background information about Gonzalez and the neighborhood in which she lived. The two traveled to an apartment complex in which Gonzalez had rented an apartment and discovered that after a police raid of the dwelling, the apartment was unoccupied and the backdoor open. McAleenan entered the apartment and discovered that it had been ransacked. Reakes later testified that she proceeded approximately ten steps into the apartment and remained inside for about 30 to 60 seconds, but was able to report that the refrigerator door was open, furniture was broken, and trash was strewn about the floor. Discovering a document on the floor which appeared to contain a list of phone numbers, McAleenan took it so that they could later investigate and call the numbers.

After the two returned to the Florida Today offices, the news of the reporters’ activities was relayed to others. Reakes told Florida Today’s metro editor that the two had “kicked in the apartment door” in order to gain entry. The metro editor thought that the unauthorized entry was serious enough to report the actions of the two reporters to Meers, the Florida Today managing editor. Later that evening, Meers phoned Reakes at her home to ask if Reakes had indeed entered Gonzalez’s apartment and obtained an affirmative answer.

When Reakes reported to work the next day, Meers told her that she and McAleen-an were being terminated because of their actions at Gonzalez’s apartment and was summarily escorted from the building.

Tom Squires, a Florida Today assistant managing editor, was not at the office the day Reakes and McAleenan were terminated. He was not involved in the decision to terminate the two, but had heard the basic facts concerning the events. Arriving for work the following day, he encountered Meers taking a break outside the Florida Today offices. Squires asked Meers about the reason for the terminations and Meers informed him that Reakes and McAleenan were terminated because they had committed criminal acts. It was this statement by Meers to Squires that was the basis of Reakes’ defamation claim against Meers and the newspaper.

After Reakes and McAleenan were terminated, Florida Today, on the advice of their attorney, turned the list McAleenan had taken from the apartment over to the circuit court in a sealed envelope without ever mentioning Reakes’ name. A circuit judge opined that the document could be relevant to the murder case against Gonzalez and could also be evidence of trespassing or burglary by the reporters. Accordingly, the judge reported the matter to the grand jury and the State subpoenaed Meers to determine the manner in which the document came into the possession of Florida Today. Although the State felt the crimes of trespassing and burglary had been committed, it decided not to pursue the matter because of potential interference with the Gonzalez murder prosecution.

As news of the terminations spread, aided by Reakes’ accounts, the story received national attention, including stories in the Orlando Sentinel, Washington Post, and Los Angeles Times. There was also a piece about the terminations in the Columbia Journalism Review, which criticized the paper and expressed the opinion that Reakes and McAleenan should have been supported by Florida Today in their entry into the apartment. Phil Currie, a senior officer of Gannett Co., the owner of Florida Today, responded to the criticism in a June 1996 speech to Gannett publishers and editors. He did not mention the reporters by name, but stated that the “story has become so twisted that editors appear wrong for believing that newspaper people should not break the law, and the reporters appear to be heroes for admittedly having done so.” The text of Currie’s speech was subsequently published on .a Gannett website. The quoted statement was the basis for Reakes’ defamation claim against Currie.

Reakes sued Meers, Currie, and Florida Today, making multiple claims, including defamation, conversion, and wrongful termination. After several years of motion practice, the only claims left for trial were her defamation claims because of Meers and Currie’s statements that Reakes had broken the law and Reakes’ conversion claim. At trial, Reakes stated that she had trouble finding employment after the claims of criminal wrongdoing and that she had also suffered emotional harm because of the accusations. She further testified that an unreturned box of personal items under her desk had contained notes and information from a confidential informant concerning a case involving the “vampire rapist.” She stated that she was planning on writing a book about that case, but now could not do so because of the conversion of the materials.

At the conclusion of the trial, the jury returned a verdict in Reakes’ favor awarding her $400,000 on the defamation claim against Meers and Florida Today ($150,-000 for past lost wages, $150,000 for future lost wages, and $100,000 for loss of reputation), $500 on the defamation claim against Currie, and $10,000 on the conversion claim against Florida Today.

It is the judgments entered pursuant to the verdicts that have been appealed.

I. THE STATEMENTS.

A plethora of cases exist which proclaim that a required element of defamation is a false statement made about another. See, e.g., Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386, 388 (Fla. 1st DCA 1999); Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 705 (Fla. 3rd DCA 1999), rev. denied, 753 So.2d 563 (Fla.2000). Stated differently, if the statements are true, the required element of a false statement is not present. See Linafelt, 745 So.2d at 389 (“However, the statement was true. Accordingly, appellant’s claim for defamation must fail.”) In its instructions to the jury, the trial court defined the criminal offenses of trespass of a structure, theft, and burglary. More specifically, pursuant to section 810.08, Florida Statutes (1995), the court instructed the jury that one was guilty of trespass of a structure “if she, without being authorized, licensed, or invited, willfully enters a structure.” In the instant case, Reakes, herself, admitted that she entered Gonzalez’s apartment without permission from Gonzalez or the owner of the apartment. The unauthorized entry constituted the crime of trespass of a structure and the statements made by Meers and Currie appear to be true statements. Meers accurately stated that Reakes and McAleenan had committed “criminal acts.” Currie stated that journalists were being celebrated for admittedly breaking the law. Although Reakes did not expressly admit that she broke the law, she admitted that she had entered a structure without permission, making Currie’s statement substantially true. See Smith, 731 So.2d at 706 (“Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the ‘gist’ or the ‘sting’ of the statement is true.”)

Accordingly, if the statements made by Meers and Currie were substantially true, the defamation verdicts are reversible. See id. at 705 (“[A] reviewing court may reverse a jury verdict and instruct the lower court to enter a judgment in favor of the defendant where the statement is not capable of a defamatory effect, i.e., not a false statement which naturally and proximately results in injury to another.”)

II. QUALIFIED PRIVILEGE.

Even if one assumes that the statements made by Meers and Currie were not substantially true, no liability would attach for the statements if they were protected by a qualified privilege and were made without express malice.

If a speaker makes a statement to another and the two share a legal interest in the subject matter of the statement, the statement is protected by a qualified privilege and is not actionable unless made with express malice. See Nodar v. Galbreath, 462 So.2d 803, 809 (Fla.1984). The issue of whether this qualified privilege exists is not a jury question when the circumstances surrounding the communication are undisputed; the question should be decided by the court. See id. at 810. There is no dispute about the cireum-stances surrounding Meers’ or Currie’s statements. Meers was outside the Florida Today office building on a break when she responded to the question of a fellow editor about the employees. Currie was making a speech to editors of Gannett newspapers. Neither side in this case disputes those circumstances and the trial court should have found that the privilege existed. Id.; Randolph v. Beer, 695 So.2d 401 (Fla. 5th DCA 1997) (statements made by credit union’s chairman of the board to the members of the board concerning a rumor about illegal activities of an insurance agent enjoyed a qualified privilege because the speaker and listener both shared a legal interest in the subject matter of the statements).

Once it is determined that a qualified privilege exists, a further examination is necessary to determine whether the speaker lost the privilege because of express malice. This has been described as “ill will, hostility, evil intention to defame and injure. Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege destroyed.” Nodar, 462 So.2d at 811. There was no showing of malice in the instant case and the circumstances seem to be exactly those which the privilege was designed to protect.

III. DEFAMATION DAMAGES.

In order to recover for defamation, a plaintiff must show that the damages were proximately caused by the defamatory statements. See Smith, 731 So.2d at 705. There was no showing of proximate cause in this case concerning the statement made by Meers. The trial judge instructed the jury that the case was not one of wrongful termination, but was only about defamation. When the jury awarded $400,000 to Reakes because of Meers’ statement, this admonishment was apparently ignored. Accepting Reakes’ testimony concerning her inability to find meaningful employment and her emotional difficulties at face value, it is clear that these damages came as a result of being fired and learning that Meers had told Squires that she was fired for committing a crime. Meers only made this statement to Squires, who admittedly did not repeat it to others. Squires, in fact, disagreed with the decision to terminate Reakes and made efforts to help her secure employment. Absent any showing of damages as a result of Meers’ statement to Squires, that portion of the verdict must be reversed.

IV. CONCLUSION.

Statements made by Meers and Currie which were the subject of Reakes’ defamation claims were true statements and Reakes faded to present a prima facie case for defamation. Moreover, the statements were protected by a qualified privilege which was never lost in the absence of express malice. Reakes also failed to demonstrate that the statement made by Meers proximately caused any of her injuries.

The judgments against Meers, Currie and Florida Today are reversed. We affirm the judgment for $10,000 on the conversion count against Florida Today.

AFFIRMED in part; REVERSED in part.

PLEUS, J., concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

This is an intriguing case. The key legal issue seems straightforward enough, but it may be more complicated and harder to satisfactorily answer than appears on the surface. The majority overturns the jury’s verdict finding the defendants liable for defamation because, as a matter of law, under the facts proved at trial, the plaintiff had committed “a criminal act.”

Examining the facts, as we must, in the light most favorable to the jury’s verdict, the plaintiff reporter, Kathy Reakes [“Reakes”], was assigned by Florida Today in January 1996 to obtain background information regarding a gang of criminals who were operating from a location in a public housing area in Melbourne, Florida. The leader of this gang was a female named Anita Gonzalez. John McAieenan, another veteran reporter with Florida Today, also was assigned to the story. Florida Today instructed Reakes and Mr. McAieenan to go to this location to get background information for a story regarding Ms. Gonzalez and her gang. Ap-pellee and Mr. McAieenan went to the location in separate cars. It was mid-morning and residents of the public housing area were outside and talked with the two reporters.

Mr. McAieenan saw that the door to the apartment from which the gang had been operating was hanging open after having been smashed in by the Melbourne Police Department SWAT team. The location had been ransacked during a raid. The power was off and the apartment appeared to be abandoned. Mr. McAieenan walked through the open door and called out for Reakes to look inside. Reakes took a few steps inside the open door which led to the kitchen. She observed that the refrigerator doors were open, raw foods, ie., bread, lettuce, broken eggs were all over the floor; garbage cans had been overturned; and garbage littered the floor. Reakes said that it looked like a tornado had gone through there. Reakes remained for approximately thirty seconds to a minute and left. She did not remove anything. This was the “criminal act.”

The rule of law established in the majority opinion is that, in Florida, a reporter’s entry into a structure without the owner or possessor’s permission, no matter how brief or slight, no matter the status of the site, no matter whether the purpose is to gather news, is criminal trespass as a matter of law. The jury received a very detailed special verdict form in this case that asked whether the statement made by Merlinda Meers that the plaintiff “had committed criminal acts” was substantially true. The jury said no. Under the facts presented, I think this verdict was legally permissible. The statement that appellee “committed criminal acts” has, at best, only marginal factual content. The entry into the criminal’s apartment was slight and the property “trespassed upon” was the ransacked, and apparently abandoned site of a police raid whose door was hanging open. Reakes was never prosecuted.

The question this case raises is whether a reporter has any leeway to enter into a crime scene such as this for newsgathering purposes. This has apparently been a contentious issue for many years and largely remains unresolved. See, e.g., Note, Press Passes and Trespasses: Newsgathering on Private Property, 84 Colum. L.Rev. 1298 (1984). There is an interesting decision of the Florida supreme court, Florida Publishing Co. v. Fletcher, 340 So.2d 914, 915-16 (Fla.1976), a case which is, to me, important for a proper consideration of this case under Florida law, even though not cited by the parties.

In Fletcher, a fatal fire had occurred in a private home. Reporters entered the property to investigate for a news story and a news photographer took photographs, some at the request of law enforcement on the site. The homeowners sued the reporters civilly for trespass but the supreme court found no liability as a matter of law on grounds of “custom” or “implied consent,” which will authorize entry on private property and avoid a claim of trespass. The court ruled that it is “customary” to allow the press admittance to such sites where a calamity has occurred. Accordingly, the court ruled that the reporter could not be held liable for trespass. Fletcher has been the subject of criticism, but it remains the law of Florida. See Kent R. Middleton, Journalists, Trespass, and Officials: Closing the Door on Florida Publishing Co. v. Fletcher, 1989 Pepp. L.Rev. 259 (1989).

The dissenting judge at the district court of appeal level in Fletcher, whose opinion the supreme court later approved, explained why he viewed the entry by the press onto the Fletchers’ property not to be a trespass at all:

It is not questioned that this tragic fire and death were being investigated by the fire department and the sheriffs office and that arson was suspected. The fire was a disaster of great public interest and it is clear that the photographer and other members of the news media entered the burned home at the invitation of the investigating officers. (Numerous members of the general public also went through the burned house.) Many affidavits of news editors throughout Florida and the nation and affidavits of Florida law enforcement officials were filed in support of appellee’s motion for summary judgment. These affidavits were to the general effect that it has been a long-standing custom and practice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest was occurred — entering in a peaceful manner, without causing any physical damage, and at the invitation of the officers who are investigating the calamity. The affidavits of law enforcement officers indicate that the presence of the news media at such investigations is often helpful to the investigations in developing leads, etc. The affidavits as to custom and practice do not delineate between various kinds of property where a tragedy occurs. They apply to any such place. If an entry is or is not a trespass, its character would not change depending upon whether or not the place of the tragedy is a burned out home (as here), an office or other building or place. An analysis of the cases on implied consent by custom and usage, indicates that they do not rest upon the previous nonobjection to entry by the particular owner of the property in question but rest upon custom and practice generally. Implied consent would, of course, vanish if one were informed not to enter at that time by the owner or processor or by their direction. But here there was not only no objection to the entry, but there was an invitation to enter by the officers investigating the fire. The question of implied consent to news media personnel to enter premises in a circumstance such as this appears to be one of first impression not only in this jurisdiction but elsewhere. This, in itself, tends to indicate that the practice has been accepted by the general public since it is a widespread practice of long standing. Due to such widespread and long-standing custom, reason and logic support the application of implied consent to enter the premises in the case before us.

319 So.2d at 113-14. (Emphasis added.)

If one judge out of three district court of appeal judges and five justices of the Supreme Court of Florida could conclude that the reporter’s entry onto the private residence in Fletcher could not support even a claim of civil trespass because of a “widespread practice of long standing,” “accepted by the general public” to allow the press some access to the scene of a newsworthy event such as a fire, then a jury certainly should be permitted to decide that what Ms. Reakes did was not criminal trespass by her either because Ms. Reakes lacked criminal intent or because such a limited intrusion would not be recognized as a crime based on a widespread practice of long standing accepted by the general public. The jury may have concluded that the newspaper, by accusing Ms. Reakes of criminal acts, grossly overreacted. Under these circumstances, the jury was entitled to find that it was not substantially true that this entry was a criminal act. Reading this record, one could also conclude that Ms. Reakes’ nonchalance, if not arrogance, was at least partly responsible for the newspaper’s overreaction, but perhaps the jury did not see it that way. It was, however, a decision for the jury to make.

I would affirm.

      . The jury verdict form was concerned only with this statement from Meers to Squires and not to anyone else.

      . Other cases create confusion, however, when the decisions state that truth is not a complete defense to defamation unless it is accompanied by good motives. See, e.g., Lip

        sig v. Ramlawi, 760 So.2d 170, 183 (Fla. 3d DCA 2000), rev. denied, 786 So.2d 579 (Fla.2001); Drennen v. Westinghouse Elect. Corp., 328 So.2d 52 (Fla. 1st DCA 1976). The requirement of good motives is derived from article I, section 4 of the Florida Constitution which states that in any civil action for defamation, the party accused shall be exonerated "if the matter charged as defamatory is true and was published with good motives.” There was no issue of "good motives” in the instant case as there was absolutely no evidence that the statements in question were made with any sort of spite or ill will that might be construed as bad motives. Meers simply answered a question of Squires when he asked her why Reakes and McAleenan were terminated. Her answer, the subject of the defamation claim, was simply relaying that information to her assistant managing editor. Likewise, Currie was making a broad-based statement to editors about the ethics of journalism and never mentioned Reakes by name.

      . Fletcher v. Florida Pub. Co., 319 So.2d 100 (Fla. 1st DCA 1975).

      . It is true that, in Fletcher, the court refers to the fact that the reporter was authorized by the police to enter the premises, but if the police invitation was sufficient to avoid the trespass claim, the high court would not have needed to decide the case on the basis of "custom” and "implied consent.”

      . The Florida Standard Jury Instruction on criminal trespass includes the following:
      Authority to [enter] [remain in] a structure or conveyance need not be given in express words. It may be implied from the circumstances. It is lawful to [enter] [remain in] a structure or conveyance of another if, under all the circumstances, a reasonable person would believe that he had the permission of the owner or occupant.


author: SAWAYA, J. SHARP, W., THOMPSON, C.J.,

text:
    Juan RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D00-2697.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Rehearing Denied March 21, 2003.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Tammy L. Jaques, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Juan Rivera appeals his judgment and sentence for burglary of a dwelling and third-degree felony theft. We affirm.

During the trial, the only contested issue was whether the victim properly identified Rivera as the person who committed the alleged crimes. The victim testified that when she returned home to her apartment during the afternoon, she found Rivera, who did not have permission to be in her apartment, inside holding her video cassette recorder and her Super Nintendo. The victim recognized Rivera because she had previously seen him in the apartment complex. She testified that he fled when he became aware of her presence. After the police located Rivera in the apartment complex, the victim identified him as the burglar.

Rivera testified and presented the jury with a rather bizarre story. Rivera explained that on the day of the burglary, he was awakened about 1:00 p.m. by a phone call. About that time, the maintenance man knocked on his door. Rivera answered the knock. As the two men conversed in the doorway, the victim suddenly appeared and, much to Rivera’s surprise and chagrin, accused him of the burglary. Shocked and angered, Rivera retreated inside his apartment. A short time later, Rivera looked out his window and saw the victim talking to several men. He left his apartment and ran toward the men, one of whom he thought was a law enforcement officer, to proclaim his innocence. Based on this version of the events, which the jury apparently did not believe, Rivera argued that the victim misidentified him as the perpetrator of the crime.

During closing argument, the prosecutor told the jury that “[i]n order for you to find him not guilty, which you have the prerogative to do, but you’re going to have to essentially be saying that [the victim’s] identification sucks.” Rivera objected to this comment on the ground that it improperly shifted the burden of proof. The objection was overruled by the trial court. This objection is the basis for the specific issue we must resolve: whether the prosecutor’s comment shifted the burden of proof to Rivera and, therefore, requires reversal and a new trial.

At the outset, we want to make it clear that we do not condone the particular language used by the prosecutor. However, it is the message, not the vernacular used by the messenger, that lies at the heart of the issue in this case.

There are legal standards by which courts should judge whether alleged improper comments made during closing argument require reversal. Closing argument is the part of the trial proceedings wherein each party is given the opportunity to summarize the evidence that has been presented to the jury regarding the issues in the case. McArthur v. State, 801 So.2d 1037 (Fla. 5th DCA 2001). Wide latitude is given the parties so that they may “advance all legitimate arguments and draw logical inferences from the evidence.” Id. at 1040 (citations omitted).

Trial judges are generally accorded broad discretion in controlling the comments of the parties in closing argument to the jury and the decisions they render relative to objections directed to particular comments are reviewed pursuant to the abuse of discretion standard. Id. “In order to determine whether improper remarks constitute reversible error, they should be reviewed within the context of the closing argument as a whole arid considered cumulatively within the context of the entire record.” Id. (citing Brooks v. State, 762 So.2d 879 (Fla.2000); Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998)). Thus, a comment standing alone may be viewed as inappropriate, but when considered within the context of the entire closing argument and the record, it may be a fair comment.

In order to place the prosecutor’s comment within the proper context, it is important to again emphasize that the only contested issue in this case was the victim’s identification of Rivera as the person who committed the burglary. Rivera admitted in opening statement and throughout the course of the trial that a burglary occurred; he simply denied that the victim properly identified him as the person who did it.

Rivera specifically argues that the comment made by the prosecutor im-permissibly shifted the burden of proof to him, pointing out that due process protections make it impermissible for the state to comment on a defendant’s failure to testify or produce evidence to refute an element of the crime because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence. See Rodriguez v. State, 753 So.2d 29 (Fla.2000). While we agree with Rivera’s statement of the law, we do not agree that the comment challenged by Rivera functioned as an impermissible burden-shifting comment.

The court in Gore v. State, 719 So.2d 1197 (Fla.1998), explained the types of comments that may constitute improper burden-shifting:

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. See Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA), review denied, 680 So.2d 424 (Fla.1996); Clewis v. State, 605 So.2d 974, 974 (Fla. 3d DCA 1992); Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989). Here, the prosecutor’s statement, “[i]f you believe he’s lying to you, he’s guilty,” was nothing more than an exhortation to the jury to convict Gore if it found he did not tell the truth. Thus, it was a clearly impermissible argument. See Bass, 547 So.2d at 682; cf. Craig v. State, 510 So.2d 857, 865 (Fla.1987).

Id. at 1200-01. Other examples of comments by prosecutors that the courts have held improperly shift the burden of proof include: telling the jurors that if they believed the police officers instead of the defendant, then they should find the defendant guilty; informing the jurors that the defendant did not have tests performed on evidence found at the scene, such as hair and blood samples, to determine that the evidence did not come from him; commenting on the failure of the defendant to call witnesses; arguing that the defendant’s request for a jury instruction regarding self defense is an admission by the defendant that he is guilty; and misadvis-ing the jurors that they have to believe the testimony of the defendant over that of the police officers to have a reasonable doubt.

What each of these examples has in common, as the court in Gore aptly noted, is the prosecutor’s invitation to convict the defendant for a specific reason other than the state’s proof of the elements of the crime beyond a reasonable doubt, i.e., because the defendant failed to mount a defense by not testifying, presenting evidence to prove his or her innocence, or refuting an element of the crime. We conclude that the prosecutor’s statement in the instant case can in no way be construed to be a comment on Rivera’s failure to mount a defense by not testifying or presenting evidence. Rivera did present a defense and he did testify. His testimony and his defense were that, although a burglary did occur, the victim of that crime misidentified him as the person who committed it. The prosecutor simply commented on that defense and testimony by advising the jurors that they had the prerogative of finding Rivera not guilty if they believed, as Rivera argued, that the victim’s identification was inaccurate and unworthy of belief. Therefore, the prosecutor’s statement was not a burden-shifting comment that is improper under the case law that has addressed this issue.

Moreover, assuming solely for purposes of argument that the comment was improper, the comment would not constitute reversible error for two reasons. First, Rivera invited it. Based on notions of fundamental fairness, the doctrine of invited response allows the state to comment on the issues raised by the defendant. As we have previously explained, in his opening statement and throughout the course of the entire trial, Rivera made it clear that the only contested issue was the victim’s identification. Furthermore, misidentification was a central theme of defense counsel’s closing argument, which exhorted the jurors that the victim’s identification was unworthy of belief and that they must find the defendant not guilty. Telling the jury that to find Rivera not guilty, which they had the prerogative to do, they would have to find the victim’s identification unworthy of belief is nothing more than a restatement of Rivera’s defense and closing argument. “A defendant is not at liberty to complain about a prosecutor’s comments in closing argument when the comment is an invited response.” Bell v. State, 758 So.2d 1266, 1266 (Fla. 5th DCA 2000) (citing Parker v. State, 641 So.2d 369 (Fla.1994)). Second, the error, if one is presumed, would be harmless based on the evidence and testimony presented during the trial, especially the prosecutor’s effective cross-examination of Rivera which exposed many glaring inconsistencies in his testimony.

AFFIRMED.

SHARP, W., J., concurs specially, with opinion.

THOMPSON, C.J., dissents, with opinion.

SHARP, W.,

concurring specially.

In this case, the defendant, Rivera, was charged with burglary (breaking into the victim’s apartment) and theft (taking her property). The primary evidence against him was the victim’s testimony that upon returning to her apartment at mid-day, she saw her front door, which she had left locked, was cracked open a small way. She was shocked when, upon starting to enter, she came face-to-face with Rivera. He was just inside the door and had in his hands her VCR and a Super Nintendo. Her television was also on the floor beside the door. She had perhaps a second to look at him before he took off running, carrying away the VCR and Super Nintendo. She testified she recognized him as a person living in the apartment complex whom she had seen before.

She had her neighbor call the police immediately. She testified she watched Rivera run up the stairs to the second floor of the apartment complex, east of hers, and go into an apartment. She said he came out of the apartment, leaned against the railings, and began to curse her, saying she was lying.

The first policeman who responded to the call testified he arrived within five minutes of the summons from the neighbor. He said there were few people at the scene. He began talking with the victim whose apartment was on the ground floor. She described Rivera as Hispanic, wearing a black cap, red jersey, black pants. When he reappeared from the apartment, on the second-floor walkway, she pointed him out to the police officer. She testified he continued to yell at her saying he was going to kill her for getting him into trouble.

Rivera began to run directly at the policeman. Concerned for his safety, the officer told him to put his hands on the police car. The officer asked Rivera to identify himself, which he did. The victim identified Rivera as the burglar. Rivera said he had not broken into anything and he could prove it. Rivera was arrested and placed in the police car.

After a backup officer arrived, at Rivera’s request, they took him back to his apartment on the second floor and searched it and its immediate surroundings. None of the items taken from the victim’s apartment were found, nor was a black cap recovered. They did find a window on the south side of the victim’s apartment had been broken into. The defense did not question that a burglary of the victim’s apartment had occurred; only that Rivera had been misidentified as the perpetrator.

Rivera took the stand. At this point his case unraveled. He was asked why he suddenly appeared on the second floor walkway, dressed in a red shirt and black pants, to yell at the victim and accuse her of lying to the police about his having burglarized her apartment. It was a long story. He had been sleeping and was awakened by the maintenance man. Still undressed he went to the door, and the victim appeared outside and accused him of robbing her apartment. He then yelled at her and called her names. Then, he said, she was with a group of guys, and two other guys walked up behind him to threaten him, so he went back inside and got dressed in the red shirt and black pants. He went back outside and yelled some more at the victim. He went inside to call friends for help. The police arrived at some point.

Most of Rivera’s testimony did not make sense in terms of the other testimony given by the victim and the police. If he was undressed when he first appeared on the upper walkway from his apartment, or when the victim allegedly confronted him at his doorway, how did the victim know he later would be wearing a red shirt and black pants?

The police officer testified there were other people in the complex at the time he arrived, but none on the second level where Rivera’s apartment was located. Where were the five or six persons who were threatening Rivera? Or according to Rivera, helping the victim move stuff out of her apartment?

In order for Rivera to do all the things he testified he did before the police arrived at the complex: such as talk to the manager at his door and to the victim, who climbed the stairs to reach his apartment, get dressed, get threatened by a group of men, on the second floor, yell at the victim, go back inside and call for his friends on his phone, the police response to the victim’s call must have been much slower than the five minutes testified to by the police officer, or the 15 testified to by the victim.

In addition Rivera gave contradictory testimony about when and how he saw the police arrive. Was it after he hung up the phone as he first testified? Or was it while he was talking on the phone in the apartment? In either case, how could he have seen the arrival of the police car from the interior of his apartment? He also testified earlier that he saw the police and the victim pointing at him before he went back into his apartment to call his friend.

During closing argument, the prosecutor made comments concerning finding Rivera guilty if they believed the victim and disbelieved him. The prosecutor said, in closing argument:

Now it is up to you to determine, you collectively, to determine whether her testimony is credible. And if her testimony you believe is credible and reasonable, then you must find him guilty ...

This comment was not objected to. The prosecutor later said:

In order for you to find him not guilty, which you have the prerogative to do but you’re going to have to essentially be saying that [the victim’s] identification sucks and I’m asking you to go back there—

The defense objected on the ground the prosecutor was shifting the burden of proof. The court overruled the objection. Thereafter, the prosecutor continued:

... that her identification is not good, it’s bad, you know. And you’re going to have to think her testimony pretty much flush it down the toilet.

This kind of argument has clearly been held erroneous. As a practical matter, no doubt such arguments are and have been made in cases where the issue in the criminal case comes down to the credibility of witnesses’ testimony against the defendant’s. Yet, the Florida Supreme Court and others have instructed that it is improper to suggest that guilt of a defendant turns on which person the jury believes.

In Gore v. State, 719 So.2d 1197 (Fla.1998), the court ruled that it was error for a prosecutor to make such an argument in a capital case and that combined with other errors in the case, it constituted prejudicial error. The prosecutor in that case said:

You see, when I started with you I told you I have the burden of proof and I always have the burden of proof. But you see, now you consider all the evidence presented to you and decide whether I met not just the evidence I presented, but the evidence they presented, you see, because I’ll make it really simple for you: If you believe he did not tell you the truth, that he made up a story, that’s it, he’s guilty of first degree murder.
It’s simple and it comes down to this in simplicity: If you believe his story, he’s not guilty. If you believe he’s lying to you, he’s guilty. It’s that simple.

The defense objected on the ground it misstated the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.

The Supreme Court said:

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration the State has proven every essential element of the crime beyond a reasonable doubt. For that reason it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some -reason other than that the State has proved its case beyond a reasonable doubt.

It continued:

Here the prosecutor’s statement, “if you believe he’s lying to you, he’s guilty” was nothing more than an exhortation to the jury to convict Gore if it found he did not tell the truth. Thus it was a clearly impermissible argument.

719 So.2d at 1200.

In Clewis v. State, 605 So.2d 974 (Fla. 3d DCA 1992), the Third District Court of Appeal rendered a similar opinion in a drug case where identification of the defendant as the seller of drugs turned solely on the identification of the defendant by the only eyewitness, an undercover police officer. In that case the prosecutor said:

The defendant’s testimony is not a reasonable doubt. A reasonable doubt is something you can attach reason to. You have to believe his story over the story of those police officers that saw him that night to have reasonable doubt.... You must believe that you must disbelieve the testimony of those police officers.

605 So.2d at 974.

The defense objected on the burden shifting ground, and the trial court overruled the objection.

The Clewis court said:

The test for reasonable doubt is not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt.... The argument made by the prosecutor distorts the State’s burden of proof by shifting that burden to the defense.

The court quoted United States v. Reed, 724 F.2d 677, 681 (8th Cir.1984), which held improper the prosecutor’s comment that for the jury to acquit Reed: “[they] must determine that Mr. Reed is telling the truth and that all [the government witnesses] are lying to you.” Also in People v. Ferguson, 172 Ill.App.3d 1, 122 Ill.Dec. 266, 526 N.E.2d 525, 533 (1988), the court held improper the prosecutor’s comment that “to find the defendant not guilty, ... you have to believe he told you the truth,” and that all of the State’s witnesses are “liars and fools.”

The Third District Court of Appeal concluded that it is legally incorrect to ask the jury to decide, as the test for reasonable doubt, who is the liar as between the accused and a police officer. It stressed this was particularly egregious in that case because the trial was held in a small community where the police officer was known to one or more of the jurors.

In this case, based on that case law, I have to conclude that the prosecutor’s statements were burden shifting and improper. The second set of comments that in order to find Rivera not guilty, the jury would have to find the victim’s testimony “sucks” and flush it “down the toilet” exacerbates the misstatement beyond the cases quoted above. In essence the prosecutor said that the defense had to show the victim’s testimony was outrageously unbelievable in order not to convict Rivera, a complete distortion of the State’s burden of proof.

The next question is whether or not the prosecutor’s statements in this case were prejudicial, in the sense that we cannot say beyond a reasonable doubt, the remarks played a part in the jury’s decision to convict. Rodriguez v. State, 753 So.2d 29 (Fla.) cert. denied, 531 U.S. 859, 121 S.Ct. 145, 148 L.Ed.2d 96 (2000); Goodwin v. State, 751 So.2d 537 (Fla.1999), reh’g (Fla.2000); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). After reading the transcript and the totality of the prosecutor’s closing argument, I do not think the remarks, although erroneous, were prejudicial in that sense. In this case, Rivera’s testimony was so convoluted, self-contradictory, and strained as to be incredible. And the prosecutor took most of her time in closing argument demonstrating that fact. The balance of the testimony in the case pointed overwhelmingly to his guilt. Nevertheless, prosecutors should take care not to make burden shifting statements in their closing statements, such as the Florida Supreme Court has disapproved. In a closer case, a reversal would be in order.

THOMPSON, C.J.,

dissents.

I respectfully dissent. Although the facts of this case are simple and straightforward, it was error for the state to make improper closing arguments.

I concede that the appellant gave contradictory testimony while on the witness chair. I also concede that he did not testify coherently. But that is not the issue before this court. The issue is whether the state made an improper closing argument which may have tainted the verdict. Although I thoroughly agree with the cases cited in Judge Sawaya’s opinion, and with the cases cited by Judge Sharp in her concurring opinion, I do not agree that the remarks of the prosecutor constituted harmless error.

The law is clear that “[t]he control of prosecutorial comments is within a trial court’s discretion, and that court’s ruling will not be overturned unless an abuse of discretion is shown.” Durocher v. State, 596 So.2d 997, 1000 (Fla.1992). This standard of review is applicable when the defense has objected and the trial court has overruled that objection. See McArthur v. State, 801 So.2d 1037 (Fla. 5th DCA 2001). In this case, I think the trial court abused its discretion. As the Florida Supreme Court has said:

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.

Gore v. State, 719 So.2d 1197, 1200 (Fla.1998); see also Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992)(“The test for reasonable doubt is not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt”).

The state’s argument invited the jurors to find Rivera guilty merely if they believed the victim, rather than to base their judgment on the state’s proving its case beyond and to the exclusion of every reasonable doubt: “If you believe her, he’s guilty; if you don’t and you think she made a misidentifieation, he’s not guilty.” A jury could believe that the victim correctly identified Rivera as the person she saw earlier, but decide that nonetheless the dearth of evidence corroborating her account left them without enough evidence to believe Rivera guilty of burglary and theft beyond and to the exclusion of every reasonable doubt. The state’s argument told the jury otherwise. The prosecutor essentially told the jury that it should render a guilty verdict if the victim correctly identified Rivera as the man she saw earlier. But the state’s burden was to prove the elements of burglary and theft. Although there was evidence of the crimes in the form of the alleged victim’s testimony, the state told the jury that a correct identification was sufficient to convict. Indeed, the testimony of a victim is sufficient for a conviction but only if the jury believes the victim beyond and to the exclusion of every reasonable doubt. The trial court abused its discretion in overruling the defense objection because the state’s burden was to prove all of the elements of the crime, and the identification of the perpetrator, beyond a reasonable doubt.

The next question then becomes whether overruling the objection was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The evidence was particularly close here, with the only evidence against Rivera consisting of the victim’s testimony. Compare Clewis, 605 So.2d at 975 (where the evidence is close, an improper burden shifting closing argument is not harmless) with Riggins v. State, 757 So.2d 567 (Fla. 2d DCA 2000)(in light of strong evidence against the defendant, an improper burden shifting argument is harmless error). I conclude that it cannot be said beyond a reasonable doubt that the improper argument had no effect on the verdict, and I would therefore reverse.

Furthermore, this court has consistently cautioned lawyers about improper closing arguments, in both the civil and criminal contexts. The cases mentioned below in footnote four were all authored by Senior Judge Warren Cobb who, during his 28-year career on this court, repeatedly admonished lawyers and established this district court’s intolerance for improper closing arguments. To me, it is insignificant that this case is relatively minor or that the defendant “appears” to be guilty. What is important is that the state, yet again, exceeds the bounds of propriety in its closing arguments. If lawyers are allowed to render such closings, which the majority recognizes as inappropriate, we can expect this to continue.

      . The courts recognize a limited exception to this rule, however, that allows the prosecutor to comment on the absence of evidence when the defendant voluntarily raises an issue that the defendant must prove. Rodriguez. For example, "asserting the defenses of alibi, self-defense, and defense of others, or by relying on facts that could be elicited only from a witness who is not equally available to the state” may prompt the prosecutor to comment on the lack of proof directed to those issues. Otero v. State, 754 So.2d 765, 769 (Fla. 3d DCA 2000) (citing Jackson v. State, 575 So.2d 181 (Fla.1991)); Raupp v. State, 678 So.2d 1358, 1361 (Fla. 5th DCA 1996) ("Defendant did not assert the defenses of alibi, self-defense, or defense of others, and thus he could not be said to have asserted any claim whereby he carried any burden of proof. Defendant’s theory of defense was simply denial that he had committed the charged offense.”).

      . See Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998).

      . See Hayes v. State, 660 So.2d 257 (Fla.1995).

      . See Raupp.

      . See Keyes v. State, 804 So.2d 373 (Fla. 4th DCA 2001).

      . See Clewis v. State, 605 So.2d 974 (Fla. 3d DCA 1992).

      . See Barwick v. State, 660 So.2d 685 (Fla.1995); Dufour v. State, 495 So.2d 154 (Fla.1986); State v. Mathis, 278 So.2d 280, 281 (Fla.1973) ("Here the challenged remark in closing argument of the prosecutor ... was really an 'invited response' by the preceding argument of defense counsel regarding the same subject. It was a fair reply not violative of the Rule and which we would approve in these circumstances.”); State v. Compo, 651 So.2d 127, 130 (Fla. 2d DCA 1995) ("Fundamental notions of fairness required that the state be allowed to comment on the ... issues raised by the defendant.”) (citation omitted).

      . The majority suggests that "the only contested issue in this case was the victim’s identification of Rivera as the person who committed the burglary.” Although that may be the issue about which the defense chose to argue most vehemently, nowhere in the record did Rivera stipulate that a burglary and a theft occurred. The state had the burden of proving each element of the charges beyond and to the exclusion of every reasonable doubt.

      . Prior to trial, the trial court disallowed testimony from the defense which would have shown that the victim had twice failed to return electronic equipment (similar to the allegedly stolen items here — television, car stereo, compact discs, amplifier) to a rental store at the end of the rental period. The defense was planning to argue that the victim had concocted this burglary to cover her own tracks.

      .Recently, this court looked at a similar defense complaint in McArthur and held that the alleged error there was not fundamental. The instant case is different from McArthur, in that in McArthur the state's improperly vouching for one witness was not fundamental error because that witness’s testimony was not the only evidence of the defendant's guilt. That is not the case here, where the victim's testimony was the only evidence against the defendant and the offending argument was objected to. Cf. Echevarria v. State, 783 So.2d 1236 (Fla. 5th DCA 2001)(holding that it is not error for the state to highlight that the victim's testimony and the defendant's testimony are irreconcilable).

      . See Wright & Ford Millworks, Inc, v. Long, 412 So.2d 892 (Fla. 5th DCA 1982); Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA 1994); Superior Industries International v. Faulk, 695 So.2d 376 (Fla. 5th DCA 1997); Henry v. State, 743 So.2d 52 (Fla. 5th DCA 1999).