author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Felix JOUBERT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D02-967, 3D01-2685.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Rehearing Denied June 25, 2003.
    Hersch & Talisman and Richard Hersch, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    James T. Miller, Jacksonville, as amicus curiae.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

,We reverse the defendant’s conviction for a violation of Richardson v. State, 246 So.2d 771 (Fla.1971). Defendant was charged with and convicted of (1) grand theft and (2) perjury not in an official proceeding.

Defendant Joubert was a bus driver for Miami-Dade County Transportation. In 1996, a bus which he was operating was impacted from the rear, causing the defendant’s right shoulder, elbow and wrist to collide with the steering wheel. He underwent an operation to correct a carpal tunnel problem, continued to receive shots of cortisone, and continued to work. In May 2000, Joubert was required to drive a bus which had lost its power steering, and in manually operating the steering wheel his right shoulder was aggravated. Following the aggravation of the injury he received an MRI scan which revealed:

—a complete tear of the super spinatus tendon with retraction of a torn tendon edge to the level of the superior glenoid rim — The size of this tear appears massive approaching four cm sq.

He was also diagnosed with degenerative arthritis in his shoulder joint. The treating physician further diagnosed him with a rotator cuff pathology and found that the second problem was definitely an aggravation of the original injury.

Charges were ultimately filed against Joubert in connection with his worker’s compensation claim. The State’s position was that Miami-Dade Risk Management surveillance of Joubert revealed that he had 'exaggerated his claims. Risk Management had employed a private contractor to do the surveillance, and make video tapes. Two video tapes were produced at trial. The first video tape contains surveillance conducted on June 9. In that video defendant was identified rolling six oil drums onto a flatbed truck. In a second video taken on June 19, the same date that Joubert had an appointment with the State’s expert orthopedist, he was seen dragging 6 to 10 rubber garbage cans to a dumpster in order to empty them.

Dr. Easterling, the State’s medical expert, had examined Joubert on June 19, and noted Joubert’s complaints including the inability to raise his right arm over his head, and to use it in certain other ways. At his pretrial deposition Dr. Easterling testified he had seen the June 9 video and that it was not inconsistent with Joubert’s complaints. He said that the explanation for defendant’s lifting items over his head and shoulders represented the fact that patients with his condition sometimes had “good and bad days.” However, when shown the June 19th video for the first time on the day of trial, Dr. Easterling said that it was inconsistent with the defendant’s claims, and had he been aware of that activity taking place on the same day he had examined Joubert, he would have sent him back to work rather than recommending that he be placed on light duty.

The State’s expert was allowed to present the above testimony before the jury, and there was no objection from defendant. In fact, it did not become clear until the doctor’s cross-examination that there were in fact two videos, the second of which, the June 19 video, was shown to the doctor on the morning of trial. The second video had never been shown to defendant, who only learned of it for the first time during the doctor’s cross-examination.

At the conclusion of the doctor’s testimony, defense counsel brought up the Richardson violation. The state attorney readily admitted that the second video tape had inadvertently not been produced to the defendant. At one point the trial court stated:

At this time the court concedes there is a discovery violation, that it was inadvertent, not willful and for prejudice finds it to be slightly more than trivial and alot less than substantial.

The court then proposed that it allow a continuance for the defendant to procure his own expert physician. The defense counsel then said he was not certain that a week would be sufficient and moved the court to grant a mistrial, which motion was denied. The court then examined the June 9 video and the June 19, to compare the two. After his examination the trial judge stated:

After viewing this, it is now apparent, that if any prejudice to the defendant from the failure to view the June 19 tape it was minuscule. There is no substantial difference between any of the tapes and the activity. If anything it appears that on the June 19, it shows more use on the part of the defendant than what appeared on the June 19. (The trial court obviously misspoke itself and meant that he saw more activity on June 9 than on the 19th.)

In any event, the trial judge effectively rescinded his order granting a continuance to the defendant.

The trial court obviously was of the view that substantive prejudice was the key test in determining whether there was a Richardson violation. In so holding the able trial judge was incorrect. In State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995) our Supreme Court discussed the importance of evaluating procedural prejudice resulting from violations of the Richardson rule:

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defendant. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds there is a reasonable possibility that the discovery violation prejudiced the defendant or if the record is insufficient to determine the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defendant was not procedurally prejudiced by the discovery violation can the error be considered harmless.

Here defense counsel recognized that the change in the physician’s testimony was devastating to its defense and articulated that defendant would have opted for the plea offered by the State had the second video been properly produced.

For these reasons we have no alternative but to reverse the defendant’s conviction and remand for a new trial.

FLETCHER, J„ and NESBITT, Senior Judge, concur.

SCHWARTZ, Chief Judge

(dissenting).

As I understand it, the court holds that because the defense initially argued that there was insufficient evidence that Jou-bert had lied in his claims for benefits, it was so “prejudiced” by the “second tape” which conclusively showed that he had done so, a new trial (at which the second tape will of course be admitted) is required. I do not agree to this result which seems to me so contrary to the basic principle that a trial is not a game but a search for the truth — which in this case was obviously discovered and revealed by the jury’s verdicts of guilty. Instead, I would affirm on the ground that there was no abuse of discretion in the trial judge’s conclusion, on the basis of a full Richardson hearing, that any alleged discovery violation did not affect the defendant’s cognizable rights.

      . It should be noted that, contrary to the majority's apparent view, the doctor's change of heart did not involve a discovery violation. Only the unrevealed tape so qualified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tony I. DELAUGHTER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellee.
    No. 3D03-202.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.

      Tony I. Delaughter, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

Tony I. Delaughter appeals an order denying unemployment compensation benefits. We reverse.

Claimant-appellant Delaughter delivered pianos for the appellee-employer, Bobbs Piano Sales & Service Inc. Upon arriving at an 8:00 p.m. delivery at the end of the workday, he found that a large piano had to be carried up three flights of narrow stairs. He was accompanied by an inexperienced assistant. He testified that he refused to proceed with the delivery because there was a risk of personal injury, and damage to the piano, without experienced help. The customer was willing to delay the delivery. Upon the refusal of the claimant to proceed, the employer fired him.

We reverse because the employer’s testimony at the hearing completely failed to address, much less rebut, the claimant’s testimony about the risk of personal injury or property damage if the delivery proceeded without more experienced help. Given the safety issue, the refusal to proceed did not constitute misconduct. See Copple v. U.S. Postal Serv., 805 So.2d 922, 924 (Fla. 2d DCA 2001); Wall v. Unemployment Appeals Comm’n, 682 So.2d 1187, 1188-1189 (Fla. 4th DCA 1996).

Accordingly, the order denying unemployment benefits is reversed.


text:
    Gregory J. THIES, Appellant, v. James V. CROSBY, Jr., Appellee.
    No. 1D02-2806.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Reynolds v. State, 590 So.2d 1043 (Fla. 1st DCA 1991); Henderson v. State, 682 So.2d 653 (Fla. 5th DCA 1994).

ERVIN, KAHN and PADOVANO, JJ., concur.


text:
    Frederick GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4320.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275, 2003 WL 1877193 (Fla. 1st DCA Apr.16, 2003); State v. Franklin, 836 So.2d 1112, 1114 (Fla. 3d DCA 2003).

ALLEN, C.J., ERVIN and BARFIELD, JJ., concur.


text:
    Dana Charles ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1458.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275, 2003 WL 1877193 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

ALLEN, C.J., ERVIN and BARFIELD, JJ., concur.


author: FULMER, Judge.

text:
    Jose Fabian SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1677.
    District Court of Appeal of Florida, Second District.
    June 11, 2003.

      James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Jose Santiago appeals his convictions for first-degree murder, two counts of attempted first-degree murder, obstructing or opposing an officer with violence, and aggravated fleeing or eluding. Because the aggravated fleeing statute applies only to drivers involved in crashes, we reverse this conviction and remand with instructions to enter judgment for the lesser offense of fleeing. In all other respects, we affirm.

Santiago argues that fundamental error requires a reversal of his conviction for aggravated fleeing or eluding, a violation of section 316.1935(4), Florida Statutes (1999), because the State failed to prove, and could not prove, that he was leaving the scene of an accident. Santiago’s argument is well taken. In count seven, the superseding indictment cited section 316.1935(4) and charged that Santiago

was in the course of unlawfully leaving or attempting to leave the scene of an accident in violation of Florida Statute 316.027 or 316.061, and had knowledge of an order to stop by a duly authorized law enforcement officer [and] did willfully refuse or fail to stop in compliance with such order, and as a result of such fleeing or eluding did cause injury to another person or damage to property of another....

Section 316.1935(4), defining the second-degree felony of aggravated fleeing or eluding, specifically refers to leaving the scene of a crash.

(4) Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s. 316.027 or s. 316.061, having knowledge of an order to stop by a duly authorized law enforcement officer:
(a) Willfully refuses or fails to stop in compliance with such an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to elude such officer; and
(b) As a result of such fleeing or eluding, causes injury to another person or causes damage to any property belonging to another person
commits aggravated fleeing or eluding. ... The felony of aggravated fleeing or eluding constitutes a separate offense for which a person may be charged, in addition to the offense of unlawfully leaving the scene of a crash which the person had been in the course of committing or attempting to commit when the order to stop was given.

Section 316.027 is titled “Crash involving death or personal injuries” and section 316.061 is titled “Crashes involving damage to vehicle or property.” Both apply by their plain language only to the driver of a vehicle involved in a crash.

In this case, it is undisputed that Santiago was leaving the scene of a shooting, not a crash. Although this ground was not raised in the motion for judgment of acquittal, “it would be fundamental error not to correct on appeal a situation where [a defendant] stands convicted of a crime that never occurred.” Burrell v. State, 601 So.2d 628, 629 (Fla. 2d DCA 1992) (alteration in original) (quoting Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989)). As in Burrell, “[t]his is not a case in which the state’s failure to prove the offense involves a technical matter that could have been resolved if the issue had been raised in a motion for acquittal. It is clear that the state could not have proven an essential element....” 601 So.2d at 629. Therefore, we reverse the conviction for aggravated fleeing. Because the evidence was sufficient to prove the lesser included offense of simple fleeing, a misdemeanor in violation of section 316.1935(1), we remand with instructions to enter judgment and sentence for the lesser offense. See § 924.34, Fla. Stat. (1999) (directing appellate courts to have judgment for lesser offense entered when evidence did not prove conviction but did prove lesser offense); see also Burrell, 601 So.2d at 629; Warram v. State, 788 So.2d 323, 324 (Fla. 2d DCA 2001) (reversing conviction for burglary because evidence was insufficient and remanding for adjudication on lesser charge of trespass).

Santiago also argues that fundamental error occurred because the record does not show that the venire was sworn prior to voir dire. This court has held “that fundamental error is not established by a record that fails to demonstrate, one way or the other, whether the venire received the oath required by [Florida Rule of Criminal Procedure] 3.300(a).” Pena v. State, 829 So.2d 289, 294 (Fla. 2d DCA 2002) (recognizing that the venire may be separately sworn). Because the record here fails to demonstrate, one way or the other, whether the venire was sworn, we affirm on this issue. Santiago’s argument regarding jury instructions is moot based on our reversal of his conviction for aggravated fleeing.

Affirmed in part; reversed in part; remanded with directions.

ALTENBERND, C.J., and COVINGTON, J., concur.


text:
    Mitchel Andre INSIGNARES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2649.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Rehearing Denied June 25, 2003.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for Appellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Mitchel Andre Insignares appeals his convictions for attempted first degree murder using a deadly weapon, discharging a firearm in public, and criminal mischief. We reverse the conviction for criminal mischief and affirm the remaining convictions.

Prior to trial, Insignares filed a motion to suppress the show-up identifications by the victims as unduly suggestive and any subsequent identifications as tainted. The trial court conducted an evidentiary hearing on the motion at which it heard testimony from the victims, two police detectives, Insignares, and Insignares’ mother. The trial court concluded that the victims had ample opportunity to observe Insig-nares during the commission of the crimes, gave accurate descriptions of the perpetrator, and were certain in their identification of Insignares as the perpetrator. No more than three to five hours elapsed between the crimes and the identifications. We find that the motion to suppress the show-up identifications was properly denied.

A show-up identification is not invalid if it does not give rise to an irreparable likelihood of misidentification. “The factors to be considered in evaluating the likelihood of misidentification ‘include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” State v. Hernandez, 841 So.2d 469, 472 (Fla. 3d DCA 2002); see also Henry v. State, 519 So.2d 84, 86 (Fla. 4th DCA 1988) (out-of-court confrontation evidence is admissible if it possesses certain features of reliability).

At the evidentiary hearing, Insignares argued that his participation in the show-up identification was the result of an illegal seizure of his person. However, Insig-nares testified that he consented to going outside with the detective in order to clear up the matter. We agree with the trial court that Insignares voluntarily participated in the show-up identifications.

Neither do we find that the prosecutor’s remarks require reversal. See Cox v. State, 745 So.2d 1127 (Fla. 3d DCA 1999) (even highly improper argument may not warrant reversal in view of overwhelming evidence of guilt). We therefore affirm Insignares’ convictions for attempted murder and discharging a firearm in public.

However, we reverse Insignares’ conviction for criminal mischief because he lacked the requisite intent. “The offense of criminal mischief requires that the actor possess the specific intent to damage the property of another.” In the Interest of J.G., 655 So.2d 1284, 1285 (Fla. 4th DCA 1995). “The intent to damage the property of another does not arise by operation of law where the actor’s true intention is to cause harm to the person of another.” Id.

Affirmed in part, reversed in part.


author: RAMIREZ, J.

text:
    MURSIA INVESTMENTS CORP., and Ricardo Hernandez, Appellants, v. INDUSTRIA CARTONERA DOMINICANA, et al., Appellees.
    No. 3D02-3098.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.

      Hogan & Hartson, and Parker D. Thomson, and Carol A. Licko, and Stephanie L. Carman, Miami, for appellants.
    Sale & Kuehne, and Benedict P. Kuehne, and Susan Dmitrovsky, Miami, for appellees.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Mursia Investments Corp. and Ricardo Hernandez appeal an order denying their motion to dismiss for forum non conve-niens and Hernandez’s motion to dismiss for lack of personal jurisdiction. We reverse because Florida is not the proper forum for this lawsuit.

Appellees Industria Cartonera Domini-cana (“ICD”) and Carton de Venezuela (“CDV”), plaintiffs at the trial level, manufacture cardboard boxes. Neither company does business in the United States. Plaintiff Smurfit Packaging Corp., a Delaware corporation with its principal place of business in Missouri, is their purchasing agent for raw materials. Smurfit administers ICD and CDV business through Smurfit Latin America with an office in Aventura, Florida. Mursia is domiciled in the Dominican Republic and is registered to do business in Florida. Hernandez is the president, secretary, and director for Mursia. He is a Spanish citizen and a resident of the Dominican Republic.

In 1994, Mursia entered into a conditional option agreement to buy ICD by 1998 for $8.5 million. The escrow agent initially placed the sum of $8.1 million with Paine-Webber in Miami as a deposit towards the purchase. The record is unclear as to the current location of the funds because the escrow agent has discretion as to where to deposit the money. Since 1997, Mursia and ICD have brought an estimated fourteen (14) lawsuits against each other in the Dominican Republic, all arising from the purchase agreement. In fact,' ICD has brought approximately half of those lawsuits. Smurfít and CDV are also parties to these actions. These suits remain pending.

In November 2001, ICD filed suit in Miami circuit court alleging that Mursia had tortiously interfered with advantageous business relationships and prospective economic advantage. ICD alleged that Mursia sent notices to ICD’s existing and potential Dominican customers demanding that they refrain from doing business with ICD. ICD further alleged that Mursia procured newspaper advertisements and attempted to place signs at ICD’s factory stating that Mursia was ICD’s owner. The newspapers are published in the Dominican Republic and the factory is located there. - The complaint also alleges abuse of process in the Dominican courts.

Mursia and Hernandez subsequently filed a motion to dismiss on grounds of forum non conveniens and failure to state a cause of action. Hernandez also filed a motion to dismiss for lack of personal jurisdiction. At the evidentiary hearing on the motion to dismiss for forum non conve-niens, Mursia’s Dominican Republic attorney testified that ICD’s claims could be brought in the Dominican Republic. ICD’s president is also the vice-president for CDV and Smurfít. He testified that three potential witnesses reside in Florida and several other witnesses frequently travel to Florida or the United States. All of the alleged acts occurred in the Dominican Republic and all the other witnesses reside in the Dominican Republic. ICD’s president also testified that this action is different from the pending cases in the Dominican Republic because none of those lawsuits have a claim for lost business. The trial court denied Mursia’s motion to dismiss holding that Florida was the “preferred forum” and that a balancing of factors favored a trial in Florida. The trial court also found that the Dominican Republic was neither adequate nor available as a forum, apparently due to the actions of a Dominican judge who had already been removed from the bench. The trial court also denied the motions to dismiss for failure to state a cause of action and lack of personal jurisdiction.

In Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996), the Florida Supreme Court outlined the four-step analysis to determine whether a case should be dismissed on forum non conve-niens grounds. First, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. Id. at 90. An adequate alternative forum is established when the defendants are amenable to process in the other jurisdiction. “[T]he alternative fora are inadequate under the doctrine only if the remedy available there clearly amounts to no remedy at all.” Id. at 90-91. The analysis next focuses on how the parties will be affected if the motion is granted or denied. Id- at 91. In balancing the private interests of the parties, the four concerns to be addressed are adequate access to evidence, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation. Id. at 91. The trial court then proceeds to weigh public interest factors including whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it. Id. at 91-92. The fourth and final step in the analysis is to ensure that, when a forum non conveniens dismissal is granted, the potential remedy in the alternative forum does not become illusory. Id. at 92.

In this case, Mursia is domiciled in the Dominican Republic and Hernandez resides there. They are thus amenable to process in the Dominican Republic and were served there in this action. Mursia and Hernandez introduced evidence that ICD and CDV had brought seven lawsuits against them in the Dominican Republic. These parties are all under Dominican jurisdiction through the numerous lawsuits still pending there. Further, the defendants’ claim that the Dominican Republic is an adequate forum will not be overcome by allegations that the Dominican courts are corrupt. See Banco Mercantil, S.A. v. Hernandez Arencibia, 927 F.Supp. 565 (D.P.R.1996).

A balancing of the private interests factor heavily favors dismissal. The evidence and almost all the witnesses are in the Dominican Republic. Travel expenses and the expense of translating documents and depositions into English would be significant. See Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111 (Fla. 3d DCA 2002). Additionally, no special weight should have been given to the plaintiffs’ choice of forum because they are all foreign plaintiffs. See Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA 1997) (presumption favoring the plaintiffs’ choice of forum does not apply to foreign plaintiffs).

Although the public interest analysis is undertaken only when the parties’ interests are in equipoise and is not necessary in this case, the public interest factor also favors dismissal. The inquiry focuses on whether the nexus with the forum is sufficient to justify the forum’s commitment of judicial time and resources. See Kinney, 674 So.2d at 92. A company domiciled in the Dominican Republic allegedly committed torts against a Dominican company. The only nexus to Florida is that Smurfit Packaging administers ICD and CDVs business through Smurfit Latin America which is based in Aventura and Mursia is registered to do business in Florida. “Even the fact that a corporation has its principal place of business in Florida does not necessarily preclude application of the doctrine of forum non conve-niens.” Id. at 93. See also Cruise Ships Catering and Servs. Int'l, N.V. v. Tananta, 823 So.2d 258, 260 (Fla. 3d DCA 2002) (dismissal appropriate when alternate forum has a greater interest in resolving the dispute). Thus, the plaintiffs’ connection to Florida is tenuous and Mursia’s connection to Florida does not preclude dismissal.

We further find that the remedy sought is available in the alternative forum. Mur-sia and Hernandez offered evidence that ICD and CDV had already brought the same suit in the Dominican Republic and litigation was still pending there. Mursia’s attorney testified that these causes of action are available in the Dominican Republic. As a further safeguard, the parties must stipulate to certain conditions of dismissal and the trial court may retain jurisdiction over assets located in Florida in order to guarantee the potential remedy. See Kinney, 674 So.2d at 92. See also Calvo v. Sol Melia, S.A., 761 So.2d 461, 464 (Fla. 3d DCA 2000).

We therefore hold that the motion to dismiss for forum non conveniens should have been granted. Consequently, we need not determine whether personal jurisdiction exists as to Hernandez.

Reversed.


text:
    SATELITES MEXICANOS, S.A., de C.V., Appellant, v. TURN KEY, S.A. de C.Y., Appellee.
    No. 3D03-467.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Akerman Senterfitt and Stanley H. Wakshlag, and Oscar Sanchez, and Antonio Morin; Steven Paradise, for Appellant.
    Payton & Carlson, and Curtis Carlson, for Appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Satelites Mexicanos, S.A. de C.V. (“Satamex”) appeals from a non-final order which denied in part its motion to dismiss appellee Turn Key, S.A. de C.V.’s complaint based upon contractual venue/forum selection clauses. We reverse because the forum selection clauses in this case are mandatory and unambiguous.

Satmex owns and operates three orbit satellites that provide regional and continental satellite coverage throughout the United States and elsewhere. Turn Key is an independent contractor that leased satellite space capacity from Satmex and then sub-leased the satellite space capacity to defendants Gilat Latin America, Inc. and Spacenet, Inc., among others. Both Sat-mex and Turn Key are Mexican corporations each with its principal place of business in Mexico.

Satmex and Turn Key entered into two contracts. On October 1, 1998, they entered into an agreement written in Spanish, Contract No. 177-1, for satellite capacity on two Satmex satellites. The contract contains a forum selection clause, Clause 25, for which the parties submitted various English translations. On November 15, 1999, Satmex and Turn Key entered into a second agreement written in English, Contract No. 307-1, for the space capacity of another satellite. This contract also contained a forum selection clause, Clause 24. Both contracts were to remain in force contemporaneously and contained a list of Turn Key’s customers with whom Satmex was permitted to contract under certain conditions. Gilat and Spacenet appeared on the list.

On August 12, 2002, Turn Key brought suit against Satmex, Gilat and Spacenet for tortious interference, conspiracy, and breach of contract. Turn Key also brought a claim for unjust enrichment against Satmex. Turn Key alleged that Satmex, Gilat and Spacenet agreed to deal directly with each other to lease satellite space capacity and to exclude Turn Key from that arrangement. This would allow Satmex to control Turn Key’s customers, including Gilat and Spacenet, and allow Turn Key’s customers to pay less for the same service that Turn Key provided.

Satmex moved to dismiss Turn Key’s complaint based, in part, on the forum selection clauses in the contracts. On January 14, 2003, the trial court granted Sat-mex’s motion as to the breach of contract and unjust enrichment claims and denied the motion as to the remaining counts of tortious interference and conspiracy. The trial court found that the contract forum selection clauses mandated that the breach of contract and unjust enrichment claims be brought in Mexico. The court also found that Turn Key’s claims for tortious interference and conspiracy were sufficiently independent from the contract to allow the case to proceed against Satmex, Gilat and Spacenet. We agree that the trial court properly dismissed the breach of contract and unjust enrichment claims, but disagree that the tort claims should be tried in Florida.

Turn Key has not shown that the forum selection clauses are unreasonable or unjust. See Manrique v. Fabbri, 493 So.2d 437, 438-39 (Fla.1986); Copacabana Records, Inc. v. WEA Latina, Inc., 791 So.2d 1179, 1180 (Fla. 3d DCA 2001) (forum selection clauses should be enforced unless there is a showing that enforcement would be unreasonable or unjust). We conclude that the forum selection clauses are unambiguous and thus mandatory.

As a defense to the tort claims, Satmex argues that the contracts authorized it to deal directly with Gilat and the other clients. This issue cannot be resolved without resorting to the contracts. See, e.g., Bovis Homes, Inc. v. Chmielewski, 827 So.2d 1038, 1039-40 (Fla. 2d DCA 2002). We therefore find that the contract and tort claims are intertwined and should all be litigated in Mexico.

We thus reverse with directions to dismiss all of the pending claims against Sat-mex because the forum selection clauses expressly stipulate that jurisdiction be had in Mexico City.

      . Satmex filed two suits against Turn Key in Mexico, prior to the commencement of this action, seeking to recover payment on certain promissory notes which Turn Key executed under the contracts and for services Turn Key received but failed to pay for under the contracts.


author: TAYLOR, J.

text:
    NATIONAL VENTURES, INC. and Agra Industries Limited, Appellants, v. WATER GLADES 300 CONDOMINIUM ASSOCIATION, a Florida corporation, Appellee.
    No. 4D01-3920.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      Julian H. Kreeger of Julian H. Kreegar, P.A., Miami, for Appellants.
    G. Bart Billbrough of Billbrough & Marks, P.A., Coral Gables, for Appellee.
   TAYLOR, J.

National Ventures, Inc. and Agra Industries Limited (“National Ventures”) appeal a final order dismissing their claims against Water Glades 300 Condominium Association (“Water Glades”). We affirm the trial court’s dismissal of their fraud claim but reverse as to all other claims.

In 1978, National Ventures purchased Condominium Unit 23-D at the Water Glades 300 Condominium in Palm Beach. The condo was to be used as a vacation facility for company executives. When the condo was purchased, the condo declarations stated in pertinent part:

E. Occupants of Units:

(1) No Unit Owner, other than the Developer, shall permit his Unit to be occupied by any person other than the Unit Owner or his spouse, children, parents, siblings or any one or more of them, without the prior written consent of the Association, which shall not be unreasonably withheld or delayed.

(2) Where a Unit is owned by a corporate entity it shall designate, by a notice given to the Association, the permitted occupants of the Unit as it desires, and for such period of time as it desires. The occupants so designated, including the members of the immediate families of the persons so designated, shall thereupon be permitted to occupy the Unit.

The executives and their families used the condo for fifteen years without incident. In November 1993 National Ventures sent its yearly reservation list for the 1993-94 season. The president of the condo association wrote back to National Ventures, advising it that the association had amended the rules. The amendment stated that “Unit Owners are limited to having overnight guests, other than immediate family members, in the unit in the owner’s absence for a cumulative total of thirty (30) days during any calendar year.” The president requested National Ventures to revise its reservation list to comply with the amended provision.

National Ventures objected to the amendment as applied to a corporate owner. It explained to the association that, because a corporation can be physically present only through its “owners” or executives, National Ventures’s representatives, i.e., the executives, would be excluded as “non-owner” guests and thus prevented from using the condo for eleven months of the year. When Water Glades indicated that it would not exempt National Ventures from the new rule to accommodate its executives, the company filed suit against Water Glades for injunc-tive relief. It later filed an amended complaint seeking damages for the loss of use of its property and for continuing to have to pay maintenance and assessment fees.

Upon Water Glades’ motion, the trial court dismissed the amended complaint for failure to state a cause of action. National Ventures filed a Second Amended Complaint, alleging the following causes of action:

Count I-Acting Ultra Vires and Breach of Fiduciary Duty
Count II-Unjust Enrichment
Count Ill-Fraud
Count IV-Conversion
Count V-Interference with Business Relations
Count VT-Construetive Ejectment and/or Loss of Use of Property
Count VTI-Breach of Contract

After National Ventures sold the condominium and filed its Second Amended Complaint, Water Glades moved to dismiss it, claiming that the trial court lacked subject matter jurisdiction because certain counts had to be submitted to non-binding arbitration pursuant to section 718.1255, Florida Statutes, (1995) (Condominium Arbitration Act). Section 718.1255 requires that certain disputes involving unit owners and condo associations be submitted to arbitration before a case is filed in court. Accordingly, the court ordered arbitration for Counts I, II, V, VI and VII. It stayed Counts III and IV (Fraud and Conversion) pending arbitration.

In compliance with the court order, National Ventures petitioned the Florida Department of Professional Regulation for arbitration. Water Glades then filed a motion to dismiss the petition, arguing that the Condominium Arbitration Act did not apply because National Ventures, having sold the condominium, was no longer a unit owner. The arbitrator agreed and granted the motion to dismiss arbitration.

When National Ventures sought to return to the trial court, Water Glades moved to dismiss the five counts, arguing that the trial court lacked jurisdiction to decide the case because National Ventures failed to request a trial de novo within thirty days of the final arbitration order, pursuant to section 718.1255(4)(k), Florida Statutes, (1998). Subsection (4)(k) provides that an arbitration decision is final “if a complaint for a trial de novo is not filed in a court of competent jurisdiction in which the condominium is located within 80 days.” The trial court agreed with Water Glades that National Ventures had not complied with subsection (4)(k), and dismissed the five counts.

After a hearing on Water Glades’s motion to dismiss the remaining two counts, the court dismissed the fraud count for failure to allege the requisite elements for fraud and dismissed the conversion count because, due to the sale of the condo, there was no immediate right to possession of property.

The trial court erred in dismissing the five counts of National Ventures’s second amended complaint based on the thirty-day provision of section 718.1255(4)(k). This provision in the arbitration statute does not apply to these claims, because they are not subject to arbitration. As mentioned above, Water Glades had earlier succeeded in obtaining a dismissal of the arbitration petition by arguing that section 718.1255 did not apply to National Ventures’s claims. Indeed, the Condominium Arbitration Act applies only to disputes between a unit owner and a condominium association. See Clark v. England, 715 So.2d 365, 367 (Fla. 5th DCA 1998)(holding that the arbitrator lacked subject matter jurisdiction to hear the controversy because, although the plaintiff was a unit owner when she filed her complaint, she was not a unit owner when the causes of action arose); Ruffin v. Kingswood E. Condo. Ass’n, Inc., 719 So.2d 951, 953 (Fla. 4th DCA 1998)(finding section 718.1255 precluded arbitration of dispute where appellant was not a unit owner as the statute does not apply to arbitration of disputes between a condominium association and third parties); Fla. Admin. Code R. 61B-45.013(2).

Here, it was undisputed that National Ventures was no longer a unit owner when it filed its Second Amended Complaint. Thus, the arbitrator correctly ruled that it lacked jurisdiction. However, because the claims were not subject to arbitration under section 718.1255, the parties were not bound by the provisions of subsection (4)(k) of that statute. Consequently, the dismissal for lack of jurisdiction was not an adjudication on the merits, triggering the requirement for filing for a trial de novo within thirty days.

We also reverse the trial court’s dismissal of National Ventures’s conversion claim. The court dismissed this claim because the property at issue had already been sold. In so ruling, the court cited Page v. Matthews, 386 So.2d 815 (Fla. 5th DCA 1980), wherein the fifth district stated that “an action for conversion is regarded as a possessory action and the plaintiff must have a present or immediate right of possession of the property in question.” Id. at 816.

We do not interpret Page to mean that “present or immediate right of possession” requires plaintiff to possess the property up and through trial. On the contrary, “the plaintiff must establish that he was in possession of the goods, or entitled to possession, at the time of the conversion.” W. Page Keeton, et al., Prosser and Keeton on Torts, § 15, 102-03 (5th ed.1984). Furthermore, Restatement (Second) of Torts, § 225 states in relevant part:

For a conversion the actor is subject to liability to one who at the time was entitled to immediate possession of the chattel.
Comment:
b. The conversion may occur while the chattel is in the possession of a third person, in which case the converter is subject to liability to one who at the time of the conversion is entitled to the immediate possession of the chattel.
d. Either the person in possession of the chattel at the time of the conversion or the person then entitled to its immediate possession may recover the full value of the chattel at the time and place of the conversion.

Even though National Ventures ultimately sold the condominium, it was still deprived of its use from the time of the new declaration rules to the date of sale. ‘When ruling on a motion to dismiss for failure to state a cause of action, a trial court must accept the allegations of a complaint as true and in the light most favorable to the plaintiffs.” Lutz Lake Fern Road Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000). The trial court thus erred in dismissing National Ventures’s conversion claim for failure to state a cause of action.

Finally, we affirm the trial court’s dismissal of National Ventures’s fraud claim for failure to plead with specificity the alleged fraudulent actions of Water Glades. “[F]raud must be alleged with such particularity as the circumstances permit.” Morgan v. W.R. Grace & Co., 779 So.2d 503, 506 (Fla. 2d DCA 2000). The elements of fraud include:

(1) a false statement of fact; (2) known by the defendant to be false at the time that it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage or injury.

Mosley v. Am. Med. Int’l, Inc., 712 So.2d 1149, 1151 (Fla. 4th DCA 1998).

Here, there were insufficient allegations to support a claim for fraud. Essentially, the allegations complained about the enactment of the rule and asserted that the amendments to the original condominium declarations were the equivalent of a constructive fraud because Water Glades had a fiduciary duty to treat all of the unit owners equally and allow National Ventures the quiet enjoyment of its property. The complaint contained no allegations that Water Glades made false statements of fact which were known to be false and which induced National Ventures to act in reliance thereupon. Furthermore, the complaint did not sufficiently allege a fiduciary duty or an abuse of that duty to support a cause of action for constructive fraud. See Rogers v. Mitzi, 584 So.2d 1092 (Fla. 5th DCA 1991)(“a constructive fraud is deemed to exist where a duty under a fiduciary relationship has been abused”). The trial court thus properly dismissed National Ventures’ s fraud claim.

In sum, based upon the foregoing, we reverse the order dismissing Counts I, II, V, VI, and VII of National Ventures’s second amended complaint for failure to file for a trial de novo within thirty days of the arbitrator’s dismissal for lack of jurisdiction, and we reverse dismissal of National Ventures’s conversion claim. We affirm the dismissal of National Ventures’s claim for fraud.

AFFIRMED in part, REVERSED in part and REMANDED.

HAZOURI and MAY, JJ., concur.

      . Under rule 61B-45.013(2), Florida Administrative Code, "[t]he only disputes eligible for arbitration are those existing between a unit owner or owners and the association or its board of administration....”

      . The requirement of filing for a trial de novo within 30 days was previously addressed in subsection (4)(c). § 718.1255, Fla. Stat. (1995). Pursuant to the legislature's 1997 amendment of section 718.1255, this requirement is now under subsection (4)(k). See Ch. 97-301, § 2, at 5427, Laws of Fla. Both the parties and the court referred to subsection (4)(k) below.


author: STEVENSON, J.

text:
    Gordon C. BRYDGER, P.A., Appellant, v. Adrienne Victoria WOLFE and Larry C. Wolfe, Appellees.
    No. 4D02-552.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      Carin M. Porras of the Law Offices of Gordon C. Brydger, P.A., Fort Lauder-dale, for appellant.
    Victoria A. Calebrese of Lewis Kapner, P.A., West Palm Beach, for appellee Larry C. Wolfe.
    Martin H. Cohn of the Law Offices of Martin H. Cohn, Lake Worth, for appellee Adrienne Victoria Wolfe.
   STEVENSON, J.

Gordon C. Brydger, P.A., appeals an order denying its motion to satisfy an attorney’s charging lien as untimely. We reverse. Because Brydger’s notice of charging hen was filed in the original action prior to its termination, it was properly perfected. Additionally, Brydger promptly moved for a judgment on the charging lien once Brydger discovered that a final judgment had been entered without notice to him and without resolving the charging hen issue. We remand so that the trial court can determine the proper amount of the charging hen and impose the judgment against any responsible parties.

On April 25, 2000, Brydger filed a notice and claim for attorney’s charging hen and money judgment to secure fees owed by former wife, Adrienne Victoria Wolfe, in her dissolution action against former husband, Larry Charles Wolfe. A copy of the notice was sent to James M. Henderson, Esq., who was counsel for former husband at the time, and to former wife, who was then pro se.

On June 14, 2000, Brydger noticed Henderson and former wife that the claim for attorney’s charging lien and money judgment was set for an August 3, 2000 hearing. On June 30, 2000, by stipulation of counsel, Attorney Victoria A. Calebrese, Esq., was substituted as counsel of record for former husband. Following former husband’s change of counsel, the hearing set for August 3, 2000, was re-noticed for September 29, 2000. Notice resetting the hearing was sent to Henderson, now former husband’s ex-counsel, and to former wife.

At the September 29, 2000 hearing, the court orally granted the motion for charging hen, reserved jurisdiction to determine the reasonableness of the fees, and ordered Brydger to submit a proposed order reflecting its oral ruling. Neither former husband nor his counsel, Calebrese, attended the hearing, however, former wife was present and represented herself.

Three days later, on October 2, 2000, former wife and her new counsel, Eric S. Glatter, Esq., who was'retained during the three-day period following the hearing, went to mediation with former husband and Calebrese. Brydger was not given notice of the mediation. The parties reached an agreement at mediation which provided for a Plan A and a contingent Plan B. Plan B contemplated that both parties would pay Brydger’s fees for his representation of former wife.

On October 17, 2000, a final judgment of dissolution of marriage was entered by the court incorporating the mediation settlement agreement reached by the parties and reserving jurisdiction to enter orders relating to the enforcement of charging liens. On November 14, 2000, following entry of the final judgment, the court rendered its written order on Brydger’s motion it had orally granted on September 29, 2000, finding that Brydger was entitled to a charging lien.

In January of 2001, Brydger filed a motion claiming that he had just been made aware that the parties proceeded to final judgment without resolving his charging lien and sought an order determining the amount of charging lien and order satisfying the charging lien. Following a hearing on the motion, the trial court declined to determine the amount of the charging lien or require satisfaction of the charging lien on the grounds that the order granting the charging lien was untimely because it was filed on November 14, 2000, after the final judgment had been entered and because it had not reserved jurisdiction to enter such an order in the final judgment.

There is a fundamental difference between the perfection of a charging lien and the imposition of the lien on certain proceeds or property after it has been perfected. See Brown v. Vermont Mut. Ins. Co., 614 So.2d 574, 580 (Fla. 1st DCA 1993). “ ‘There are no requirements for perfecting a charging lien beyond timely notice.’ ” Id. (quoting Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So.2d 1383, 1385 (Fla.1983))(emphasis in original).

Thus, all that is required to entitle the attorney to perfect a charging lien “is for the attorney to file the notice of lien or otherwise pursue the hen in the original action” prior to its termination. Hannah v. Elder, 545 So.2d 503, 504 (Fla. 4th DCA 1989). So long as the notice of lien is filed before the case goes to final judgment or is dismissed, “ ‘The hen is chargeable against any person who, at the time notice of intent to claim a hen is given, holds monies or property which become proceeds of a judgment to be entered in the future.’ ” Hutchins v. Hutchins, 522 So.2d 547, 549 (Fla. 4th DCA 1988).

Id.; see also Heller v. Held, 817 So.2d 1023 (Fla. 4th DCA 2002), review denied, No. SC02-1510, 839 So.2d 698 (Fla. Feb.25, 2003); Gaebe, Murphy, Mullen & Antonelli v. Bradt, 704 So.2d 618 (Fla. 4th DCA 1997); Citizens & Peoples Nat’l Bank of Pensacola v. Futch, 650 So.2d 1008 (Fla. 1st DCA 1994); Newton v. Kiefer, 547 So.2d 727 (Fla. 2d DCA 1989); Wolfe v. Wolfe, 540 So.2d 901 (Fla. 4th DCA 1989); Hutchins v. Hutchins, 522 So.2d 547 (Fla. 4th DCA 1988).

Here, the record shows that notice was perfected as to both former wife and former husband. The notice of claim for charging lien and money judgment filed in the action and sent to former wife and former husband’s counsel, Henderson, on April 25, 2000, was ah that was required to perfect the claim of lien. We find no merit in former husband’s argument that the lien was not perfected as to him because the notice rescheduling the hearing was mistakenly sent to his former counsel, Henderson. By this time, the lien had already been perfected, and of course, Henderson’s knowledge would be imputed to former husband as their relationship had not been terminated at the time notice was sent on April 25, 2000. See In re Brugh’s Estate, 306 So.2d 599, 600 (Fla. 2d DCA 1975)(stating that “[generally an attorney is an agent for his client,” thus, notice given to the attorney is considered as notice to the client); see also Starling v. State, 799 So.2d 425 (Fla. 5th DCA 2001); Woodard v. Fla. State Univ., 518 So.2d 336 (Fla. 1st DCA 1987); State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980); Blynder v. Blynder, 294 So.2d 717 (Fla. 3d DCA 1974).

Moreover, Calebrese stated at the hearing that, on the morning of the mediation, former wife informed her of the hearing that had taken place on September 29, 2000, and that, as a result, she included the provision for Brydger’s fees in the settlement agreement. Thus, former husband was aware prior to the termination of the action that Brydger was making a claim for attorney’s fees. This was sufficient to put him on inquiry, which amounts in point of law to notice. See Applefield v. Commercial Standard Ins. Co., 176 So.2d 366 (Fla. 2d DCA 1965).

REVERSED and REMANDED.

KLEIN, J., and BAILEY, JENNIFER D., Associate Judge, concur.


author: POLEN, C.J.

text:
    Gabriel M. MATALON, Appellant, v. Terrell G. LEE, Appellee.
    Nos. 4D01-3800, 4D01-4102.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for Appellant/Gross-Appellee.
    Patrick B. Flanagan of Flanagan, Ma-niotis, Berger & Ryan, P.A., West Palm Beach, for Appellee/Cross-Appellant.
   POLEN, C.J.

Gabriel Matalón timely appeals a jury verdict awarding Terrell Lee compensatory and punitive damages arising from an automobile accident. We find all points raised in the direct appeal unpersuasive and affirm.

According to Lee’s complaint filed in Palm Beach Circuit Court, he was driving northbound on 1-95 in Jupiter in the morning hours of Sunday, March 21, 1999, when his car was rear-ended by Matalon’s. He suffered an injury to his neck and sued Matalón for damages, both compensatory and punitive. Matalón initially challenged the venue of the action. Then, on March 21, 2000, Matalón was deposed by Lee’s counsel. He testified he had been involved in a low speed front-to-front collision with Lee in Miami Beach, and that Lee had fled the scene of the accident.

A few months later, Matalón, now represented by substitute counsel, stipulated to the venue of the proceeding, in effect conceding the accident had actually occurred in Jupiter, and not Miami. Matalón also admitted he had been negligent; however, the issues of causation, damages, and punitive damages, would be tried by jury. Lee was allowed, over objection, to publish Ma-talon’s deposition to the jury as part of his case-in-chief. Matalón was then called as an adverse witness. He asserted his rights under the Fifth Amendment and refused to answer any questions regarding the events that had occurred on the night/early morning of the accident.

Lee testified he was driving home in the center lane of 1-95 on Sunday morning, March 21, 1999, when he felt something smash into the rear-end of his car. His car was turned sideways by the impact and he saw the vehicle that had struck his car pull up alongside him in the outside lane. Lee got out of his vehicle; the driver, later identified as Matalón, and another man approached him. They checked out the damage to the back of Lee’s car. Matalón then told him he had to go to his car to get his information. He then fled the scene. Lee wrote down a partial license plate number, which was later used to identify Matalón as the owner of the vehicle. Lee then drove himself to Jupiter Hospital. He had to undergo cervical disk fusion surgery in June of 2000 and now lives with five screws and a titanium plate in his neck.

Matalón moved for a directed verdict on the count for punitive damages, alleging there was insufficient evidence he had been intoxicated at the time of the accident, which was denied. The jury returned a verdict in Lee’s favor. He was awarded a total of $888,922.00 in damages, $13,500 of which represented punitive damages. Matalon’s post-judgment motion for new trial and/or remittitur was denied.

Matalón first contends the trial court committed error by allowing the admission of his deposition in Lee’s case-in-chief. We disagree. Florida Rule of Civil Procedure 1.330(a)(2) provides:

The deposition of a party ... may be used by an adverse party for any ‘purpose.

(Emphasis supplied.) Since Matalón was a party to this case, Lee, the adverse party, could use Matalon’s deposition for any purpose, including as part of his case-in-chief. Matalon’s contention that Lee should have been restricted to using the deposition for impeachment purposes misconstrues the law as it applies to party depositions. See LaTorre v. First Baptist Church of Ojus, Inc., 498 So.2d 455, 457-58 (Fla. 3d DCA 1986)(trial court erred in refusing to allow plaintiff to introduce defendant’s deposition in his case-in-chief, instead requiring the plaintiff to call the defendant as an adverse witness and then use portions of the deposition as impeachment of prior inconsistent statements; a party is entitled to use the deposition testimony of an adverse party “without being exposed to the witness’s evasiveness and other self-serving devices”); Canales v. Compania de Vapores Realma, S.A., 564 So.2d 1212 (Fla. 3d DCA 1990); Policastro v. Myers, 420 So.2d 324 (Fla. 4th DCA 1982). The fact that Matalón stipulated to negligence (and venue) does not act as a bar to Lee’s usage of Matalon’s deposition testimony. The deposition testimony of Matalón, a party, was still relevant where causation, damages, and punitive damages arising from Matalon’s conduct were at issue, and Lee was entitled to put that testimony before the jury.

Matalón further contends the trial court erred in denying his motion for a directed verdict on the punitive damages count. We disagree. A jury may award punitive damages where voluntary intoxication is involved in an automobile accident. See D’Amario v. Ford Motor Co., 806 So.2d 424, 438-39 (Fla.2001); § 786.72, Fla. Stat. (1997). Although there was no direct proof of intoxication on Matalon’s behalf (in no small part due to the fact that Matalón fled the scene of the accident), there was a wealth of circumstantial evidence of intoxication on Matalon’s behalf, including evidence that he had spent 7-8 hours in two bars on the night of the accident, his admission he had drunk “a beer or two and a sip of champagne,” the fact he had driven over 80 miles in the wrong direction leading up to the accident, the fact he had rear-ended a vehicle in the middle lane of 1-95 during daylight hours and clear weather, and the fact that he fled the scene of the accident and had not contacted the police. We conclude that this body of circumstantial evidence is sufficient for jury resolution as to whether Matalón was intoxicated. See, e.g., Naumowicz v. State, 562 So.2d 710 (Fla. 1st DCA 1990)(holding there was sufficient competent evidence to send circumstantial evidence prosecution for driving under influence manslaughter to jury). Lee did not indulge in an improper “stacking of inferences.” Cf. Publix Super Markets v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987). Rather Lee introduced a number of facts from which one inference was to be inferred — that Matalón had been voluntarily intoxicated at the time of the accident. Furthermore, we find no error in the instructions as read to the jury relating to the punitive damages claim.

While we find some comments made in closing by Lee’s counsel may have waded into the territory of improper argument, specifically improper appeals to the jury’s emotions, we find none of the comments in particular, or taken as a whole, were so prejudicial as to mandate reversal. See Knoizen v. Bruegger, 713 So.2d 1071 (Fla. 5th DCA 1998).

Finally, we hold the trial court did not abuse its broad discretion in denying Matalon’s motion for remittitur and/or new trial. See generally Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999)(trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict).

Lee’s cross-appeal of the order that granted him his attorney’s fees pursuant to section 768.79, Florida Statutes (2001), but refused to apply a multiplier to said award, is stayed pending the Florida Supreme Court’s resolution of this issue (whether or not a contingency multiplier may be applied to a fee award pursuant to section 768.79), currently before the Court on conflict jurisdiction in Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), rev. granted, Sarkis v. Allstate Ins. Co., 826 So.2d 992 (Fla. Sept.11, 2002). The underlying verdict in all other respects is affirmed. Lee is entitled to his appellate attorney’s fees for successfully defending this appeal pursuant to section 768.79.

AFFIRMED. Cross-appeal STAYED.

GUNTHER and SHAHOOD, JJ., concur.

      . Had Matalón admitted his previous deposition testimony {e.g., accident occurred in Miami Beach) had been falsified, he would have essentially admitted guilt to perjury.

      . We note this accident occurred before the effective date of revisions to a number of statutory provisions regarding punitive damages, all effective October 1, 1999. See §§ 768.72, 768.725, 768.73, 768.736, Fla. Stat. (1999). Had this cause of action accrued after the effective date of said provisions, the requirement to prove entitlement to punitive damages by "clear and convincing evidence” would not have applied, since intoxication was the basis for such damages. § 768.736, Fla. Stat.


text:
    Eddie DANIELS, Petitioner, v. Ken JENNE, as Sheriff of Broward County, Florida, Respondent.
    No. 4D03-2218.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2003.
    Alan H. Schreiber, Public Defender, and Donald J. Cannarozzi, Assistant Public Defender, Ft. Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner was charged with aggravated battery and aggravated assault and was released after posting bond; thereafter, he violated a condition of his pretrial release by failing to remain confined except for the times approved by his program personnel, in that he failed to return to his residence at 7:00 p.m. on May 7, 2003, turning himself in the next day when he learned his pretrial release supervisor was looking for him. He moved to reinstate pretrial release. At the hearing on the motion, his bondsman testified that he was willing to stay on the bond and his pretrial release supervisor had agreed to accept Petitioner back on pretrial release, as long as he was “on lockdown.” Neither evidence nor argument was presented by the state. Nevertheless, the trial court denied Petitioner’s request for release, continuing to hold him on a “no bond hold” for violating the terms and conditions of his release.

As the trial court denied the motion to reinstate based solely on Petitioner’s violation of a condition of his pretrial release without making any findings as to whether “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial,” § 907.041(4)(c)7, Fla. Stat. (2002), we grant the petition. We remand for the trial court to set an expedited hearing to determine whether reasonable conditions of release would protect the community and assure Petitioner’s presence at trial. See Buhbut v. Bieluch, 835 So.2d 1222 (Fla. 4th DCA 2003).

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


text:
    Charles E. HARDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1494.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    Charles E. Harden, Jr., Milton, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000).

PETERSON, MONACO and TORPY, JJ., concur.


text:
    Carliss JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1667.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    Carliss Johnson, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001); Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992).

SHARP, W., MONACO and TORPY, JJ., concur.


text:
    Raymond A. BURTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1457.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.

      Raymond A. Burton, Jr., South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Downs v. State, 740 So.2d 506 (Fla.1999); Zeigler v. State, 682 So.2d 48 (Fla.1993).

SHARP, W., SAWAYA and MONACO, JJ., concur.


text:
    Patrick Joseph McARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3925.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    Patrick Joseph McArthur, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287, 2003 WL 21088088 (Fla. May 15, 2003).

SAWAYA, MONACO and TORPY, JJ., concur.


text:
    Shaun Michael ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3719.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., SAWAYA and TORPY, JJ., concur.


text:
    Leroy HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3498.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy C. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., SAWAYA and PALMER, JJ., concur.


text:
    William Victor RODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3171.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Alison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., SAWAYA and MONACO, JJ., concur.


text:
    William H. CASE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2749.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    Thomas R. Mott, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AEFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and PALMER, JJ., concur.


text:
    Douglas Wade HARDIGREE, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-746.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2003.
    Robert B. Branson, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Leet v. State, 595 So.2d 959 (Fla. 2d DCA 1991).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    Robert E. HENDERSON, an individual, and Hart Transportation, Inc., a Florida corporation, Petitioners, v. Gary IRONS, as personal representative of the Estate of Robert Irons, and Gary Irons and Bonnie Irons, individually, Respondents.
    No. 1D03-1528.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    Glen H. Waldman and Christopher Bopst of Sacher, Zelman, Van Sant, Paul, Beiley, Hartman, Terzo & Waldman, Miami, for petitioners.
    Musa K. Farmand of the Law Offices of Curtis S. Fallgatter, Jacksonville, for respondents.
   PER CURIAM.

DENIED. Continental Equities, Inc. v. Jacksonville Transportation Authority, 558 So.2d 154 (Fla. 1st DCA 1990).

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    CONSTRUCTION BY SCOTT, INC., and FCCI Insurance Group, Appellants, v. Sheila SCHWAB, As the Personal Representative of the Estate of Charles Schwab (Deceased), Appellee.
    No. 1D02-1209.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    H. George Kagan of Miller, Kagan, Rodriguez and Silver, West Palm Beach, for Appellants.
    Jeffrey I. Jacobs of Malea & Jacobs, P.A., South Miami, and Joseph C. Segor, Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Orama v. Dunmire, 552 So.2d 924 (Fla. 1st DCA 1989).

ERVIN, KAHN and PADOVANO, JJ., concur.


text:
    RAY’S PLUMBING CONTRACTORS, INC., Appellant, v. TRUJILLO CONSTRUCTION, INC., Appellee.
    No. 1D02-2656.
    District Court of Appeal of Florida, First District.
    June 18, 2003.

      Timothy F. Burr and Patrick S. Martin of Galloway, Johnson, Tompkins, Burr & Smith P.L.C., Gulf Breeze, for Appellant.
    Carl D. Dawson of Dawson, Galant & Sulik, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant Ray’s Plumbing challenges a summary final judgment in favor of Trujillo Construction in which the trial court ruled that appellant’s acceptance, as contractor, of construction work completed by the appellee, as subcontractor, absolved appellee from any liability for injuries allegedly sustained by a third party at a construction site. At issue here is the applicability of the “completed and accepted” rule of Baader v. Looby, 126 So.2d 745 (Fla. 3d DCA 1961), relied upon by the trial court in its ruling. For the reasons that follow, we find that unresolved factual issues preclude summary judgment under the rule at this stage of the proceedings, and therefore reverse.

Arthur May, plaintiff below, filed a negligence action against both appellant and appellee, alleging that he sustained injuries when he stepped into a hole in the ground at the construction site where defendants had done work. May alleged that defendants were negligent in creating and leaving the hole on the property without filling or covering it, or providing an enclosure or barrier or otherwise marking or warning of the hole. Affidavits and other documents were filed, from which it appears that appellant contracted with ap-pellee for the performance of “jack-in-bores” at the site, and that the hole in question was a small hole dug by appellee “adjacent to the roadway and gate” at the project “for the apparent purpose of locating an underground line to prevent its rupture” by appellee during its work. Appellant’s project manager’s affidavit states that he was not informed of the hole’s existence by Trujillo, and that to his knowledge no employee of Ray’s was aware of the presence of the hole until after the accident. He further stated that the hole was not contemplated within the contract between the parties, and it was “not a hole that required dewatering [sic], pit excavation, backfilling, compacting or layout as contemplated in the contract between the parties.”

In the summary judgment, the trial court noted that the accident took place several days after appellee left the job site, and that appellant had paid the appellee and accepted the work. As mentioned above, the court applied the rule expounded in Baader, supra, and other cases, whereby one who performs work under a contract at a construction site will ordinarily not be held liable to third persons injured at the project after the work is completed and accepted by the contracting party. See also Seitz v. Zac Smith & Company, 500 So.2d 706 (Fla. 1st DCA 1987). However, this “completed and accepted” rule is not without exceptions, as when the completed work presents a dangerous condition that is unknown to the accepting party, and not discoverable by a reasonable inspection. See e.g., Slavin v. Kay, 108 So.2d 462 (Fla.1959); Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978).

We find the discussion in Slavin instructive. In order for the rule to apply so as to relieve its creator of liability the defective or dangerous condition causing injury must be one as to which the acceptor is “chargeable with knowledge”; and the liability of the creating party is terminated “only so far as the acceptor is to assume responsibility” (emphasis deleted). Slavin, at 467. As the Slavin court noted, liability based on this rule is determined by the consideration of the “nature of the defect,” and the “opportunity for discovery.” Id. Here, the pertinent facts as to the nature of defect and opportunity for discovery, while only marginally developed, nevertheless must be viewed in the light most favorable to the appellant, whose affidavit emphasizes that the hole in question was adjacent to the roadway and gate at the project, was not something that was contemplated within the work to be performed by appellee under the contract, and the existence of which was not within appellant’s knowledge. There is no factual showing that digging the hole in question was necessarily or customarily required as a part of, or even appropriate as an incident to, the performance of the “jack-in-bores” by appellee.

A summary final judgment is appropriate only when the moving party demonstrates that there are no genuine issues of material fact, and in addressing this issue the court must construe all inferences against the moving party. Greenleaf v. Amerada Hess Corp., 626 So.2d 263 (Fla. 4th DCA 1993); Spradley v. Stick, 622 So.2d 610 (Fla. 1st DCA 1993). Because the factual underpinnings are critical, cases such as Greenleaf and Spradley caution that the courts should be reluctant to grant summary judgment before the opposing party has an adequate opportunity for meaningful discovery. See also Smith v. Smith, 734 So.2d 1142 (Fla. 5th DCA 1999). In opposing summary judgment below, appellant’s counsel emphasized to the court that discovery in the case was “still in its infancy,” no depositions had yet been taken, and that it was premature to grant summary judgment. We agree with appellant that it was error to grant summary judgment before allowing appellant an opportunity for meaningful discovery. We further conclude that there are no uncontroverted facts which would justify summary judgment as a matter of law, and that the existence of unresolved factual issues precludes summary judgment at this stage.

The order appealed is REVERSED and the case is remanded for further proceedings.

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G., Senior Judge, concur.

      . Quotes are from the affidavit of appellant’s project manager. Further details as to the exact location, size, or description of the hole, its proximity to or connection with the work actually contemplated under the contract are absent from the record here. Appellant maintains in its memorandum in opposition to summary judgment that the hole was "some distance" from the area where appellee was performing its work under the contract.

      . The quoted statement was no doubt in refutation of an assertion in appellee’s affidavit that this part of the work was Ray's obligation under the contract.


text:
    Arvind PATEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0887.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    David P. Dearing of Rahaim, Watson, Dearing, Berry & Moore, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. King v. State, 687 So.2d 917 (Fla. 5th DCA 1997).

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    Robert SPINDELL, D.O., Petitioner, v. Yvette HANNON, as personal representative of the Estate of Nathan Scott Hannon, and on behalf of all survivors, Respondents.
    No. 1D03-1469.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    Jennings L. Hurt, III, Henry W. Jewett, II, and Jennifer A.J. Green of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, OR, for petitioner.
    W. Roderick Bowdoin of Darby, Peele, Bowdoin & Payne, Lake City; John D. Jopling, Gainesville; and John S. Derr, Tallahassee, for respondents.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995); Esman v. Board of Regents, 425 So.2d 156 (Fla. 1st DCA 1983).

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    Jimmy POWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1256.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    Baya Harrison, III, Montieello, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s request for a belated appeal from judgment and sentence in Columbia County Circuit Court case number 01-499-CF is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court, to be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

The trial court shall appoint counsel to represent petitioner on appeal, if petitioner qualifies for such an appointment.

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    Laduan M. REASE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1255.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    Laduan M. Rease, pro se, petitioner.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s request for a belated appeal from judgment and sentence in Escambia County Circuit Court case number 01-1790-CFA is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court, to be treated as a notice of appeal. Fla, RApp. P. 9.141(c)(5)(D).

The trial court shall appoint counsel to represent petitioner on appeal, if petitioner qualifies for such an appointment.

ERVIN, KAHN and HAWKES, JJ., concur.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Francisco ALBERTO, Appellee.
    No. 4D02-2045.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

The state appeals appellee’s sentence on the ground that the trial court incorrectly computed appellee’s scoresheet. We agree. The trial court incorrectly scored a charge pending for sentencing as a prior offense rather than an additional offense. We therefore reverse.

The appellee was convicted and sentenced for a 2000 charge of burglary of a conveyance with a battery and felony criminal mischief. Later, he was convicted and sentenced on a 2001 charge of burglary, aggravated battery, and felony criminal mischief. On each, he was sentenced as a youthful offender, ordered to boot camp, and placed on community control. While on community control for each conviction, the state filed affidavits of violation of probation on each case. Appellee admitted the violations, and the court proceeded to sentencing. On appellee’s sentencing scoresheet, the state scored the 2001 burglary with battery as the “primary offense” and the 2000 charges as “additional offenses.” Based upon the total sentence points of 170.8, the state recommended appellee be sentenced to 107.1 months, the bottom of the guidelines, on both violations of probation. The trial court sentenced appellee consistent with the state’s recommendation.

Subsequently, appellee filed a motion to mitigate his sentence, maintaining the state improperly scored the criminal offenses in the 2000 case as “additional offenses” rather than as “prior record” offenses. The state argued that because the 2000 offenses also were pending before the court for sentencing, they qualified as “additional offenses” under section 921.0021(1), Florida Statutes (2001). Nevertheless, the court accepted appellee’s interpretation, granted his motion, and scored the 2000 offenses as prior offenses, reducing his sentence to 68.7 months. The state appeals.

Florida Rule of Criminal Procedure 3.704(d) defines “primary offense,” “additional offense,” and “prior record,” in pertinent part, as the following:

(7) “Primary offense” means the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only one count of one offense before the court for sentencing shall be classified as the primary offense.
(8) “Additional offense” means any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.
(14) “Prior record” refers to any conviction for an offense committed by the offender prior to the commission of the primary offense.

See also § 921.0021(1), (4), (5), Fla. Stat. 2001.

Although the 2000 charges were committed by appellee prior to the time of the primary offense, they must still be considered “additional offenses” because they were pending for sentencing at the same time as the primary offense. See Fla. R.Crim. P. 3.704(7).

The supreme court addressed a similar problem in State v. Lamar, 659 So.2d 262, 263 (Fla.1995), in scoring an offense for which probation was violated together with the subsequent criminal offense which led to the violation. Although a committee note to the sentencing guidelines suggested that the defendant’s earlier offenses which resulted in the probation would be scored as “prior record” rather than as “additional offenses,” the supreme court determined that the note did not require the new substantive offenses or the underlying criminal offenses be scored in any particular manner, provided that the combination resulted in the most severe sanction. The court stated:

[W]henever a defendant is being sentenced for both a violation of probation and a new substantive offense, the violation of probation can be scored as either the primary offense or as prior record so long as it gives the most severe sanction. Likewise, the new substantive offense can be scored as the primary offense or as an additional offense provided the sentence results in the most severe sanction.

Id. at 265.

In like manner, scoring the offenses all pending for sentencing as “additional offenses” permits the most severe sanction and is consistent with both the rule and the statute.

We hold, therefore, that upon a violation of probation, offenses that are pending for sentencing together with the primary offense should be scored as additional offenses.

Reversed.

POLEN, C.J. and GROSS, J., concur.


text:
    Vaughn MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4095.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

After trial by jury, Vaughn Miller (“Miller”) was found guilty of possession of cocaine with intent to sell or deliver and guilty of resisting an officer without violence. Miller raises three arguments on appeal. First, Miller contends the trial court erred by failing to grant his motion for a new trial based on the prosecutor’s improper comment on his right to remain silent. We agree. Miller also contends the trial court erred in denying his motion for a mistrial based on comments made by a venireperson. We disagree. Miller’s third argument sought to correct the final judgment. This issue was resolved prior to this court’s review of the case and this argument is therefore moot.

Initially, Miller contends the trial court erred by concluding that the prosecutor did not improperly comment on his right to remain silent. The test to determine if a comment is an improper comment on a defendant’s right to remain silent is whether the statement is fairly susceptible of being interpreted by the jury as a comment on the defendant’s failure to testify. State v. Kinchen, 490 So.2d 21 (Fla.1985). “Unless it is harmless error, a comment on the defendant’s exercise of his right to remain silent is reversible error.” Kiner v. State, 824 So.2d 271 (Fla. 4th DCA 2002)(citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986).)

In this case, during closing arguments, the prosecutor commented to the jury that the judge “also instructed you that the defendant has the right to remain silent. And he does. He did not take the stand in this case. But there were two witnesses.” Defense counsel immediately moved for a mistrial arguing that the prosecutor’s comment was an impermissible comment on the defendant’s right to remain silent. The court denied the motion. For the reasons fully explained below we find this to be error and reverse and remand for a new trial.

In Varona v. State, 674 So.2d 823 (Fla. 4th DCA 1996) this court held that it was reversible error for a prosecutor to comment on the defendant’s right to remain silent during voir dire. The comments made by the prosecutor in Varona were as follows:

Now, you understand obviously that the defendant has a right to remain silent ... [I]f the defendant does decide to testify, and he doesn’t have to do anything. He could sit there and play crossword puzzles as long as he behaves himself. [I]f the defendant were to choose to testify, were to give a statement, would you look at his* testimony as you would the testimony of any other witness or person? ... And you understand he doesn’t have to do anything in a criminal case. He doesn’t have to even say one word and that’s his right, okay?. You understand I can’t comply [sic] the defendant to take the witness stand either. So I can’t call him as a witness for any reason ...

In Varona, this court noted that it was the right of the defense to open voir dire discussion up on the issue of a defendant’s right to remain silent and commented that “[b]ecause of the common belief that the innocent have nothing to hide, courts vigilantly protect the right to remain silent against the devaluation by innuendo or faint praise.” Id. at 826. This court explained the comments were improper “in that they tended to demean a constitutional right and call undue attention to appellant’s decision whether or not to testify.” Id.

Although distinguishable because the improper comment in the case at bar did not occur during voir dire, we find the comment made by the prosecutor in this case equally improper. The comment in this case called undue attention to Miller’s decision whether or not to testify. Furthermore, pointing out during closing argument that the defendant did not take the stand is certainly fairly susceptible of being interpreted by the jury as a comment on the defendant’s failure to testify.

“An error is harmless only where, after close examination of the permissible evidence and even closer examination of the impermissible evidence, it is clear that the testimony did not affect the jury verdict and was harmless beyond reasonable doubt.” Kiner v. State, 824 So.2d 271 (Fla. 4th DCA 2002)(citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986).) The State bears the burden of showing that there is no reasonable possibility that the error contributed to the conviction. Id.

In an attempt to show the error was harmless, the state contends that the testimony of the state’s witnesses, two detectives, was consistent while the testimony of the two defense witnesses was not. In Kiner, this court found an erroneous comment on a defendant’s right not to testify harmful. In that case, the court pointed out that the state’s case centered around credibility of witnesses and circumstantial evidence. The court differentiated Kiner from those cases where courts have found harmless error, pointing out that Kiner was not a case involving the defendant’s subsequent confession or overwhelming evidence of guilt. Id. In Kiner, The court concluded that because the evidence against Kiner was less than overwhelming, it could not be said that the improper comment was harmless beyond a reasonable doubt. Id.

In this case, two officers testified that Miller had a candy container and engaged in a drug transaction with an unidentified woman. However, the defendant put on two witnesses who testified that the unidentified woman had the candy container of drugs, not Miller. In addition, no money or drugs were found on Miller when he was detained. This case is aMn to Kiner in that the case centered around the credibility of the witnesses and the evidence of Miller’s guilt was not overwhelming. As a result, in the face of the improper comment on Miller’s right not to testify, we conclude that the state did not satisfy its burden of showing that there is no reasonable possibility the error contributed to Miller’s conviction. For that reason, we find the trial court erred in denying Miller’s motion for a new trial.

Next Miller asserts the trial court erred in denying his motion for a mistrial after a venire person allegedly tainted the jury. Although we are sending the case back for a new trial for the reasons explained above, we write to clarify on this point. “Our standard for review of the denial of the motion for a mistrial is whether the trial court abused its discretion.” Durrant v. State, 839 So.2d 821 (Fla. 4th DCA 2003) A motion for a mistrial should only be granted when the error is so prejudicial as to vitiate the entire trial. Pagan v. State, 830 So.2d 792 (Fla.2002).

During voir dire, the prosecutor asked a potential juror if she could be fair and impartial. She responded as follows: “No, I don’t think so. I think I know the man. I think I waited on him in a business that I had at one time. I was watching him. I would think he was guilty.” Defense counsel’s motion for a mistrial was denied, and the court gave the following curative instruction:

Members of the jury panel, let me just remind each of you the instruction I read, that number one, the defendant is presumed innocent and that that presumption stays with him as to each and every stage of the trial unless it has been overcome by the evidence beyond and to the exclusion of a reasonable doubt. I’m just paraphrasing, but I read the entire instruction to you earlier. I just want to remind you of that. Let me just remind you, when we ask you if you can be fair and impartial, you have not heard any of the evidence, all we ask is that you are willing to listen to the evidence in the case and render a fair and just verdict based solely on the evidence and on the law that will be contained in the instruction I give you.

In support of his argument that this comment should have resulted in a mistrial, Miller cites cases where courts have held that it was error for a venire panel not to be stricken in its entirety after learning of the defendant’s previous arrest history or involvement in other criminal activity. See, e.g., Kelly v. State, 371 So.2d 162 (Fla. 1st DCA 1979)(reversed where jury panel was sworn which included members of jury panel from defendant’s other criminal case.); Wilding v. State, 427 So.2d 1069 (Fla. 2d DCA 1983)(holding that a defendant’s right to a fair trial is violated when the jury is improperly made aware of a defendant’s arrest for unrelated crimes.)

We find these cases inapposite, as the comment in this case did not insinuate that Miller had any previous criminal charges or that the potential juror was aware of any criminal activity Miller may have been involved in.

In Brower v. State, 727 So.2d 1026 (Fla. 4th DCA 1999), certain members of the venire were overheard making comments such as “hang him,” “Why are we going through this?”, “Where I come from they would have just strung him up,” and “They are going to have to prove to me that he did not do it.” Id. at 1026. All of the potential jurors who were heard making such comments were stricken, but the court rejected defense’s request to strike the entire panel and denied the motion for a mistrial. Id. After commenting on the standard of review afforded in this situation, and noting that voir dire continued after this was brought to the court’s attention giving counsel time to investigate whether any jurors had prejudged the case based on the inappropriate comments, this court concluded as follows:

We recognize that the conduct of the prospective jurors in question is not only shocking, but represents sad and cynical attitudes held and demonstrated by certain segments of our citizenry. Nevertheless, Appellant was not deprived of a fair trial by the trial court’s decision to conduct an inquiry and proceed with those jurors who had not acted offensively and who Appellant has not shown were otherwise tainted. To hold otherwise would impose a per se reversal rule, undermine the trial court’s discretion, and effectively impugn the integrity of the remaining jurors who were able to disregard their inadvertent exposure to the boorish and insolent antics of their fellow citizens.
The right in question is a right to an impartial jury. Prospective jurors are frequently exposed, before and during voir dire, to innumerable comments, attitudes, and points of view, the subscription to which would be improper for an unbiased juror. Simply because the offensive comments were made during the time the prospective jurors were members of a jury venire, there is no reason to apply a different standard here than is generally applied in reviewing the trial court’s decisions in voir dire under analogous circumstances. Although we agree that this court should reverse if it is shown that a manifest injustice resulted from the trial court’s refusal to strike the venire, here, such a conclusion would be speculation.

Id. at 1027 (internal citations omitted).

We find the case at bar analogous to Brower. In this case, after the potential juror made the comment, voir dire continued for some time. Therefore it is clear that counsel had plenty of time to investigate whether any jurors had prejudged the case based on the inappropriate comment. Additionally, the juror who made the comment was excused from the panel. In this case, there was one comment from one juror that Miller alleges tainted the entire panel. In Brower, numerous comments from numerous venire-persons were at issue and this court concluded that the court acted within its discretion when it denied the motion for a mistrial.

Following Brower and based on the discretion afforded to the trial court;, we find that the trial court did not abuse its discretion in this regard.

KLEIN and GROSS, JJ., concur.