author: ANSTEAD, C.J. WELLS, J.,

text:
    Clotilde Estela MENNA, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2174.
    Supreme Court of Florida.
    April 24, 2003.
    Michael J. Snure of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Respondent.
   ANSTEAD, C.J.

We have for review the decision in State v. Menna, 793 So.2d 1029 (Fla. 5th DCA 2001), which certified conflict with the decision in Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed herein, we quash the Fifth District Court of Appeal’s decision in Menna and approve the decision in Herring.

FACTS AND PROCEEDINGS TO DATE

Petitioner Clotilde Estela Menna’s husband was shot outside of his office and taken to a hospital where he was pronounced dead. Menna arrived at the hospital and was sent to a waiting room where she met with the hospital chaplain. The chaplain informed her of her husband’s passing and, thereafter, Menna met with the attending physician and nurse. Menna then unsuccessfully attempted to contact her sons, who were out of the country, to notify them of their father’s death.

Deputy Thomas McCann testified that he questioned Menna at the hospital. According to McCann’s testimony, at some point during the questioning he asked Menna to voluntarily submit to a hand swab examination to test for gunpowder residue. McCann informed Menna that the test was noninvasive and would only take a few minutes. Menna advised McCann that she would decline to submit to the test until she spoke to her attorney. McCann testified that Menna then unsuccessfully attempted to contact her attorney. Deputy McCann testified that he did not expressly indicate to Menna whether the test was mandatory or permissive, nor did he inform her that her refusal to take the test could be used against her in court. However, McCann agreed that his manner of questioning would have suggested the test was voluntary.

Later, Detective Richard Lallement arrived at the hospital and was informed by McCann of Menna’s refusal to take the test. Lallement testified that he also asked Menna to submit to the gunshot residue test. Lallement stated that Men-na responded by stating that she first wanted to talk to her attorney. Lallement could not recall ever telling Menna that her refusal could be used against her in court.

Menna was later charged with the murder of her husband. Before trial, the trial court granted Menna’s motion in limine to preclude the State from referring to or presenting evidence of her refusal to submit to a gunpowder residue test on the day her husband was shot. The trial court set out its rationale in a written order:

On the evidentiary question, the Defense cites to Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986) and State v. Esperti 220 So.2d 416 (Fla. 2d DCA 1969). The Defense asserts that a “defendant’s behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is ‘susceptible of no prima facie explanation except consciousness of guilt.’ ” Herring v. State 501 So.2d at 20, citing State v. Esperti, 220 So.2d at 418. The Third District Court of Appeal pointed out that the defendant had refused to submit to a gunshot residue test which he was required by law to take. However, the defendant did not know that. He was not appraised of any adverse consequence which might result from his refusal to take the test. The court noted that it “being quite natural for a person to proceed to safe harbor, it cannot be said that the defendant’s decision to do so is circumstantial evidence probative of his consciousness of his guilt.” Id. at 21.
This Court is not persuaded that State v. Taylor, 648 So.2d 701 (Fla.1995) overrules Herring v. State or State v. Esperti in any respect. In the Taylor case the Florida Supreme Court noted that Taylor had ample incentive to take the field sobriety test and knew that his refusal was not a “safe harbor,” free of adverse consequences.
In the instant case there is no indication that Ms. Menna had any inkling that the refusal to take the test was anything other than a safe harbor and accordingly, this Court determines at this time that the Motion in Limine to Exclude Evidence of Failure to Submit to Gunshot Residue Test should be Granted.

The State petitioned the Fifth District Court of Appeal for a writ of certiorari quashing the trial court’s order. The district court granted the petition, ordering that the trial court order be quashed.

ANALYSIS

The question presented to the trial court in the instant case was whether Menna’s refusal to submit to the gunshot residue testing was sufficiently probative to show her consciousness of guilt to allow its admission into evidence, while considering its potential prejudicial effect. After conducting an evidentiary hearing, the trial court found that Menna’s refusal was not sufficiently probative of her consciousness of guilt to be admitted into evidence because there was “no indication that Ms. Menna had any inkling that the refusal to take the test was anything other than safe harbor.”

In determining that there was no indication that “Menna had any inkling that the refusal to take the test was anything other than a safe harbor” the trial court’s order cited two district court cases where the admissibility of a defendant’s refusal to submit to a gunpowder residue test was at issue. See Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986); State v. Esperti, 220 So.2d 416 (Fla. 2d DCA 1969). Based on the discrete facts presented, the district courts in Herring and Esperti reached different results as to whether the defendant’s refusal to submit to a gunshot residue test was probative of the defendant’s consciousness of guilt.

Esperti

In Esperti, the Second District approved the admission of refusal evidence, where the defendant had been told that he had no choice but to submit to the test, and he resisted the test by sitting on his hands, wiping his hands, and rubbing tobacco ashes on his hands after learning that cigarette ashes could be confused with gunpowder. See State v. Esperti 220 So.2d 416, 417 (Fla. 2d DCA 1969). Under these circumstances, the Second District concluded:

The acts and conduct of the defendant in this case, if given any probative force whatsoever, are susceptible of no prima facie explanation except consciousness of guilt; and evidence thereof is, we think, relevant and certainly material. If the defendant is to avoid such an inference he would, of course, be free to offer a reasonable explanation.

Id. at 418 (emphasis supplied). Hence, the district court approved of the admission of the defendant’s refusal to submit to testing under the particular factual circumstances presented.

Herring

On the other hand, the facts in Herring present different circumstances than thosé in Esperti. In Herring, the defendant was arrested and, shortly thereafter, the police requested that he submit to a hand swab gunshot residue test. See Herring, 501 So.2d at 20. The defendant refused to submit to the test but was not told that he was required to take the test, or that his refusal could be used against him. See id. At trial, testimony of the defendant’s refusal to take the test was introduced over objection and the prosecutor argued to the jury that the testimony “was convincing proof of the defendant’s consciousness of his guilt.” Id.

On appeal, the Third District held that it was error to admit evidence of defendant’s refusal:

The failure to communicate to Herring that the test was compulsory carried with it, we think, the implicit suggestion that the test was permissive and that he thus had a right to refuse. Consequently, even if the refusal had some arguable probative value, its admission would be unfair where the police may have led the defendant to believe that he had a right to refuse.

Herring, 501 So.2d at 21. The Third District concluded that “[a] defendant’s behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is ‘susceptible of no prima facie explanation except consciousness of guilt.’ ” Id. at 20 (quoting Esperti, 220 So.2d at 418).

Because we find its analysis sound and approve of its result, we quote Judge Pearson’s opinion in Herring at length:

A defendant’s behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is “susceptible of no prima fa-cie explanation except consciousness of guilt.” State v. Esperti 220 So.2d 416, 418 (Fla. 2d DCA), cert. dismissed, 225 So.2d 910 (Fla.1969). In Esperti the appellate court approved the admission of evidence that the defendant, after being told that he had no choice but to submit to a gunpowder test, resisted the test by sitting on his hands, wiping his hands with a handkerchief, and trying to rub tobacco ashes on his hands after learning that the ingredient in gunpowder can be confused with cigarette ashes. The Esperti court found that the case before it was not one where circumstances other than consciousness of guilt could have explained the defendant’s refusal. As the Esperti court significantly noted, the defendant there had been told that he had no right to refuse the test; however, according to the court, had the defendant been told he could refuse, it would be “unfair” to admit evidence of his refusal. Id. at 419.
The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible. Thus, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court, holding admissible the defendant’s refusal to take a blood alcohol test, pointed out that, although the defendant was not told that the refusal could be used against him in court, he was told that he could lose his driver’s license if he refused. This latter warning made it “clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” Id. at 566, 103 S.Ct. at 924, 74 L.Ed.2d at 760. While the court in Neville held the refusal admissible because the defendant had good reason not to refuse, it noted, in comparison, that in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Court had prohibited the impeachment use of the defendant’s post-Miranda-warning silence because his “silence during police interrogation lacked significant probative value and ... any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.” Id. at 180, 95 S.Ct. at 2138, 45 L.Ed.2d at 107. See also Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (holding that a person’s silence during interrogation is not inconsistent with his exculpatory testimony at trial in light of repeated assertions of innocence during interrogation, the secretive nature of the interrogation, and the focus on the defendant during the interrogation). Thus, while Neville stands for the proposition that evidence of the defendant’s behavior (refusal to take the blood test) is admissible where the defendant had substantial motivation not to behave as he did, Hale stands for the corollary proposition that evidence of a defendant’s behavior (remaining silent) is inadmissible, because not probative, where the defendant had no substantial motivation not to behave as he did.

501 So.2d at 20-21.

The Third District concluded that it would be unduly prejudicial and unfair to admit evidence that a defendant had refused to take a test where the defendant is either told he or she may refuse the test, or the defendant is not told of any adverse consequences which would attach to the refusal. See id.

THIS CASE

In the instant case, we conclude the factual circumstances are closer to those presented in Herring than those involved in Esperti, and thus we conclude the trial court properly concluded that Menna’s refusal may have been “so entirely ambiguous as to be totally lacking in probative value.” Having determined the underlying factual circumstances as the trier of fact, the trial court properly applied the law set out in Herring.

Although we have not expressly addressed a situation where a defendant’s refusal to submit to a gunpowder residue test was used as evidence of the defendant’s consciousness of guilt, we have addressed criminal defendants’ behavior as circumstantial evidence of consciousness of guilt in other contexts.

In those instances we have held that before such refusal evidence can be introduced the court must make a prima facie determination that the evidence is relevant with regard to the defendant’s consciousness of guilt. This requirement implicitly recognizes that, as articulated by Judge Pearson in Herring, there are potentially many reasons, other than guilt, that a defendant might be motivated to refuse to submit to such a test. Furthermore, under some circumstances, such as those in Herring, a refusal may be so ambiguous as to remove from its invocation any probative value in the refusal as to the issue of the defendant’s alleged consciousness of guilt. We find no error in the trial court’s determination that this was an appropriate conclusion here.

As in Herring, although Menna was informed that the test would be brief and was noninvasive, she was not told of any adverse consequences of her refusal to take the test and was given the impression that the test was optional. Although a defendant’s refusal to permit police to conduct a test may be admissible where the police have informed the defendant that the law requires compliance, “[wjhere ... the authorities fail to tell the defendant that compliance is required and that noncompliance may have adverse consequences, a refusal to comply may be of dubious relevance.” 2 Clifford S. Fish-man, Jones on Evidence, § 13:14, at 498 (7th ed.1994). Furthermore, unlike either of the defendants in Herring and Esperti, Menna was not yet a suspect, had not been arrested, and was not in custody at the time she refused to take the test. In addition, the evidence presented to the trial court indicated that her decision to refuse was also motivated by a cautious desire to speak with her attorney beforehand, a desire that cannot be categorically classified as necessarily motivated by consciousness of guilt.

Further, as in Herring, the trial court here was entitled to conclude on the facts that it “would be unfair where the police may have led the defendant to believe that he had a right to refuse” to allow Menna’s refusal to be used against her because her decision to refuse was “safe harbor.” Although neither Lallement nor McCann recalled explicitly telling Menna that the test was either compulsory or optional, McCann agreed that the nature of his questioning would have indicated to Menna that she had the option to refuse to take the test.

Under all of these circumstances, it cannot be said that the trial court’s factual determinations on Menna’s evidentiary claim and its rebanee on the established law in Herring represent a departure from a clearly estabbshed principle of law resulting in a miscarriage of justice such that the district court should have granted the State’s petition for writ of certiorari.

CONCLUSION

In the instant case, the trial court concluded that Menna was not told of any adverse consequences associated with refusing to take the test. Moreover, according to McCann, she was asked to submit to the test in a manner that made it seem optional. Thus, there were viable alternative explanations as to why she refused to take the test, including her desire to seek “safe harbor” or choosing to take the safest possible path totally devoid of negative consequences.

We conclude that the trial court was justified in relying on Herring and the law set out therein when it determined Menna did not have “any inkling that the refusal to take the test was anything other than a safe harbor.” Accordingly, because Herring contains a sound analysis and was binding law as to similar facts, the trial court did not violate a clearly established principle of law resulting in a miscarriage of justice in granting the petitioner’s motion in limine.

Accordingly, we quash the decision of the Fifth District in Menna, approve Herring and Esperti, and remand to the district court for further proceedings consistent herewith.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur.

WELLS, J., concurs with an opinion.

WELLS, J.,

concurring.

I concur with the majority opinion, which I read to state the test of admissibility of this evidence was relevance and that the trial judge did not abuse her discretion in ruling that the evidence was not admissible because it was not relevant. However, I write to make clear that I do not endorse the statements in State v. Esperti, 220 So.2d 416, 418 (Fla. 2d DCA 1969), as followed in Herring v. State, 501 So.2d 19, 20 (Fla. 3d DCA 1986), which state that “[a] defendant’s behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is ‘susceptible of no prima facie explanation except consciousness of guilt.’ ” I believe that statement is overly broad.

      . McCann testified that shortly before being asked to submit to the test, Menna had been to the bathroom a few times and it appeared to McCann that she had washed her hands on those occasions. Both the trial court’s order and the district court's opinion state that McCann testified that Menna washed her hands after being asked to take the test. At oral argument, the State also argued that McCann testified that Menna had washed her hands after being asked to submit to the gunpowder test. However, although there is information in the record that Menna had been to the bathroom and washed her hands before being asked to submit to the test, there was no testimony that Menna continued washing her hands after being asked to submit to the test.

      . Notably, in State v. Taylor, 648 So.2d 701, 704 (Fla.1995), we determined that the facts surrounding a defendant’s refusal to take a field sobriety test were relevant to show his consciousness of guilt. Most often, a defendant's behavior has been deemed circumstantial evidence of consciousness of guilt in situations- where there was evidence that the suspect fled or took other actions to avoid arrest and prosecution. See, e.g., Thomas v. State, 748 So.2d 970, 982 (Fla.1999); Escobar v. State, 699 So.2d 988, 995 (Fla.1997). However, where the defendant challenges the relevancy of such evidence, the state must adduce evidence that the defendant’s behavior was related to an attempt to avoid being held accountable for the crime at issue. See, e.g., Escobar, 699 So.2d at 995 (holding that “there must be evidence which indicates a nexus between the flight ... and the crime(s) for which the defendant is being tried in that specific case”); see also Ford v. State, 801 So.2d 318, 320 (Fla. 1st DCA 2001) (noting that defendant's threats made to discourage a witness from testifying are relevant to show consciousness of guilt where threats have nexus with the crime charged).

      . The provisions of the Florida Evidence Code defining relevant evidence and governing its admissibility are set forth in chapter 90, Florida Statutes (2001). In particular, section 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact,” while section 90.402 states that "[a]ll relevant evidence is admissible, except as provided by law.” §§ 90.401-.402, Fla. Stat. (2001).

      . We also disagree with the district court, and agree with the trial court, that this Court’s opinion in State v. Taylor, 648 So.2d 701 (Fla.1995), did not overrule Herring or Esperti in any respect. In Taylor, the Court addressed a situation similar to South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), regarding whether admitting a defendant's refusal to submit to a DUI sobriety test constitutes compulsory self-incrimination, whether the Due Process Clause is violated by the introduction of such evidence, and whether the defendant’s refusal was probative of consciousness of guilt from an evidentiary standpoint. See Taylor, 648 So.2d at 702.
      In this Court, Taylor argued "that admission of the refusal would violate his constitutional rights and that his refusal is not probative of guilt.” Id. at 703.
      We first determined that the use of refusal evidence did not violate the defendant’s federal or Florida constitutional rights, and then turned to the defendant’s claim that refusal was inadmissible under the Florida Evidence Code. See id. We rejected this argument, reasoning that the defendant had ample incentive to take the tests: he knew the circumstances surrounding the request, he knew the purpose of the test, and he knew there were possible adverse consequences attached to refusal. See id. Taylor initiated the conversation about sobriety testing and indicated that he had previously discussed the advisability of taking such tests with his attorney. We also noted that Taylor "had some experience in this area,” because of two previous DUI convictions. Id. at 704. Finally, the officer had read the defendant Florida’s implied consent law and warned him that his refused would have adverse consequences. Under these circumstances, we concluded that:
      Given the strong incentives to take the tests, [the defendant’s] claim that his refusal was an innocent act loses plausibility. In short, he knew refusal was not a "safe harbor" free of adverse consequences and acted in spite of that knowledge. His refusal thus is relevant to show consciousness of guilt. If he has an innocent explanation for not taking the tests, he is free to offer that explanation in court.

        Id. Although not expressly mentioned in our Taylor opinion, a provision of the implied consent law, section 316.1932(l)(a), Florida Statutes (1991) requires the person under suspicion of intoxicated driving to be told that refusal to take the test will result in a one-year license suspension. If Taylor was read the implied consent law, he would have been aware of this adverse consequence to refusing to take the test. ■ Sobriety tests, where the law requires that the person be informed of the adverse consequence of losing a license, are distinguishable from the type of hand-swab testing involved in Herring, Esperti, and the instant case.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Charles MASON, Appellant, v. E. SPEER & ASSOCIATES, INC., a Georgia corporation, n/k/a C.V. Holdings, Inc., Erling Speer, individually, and E. Speer & Associates, Inc., a Florida corporation, Appellees.
    No. 4D01-3122.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 28, 2003.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Leif J. Grazi of Grazi & Gianino, Stuart, for appellant.
    Edward A. Marod of Edward A. Marod, P.A., West Palm Beach, for appellees.
   HAZOURI, J.

This is an appeal from a final judgment entered in case numbers 91-42, 98-549, and 98-561 (consolidated for trial) finding in favor of Charles Mason and holding Erling Speer personally liable for $72,950.88. We remand for the entry of two separate final judgments, one in case number 98-549 and the other in case numbers 91-42 and 98-561.

Charles Mason (Mason) was employed by E. Speer & Associates, Inc., a Georgia corporation (ESA Georgia) for approximately ten years when his employment with the company ended in 1991. Mason filed suit against ESA Georgia seeking to recover compensation allegedly owed to him under a profit participation plan. (Case No. 91-42). In November 1996, Mason obtained a judgment against ESA Georgia. However, before Mason could collect on this judgment, ESA Georgia declared bankruptcy.

In September 1998, Mason filed an Im-pleader Complaint against Erling Speer (Speer). Speer was the 100% shareholder and managing agent of ESA Georgia. Mason alleged that due to ESA Georgia’s fraudulent conduct, as perpetrated by Speer, Mason was entitled to apply his unsatisfied judgment against property improperly and fraudulently transferred to Speer.

Also in 1998, Mason purchased the claims of the bankruptcy trustee of ESA Georgia at an auction. These claims included all potential claims ESA Georgia had against Speer for fraudulent transfers. As assignee of the trustee in bankruptcy, Mason filed a complaint against Speer alleging that Speer misappropriated and mishandled assets of ESA Georgia. (Case No. 98-549). A summary judgment was entered determining that all claims of Mason, as the assignee of the trustee, that pre-dated June 17, 1992, were barred by the statute of limitations.

In July 1998, Mason filed a separate action referred to as a “Creditors Bill” against Speer seeking to hold Speer hable for Mason’s unsatisfied judgment against ESA Georgia on the grounds that Speer had mishandled and misappropriated assets of ESA Georgia. (Case No. 98-561).

Mason subsequently amended his pleadings in all three cases to add E. Speer & Associates, Inc., a Florida corporation (ESA Florida). This was a corporation that Speer had set up in November 1996, right before ESA Georgia declared bankruptcy. Similar to ESA Georgia, Speer was the 100% shareholder and controlling agent of ESA Florida. Mason sought to hold ESA Florida hable for his unsatisfied judgment against ESA Georgia under a mere continuation of business theory.

All three of these cases were consolidated for trial. At trial, Mason presented evidence on twenty-five transactions that he alleged were inappropriate, improper and fraudulent. Mason, as assignee of the trustee, sought to recover from Speer monies that Speer had fraudulently transferred from ESA Georgia to Speer’s personal benefit. Mason, as a creditor of ESA Georgia, alleged that Speer should be held liable for Mason’s unsatisfied judgment against ESA Georgia based on the legal construct of piercing the corporate veil. In addition, Mason, as a creditor of ESA Georgia, alleged that ESA Florida should be held hable for Mason’s unsatisfied judgment against ESA Georgia on a mere continuation of business theory. The trial court made findings of fact on six transactions that it deemed to be improper and/or fraudulent. The trial court entered a Final Judgment as to all three case numbers in favor of Mason and finding Speer personally liable for the amount of $72,950.88. In addition, the trial court entered a Judgment Awarding Option which awarded Mason the assignment of an option to lease space. At the time of trial, Speer individually owned the option. On Mason’s claim against ESA Florida, the trial court found that ESA Florida was not liable for Mason’s unsatisfied judgment against ESA Georgia.

On appeal, Mason argues: 1) the trial court erred in finding that ESA Florida was not a mere continuation of ESA Georgia, 2) the trial court erred by not piercing the corporate veil and holding Speer personally liable for Mason’s unsatisfied judgment against ESA Georgia, 3) Mason, as assignee of the trastee, was entitled to “avoid” under 11 U.S.C. section 548(a)(1) the transfers of two management contracts that ESA Georgia had allegedly transferred to ESA Florida, and 4) the trial court erred in failing to enter separate judgments for Mason, as creditor, and Mason, as assignee of the trustee.

Speer cross appeals and argues: 1) the trial court erred in granting any relief to Mason other than as assignee of the trustee; 2) the trial court erred in failing to enforce its summary judgment order in case no. 98-549; 8) the trial court erred in awarding damages based on three of the transactions; and 4) the trial court erred in awarding Mason the option to lease space.

On the main appeal, there is merit only in Mason’s fourth argument. However, we address the first three briefly. First, Mason alleged that ESA Florida should be held liable for Mason’s unsatisfied judgment against ESA Georgia under a mere continuation of business theory. Under that theory, ESA Florida would be hable if it is found to be merely a continuation or reincarnation of ESA Georgia, simply under a different name. See Munim, M.D. v. Azar, M.D., 648 So.2d 145, 154 (Fla. 4th DCA 1994).

In Munim, the litigation arose from the breakup of the professional employment relationship between the parties. Id. at 148. As a result of the litigation, Dr. Azar was granted a judgment against Munim, P.A., his former employer. Twelve days after the entry of the judgment, Dr. Mun-im, the sole shareholder and managing agent of Munim, P.A., incorporated “Pulmonary Associates” a new medical practice. Id. at 150. Within six weeks of the entry of the judgment, Munim P.A. stopped seeing patients and rendering medical services. Pulmonary Associates commenced seeing patients and rendering medical services the very next day. Id. at 151. Dr. Munim was the sole shareholder of both associations. They were both located in the same office and had the same furniture, medical apparatus, office equipment, and personnel. The medical records and patient files were left in place for use by Pulmonary Associates. This court held:

For all intents and purposes, the new P.A. is the old P.A. dressed up with a new name and controlled by the same individual. We agree with the trial court that Pulmonary Associates is a mere continuation of the business of Munim, P.A. because it has the ‘same management, personnel, assets, location and stockholder’ as that of Munim, P.A.

Id. at 154.

Mason argues that under Munim, ESA Florida should be considered a mere continuation of ESA Georgia because both companies were wholly owned by Speer, both provided the same real estate management services to clients, Speer opened ESA Florida only days after Mason obtained a judgment against ESA Georgia, and ESA Florida used the same office, telephone, stationery and part time personnel that ESA Georgia had used. While all of these facts are essentially undisputed, the instant case is distinguishable from Munim based on the “assets” that ESA Georgia allegedly transferred to ESA Florida.

In the instant case, Mason alleged that ESA Georgia transferred two income producing management contracts to ESA Florida. The first contract was with Wintergreen. This was an agreement entered into by ESA Georgia and Wintergreen whereby ESA Georgia agreed to provide management services to Wintergreen from June 1, 1996 through December 1, 1996. This contract was completed and ended by its own terms on December 1, 1996. In January 1997, Wintergreen entered into a new contract with ESA Florida.

The second contract that Mason alleges was transferred was an agreement between Speer and Atlantic Gulf. This agreement provided for the personal services of Speer and a business associate (not affiliated with ESA Georgia). ESA Georgia was not a party to the agreement. However, Speer used ESA Georgia as the invoicing and billing company for the contract. ESA Georgia received the payments and then distributed them equally to Speer and the other business associate.

The contract with Wintergreen ended on its own terms and therefore was not an asset of ESA Georgia that could be transferred to ESA Florida. As for the agreement with Atlantic Gulf, ESA Georgia was never a party to the agreement and did not have rights in the agreement that could be transferred. In addition, both of the agreements in the instant case were personal service contracts that required performance by Speer.

The instant case is also distinguishable from Munim, in that ESA Georgia declared bankruptcy and transferred all of its remaining assets (a villa and some cash) to the bankruptcy estate. In addition, there was no real transfer of personnel or equipment from ESA Georgia to ESA Florida. When ESA Georgia declared bankruptcy, Speer was the only remaining employee. For the first two years of ESA Florida’s existence Speer was the only salaried employee. The only connection between the companies was Speer. As for equipment, neither corporation had any real identifiable equipment. The nature of the services performed did not require any specific equipment or other assets. In incorporating ESA Florida, Speer set up a new corporate existence through which to provide his services. Based on his reputation, he was able to gain clients for ESA Florida that had previously been clients of ESA Georgia. We note that the circumstances of the instant case are analogous to the hypothetical situation we described in footnote 4 of Munim:

Dr. Munim claims the effect of the trial court’s order is a form of personal indentured servitude. We do not agree with this harsh characterization. Nothing in this opinion would prevent a judgment debtor from properly dissolving his professional association in compliance with sections 607.1402-1406, Florida Statutes (1993) and thereafter either retiring from practice or joining another professional association as an employee.

Munim, 648 So.2d at 155 n. 4.

Speer took the proper steps to dissolve ESA Georgia through bankruptcy and he is not prevented from incorporating ESA Florida as a means through which to provide his consulting services. Therefore, we affirm the trial court’s finding and hold that ESA Florida is not liable for Mason’s unsatisfied judgment against ESA Georgia.

As for Mason’s second argument that the trial court erred in not piercing the corporate veil and holding Speer personally liable for Mason’s unsatisfied judgment against ESA Georgia, we agree with the trial court. In Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984), the Florida Supreme Court established the standard to be applied in a piercing the corporate veil claim. The Court held that in order to pierce the corporate veil, a plaintiff is required to prove both that the corporation is a mere instrumentality or alter ego of the defendant and that the defendant engaged in “improper conduct.” Id. at 1120-21. The Court reasoned that the corporate veil should not be pierced unless it is shown that the corporation was organized or employed to mislead creditors or to work a fraud on them.

In the instant case there is sufficient evidence that Speer improperly converted corporate property to his own use on more than one occasion. The trial court made findings of fact regarding six transactions that it deemed to be improper. These transactions can serve as evidence that Speer engaged in misconduct. However, Mason must prove that these transactions were done with a deliberate intent to mislead creditors. The trial court found that Mason had not satisfied this burden. Of the transactions that the trial court deemed to be improper, they were spread over a period of five years with two in 1991, two in 1994 and two in 1996. The transactions were isolated incidents and were not in response to any liability that the corporation had incurred. Mason simply did not carry his burden in establishing that these transactions were made with a deliberate intent to mislead creditors.

Mason’s third argument is made as assignee of the trustee of the bankruptcy estate. Mason seeks to avoid the alleged transfers in December 1996 by ESA Georgia of its management contracts with Wintergreen and Atlantic Gulf to ESA Florida. Under federal law, 11 U.S.C. § 548(a)(1) provides that a trustee may avoid any transfer of an interest of the debtor in property if the transfer meets certain criteria. Under the bankruptcy code, the concept of property of a debtor’s estate is an expansive one and includes all legal or equitable interests of a debtor in property as of the commencement of the case, wherever located and by whomever held. See In re Sheppard’s Dental Ctrs., Inc., 65 B.R. 274, 277 (Bankr.S.D.Fla.1986). Despite this expansive definition, ESA Georgia did not have a sufficient interest in the management contracts with Wintergreen and Atlantic Gulf that could be transferred to ESA Florida. The contract with Wintergreen expired by its own terms on December 1, 1996 and was not renewed. Therefore, after December 1, 1996, ESA Georgia no longer had an interest in the contract. As for Atlantic Gulf, the trial court determined that the relationship was an agreement with Speer personally and not a true asset of ESA Georgia.

We do find merit in Mason’s fourth argument that the trial court erred in failing to enter separate judgments for Mason, individually, and for Mason, as assignee of the trustee of the bankruptcy estate. This case involves three separate actions that were consolidated for trial. Two of the actions were brought by Mason seeking to satisfy the judgment he obtained against ESA Georgia in November 1996 and one was brought by Mason, as assignee of the trustee. Any recovery that Mason received as creditor would go to satisfy his judgment against ESA Georgia. Any recovery that he received as assignee of the trustee would be recovery on behalf of the estate whose rights he purchased. These are essentially different parties who have separate causes of action that seek different relief based on different standards of evidence.

The trial court found Speer liable for $72,950.88 based on improper and/or fraudulent transactions whereby Speer profited at the expense of ESA Georgia and its creditors. Once ESA Georgia went into bankruptcy, the right to recover for fraudulent transactions belonged to the bankruptcy estate. The trustee has the power and duty to prosecute the action for the benefit of all creditors and shareholders of the estate. Allowing individual creditors to pursue fraudulent conveyance actions to obtain possession of property of the estate goes against the fundamental policy of equitable distribution. See In re Ross, 10 Fla. L. Weekly B 289 (Bankr.M.D.Fla.1997). Mason, as assignee of the trustee, was the only party who had standing to bring a cause of action against Speer to recover amounts of money Speer misappropriated from ESA Georgia. Therefore, the recovery awarded in the Final Judgment was to Mason, as assignee of the trustee.

Mason, as an individual creditor, had standing to bring causes of action under a mere continuation of business theory and under a piercing the corporate veil claim. See Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998) (holding that a bankruptcy trustee has no authority to assert general causes of action, such as alter ego claims, on behalf of bankrupt estate’s creditors). The trial court did not grant relief on either of these claims. If the trial court had granted relief based on either of Mason’s claims as creditor, a final judgment should have been entered finding that either ESA Florida or Speer was personally hable for any unsatisfied portion of Mason’s judgment against ESA Georgia.

The only relief granted in the Final Judgment was to Mason, as assignee of the trustee. Therefore, we reverse and remand for the entry of two separate final judgments: One in case no. 98-549 holding Speer hable for: $36,000 profit as a result of the fraudulent purchase of lot X14, $1,500 of Grove Hill Plantation payments that were personal expenditures and were paid improperly by the corporation, and $7,500 of the November 1996 payment from Atlantic Gulf Communities to ESA Florida. The other final judgment is to be entered in case nos. 91-42 and 98-561 finding for Speer and awarding Mason no recovery. Mason concedes that case nos. 91-42 and 98-561 were duphcative and therefore only one final judgment is necessary. Even though Mason was not granted relief as a creditor, he can still seek to satisfy his judgment against ESA Georgia through the bankruptcy estate.

With respect to Speer’s first point on cross appeal, that the trial court erred in granting any rehef to Mason other than as assignee of the trustee, we agree. For the reasons discussed above, the trial court erred in including case nos. 91-42 and 98-561 in the Final Judgment. The recovery that the trial court awarded was to Mason, as assignee of the trustee, because that was the only party that had standing to pursue recovery on fraudulent transactions. Therefore, the Final Judgment should have been entered only as to case no. 98-549 with the recovery going solely to Mason, as assignee of the trustee. As stated above, we remand for entry of two separate final judgments: A judgment for case no. 98-549 awarding Mason recovery against Speer and a judgment in case nos. 91-42 and 98-561 finding for Speer and awarding Mason no recovery.

We also agree with Speer’s second contention, that the trial court erred in failing to enforce the summary judgment order that was entered prior to trial in case no. 98-549. The summary judgment order determined that all claims of the trustee for transactions dated earlier than June 17, 1992, were barred by the statute of limitations. Although a trial court has the inherent authority to reconsider a non-final order and modify or retract it, the trial court in the instant case never gave any indication that it was going to reconsider the summary judgment order and never modified or retracted the order. See Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744 (Fla. 4th DCA 1999). In addition, the record indicates that Mason recognized the existence of the order at trial and argued to the trial court as follows:

Admittedly, we cannot on the trustee, given Your Honor’s ruling on summary judgment motion, we can’t come in and suggest that we would be able to recover damages for a transaction prior to the June 1992 ruling that Your Honor made limiting the date of the first claim that we could make. As a creditor, however we are entitled and we are able to show pre — pre-1992 transactions showing a complete disregard of the corporate identity in order to establish alter ego.

Therefore, any evidence that was submitted during trial with respect to transactions prior to June 17,1992, was submitted solely as evidence under Mason’s piercing the corporate veil claim. Since the trial court did not grant Mason any recovery on this basis, it was error for the trial court to award Mason any recovery in the final judgment based on transactions barred by the summary judgment order. On remand, the Final Judgment in case no. 98-549, is to be reduced by the $21,840.88 of Speer’s December 31, 1991, divorce fees that the trial court found were a personal debt and were improperly paid by the corporation and the interest of $6,110 on Speer’s unsecured loan that the trial court found was paid improperly to First National Bank on February 13,1991.

Speer also argues that the trial court improperly granted relief on the sale of a lot (referred to as X14) that the trial court deemed to be fraudulent and for inadequate value, and resulted in profit to Speer of $36,000. Speer purchased the lot from Mariner Sands Associates, a related corporation, in December 1993, for $99,000. He sold it five months later for $152,500. Speer testified that the reason he purchased the lot was because Mariner Sands was trying to close at the end of 1993. ESA Georgia owned 99% of Mariner Sands Associates. Mikel Spraker, a CPA, testified at trial that normally when a partnership wants to get rid of all of its assets, it liquidates them and each partner takes their pro rata share. Therefore, he testified that ESA Georgia should have ended up with 99% of the lot and should have been the one to sell the lot and make the $53,000 profit.

Speer testified that when he bought the lot, it was his opinion that it was worth what he paid for it. He argues that the trial court erred in admitting the sales price in May 1994 as evidence of the value of the lot in December 1993 when he purchased it from Mariner Sands Associates. He contends that evidence of the sale price is not competent substantial evidence of the value of the property on the date of the challenged transaction (his purchase in December) because he testified that the property had been improved between the acquisition and sale date. Speer relies on Culbertson v. State Road Dep’t, 165 So.2d 255 (Fla. 1st DCA 1964). In Culbertson, the first district held that an appraisal made four months prior to a taking was too remote to serve as a competent basis for the challenged testimony. Id. at 257. However, the first district also stated that the court must consider whether or not the evidence “fairly permits the inference that there was no change affecting value between the date of the appraisal and the date of the taking.” Id.

The eleventh circuit distinguished Culbertson in Gilchrist Timber Co. v. ITT Rayonier, Inc., 127 F.3d 1390 (11th Cir. 1997). The eleventh circuit reasoned that Culbertson addressed whether the evidence permitted an inference that the value had not changed between the time of the appraisal and the date of the taking. Id. at 1396. Culbertson did not establish a hard and fast rule on when an appraisal is too remote to be admissible. In the instant case, although Speer testified that he “did some work to clean up the lot and try to package it up so it could be sold,” he did not enter into evidence any approximate costs or additional evidence relating to the work that he allegedly performed. Without any evidence, the trial court was free to infer that the increase in the value of the property was not due to outside factors, but instead indicated the true value of the property at the time Speer purchased it. Therefore, the trial court did not err in admitting evidence of the May 1994 sale price and we affirm the trial court’s award of $36,000 based on the sale of lot X14.

Speer’s final argument on cross appeal related to the option to lease a parcel of real estate that the trial court awarded to Mason in the Judgment Awarding Option. Speer received this option in 1994 as part of a settlement agreement between Speer, ESA Georgia, Willoughby Development, Inc., another corporation wholly owned by Speer, Willoughby Associates and Radnor/Willoughby Corporation. Pursuant to the agreement, ESA Georgia received the release of a guarantee of a liability and Speer, individually, was granted an option to lease space in the Wil-loughby Golf Club, Inc., clubhouse. The trial court made findings of fact that the option was a corporate asset of Willoughby Development, Inc., and that Speer should have negotiated for the asset on behalf of ESA Georgia.

Speer argues that the trial court erred because the asset was never property of ESA Georgia and therefore its transfer to Speer could not have been a fraudulent transfer under section 726.102(12), Florida Statutes, or 11 U.S.C. § 548 which permits avoidance of transfers of an interest of the debtor in property. We agree. Mason contends that under the doctrine of piercing the corporate veil even though Speer held the option personally, it should be subject to Mason’s unsatisfied judgment against ESA Georgia. However, the trial court rejected Mason’s piercing the corporate veil claim and we affirm the trial court’s findings on that issue. Therefore, Mason is not able to reach individual assets of Speer in an attempt to satisfy his judgment against ESA Georgia. Mason also argues that the parties entered into a settlement agreement prior to trial in which Speer agreed to transfer the option to Mason. However, this issue was not addressed by the trial court and therefore cannot be the basis for the Judgment Awarding Option. There is no proper basis in the record to support this judgment. Therefore, we reverse the Judgment Awarding Option.

REVERSED AND REMANDED for proceedings consistent with this opinion.

TAYLOR and MAY, JJ., concur.

      . In November 1996, ESA Georgia changed its name to C.V. Holdings, Inc. It did not declare bankruptcy until April 1997.

      . Now known as C.V. Holdings, Inc.

      . ESA Florida had been incorporated by Speer in November 1996. The contract with ESA Florida was entered into on January 1, 1997, but made retroactive to December 1, 1996.

      . Although this issue was also addressed in Mason’s first claim that ESA Florida should be viewed as a mere continuation of ESA Georgia, this claim is distinguishable because in Mason’s first claim he was seeking recovery as a creditor. In this claim, he is seeking recovery as the assignee of the trustee of the bankruptcy estate under 11 U.S.C. § 548 which has a broad definition of "interest in property.” Any recovery that Mason were to receive on this issue would be recovery on behalf of the bankruptcy estate, the rights to which he purchased at auction.

      . In the Final Judgment After Rehearing, the trial court held Speer personally liable on two other transactions: Interest of $6,100 on Speer’s unsecured loan that was paid improperly by the corporation and $21,840.88 of divorce fees that were a personal debt of Speer and were improperly paid by the corporation. However, as addressed later in this opinion, recoveiy on both of these transactions is barred by a summary judgment order entered in case no. 98-549.


author: PER CURIAM.

text:
    Bobby Allen BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-238.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Rehearing Denied May 28, 2003.
    Bobby Allen Bryant, in proper person.
    Charlie Crist, Attorney General, and Douglas J. Glaid, Assistant Attorney General (Fort Lauderdale), for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Baker v. State, 805 So.2d 968 (Fla. 2d DCA 2001).


author: FLETCHER, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Allstate Indemnity Company, Appellants, v. WEST GABLES OPEN MRI SERVICES, INC., and Presgar Medical Imaging, Inc., Appellees.
    Nos. 3D02-1171, 3D02-1086, 3D02-1111, 3D02-1129, 3D02-1130, 3D02-1132, 3D02-1133.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing, Rehearing En Banc and Certified Question Denied May 28, 2003.

      Luis E. Ordonez and Frances F. Guasch; Ross & Hardies and Peter J. Valeta (Chicago, Illinois); Rumberger, Kirk & Caldwell and David B. Shelton (Orlando), for appellants.
    Buchalter, Hoffman & Dorchak and Kenneth J. Dorchak, North Miami; Stuart L. Koenigsberg, Miami; Philip D. Parrish, for appellee.
    Jorden Burt and Sonia Escobio O’Donnell, Miami, and John A. Walker, Fort Lauderdale, for American Bankers Insurance Company of Florida as amicus curiae.
    Stephen C. Fredrickson and John W. Herzog (Tallahassee) for Florida Department of Insurance as amicus curiae.
    Shutts & Bowen and Frank A. Zacherl, Miami, and Joey E. Schlosberg for Geico Casualty Company, Geico Indemnity Company, Geico General Insurance Company and Government Employees Insurance Company as amicus curiae.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company appeal various final summary judgments arising from actions for personal injury protection [PIP] benefits filed by West Gables Open MRI Services, Inc. and Presgar Medical Imaging, Inc., providers of magnetic resonance imaging [MRI] services. A number of amici curiae have filed briefs, including The Florida Department of Insurance. The trial (county) court has certified the question involved as one of great public importance. After careful consideration, we reverse the final summary judgments.

During its 2001 session the legislature enacted Chapter 2001-271, General Laws of the State of Florida [the Act], which included certain revisions relating to PIP benefits. Section 6 of the Act enacted official Florida statutory section 627.736(5)(b)(5) establishing a revised MRI fee schedule. As enacted this statutory provision reads:

“5. Effective upon this act becoming a law [June 19, 2001] and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.” [e.s.]

Thus subsection (5) of 627.736(5)(b) unambiguously provided for its own effective date, that is, when the Act became a law, June 19, 2001. Notwithstanding the Act’s lack of ambiguity, the instant dispute certified by the trial court is one over the effective date of subsection (5).

Relying on what it saw as controlling parol evidence of a contrary legislative intent, the trial court concluded that October 1, 2001, was the date the new MRI fee schedule of subsection (5) began, rather than June 19, 2001. This October 1, 2001 date appears in section 11(3) of the Act and provides:

“Paragraphs (4)(b), 5(b) and (c) and subsection 6 of Section 627.736, Florida Statutes, as amended by this act and subsection (11) of section 627.736, Florida Statutes shall apply to treatment and services occurring on or after October 1, 2001, except that subsection (11) of Section 627.736, Florida Statutes, shall apply to actions on or after the effective date of this act with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated.” [e.s.]

As can be seen, the above quoted section 11(3) of the Act references, inter alia, subsection 5(b), without altering the unambiguous, effective date language of subsection 5(b)(5), thus leaving 5(b)(5)’s effectiveness controlled by 5(b)(5) itself. As the effective date language of subsection (5)(b)(5) remains unambiguous it is governed by the application of the plain meaning rule, which precludes the use of parol evidence to determine legislative intent. Pursuant to this rule the trial court was not free to depart from the plain and ordinary meaning of the words used by the legislature in order to establish the effective date. E.g., Specialty Restaurants Corp. v. City of Miami, 501 So.2d 101 (Fla. 3d DCA 1987).

The effective date of section 627.736(5)(b)(5), Florida Statutes as established by section 6 of the Act, is the effective date of the Act, June 19, 2001. Accordingly the final summary judgments are reversed and the causes remanded for further proceedings consistent herewith.

      . The Act became a law on June 19, 2001, having been approved by the Governor on that date. It was filed with the Secretary of State that same date.

      . As an observation, 627.736(5)(b), provides in its subsections (l)-(4), allowable amounts that may be charged for services other than MRI services. MRI service charges stand alone in 627.736(5)(b)(5). There is thus no disharmony in 627.736(5)(b)(l)-(5).


author: WARNER, J.

text:
    Nathaniel KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-288.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his multiple convictions arising out of an armed car-jacking incident. The issue which we address is whether the court erred in admitting the co-defendant’s taped statement as a past recollection recorded over appellant’s objection that the state failed to lay the proper predicate for its admission. Because the co-defendant admitted he had no recollection of his statement and could not identify his voice on the tape, we hold the state failed to lay the proper predicate for admitting the statement. We therefore reverse.

Emory Carter had just exited 1-95 in Broward County and was stopped at a light when he noticed appellant, the driver of the vehicle next to him, exit his car and approach Carter’s window. Appellant put a gun to Carter’s head and ordered him to exit his vehicle. Appellant entered Carter’s vehicle and sped away. Appellant’s cousin, Carl Ashley, who had remained in appellant’s vehicle during the car-jacking, followed. Two citizens who observed the car-jacking gave chase, joined later by law enforcement officers. Eventually, after a wild and dangerous chase on and off of I-95, the officers were able to stop and apprehend appellant.

Several months after the incident, Ashley was arrested and gave a taped statement to the detectives regarding his role in the incident. In his statement, Ashley said appellant planned to commit a robbery and obtained a black revolver for that purpose. On the day of the car-jacking, appellant picked Ashley up and, after driving around for a while, appellant said, “[Ljet’s go rob somebody.” Ashley then described the details of the car-jacking.

Prior to appellant’s trial, Ashley pled guilty to the charge of accessory after the fact for his participation in the car-jacking. He was serving his sentence at the time he was subpoenaed for trial. Because the state was unsure Ashley would testify truthfully, it sought to proffer his testimony. When asked whether he remembered giving a statement to the detective, Ashley claimed he did not know and had nothing to say on the matter. He claimed to know nothing about the incident. When the tape was played for him, he denied being able to recognize his voice. He said nothing would refresh his memory, as he “ain’t been in my right mind the last couple of days, I don’t know nothing.”

The state then called the interrogating detective who identified Ashley and Ashley’s voice on the tape. The state then suggested calling Ashley before the jury to determine if his recollection had been refreshed. If it had not, then the state argued it should be allowed to enter the confession as a past recollection recorded.

Defense counsel objected, arguing the state had failed to lay a proper predicate for the introduction of the taped statement, because Ashley indicated he did not remember anything about the incident, did not recognize his voice, and did not testify to anything inconsistent. Thus, the state’s sole purpose for using the taped statement was to impeach its own witness which was improper because Ashley did not remember anything about the incident. The court overruled the objection, concluding the state laid a proper predicate with the detective’s testimony.

When the state called Ashley, he testified that he remembered being arrested for his participation in the crime but did not remember providing a taped confession to the detective. A portion of the tape was played, and he said he could not recognize his voice, at which time the state called the detective to identify Ashley’s voice. The court then admitted the tape as substantive evidence, and it was played to the jury.

On appeal, appellant argues the state failed to lay a proper predicate to admit the tape as a past recollection recorded. Section 90.803(5), Florida Statutes (2000), provides an exception to the hearsay rule for past recollection recorded:

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. See § 90.803(5).

Appellant contends the state could not offer the proper predicate because Ashley not only had no recollection of giving the statement but could not recognize his voice on the tape. The state contends the detective’s testimony identifying Ashley’s voice provides the sufficient predicate to admit the statement. We cannot agree.

There is a dearth of authority in Florida regarding the admission of recorded recollections. We have found two cases from our sister states discussing the use of a recorded recollection where the witness conveniently forgot making the statement.

In Ringgold v. State, 34 Md.App. 286, 367 A.2d 35, 36 (1976), the defendant’s mother-in-law gave an incriminating statement regarding her son-in-law’s participation in a crime. When called to testify by the state, the mother-in-law had “ ‘convenient amnesia.’ ” Id. She did not remember giving a statement to the police, she did not know whether it was true, and she could not recognize her signature on the statement. To admit the statement, the state called the police officer who testified that he had taken the statement from the mother-in-law and that she had signed it. See id. at 37. On that predicate, the statement was admitted as substantive evidence in the case.

On appeal, the court discussed the history of the hearsay exception for past recorded recollections:

An early discussion of the rules of evidence governing past recollection recorded is found in Martin v. Good, 14 Md. 398, 410 (1859), quoting from 1 Greenleaf, Evidence, sec. 437:
Where the writing neither is recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of any thing contained in it, but nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact, the testimony will be received. The examples put show the reasonableness of the doctrine, and that the ends of justice require it to be so. A more recent author, whose conclusions, we think, are generally sustained by the authorities, states the English doctrine substantially in the same way. Powel on Evidence, 308, in 96 Law. Lib., 119. Here the witness stated, that from the paper being in his own handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and upon cross-examination he gave, in effect, the same testimony.
The crux of this case, however, is that the past recollection recorded if it is to be admitted into evidence must be offered by the witness who is either devoid of a present recollection or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making. 3 J. Wigmore, Evidence §§ 734, 746(2) (Chadbourne rev.1970).
In each of the cases we have cited it is the witness who verified the genuineness and accuracy of the facts recited in the memorandum. When the recollection of a witness is not refreshed by reference to the memorandum, but he recalls the memorandum and recalls that it was accurate when made or he recognizes the signature on the statement as his and testifies positively that he would not have signed the statement had he not believed it to be true at the time, he may testify from the memorandum or it may be received into evidence in connection with his direct examination or in cross-examination. 82 A.L.R.2d 473 (1962). In this case, however, the witness professed to have no recollection of the statements allegedly made by her to the officer. While it seems clear that this was a deliberate prevarication by the witness, there still was no adequate foundation upon which the statement could be admitted into evidence as past recollection recorded.

Id. at 38-39 (emphasis added).

Ringgold was cited with approval in Lindley v. State, 728 So.2d 1153 (Ala.1998). Just as in Ringgold, the witness in Lind- ley, who had given a signed statement to the police at the time of the crime, testified at trial that he had no recollection of the statement he made, as he was drunk at the time. See 728 So.2d at 1155. Even though he recognized his signature on the statement, he was unable to testify to the statement’s contents or its veracity. Because he could not vouch for the truthfulness of the statement, the court held it inadmissible. See id. at 1156.

While not a case of “convenient amnesia,” Middleton v. State, 426 So.2d 548 (Fla.1982), suggests Florida also requires testimony establishing either the witness’s recollection of having made the statement, or, if the witness has no specific recollection, testimony from the witness that the statement accurately reflects what was said at the time. In Middleton, the supreme court upheld the admission of a transcript of the defendant’s confession as a recorded recollection, where the stenographer who transcribed the statement testified he had personally recorded the statement verbatim and had accurately transcribed his notes into the transcript, even though at the time of his testimony he could not recall what was said. In other words, even though the stenographer could not remember the transcript, the proper predicate for its admission was laid based upon his testimony that he recorded it accurately when made. See also Charles W. Ehrhardt, Florida Evidence § 803.5 (2001 ed.) (“The foundation may be laid by testimony that the witness remembers making an accurate recording of the fact or event or by testimony that the witness is confident that the facts would not have been written unless they were true.”).

In this case, as in Ringgold and Lindley, Ashley could not testify either that the statement was his or that it was accurate. Although he most likely developed “convenient amnesia,” the state could not establish the proper predicate for admission of the statement.

We cannot conclude that this error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1138-39 (Fla.1986). While there was substantial evidence offered regarding the chase, the victim’s identification of appellant was not unequivocal. One of the witnesses to the car-jacking identified appellant at the hospital the night of the incident, but admitted at trial he never saw appellant’s face and thus could not identify appellant in court. Based upon the inconsistencies in identifying appellant, Ashley’s taped confession impheating appellant as the car-jacker, coupled with his status ás a co-defendant presently imprisoned for his participation in the crime, was not harmless.

Reversed and remanded for a new trial.

STEVENSON and TAYLOR, JJ„ concur.

      . See Morton v. State, 689 So.2d 259, 264 (Fla.1997), overruled on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000).


author: JORGENSON, Judge.

text:
    K.H., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, et al., Appellees.
    No. 3D01-2113.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rehearing and/or Clarification Denied June 4, 2003.

      Albert W. Guffanti, Miami, for appellant.
    Calianne P. Lantz; Mercedes E. Scopet-ta, for appellees.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   JORGENSON, Judge.

K.H., [the father] appeals from an order terminating his parental rights. For the reasons that follow, we reverse.

Through these proceedings, a family that had absolutely no connection to the State of Florida was divested of three children, the youngest of whom was still a breast-feeding infant at the time. That child was later returned to the parents. The other two children have remained in foster care since 1997, since they were seized by the Florida Department of Children and Family Services [DCF] at Miami International Airport as the family was in transit from Brazil to Washington, D.C.

The father, who was from Trinidad, was living in Brazil with his wife, who was an employee of the United States Department of State posted in Brazil. His wife is not the mother of the children who are the subject of this order. In 1997, while in Brazil, the father disciplined his daughter by striking her on the buttocks repeatedly with a wooden stick, causing her injury and leaving bruises and abrasions. The act, which he has never denied, took place on property belonging to the U.S. embassy in Brazil. The State Department’s Diplomatic Security Service was contacted about this incident after the daughter’s school noticed the injuries and became concerned. The State Department began an investigation and notified the Miami bureau that the family could be intercepted en route from Brazil to Washington, D.C., where they had been summoned, and where they resided. The State Department apparently believed that the family planned to abscond to Trinidad. When the family arrived at Miami International Airport, they were detained by the State Department; all three children were taken into custody by a DCF child protection team. The father was jailed for seven months on charges stemming from the alleged abuse. The children were placed in foster care in Broward County.

Although the children were removed in 1997, a case plan was not presented until March of 1999. What appears in the record (r.58) is captioned “Addendum to Case Plan” and is dated “this_day of March, 1999.” It was not signed by then-presiding judge, who is not the judge who signed the termination order. To further confuse matters, the Index to the Record lists the filing date of that “Addendum” as January 28, 1999. Another document, filed April 14, 1999, entitled “Permanency Planning Case Plan” is for the most part blank.

The father’s degree of participation in this proceeding is far from commendable, even taking into account the distances involved and the difficulties of trying to regain custody of his children in Florida from his home in Virginia. He failed to attend numerous hearings over the years, even by telephone, and claims that he could not afford to travel to Florida. His requests for change of venue and for travel expenses were repeatedly denied. Counsel’s ore tenus motion to dismiss for lack of jurisdiction was denied as untimely by the initial presiding, judge.

On April 12, 2002, the father’s parental rights were terminated as to his two children. We reverse, as the record does not establish by clear and convincing evidence that the father’s parental rights should be terminated.

We agree with the father that this case raises serious concerns over jurisdiction, as the family had no ties to the State of Florida and was merely in transit when the children were seized at Miami International Airport. However, “[t]he Circuit Court shall have exclusive original jurisdiction of all proceedings [under] this chapter.... Jurisdiction attaches when ... a child is taken into the custody of the Department.” § 39.40(2), Fla. Stat. (1997). Furthermore, the Uniform Child Custody Jurisdiction and Enforcement Act [UC-CJA], which applies to dependency proceedings, see § 61.503(4), Fla. Stat. (2002), provides that “a court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.” § 61.517(1), Fla. Stat. No proceedings concerning these children were brought in Virginia. Therefore the Circuit Court appears to have had jurisdiction over this proceeding, although the manner in which the children were seized appears to have been calculated to create jurisdiction in Florida and is problematic, to say the least.

We reject the father’s argument that the entire matter should have been transferred to Virginia, where he and his wife reside. There is no venue privilege in dependency proceedings; Chapter 39 does not even address venue. General venue considerations do not apply, as “a dependency action is not a ‘cause of action’” under any definition, and general venue considerations may not comport with the best interests of the child. See D.M. v. J.D.M., 814 So.2d 1112, 1115 (Fla. 4th DCA 2002). Florida Rule of Juvenile Procedure 8.205(c) provides that a dependency court may transfer the case to another state “if an action is pending in another state.” No such action was pending in Virginia. Therefore, the trial court properly denied the father’s motions to transfer the case to Virginia.

We conclude that the trial court had jurisdiction over this matter and venue was proper in Dade County. However, we reverse the order on the ground that it is not supported by clear and convincing evidence.

A parent’s right to the care, custody, and companionship of his children is a fundamental liberty interest. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla.1991). When that interest is at stake, DCF must prove the allegations supporting the termination of parental rights by clear and convincing evidence and must establish that termination of these rights is the least restrictive means of protecting the child from serious harm. Id. at 571.

Because such fundamental rights are at stake, the agency “ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan.” Id. In this case, reunification of the family was originally the stated goal. However, the confusion surrounding the case plan(s), coupled with the outrageous, nearly two-year delay in providing that plan made it difficult if not impossible for the father to comply with DCF’s requirements. Furthermore, there is no report in the record from any expert or from the guardian ad litem after the Adjudicatory Order of Dependency, dated April 14, 1999. In short, there is no record evidence to support the order of termination, as opposed to the order of dependency.

This case presents yet another unfortunate failure of the Department of Children and Families and the court system to fulfill their statutory duties to the children and the family. We are painfully aware that nearly six years have passed since the two children were removed from their father’s custody. The passage of time, the attachments those children may have formed with their foster family, and the father’s sporadic visitation over the years — the blame for which falls equally on him and on DCF — make the once-stated goal of reunification seemingly impossible. Nevertheless, the order terminating his parental rights cannot stand on this record.

We reverse the order and remand this matter to the trial court for further proceedings consistent with this opinion.

      .The whereabouts and status of the biological mother of the two children who are the subject of this order is not clear from the record. She is not a party to this proceeding.

      . Florida Statutes mandate that "the case plan must be prepared within 30 days after placement.” Fla. Stat. § 39.4031(4) (1997).

      . No appeal was taken from the adjudication of dependency.

      . Should DCF again seek to terminate the father's parental rights, we caution him to make whatever arrangements are necessary to be present at all proceedings.


author: GROSS, J.

text:
    Edward J. MURRAY, Appellant, v. NATIONSBANK OF FLORIDA, N.A., PG & C Leasing Co. of Florida, Inc., Paula Gambrill and Estate of Glenn Gambrill, Appellees.
    No. 4D02-1509.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant.
    Eric A. Waraftig of the Law Offices of Eric A. Waraftig, Fort Lauderdale, for appellee Estate of Glenn Gambrill.
   GROSS, J.

The issue in this case is whether a 120-year-old Florida Supreme Court decision requires dismissal of a writ of garnishment served on the personal representative of an estate. Because of the changes to the garnishment statute and the probate code since 1883, we hold that the general rule announced in the decision is no longer operative and that the circuit court erred in dismissing the garnishment proceeding.

On a complaint for civil theft, Edward Murray recovered a judgment against Paula Gambrill for $112,342.38, plus interest, costs, and attorney’s fees. Due to concerns that Gambrill might be secreting her assets, the judgment provided that execution and other post-judgment process could issue forthwith.

In a deposition in aid of execution, Murray learned that Gambrill’s husband, Glenn Gambrill, died in 1993, probate proceedings were pending in Broward County, and Gambrill was the personal representative of the estate and its primary beneficiary. In 2000, Gambrill realized over $52,000 in taxable income from the estate. Under her husband’s will, Gambrill inherited one-half of the adjusted gross estate; the remainder of the estate was placed in a trust, with Gambrill being entitled to all of its income.

Because he could not locate any assets upon which he could levy, Murray caused a writ of garnishment to be served on the estate. The estate moved to dismiss the writ. The motion identified Gambrill as “an income beneficiary to the estate” and its personal representative. The estate relied on Flanary v. Bailey, 591 So.2d 308 (Fla. 5th DCA 1991) to support its argument that the estate was exempt from garnishment.

The circuit court granted the estate’s motion and dismissed the writ of garnishment on January 7, 2002. The order observed that Murray had made no petition to the probate court allowing a garnishment. However, on January 3, 2002, Murray filed a motion with the probate court in Broward County seeking permission to proceed with the garnishment against the estate. On January 16, 2002, the probate judge granted the motion. Its order stated:

1-In this probate, the personal representative is the judgment debtor. Furthermore, the personal representative stands to take under the terms of the Decedent’s will. Finally, no claims have been filed against the Estate, and it appears that the only reason the Estate is being kept open at this point is to close the New York probate estate for this same Decedent (which was improperly opened in the first place because the Decedent died domiciled in the State of Florida). There is, therefore, no active administration with which the suggested proceedings would interfere.
3-Murray has agreed that any matters regarding the time of payment out of the Estate or distribution shall be left exclusively within the province of this Court, thereby obviating any concern which might otherwise exist about potential interference with the orderly administration of the Estate.

On January 16, Murray moved the circuit court to rehear the order dismissing the writ of garnishment, arguing that the concerns expressed in the order of dismissal had been fully addressed by the probate court. At the hearing on the motion, Murray’s attorney disclosed Gam-brill’s recent deposition testimony, which revealed that shortly after the original judgment issued, Gambrill wire-transferred $1,073,000.00 out of an estate account at Fleet Bank in Rochester, New York, to an account held at Barclay’s Bank in Nassau, Bahamas in the name of “Blue Whale Investment Limited.” Following the hearing, the trial court denied the motion to vacate the order dismissing the writ of garnishment.

To support the circuit court’s order, Gambrill relies upon Flanary. That case reversed a final judgment in garnishment, citing to the “general rule that an executor could not be charged as garnishee with respect to a pecuniary legacy bequeathed by his testator, unless expressly provided by statute.” 591 So.2d at 309.

For its holding, Flanary relied primarily upon Post v. Love, 19 Fla. 634 (1883). Post held that an executor could not “be held to answer to a writ of garnishment at the instance of a creditor of a legatee.” Id. at 639. The supreme court explained the rationale for its holding:

Whether a legacy can be paid in whole or in part will depend upon the condition of the estate upon a final accounting in the Probate Court. Garnishment of legacies during the progress of the regular and usual course of administration and before the condition of the estate is ascertained, would be productive of great confusion and expense.

Id. at 642. The supreme court observed that to allow garnishment of an executor of an estate would require “a prescription of methods of procedure not now recognized in the courts of law.” Id. at 641.

In part, Post was based on the wording of the garnishment statute in effect in 1883. Chapter 43, section 1, Laws of Florida (1845) provided:

Every person who shall have brought a suit in any court of this State against any person, natural or corporate, shall have a right to a writ of garnishment under the circumstances and in the manner hereinafter provided, to subject any indebtedness due to the defendant by a third person, and any goods, moneys, chattels or effects of the defendant in the hands, possession or control of a third person.

The 1845 garnishment statute subjected various types of tangible personal property to the writ — “goods, moneys, chattels or effects.” Under the statute, the only type of intangible property subject to the writ was “any indebtedness due to the defendant by a third person.” Post relied upon this language to hold that until there had been a final accounting in the probate court, there could be no “debt due from the executor” within the meaning of the statute. The court wrote:

[Wjhile the estate is in process of adjustment, the time not having elapsed for the ascertainment of debts and liabilities, how is it possible to know whether anything will ultimately be available for the payment of legacies, and what can a jury determine?

19 Fla. at 642-43.

Substantially similar language from the 1845 statute was contained in Revised Statutes, section 1666 (1892), General Statutes, section 2130 (1906), Revised General Statutes, section 3431 (1920), Compiled General Laws, section 5284 (1927), section 77.01, Florida Statutes (1941), and section 77.01, Florida Statutes (1965).

In 1967, the legislature changed the wording of section 77.01, to the following:

Every person who has sued to recover a debt or has recovered judgment in any court against any person, natural or corporate, has a right to a writ of garnishment, in the manner hereinafter .provided, to subject any debt due to defendant by a third person, and any tangible or intangible personal property of defendant in the possession or control of a third person.

Ch. 67-254, § 27, at 654-55, Laws of Fla. (emphasis added). It is section 77.01 that creates the right to garnishment. Significantly, the 1967 amendment expanded the scope of garnishment to reach “intangible personal property ... in the possession or control of a third person.” Section 77.01, Florida Statutes (2002) also allows a writ of garnishment to reach such “intangible personal property.”

The change in the wording of the garnishment statute from the 1845 version is important to this case because the modern version allows garnishment of forms of intangible personal property beyond an indebtedness “due to defendant by a third person,” the only type of intangible property which garnishment could reach at the time Post was decided. The right of a legatee to inherit from an estate is a form of intangible personal property that now falls within the reach of garnishment under section 77.01.

Another case cited by Gambrill also requires discussion, because, it brings into focus a statute directly applicable to this case. Brown v. Sweat, 149 Fla. 524, 6 So.2d 538 (1942) involved Monte Brown, the administrator of an estate who was also the sole heir of the decedent. The estate had not been closed and no claim had been filed against it. The plaintiff held a judgment against Brown “as an individual and ... caused a levy to be made on property included in the estate.” Id. at 538. The supreme court held that the property of the estate was not subject to execution, applying “the definite language of Section 123 of Chapter 16103, Laws of Florida, Acts of 1933 (The Probate Act), as amended by Section 8 of Chapter 17171, Acts of Florida, Laws of 1935.” Id. That statute provided:

No execution shall issue upon or be levied under any judgment against a decedent or against the personal representative, nor shall any levy be made against any property, real or personal, of the estate of a decedent.

Id. (emphasis in original). The court wrote that the purpose of the statute was

to prevent interference in the administration of these assets. Such interference likely would be as detrimental to the conduct of the affairs of the estate if resulting from levy on a judgment against an heir as from one on a judgment against the decedent or the estate because each would affect the assets and probably impede administration.

Id. at 539. The supreme court acknowledged authority for the “view that the interest of an heir could be reached by execution even if the estate had not been fully administered,” but chose not to follow it in view of section 123. Id.; see also Martinez v. Balbin, 76 So.2d 488, 489-90 (Fla.1954) (citing Brown with approval).

Section 123 was “reproduced verbatim in the subsequently enacted F.S. s. 733.19, F.S.A., Laws, 1945, c. 22783, s. 3.” Martinez, 76 So.2d at 490. Section 733.19 was repealed in 1974. See Ch. 74-106, § 3, at 319, Laws of Fla. It was replaced by the predecessor to the current section 733.706, Florida Statutes (2002). See § 733.706, Fla. Stat. Ann., Historical and Statutory Notes. In pertinent part, section 733.706 now provides:

Except upon approval by the court, no execution or other process shall issue on or be levied against property of the estate. An order approving execution or other process to be levied against property of the estate may be entered only in the estate administration proceeding.

§ 733.706, Fla. Stat. (2002).

Brown does not control this case. It relied on a statute which has since been repealed. Section 733.706 is directly applicable. A post-judgment garnishment proceeding is a form of final process. See Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, 805 So.2d 835, 843 (Fla. 4th DCA 2001). Unlike the former section 123’s absolute ban on “any levy ... against any property, real or personal, of the estate of a decedent,” section 733.706 allows execution or other process to “issue on or be levied against property of the estate” if approved by the court handling the estate administration proceeding.

Here, the probate court approved the garnishment proceeding; the court found that garnishment would not interfere with the administration of the estate, thus obviating the concern of Post that a garnishment would cause “great confusion and expense” in the administration of an estate. Complying with section 733.706, the probate judge’s order provides that any payment out of the estate will be controlled by the probate court. Section 733.706 is the type of express statute required by Post and Flanary to change the common law rule “that executors are not subject” to garnishment “on account of legacies payable to a debtor.” Post, 19 Fla. at 639. Finally, the legislature has expanded the scope of section 77.01 to reach intangible personal property such as Gambrill’s interest in her husband’s estate. Changes in the garnishment statute since 1883 have rendered the holding of Post obsolete.

For these reasons, we hold that the circuit court erred in not granting the motion for rehearing and allowing the garnishment to proceed.

We recognize that at the time the trial judge ruled, he was bound by Flanary, with which we certify conflict.

STEVENSON and MAY, JJ., concur.

      . Flanary noted that, ”[w]e cannot find any basis for [the judgment creditor's] argument that section 77.01, Florida Statutes (1989) has altered the Post rule.” 591 So.2d at 310. However, as discussed above, the legislature changed the wording of the statute in 1967, twenty-four years before the Flanary decision, expanding the scope of garnishment to reach intangible personal property. Moreover, as we also discussed above, section 733.706 expressly changed the common law rule of Post. Flanaiy failed to discuss this statute, enacted in 1974.


text:
    Stepphone FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1095.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied June 19, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted of burglary of a dwelling and grand theft. He argues the trial court erred in refusing to permit him to reopen cross-examination of a prosecution witness. Instead, the trial court ordered him to call the witness as his own, depriving him of his right to open and close final argument. Because appellant’s cross-examination related directly to the witness’ direct testimony and was an integral part of appellant’s defense, we conclude that the trial court abused its discretion in refusing to permit the defense to recall the witness. This denial of a “vested procedural right” constitutes reversible error.

The victims’ home was broken into and ransacked sometime during the morning of April 12, 2000. After discovery of the burglary and contact with a person who observed two men loading computer equipment into a green Mazda automobile parked behind the victims’ home, the victims informed the police that they believed appellant was the one who broke into the home. They knew appellant and knew that he drove a green Mazda. The police determined that appellant’s girlfriend, Da-trina Goodwin (“Goodwin”), owned a green Mazda. She testified at trial that while she was working appellant was allowed to drive her car. At her deposition, Goodwin maintained appellant was not using her car on the date of the burglary, but at trial, she could not remember whether she was working at the time of the crime. She testified that if she had been at work, appellant would have had her car. If she had not been at work, she would have been with appellant, as they were together during all of her non-working hours.

Before trial, defense counsel advised the court that it had requested copies of Goodwin’s employment records and had already obtained a court order for their production, but they had not yet been received. After Goodwin’s testimony, defense counsel asked the judge not to excuse her because he might need her as a witness for the defense’s case.

When the state rested, the court asked defense counsel if it intended to offer any evidence. Defense counsel asked to recall Goodwin but insisted her questioning should be considered cross-examination in order to preserve defense’s procedural right to begin and end closing arguments. Because defense counsel had finally obtained Goodwin’s employment records, he now wanted to refresh Goodwin’s recollection as to whether she was working at the time of the crime. The prosecutor objected, stating defense counsel knew about this witness for a long time and failed to timely subpoena the records. Defense counsel countered that he had obtained a court order for their production. The court denied defense counsel’s request. Rather than omit Goodwin’s testimony, defense counsel called Goodwin to refresh her recollection as to her work hours on April 12, 2000, which revealed that she was at work from 4 p.m. to 8 p.m. She then testified that she was with appellant the entire day prior to her arrival at work. Therefore, he could not have burglarized the victims’ home earlier that morning. Although the defense did not call any other witnesses, it was not given the right to open and close final argument.

This case is similar to Vazquez v. State, 700 So.2d 5 (Fla. 4th DCA 1997), where the trial court also refused the defense’s request to reopen cross-examination of a witness. The case involved drug trafficking and the defense claimed entrapment. The state presented the testimony of a detective who presented several taped conversations. After the witness testified, the defense moved to reopen cross-examination of the detective to present additional taped conversations recorded by the detective which went to the claim of entrapment. The trial court refused, and the defendant decided not to call the witness so that he would not lose the right to open and close during closing arguments. We relied on Hahn v. State, 58 So.2d 188 (Fla.1952), and Coco v. State, 62 So.2d 892 (Fla.1953), to hold that while a request to reopen cross-examination lies within the sound judicial discretion of a trial judge, that “discretion is abused when it touches upon the right to cross-examination that has its purpose the weakening of the testimony given by the witness on direct examination by the state.” Vazquez, 700 So.2d at 8. We noted that Coco had based its similar ruling of error in failing to permit a criminal defendant from reopening cross-examination on the constitutional nature of the right of cross-examination:

[T]he right of a full and fair cross-examination of a witness upon subjects the door to which is pushed ajar on the examination in chief is an absolute right which has as its genesis Section 11 of the Florida Declaration of Rights. This Section provides that an accused shall have the right “to meet the witnesses against him face to face” in open court before an impartial jury.

Id. (quoting Coco, 62 So.2d at 896).

In this case, the matter on which the defense wished to cross-examine went directly to the significant issue upon which Goodwin was examined by the state. Goodwin, the owner of the green Mazda, testified that appellant had the use of her vehicle when she was at work but she did not remember whether she was at work at the time of the burglary. The evidence went only to this significant issue sought to be introduced during reopened cross-examination. The evidence would have shown that Goodwin was not at work at the time of the incident and, thus, according to her testimony, would have been with appellant, weakening the state’s use of her testimony for the proposition that appellant had access to her car at the time of the crime. This evidence was crucial to the defense and should have been allowed as cross-examination. Id. at 9.

Because appellant was entitled to question Goodwin on reopened cross-examination instead of calling her as his own witness, he was entitled to open and close during closing argument. See Fla. R.Crim. P. 3.250. The defense’s right to make the final closing argument, where no evidence except the defendant’s own testimony has been introduced, is a vested procedural right, the denial of which constitutes reversible error. See Wyatt v. State, 270 So.2d 47, 49 (Fla. 4th DCA 1972). This error is not subject to harmless error analysis. See Wike v. State, 648 So.2d 683, 686 (Fla.1994); Raysor v. State, 272 So.2d 867, 869 (Fla. 4th DCA 1973). We therefore reverse and remand for a new trial.

Reversed for a new trial.

STONE and GROSS, JJ., concur.


text:
    BIRD LAKES DEVELOPMENT CORP., etc., Appellant, v. Arnaldo VELEZ, et al., Appellees.
    No. 3D02-751.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing and Certification Denied May 28, 2003.
    Hall, David & Joseph, Miami, for appellant.
    Coleman & Associates, for appellees.
    Before JORGENSON, GREEN, and FLETCHER, JJ.
   PER CURIAM.

After a careful review of this complex consolidated record, we find that the trial court erred in finding that the crossclaim and third party claim brought by Bird Lakes Development Corporation [Bird Lakes] against Arnaldo Velez, Taylor, Brion, Buker & Greene, Henry H. Taylor, Jr., Gerald Moore, James Moore and Robert Paterno [Velez] did not survive the dismissal entered in Case No. 96-09627CA which was consolidated with the instant action. This is so because none of the various pleadings filed nor the orders entered in connection with the dismissal refer to the claims between Bird Lakes and Velez, but address only the claims between Home Insurance Company and Bird Lakes.

Accordingly, we reverse the order of the trial court and remand for further proceedings.

      . This finding appears for the first time in the order on status conference entered on February 12, 2002 which we conclude is a final, appealable order of the crossclaim and third party claim.