author: MONACO, J.

text:
    Ronald Jay COATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3673.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.

      James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

There were a lot of odd things that happened in this case, but in the final analysis, each was properly addressed by the trial judge, and none require a reversal. Ronald J. Coates appeals the judgment and sentence that resulted in his conviction of first degree premeditated murder and a sentence of life imprisonment. He seeks a new trial.

The testimony at the jury trial reflected that after a series of altercations with the victim, Jeremy Welch, Mr. Coates shot Mr. Welch in front of a number of witnesses. After the initial volley of gunfire, the victim fell to the ground on his face. Mr. Coates and his accomplice then approached the fallen Mr. Welch and continued to shoot until Mr. Welch died. An autopsy reflected that the victim had been shot ten times. Mr. Coates appeals a number of rulings made by the trial judge, only three of which merit discussion.

A. JURY QUESTIONING AND NOTE-TAKING.

Mr. Welch asserts as error the trial court’s decision to allow the jury to take notes during the trial and to ask questions of witnesses under controlled circumstances. Mr. Coates objected to each procedure both prior to trial and at the trial. We find no error.

The court authorized jurors to take notes, but advised the jury that their notes could not leave the court room at any time, except that jurors would be permitted to take them into the deliberation room when they retired to consider their verdict. He told them as well that their notes would be collected at the conclusion of the trial and shredded, and that no one would read them. He reminded them that notes are intended as an aid to memory, but should not take precedence over their independent recollections of the evidence. Finally, he advised them that whether they elected to take notes was up to each juror individually, but that they should not be distracted from the evidence by taking notes. Mr. Coates objected to the procedure, however, because he argued, “that’s very confusing, distracting. They overemphasize notes over memory, et cetera.” We conclude that his objections to note-taking were, not well-founded.

The arguments for and against allowing jurors to take notes were summarized concisely in United States v. Maclean, 578 F.2d 64 (3d Cir.1978). The strongest arguments for note-taking are that it is a valuable tool for refreshing memory and helps jurors to concentrate on the proceedings. The arguments against include concerns that the best note-takers may dominate a jury, or that too much emphasis might be placed on notes. As the Maclean court pointed out, however, there is no particular need to decide whether the dangers of note-taking outweigh its benefits. It is enough to conclude that the benefits are substantial enough to allow judges to decide on a case-by-case basis whether to permit it.

Thus, whether to allow a jury to take notes and use them in deliberations is a question within the sound discretion of the trial court. See Kelley v. State, 486 So.2d 578, 588 (Fla.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986); see also United States v. Rhodes, 631 F.2d 43 (5th Cir.1980). Frankly, it is hard to understand why anyone would find note-taking by jurors to be offensive. Studies reflect that juries allowed to take notes are better informed about the evidence and the law to be applied, and that note-taking is not distracting or disruptive. J.D. Cowan, et al., What Lawyers Think of Jury Trial Innovations, 86 Judicature 192 (2003); R. Creswell, Georgia Courts In The 21st Century, 53 Mercer L.Rev. 1 (Fall 2001). Certainly trial judges routinely take notes during non-jury trials when the judge is the trier of fact, and for years jurors have routinely been allowed to take notes during eminent domain trials without evident adverse effect. Florida Eminent Domain Practice and Procedure (2000), Chapter 11, Jury Instructions, 11-7. Moreover, the legislature saw fit to adopt a statute calling for jurors to be allowed to take notes in civil trials that are likely to exceed five days, provided jurors were properly instructed on the use of notes. See § 40.50(2), Fla. Stat. (2002); see also Fla. Std. Jury Instr. (Civ.)1.8(a). We see no logical reason, therefore, why a trial court cannot exercise its sound discretion in extending the privilege of note-taking to juries in criminal trials.

In the present case the trial judge opted to allow the jury to take notes, and carefully and capably instructed it on the subject of note-taking. We perceive no abuse of discretion, and consequently no error in this regard.

Similarly, the court allowed the jury to ask questions of witnesses in a carefully controlled environment. The judge instructed the jurors to write any questions they might have with respect to a witness on a sheet of paper and to hand the document to the bailiff. Jurors were then asked to leave the courtroom while the judge reviewed the questions with the attorneys and ruled on any objections. Thereafter, the jury was readmitted to the courtroom and the judge asked the question of the witness. Each attorney was then given the opportunity to ask follow-up questions.

Mr. Coates does not appear to object to any particular question that was asked. Rather, he argues that the court abused its discretion in allowing jury questioning at all. He asserts that the process of jury questioning compels jurors to become advocates, rather than neutral finders of fact. We again find no abuse of discretion.

We conclude instead that the benefits of allowing jury questioning of witnesses is substantial, and that a trial court may exercise its sound discretion in determining whether to use it in a particular case. Our supreme court has approved jury questioning of witnesses, so long as the judge controls the procedure. See Watson v. State, 651 So.2d 1159 (Fla.1994), cert. denied, 516 U.S. 852, 116 S.Ct. 151, 133 L.Ed.2d 96 (1995). While there have been some misgivings expressed, the district courts of appeal have likewise sanctioned controlled jury questioning. See Henderson v. State, 792 So.2d 641 (Fla. 1st DCA 2001); Patterson v. State, 725 So.2d 386 (Fla. 1st DCA 1998); Tanner v. State, 724 So.2d 156 (Fla. 1st DCA 1998); Bradford v. State, 722 So.2d 858 (Fla. 1st DCA 1998); Pierre v. State, 601 So.2d 1309 (Fla. 4th DCA 1992); Scheel v. State, 350 So.2d 1120 (Fla. 3d DCA 1977); see also § 40.50(2), Fla. Stat. (2002). Similarly, virtually all federal jurisdictions that have considered jury questioning have sanctioned it under proper controls. See United States v. Hernandez, 176 F.3d 719 (3d Cir.1999); Shackelford v. Champion, 156 F.3d 1244 (10th Cir.1998), cert. denied, 525 U.S. 1150, 119 S.Ct. 1050, 143 L.Ed.2d 56 (1999); United States v. Feinberg, 89 F.3d 333 (7th Cir.1996), cert. denied, 519 U.S. 1133, 117 S.Ct. 997, 136 L.Ed.2d 876 (1997); United States v. Sutton, 970 F.2d 1001 (1st Cir.1992); United States v. Land, 877 F.2d 17 (8th Cir.), cert. denied, 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d 194 (1989); United States v. Polowichak, 783 F.2d 410 (4th Cir.1986); United States v. Callahan, 588 F.2d 1078 (5th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); United States v. Gonzales, 424 F.2d 1055 (9th Cir.1970). See, generally, Joshua H. Tucker, Comment, The Impartiality Question, Should Juror Witness Questioning Be Upheld, 25 Ham-line L.Rev. 517 (2002).

The procedure adopted by the trial court in the present case is essentially the one suggested by the Fourth District in Pierre v. State, 601 So.2d 1309 (Fla. 4th DCA 1992). While it may not be the only procedure that might be found acceptable, it is certainly one that assures careful control over the process. We accordingly find no abuse of discretion in its application during the trial of Mr. Coates.

B. MISSING EXHIBITS.

Mr. Coates’ defense was basically that he had been mistakenly identified as the person who shot the victim, Mr. Welch. After the jury was instructed and had deliberated for about 6 hours it asked to see certain photographic lineups that had been admitted into evidence and shown to the jury. Although the trial court and counsel thought that all of the trial exhibits had been sent back with the jury at the start of deliberations, they soon learned that the photo lineups and several other pieces of evidence had not been given to the jury.

Counsel for Mr. Coates eventually discovered that he had inadvertently placed the documents in his truck when his staff gathered up all of his trial materials at the conclusion of the trial. He apologized for his unintentional actions (which apologies and explanations were accepted by the trial judge), but then moved for a mistrial because the jury did not have the exhibits during the whole of its deliberations. He argued that giving the jury the exhibits now would place undue emphasis on them. The court, however, noted that each of the missing exhibits had been published to the jury when they were admitted, and decided to give the exhibits to the jury after instructing them appropriately.

His instructions essentially told the jury that the exhibits had not gone to them at the outset of their deliberations because of human error, and that they were not to accord any additional weight to the exhibits solely because they were being given to them late. More specifically he told them:

With regard to these exhibits, do not place any special emphasis or undue weight. You are to weigh them just like you would any other evidence in this case.
Simply because they are tendered to you late, they’re still evidence like all of the other exhibits in evidence in the case. You are to rely on your own recollections of the evidence, and you are to rely upon the testimony and the evidence as it occurred here in the courtroom, and these exhibits that are tendered to you will be brought to you in the jury room.

Mr. Coates argues that section 90.106, Florida Statutes (2001), compelled the granting of a mistrial. That statute prohibits a judge from summing up evidence, or commenting to the jury on the weight of the evidence, the credibility of the witnesses, or the guilt of the accused. His theory is that by sending the evidentiary exhibits to the jury after the start of deliberations, coupled with instructions concerning their late delivery, the judge was commenting on the evidence by placing undue emphasis on these particular exhibits. We disagree.

While we have found no cases directly on point (and none have been called to our attention), some insight is offered by Griffin v. State, 414 So.2d 1025 (Fla.1982). In Griffin the defendant was being tried for felony murder, the underlying felony being robbery. Several hours after jury deliberations began, the trial court realized in responding to a jury question that it had failed to instruct the jury on the elements of robbery. The judge recalled the jury, read them the appropriate instruction, and allowed them to retire to deliberate. Among the arguments made by the defendant in his appeal was that the late instruction placed “undue emphasis” on the late-given instruction. The supreme court determined that the defense argument “is insufficient without more to show that the instruction placed an undue emphasis on the felony murder theory.” Griffin, 414 So.2d at 1028. See also Bottoson v. State, 443 So.2d 962 (Fla.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153 (1984).

The determination of whether substantial justice requires the granting of a mistrial is within the sound discretion of the trial court. See Sired v. State, 587 So.2d 450, 452 (Fla.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992). Here, where the exhibits had already been published to the jury, and where the trial judge explained the mistake in not sending them to the jury earlier, and where he instructed that no special emphasis was to be placed on the late exhibits simply because they were coming to them late, we do not perceive that any undue emphasis was placed on the exhibits, and we find no abuse of discretion.

C. THE JURY ROOM EASEL.

Yet another bizarre event occurred in this trial. Apparently the jury asked for an easel to be brought into the jury room for use during its deliberations. At the end of the first day of deliberations a bailiff inexplicably went into the jury room and removed the easel by carrying it through the courtroom. On the easel the jury had written the results of a preliminary vote: 7 guilty, 2 not guilty, 3 undecided. The results were apparently seen by counsel for both sides and members of the public.

Mr. Coates moved for a mistrial on the theory that the sanctity of the jury room had been invaded. The State responded that there was no jury misconduct, and no attorney misconduct, and that it was no more than an “inadvertent display of jury work product.” The court agreed with the State and denied the mistrial.

Once again, no cases have been brought to our attention that deal with this precise situation. Mr. Coates does cite three cases that concern circumstances where an interim jury vote was made known to the trial court preliminary to the giving of an Allen charge. See Lebron v. State, 799 So.2d 997, 1013 (Fla.2001), cert. denied, 535 U.S. 1036, 122 S.Ct. 1794, 152 L.Ed.2d 652 (2002); Washington v. State, 758 So.2d 1148, 1153 (Fla. 4th DCA), rev. denied, 786 So.2d 1192 (Fla.2000); Scoggins v. State, 691 So.2d 1185, 1187-88 (Fla. 4th DCA 1997), approved, 726 So.2d 762 (Fla.1999). In those cases the appellate courts indeed referred to the “inherent harm” of having the jury reveal its interim position. The “harm” referenced, however, is not based simply on the giving of a “half-time score.” Rather, it is the potential coercive effect of having the jury reveal its deadlocked voting position prior to giving the Allen instruction that is the cause for concern. In this connection the Lebrón court said as follows:

We conclude that the potential for harm is inherent in an inquiry as to numerical division. The deliberations of a jury are extremely sensitive, and nothing should be done by the trial court to directly or indirectly influence a jury’s deliberations, especially in a way that might divide or cast one juror or group of jurors against the others.

Lebron at 1013.

In the present case there is nothing arising out of the removal of the easel that the court has done that might influence the jury’s deliberations. So far as we can tell from the record, the jury was completely unaware that their interim vote had been inadvertently made known.

In order to conclude that a new trial is warranted on this basis, Mr. Coates would have to demonstrate that the publication of the information on the easel somehow worked to his prejudice. Cf., Bottoson, 443 So.2d at 966 (To be entitled to a mistrial defendant would have to show that presence of unauthorized object in jury room somehow prejudiced him). He has not done so. Thus, while unfortunate, and certainly not to be encouraged, the display of the easel without more is not in the present ease a ground upon which we could reverse the judgment and sentence.

D. CONCLUSION.

Mr. Coates asserts a number of other errors purportedly made by the trial court. We find, however, that none of these arguments is meritorious. While several unusual occurrences punctuated the trial of Mr. Coates, we find no abuse of discretion on the part of the trial judge, and no other basis for reversal. Given the strong evidence of his guilt, and his spirited defense, we are satisfied that Mr. Coates received a fundamentally fair trial. Accordingly, we affirm the judgment and sentence.

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Fla. Std. Jury Instr. (Crim) 3.06.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Griffin ENNIS, Petitioner, v. James Frank ENNIS, Respondent.
    No. 5D03-1632.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Ira C. Hatch, Jr., of Hatch & Doty, P.A., Vero Beach, for Petitioner.
    James Frank Ennis, Orlando, Pro Se.
   MONACO, J.

In this dissolution proceeding the petitioner, Mary Griffin Ennis (“Wife”), seeks a writ of prohibition, arguing that the trial judge should have granted her motion for disqualification. We conclude that the trial court erred in not granting the motion.

The facts of this case are based on a verified motion of the Wife for disqualification of the trial judge, the allegations of which we take as true for the purposes of considering this petition. See Peterson v. Asklipious, 838 So.2d 262 (Fla. 4th DCA 2002); Lamendola v. Grossman, 439 So.2d 960 (Fla. 3d DCA 1983). The motion reflects that based on an earlier appeal in this case [Ennis v. Ennis, 819 So.2d 1007 (Fla. 5th DCA 2002)], the trial court set a trial date of April 8, 2003, at 1:30 p.m., to complete certain remaining issues between the parties. Counsel for the Wife was also serving as counsel in an unrelated federal action. A court ordered settlement conference was scheduled in the federal case for the day after the trial of the present case. Two weeks before the trial, however, the federal court rescheduled the settlement conference for the morning of April 8th. Believing that the settlement conference would be fruitless and would not exceed two hours, counsel for the Wife determined that he could attend both court proceedings without difficulty. As a precaution, however, he had the Wife attend the federal proceeding, as well.

According to the motion, however, at the beginning of the settlement conference the federal magistrate judge announced for the first time that all parties and their counsel would be required to remain at the federal courthouse until the case was settled, no matter how long it took. At that point the Wife’s counsel informed the magistrate judge of the scheduling conflict and requested that he contact the state trial judge to resolve it. The magistrate’s clerk informed the Wife and her counsel that the state court judge had been contacted, and that he requested a letter from the magistrate confirming the conflict. Wife’s counsel indicates that he was further advised that upon receiving the letter, the state court judge would excuse the Wife and her counsel from appearing.

During the afternoon of April 8th, the federal magistrate called everyone back into the courtroom and stated in open court to Wife’s counsel that he had received a communication from the state judge’s office to the effect that “if you ever intend to practice before Judge Evans again, you had better call him this afternoon.” The Wife’s counsel attempted to call the state court judge twice, but got only an answering machine. The following morning he wrote the judge, apologized, explained the circumstances and requested that the trial be reset. A day later the Wife’s counsel received an order from the state court judge which found that the Wife’s counsel failed to comply with the Rules of Judicial Administration, and suspended the respondent’s obligation to pay temporary alimony and an income deduction order. The Wife then filed her motion to disqualify.

The legal sufficiency of a motion to disqualify is reviewed by a de novo standard. See Peterson, 833 So.2d at 263. The issue for our consideration is whether the motion demonstrates a well-founded fear on the part of the moving party that he or she will not receive a fair trial or hearing at the hands of the trial judge. See Johnson v. State, 769 So.2d 990 (Fla.2000); Roy v. Roy, 687 So.2d 956 (Fla. 5th DCA 1997). In determining legally sufficiency, a reviewing court must consider whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983).

In Livingston the supreme court pointed out that a trial judge may be disqualified because of prejudice towards an attorney if the prejudice is of such a degree that it adversely affects the client. Id. at 1087; see also, Ginsberg v. Holt, 86 So.2d 650, 651 (Fla.1956). The court went on to say:

Prejudice against a party’s attorney can be as detrimental to the interests of that party as prejudice against the party himself. What is important is the party’s reasonable belief concerning his or her ability to obtain a fair trial.

Livingston, at 1087.

The trial judge in the present case was obviously frustrated with the events that led up to the non-appearance of the Wife and her counsel at the scheduled trial. Indeed, not all comments in the nature of vented frustration require disqualification. See, e.g., Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA), rev. denied, 805 So.2d 810 (Fla.2001). When the judge signals a predisposition about a case, however, a party’s fears concerning the fairness of an impending hearing or trial are well-founded. See Roy; Wargo v. Wargo, 669 So.2d 1123 (Fla. 4th DCA 1996).

Here, the reported comments of the trial judge, compounded by the entry of an order punishing the party because of his attorney’s unexpected scheduling conflict would put a reasonable party in fear that he or she would not receive a fair trial. Under the circumstances, the trial judge should have granted the disqualification.

WRIT OF PROHIBITION GRANTED.

PETERSON and GRIFFIN, JJ., concur.


author: VAN NORTWICK, J.

text:
    Keith JORDAN and Lesley Jordan, Appellants, v. Terry Lee BROWN and John E. Brown, Jr.
    No. 1D01-3526.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.

      Harold R. Mardenborough Jr., of McFarlain & Cassedy, P.A., Tallahassee, for Appellants.
    Thomas J. Brown and Hubert R. Brown of Brown and Brown, P.A., Tallahassee, for Appellees.
   VAN NORTWICK, J.

Keith Jordan and Lesley Jordan, defendants in a statutory liability suit filed by Terry Lee Brown and her husband, John E. Brown, Jr., appellees, pursuant to section 767.01, Florida Statutes (1995), appeal an amended final order determining that the jury verdict in their favor was against the manifest weight of the evidence and awarding the Browns a new trial. Because we conclude that the trial court abused its discretion, we reverse.

Mrs. Brown was employed as a home health aide by Tallahassee Memorial Regional Medical Center. In that capacity, she worked in the Jordans’ home. While at the Jordans’ home, the Jordans’ dog aggressively jumped on Mrs. Brown, causing her to fall. She finished work that day. Over the next few days Mrs. Brown saw several physicians complaining of back pain. The Browns filed an action against the Jordans seeking damages for statutory liability under section 767.01, Florida Statutes (1995)(“Owners of dogs shall be liable for any damage done by their dogs to a person....”). The Jordans acknowledged that their dog caused Mrs. Brown to fall, admitted liability under section 767.01, but denied that she suffered any injury.

Because the Jordans admitted statutory liability, at trial, the central issue was whether Mrs. Brown had suffered an injury in the fall. The medical records and notes or testimony of the physicians who examined her for complaints of pain were introduced into evidence. The record reflects that none of these physicians found any objective basis for Mrs. Brown’s subjective complaints of pain or could opine that she suffered any permanent injury as a result of the fall. Mrs. Brown introduced the testimony of a chiropractor and a physical rehabilitation doctor, each of whom opined that she had suffered a permanent injury.

At trial, the Jordans also introduced a surveillance tape of Mrs. Brown, which showed her fully ambulatory and having no difficulty performing her varied work tasks. This tape was markedly different than a videotape taken of Mrs. Brown in the doctor’s office only a few months earlier, in which Mrs. Brown appeared to be having considerable difficulty performing tasks. Counsel for the Jordans stressed the differences in these videos to the jury, challenging Mrs. Brown’s credibility. In addition, the Jordans demonstrated inconsistencies in Mrs. Brown’s testimony and her lack of candor with the economist who testified as an expert on her behalf.

On the jury verdict form, the first question for the jury was whether Mrs. Brown had suffered an injury as a result of the fall caused by the Jordans’ dog. At the conclusion of the trial, the jury returned a verdict finding that Mrs. Brown had not suffered an injury as a result of the fall. Accordingly, the jury never answered the remaining questions concerning the amount of damages sustained by Mrs. Brown.

Thereafter, the Browns filed a motion for new trial or, alternatively, motion for an additur. The trial court entered an order granting a new trial. The initial order, however, failed to set forth the specific grounds for the trial court’s action. Pursuant to rule 1.530(f), Florida Rules of Civil Procedure, and Prime Motor Inns, Inc. v. Wattman, 480 So.2d 88, 89-90 (Fla.1985), this court relinquished jurisdiction and the trial entered an amended order granting new trial which provides, in pertinent part, as follows:

The uncontroverted evidence at trial was that the plaintiff had fallen and been injured when the defendants’ dog aggressively jumped on or at her. There was no conflicting testimony as to the reason for the plaintiffs fall. The identity and ownership of the dog were not even contested issues. There was un-controverted testimony that plaintiff was injured and incurred medical bills as a result of the fall. There was substantial controversy over the extent of the plaintiffs injury, but none over the fact that she was permanently injured as a result of the dog’s conduct. The jury returned a verdict finding that the dog’s conduct was not the legal cause of the plaintiffs injury. The verdict failed to comport with the manifest weight of the evidence. Accordingly, the plaintiff is entitled to a new trial.

The trial judge has broad discretionary authority in granting a new trial on the grounds that the verdict is contrary to the manifest weight of evidence. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980). As the Broum court explained:

The trial judge’s discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts. This discretionary power emanates from the common law principle that it is the duty of the trial judge to prevent what he or she considers to be a miscarriage of justice. The role of the 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.

Brown, 749 So.2d at 495 (citations omitted). The trial court should always grant a new trial if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). Brown also explained our standard of review in an appeal of an order granting a new trial:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

Brown, 749 So.2d at 497-98.

Here, the trial court ruled that the verdict was contrary to the manifest weight of the evidence. This determination was based solely on the trial court’s findings, as stated in the order under review, that “[t]here was uncontroverted testimony that plaintiff was injured and incurred medical bills as a result of the fall” and, further, although there was substantial controversy over the extent of her injuries, that there was “none over the fact that she was permanently injured as a result of the dog’s conduct.” We find no record basis, however, to support the trial court’s reasoning in the order under review.

Liability was not contested at trial. However, whether Mrs. Brown had been injured in the fall and the extent of her injuries were hotly contested, contrary to the findings of the trial court’s order. Mrs. Brown’s case turned largely upon her testimony that she injured her back in the fall caused by the Jordans’ dog. The Jor-dans introduced considerable testimony and a surveillance tape which demonstrated inconsistencies in her story on material issues in the case. The Jordans’ impeachment of Mrs. Brown’s testimony was legally sufficient to place her credibility in question. As a result, the jury was entitled to judge her credibility and accept or reject her testimony on all issues. See Roach v. CSX Transportation, Inc., 598 So.2d 246, 250 (Fla. 1st DCA 1992). Because Mrs. Brown’s entire case rose or fell on her testimony, “if the jury disbelieved [Mrs. Brown’s] story, then [her] entire claim for damages for injuries collapsed.” Chomont v. Ward, 103 So.2d 635, 637-38 (Fla.1958).

In reviewing an order granting new trial we are dependent on the trial court to articulate reasons supporting its order. Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978)(“Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.”). For the reasons explained above, we conclude that the trial court’s finding that there was no controversy over the fact that Mrs. Brown was permanently injured has no support in the record and is clearly erroneous. Further, because it is clear from the record that the issue of whether plaintiff was injured in the fall was highly controverted, the trial court’s finding that “[t]here was uncontroverted testimony that plaintiff was injured” is similarly clearly erroneous. Accordingly, we find that the trial court abused its discretion under the Brown test. Brown, 749 So.2d at 496-98; see also Borino v. Publix Supermarkets, Inc., 825 So.2d 424, 426-27 (Fla. 4th DCA 2002); Department of Transportation v. Rosario, 782 So.2d 927 (Fla. 2d DCA 2001); Bailey v. Sympson, 148 So.2d 729, 731 (Fla. 3d DCA 1963).

The trial court’s order granting a new trial is REVERSED.

BOOTH AND HAWKES, JJ., CONCUR.


author: PER CURIAM. POLSTON, J.

text:
    Jack GREENBERG, Appellant, v. CARDIOLOGY SURGICAL ASSOCIATION and Claims Center-Lakeland, Appellees.
    No. 1D02-2221.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.

      Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

The claimant in this workers’ compensation appeal challenges an order by which the judge of compensation claims (JCC) denied his request for an award of penalties and interest pursuant to sections 440.20(6) and 440.20(8), Florida Statutes. For the reasons set forth below, we reverse.

It is undisputed that the Employer/Carrier (E/C) in this case was, on several occasions, late in its payment of non-award disability benefits owed to the claimant, appellant. Applying Florida Administrative Code Rule 38F-24.0231, in which the Division of Workers’ Compensation set forth its interpretation of section 440.20(6), the JCC ordered the E/C to pay penalties in the amount of twenty percent of the first installment not paid before the expiration of the statutory seven-day grace period, and the sum of five dollars for each subsequent late installment. We agree with claimant’s argument that Rule 38F-24.0231 finds no possible support in the language of the statute. The claimant argues instead for an interpretation of section 440.20(6) that would require the E/C to pay for all late installments an amount equal to twenty percent “or five dollars,” whichever is greater, just as the statute did before the 1994 amendments. We agree that claimant is entitled to the twenty percent penalty on all installments, but on a different interpretation than the one urged by claimant.

Both parties acknowledge that this is a case of first impression, calling for an analysis of legislative amendments to section 440.20, effective 1994. Before amendment, section 440.20(7) provided that when a non-award compensation installment was not paid within fourteen days after becoming due, the E/C was required to pay, in addition to the compensation, an amount equal to “the greater of’ ten percent of the unpaid installment or five dollars. The legislature renumbered subsection (7) by changing it to subsection (6), shortened the grace period from fourteen to seven days, labeled the payment a “punitive penalty,” raised the percentage portion of the award from ten to twenty percent, and particularly relevant to the case at hand, removed the words “the greater of’ from the text. Ch. 93-415, § 26, at 140, Laws of Florida. Thus, prior to the 1994 amendments, the pertinent sentence of subsection (7) read as follows:

... there shall be added to such unpaid installment a punitive penalty of an amount equal to the greater of 10.per-cent of the unpaid installment or $5....

Following the 1994 amendments, that provision — renumbered subsection (6) — was changed to read:

... there shall be added to such unpaid installment a punitive penalty of an amount equal to 20 percent of the unpaid installment or $5....

We conclude, as did the JCC below, that the deletion of the words “the greater of’ in section 440.20(6) rendered the provision ambiguous. We find it also unintelligible. By its literal wording, the amended statute now provides for a percentage penalty and an alternative penalty, with no indication as to the conditions under which the alternative shall be applied, the method for determination, or by whom the determination is to be made. This obviously does not further the legislative goal of creating an “efficient and self-executing system ... which is not an economic or administrative burden.” § 440.015, Fla. Stat.

Because the rights of the parties in the ease before us must nevertheless be adjudicated, we begin by applying ordinary rules of statutory construction, looking to the legislative history, purposes, and text of the pertinent statutes in order to derive the meaning of the particular statute before us. We note, significantly, that in the session law in which it made the questioned amendments, although the legislature deleted the words “the greater of’ in subsection (6), it left the bulk of the remaining language of the subsection intact. Ch. 93-415, § 26, at 140, Laws of Fla. Finding no other reasonable alternative, and none more reasonable being put forth by either party, we can come to no logical conclusion except that the legislative draftsmen’s failure to also strike the term “or $5” was an oversight. Although appellant argues that striking “the greater of’ was done by mistake, we think it is more logical and reasonable to give effect to this most recent and deliberate change, and instead to find that mistake occurred in the failure to also omit “or $5,” which of course dictates the same result sought by appellant, namely, payment of a twenty percent penalty on all later installments.

In support of our decision we note the admonition that although generally, in construing a statute, the courts should not take liberty to ignore or delete any of the words employed therein, a court may do so if the words at issue are so meaningless or clearly inconsistent with the legislative intent that they should be ignored as mere surplusage. See generally Haworth v. Chapman, 113 Fla. 591, 152 So. 663 (1933). “[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” State v. Goode, 830 So.2d 817 (Fla.2002).

We find further support for our conclusion that legislative oversight accounts for the failure to delete the term “or $5” from section 440.20(6) by consideration of the penalty provision related to untimely payments owed pursuant to an award, currently appearing in 440.20(7), Florida Statutes. That provision has, since its inception, required a penalty payment of twenty percent. Ch. 17481, Laws of Fla. (1935). We find it noteworthy that the legislature changed some of the provisions of subsection (7) in the same session law in which it amended section 440.20(6), by reducing the grace period for the payment of compensation from thirty days to seven days. Thus, both penalty statutes now provide for the same grace period and employ the same percentage penalty for unpaid installments. See Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575-76 (Fla.1958) “([I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, court will examines the entire act and those in pari materia in order to ascertain the overall legislative intent.”) We are persuaded that it is more accurate to assume that a desire for consistency guided the legislature in making these amendments, rather than to assume that it intended to enact an unintelligible provision.

Accordingly, because we can only conclude that the legislature inadvertently failed to omit the term “or $5” from section 440.20(6), we read the statute as requiring a payment of twenty percent penalty on all non-award compensation installments not paid within the seven-day grace period. We therefore find that the JCC erred in applying the method of calculation set forth in Rule 38F-24.0231. Although the Division’s interpretation is entitled to great deference with respect to matters within its delegated authority, it is ultimately within the province of the courts to interpret the workers’ compensation statutes. See, e.g., Okeechobee Health Care v. Collins, 726 So.2d 775 (Fla. 1st DCA 1998). “It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute.” Willette v. Air Products, 700 So.2d 397 (Fla. 1st DCA 1997) (quoting State, Dep’t of Bus. Regulation v. Salvation Limited, Inc., 452 So.2d 65, 66 (Fla. 1st DCA 1984)).

For the reasons stated we reverse the order appealed and remand for entry of an order consistent with this opinion. We reject the E/C’s request for application of the de minimus rule and direct that on remand, the E/C be ordered to pay all interest due under Section 440.20(8), Florida Statutes.

VAN NORTWICK, J., and SMITH, LARRY G., SENIOR JUDGE, CONCUR; POLSTON, J., CONCURS IN PART AND DISSENTS IN PART WITH WRITTEN OPINION.

POLSTON, J.

concurring in part and dissenting in part.

Section 440.20(6), Florida Statutes (1994) states in relevant part that “there shall be added to such unpaid installment a punitive penalty of an amount equal to 20 percent of the unpaid installment or $5.... ” I agree with the majority that (i) the administrative rule followed by the appellees and the JCC, requiring penalties of 20% of the first late installment and then $5 for each late installment thereafter, is not supported by the statute, and (ii) the statute should not be read by adding the words “the greater of’ 20% or $5 because those words were explicitly stricken by legislative changes to the statute.

However, without any support or argument by the parties for such an action, the majority simply rewrites the “or $5” language out of the statute and concludes that 20% should be paid on all late payments. See Jordan v. State, 801 So.2d 1032, 1034 (Fla. 5th DCA 2001)(“We agree that it is not the prerogative of this court to melt this statute and recast it in a mold of our choosing. The general principle which we must adhere to, simply put, requires this court to interpret legislation, not rewrite it.”); Sunshine Vistas Homeowners Ass’n v. Caruana, 623 So.2d 490, 492 (Fla.1993)(ruling that the Court “lack[s] the power to delete words from the statute”). Therefore, I respectfully dissent.

It is undisputed that the E/C paid claimant, consistent with the plain language of the statute, each penalty payment in an amount equal to 20% of the unpaid installment or $5. Therefore, the JCC’s ruling that no additional penalty payments are due should be affirmed.

      . Appellant filed a notice of intent to rely on subsequent authority, calling our attention to House Bill 1837 of the current legislative session, which, among other things, deletes the term “or $5” from section 440.20(6), Florida Statutes. We note that the legislature did subsequently amend section 440.20(6) to delete the words "or $5.” See Ch.2003-412, § 24, at 76, Laws of Fla. This amendment, which clarifies the ambiguity in the statute, may be considered in interpreting the legislative intent of section 440.20(6). See Finley v. Scott, 707 So.2d 1112, 1116 (Fla.1998)("[a]l-though the 1993 statute applies to this case, we accept the addition of this sentence to the statute as clarifying legislative intent ...”); Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982)(quoting Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788, 790 (Fla.1952))("The rule seems to be well established the interpretation of a statute by the legislative department goes far to remove doubt as to the meaning of the law. The court has the right and the duty, in arriving at the correct meaning of a prior statute to consider subsequent legislation.”)

      . In addition, our interpretation gives practical effect to the remaining provisions of section 440.20(6), which retain the former provisions allowing the employer or carrier to be excused from payment of the penalty upon a showing that “such nonpayment results from conditions over which the employer or carrier had no control.” As appellant points out, it is not likely that this escape provision would have been deemed necessary, nor would the other provisions, such as the one providing for waiver by the claimant, have been included if, as the Division’s rule interpreting the statute implies, the legislature intended that only a $5.00 penalty would be imposed for each unpaid by-weekly installment subsequent to the first unpaid installment, rather than a penalty of twenty percent as we have interpreted the legislative intent.

      . I also agree with the majority that the E/C’s request for application of the de minimus rule on the unpaid interest due under section 440.20(8) should be rejected and the JCC’s denial of interest reversed and remanded.


author: BENTON, J. PADOVANO, J.,

text:
    Errol Austin ROLLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3544.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Errol Austin Rollman seeks specific performance of what he not unreasonably took as the trial court’s promise (in exchange for his plea) to sentence him to no more than ten years’ imprisonment for robbery with a firearm. As we read our supreme court’s decision in Davis v. State, 308 So.2d 27 (Fla.1975), we are obliged to affirm, but we also certify questions of great public importance.

At a hearing on June 12, 2002, the trial judge assured Mr. Rollman, his lawyer and an assistant state attorney (who was not a party to any plea bargain) that, if he entered a plea of nolo contendere, Mr. Roll-man would receive a sentence of no more than ten years in prison:

MR. WEAVER (defense counsel): Your Honor, Mr. Rollman is entering a plea of no contest to the charge of robbery armed with a firearm. The plea agreement that we anticipate is that he would plea[d] to a cap of an adjudication of guilt and ten years in the Department of Corrections with credit for all time served since the date of his arrest_
MR. GEISSEL (prosecutor): ... I just want the record to reflect .... [that tjhere’s no agreement with the state on this particular plea_
THE COURT: The Court has capped it at ten.
MR. GEISSEL: Right, the Court indicated it would cap it at the ten year minimum mandatory.... However, there’s no agreement with the state.

Again during the plea colloquy, the trial judge reiterated, more than once, that Mr. Rollman’s maximum sentence would be ten years in prison. He asked him, for example: “Do you understand that by entering this plea the most you can get is ten years in the Department of Corrections and that you would get credit toward that for any time you’ve already done ... ?” (Emphasis added.)

On August 14, 2002, however, the same trial judge who had accepted the plea pronounced a probationary split sentence. See Poore v. State, 531 So.2d 161, 164 (Fla.1988) (describing-the possibilities for resentencing that probationary split sentences afford). He sentenced Mr. Rollman not only to ten years’ imprisonment, but also to a ten-year probationary period following his release from prison, plus restitution and court costs.

Under the sentence the trial court imposed, ten years in prison is only the beginning. Because robbery with a firearm is a felony “punishable by imprisonment for a term of years not exceeding life imprisonment,” § 812.18(2)(a), Fla. Stat. (2002), any subsequent revocation of probation — and it has recently been held that a probationer’s failure to file a single monthly report may justify revoking probation, see State v. Carter, 835 So.2d 259, 261 (Fla.2002) — might mean appellant’s return to prison for the remainder of his life. See § 944.275(4)(b)(3), Fla. Stat. (2002) (“State prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency.”).

At the sentencing hearing, defense counsel reminded the. trial judge that he had said at the plea hearing that he would not impose a sentence in excess of ten years’ imprisonment, if Mr. Rollman entered a plea of nolo contendere, which Mr. Roll-man had then done, and that the plea had been accepted. The defense moved ore tenus to vacate the probationary portion of the sentence (and to dispense with restitution). But the trial court denied the motion without stating grounds, and, in due course, the present appeal was taken. Mr. Rollman now asks us to vacate the probationary portion of the sentence he received. (He makes no argument regarding restitution.)

In Davis v. State, 308 So.2d 27 (Fla.1975), our supreme court held that Vikki Davis was not entitled to specific performance of a plea agreement she had made with the trial court. In that case, Mrs. Davis pleaded guilty to the sale of a narcotic drug in reliance on the trial court’s promise

that the Court will place you on probation and the Court will withhold adjudication and that a condition of the probation will be some time in the Orange County Jail; that it will be a minimum period of at least four months and a maximum of one year. And, that eight-month period depends on what the pre-sentence investigation reveals.

Id. at 28. But “[d]uring the pendency of the presentence investigation, ... [Mrs. Davis] was arrested for possession of less than five grams of marijuana.” Id. The trial court adjudicated her guilty, and sentenced her to seven years’ probation, with the condition that she serve one year in the Orange County Jail.

Mrs. Davis “declined to withdraw her earlier guilty plea when given the opportunity to do so; instead, she elected specific performance of the plea agreement as her remedy,” id., moving unsuccessfully to vacate the judgment on the ground that her adjudication violated the plea agreement. The district court affirmed without opinion, and the supreme court rejected Mrs. Davis’s argument that she was “entitled to specific performance of the plea agreement entered into with the trial court,” explaining:

It is our view that, even if the trial judge’s indication of leniency is the only inducement a defendant has in pleading guilty, the court is not bound by it. If for any reason the plea bargain is not carried out, the defendant has two alternatives: (1) he may withdraw his plea and proceed to a disposition of the matter without any of his admissions, statements, or other evidence given in the plea negotiations being used against him; or (2) he may agree to proceed with the guilty plea without being bound by any conditions or agreements. The result is that, if the trial judge decides not to fulfill the tentative plea agreement, the case is returned to the position it was in prior to the plea negotiations, thereby imposing no unfair disadvantage on a defendant.

Id. at 28-29. See also State v. Warner, 762 So.2d 507, 514 (Fla.2000) (“A judge’s preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge’s sentencing discretion. If the judge later determines that the sentence to be imposed must exceed the preliminary evaluation, then the defendant who has pleaded guilty or nolo contendere in reliance upon the judge’s preliminary sentencing evaluation has an absolute right to withdraw the plea.”).

The Davis case can be distinguished from the present case, in that the trial judge in the present case did not condition the sentence he proposed, in exchange for Mr. Rollman’s plea of nolo contendere, on what the presentence investigation report might reveal; in that Mr. Rollman was not arrested for committing another offense between his plea and his sentencing; and in that, as far as the record reveals, the trial judge received no adverse information about Mr. Rollman after his plea of any kind from any source. But we read Davis as laying down a rule that a trial judge cannot be held even to the clearest undertaking, not even where the judge’s assurances unquestionably induced a plea which may lead to life in prison.

We are not entirely certain, however, that the rule of Davis is intended to apply where, as here, nothing in the record explains the trial judge’s change of heart; or, indeed, that the rule of Davis can apply here, where no “additional facts ... [come to light] prior to sentencing,” Warner, 762 So.2d at 514, consistently with due process and the courts’ essential attributes of reliability, integrity, and principled decision making. See generally McCray v. State, 851 So.2d 221 (Fla. 3d DCA 2003). Accordingly, we certify as questions of great public importance:

WHERE A TRIAL COURT ANNOUNCES THE MOST SEVERE SENTENCE THAT WILL BE IMPOSED IN THE EVENT OF A PLEA, MAY THE TRIAL COURT THEREAFTER, ONCE THE PLEA HAS BEEN ACCEPTED, PRONOUNCE A MORE SEVERE SENTENCE WITHOUT ANY STATED REASON OR ANY REASON APPARENT FROM THE RECORD? IF SO, MUST THE TRIAL COURT AFFIRMATIVELY OFFER THE DEFENDANT AN OPPORTUNITY TO WITHDRAW THE PLEA?

Endorsing judges’ involvement (when asked to take part) in reaching plea bargains, our supreme court recently explained that one important advantage of judicial participation is that “it provides a firm basis for reliance on a plea.” Warner, 762 So.2d at 513. The criminal justice system will operate with greater fairness, predictability and efficiency — and in a fashion more likely to inspire public confidence — if the parties and their counsel can rely on the trial court’s plea-inducing assurances, in cases where countervailing considerations do not justify a later change in position.

Affirmed.

BROWNING, J., CONCURS; PADOVANO, J., Concurring in the Result with Opinion.

PADOVANO, J.,

concurring in the result.

I join in the court’s decision to affirm, but not for the reasons given in the majority opinion. When the trial judge promised the defendant a cap of ten years, it was clear to everyone present that he was referring only to the portion of the sentence that would be served in the Department of Corrections. The judge made no promise to the defendant regarding any other aspect of the sentence. Consequently, I do not think that the trial judge violated any condition of the plea by including a twelve-year probationary term.

The term “cap” is often used in plea bargaining to refer to the maximum amount of time a defendant will serve in custody. Those who work in the criminal justice system are accustomed to thinking this way, because the scoring of an offense under the Criminal Punishment Code calculates only the applicable prison term, and has no application to probation. Likewise, the scoring under every previous version of the sentencing guidelines was keyed to prison time and did not include probation. So, within this framework, the term “cap” is generally understood to signify only the incarcerative portion of the sentence.

The defendant would be entitled to relief if he had made a plea agreement with the state for a cap of ten years in the Department of Corrections and if it was clear from the agreement that no other kind of penalty was to be imposed. If the plea agreement represents the entire understanding of the parties and if it does not mention probation, the court could infer that probation is not an option. See Green v. State, 700 So.2d 384 (Fla. 1st DCA 1997); Eggers v. State, 624 So.2d 336 (Fla. 1st DCA 1993). But the defendant in this case had no agreement with the state. All he had was the judge’s promise that his prison term would not exceed ten years. The judge made no representation to the defendant regarding a fine, restitution, court costs, or probation, and he certainly did not lead the defendant to believe that he intended to make an agreement with him on any of these issues.

The defendant does not seek to withdraw his plea. Instead, he seeks specific performance of the promise he assumes the judge made to him before he entered the plea. Reduced to its essential terms, the defendant’s argument is that the absence of a promise about any sanction other than the prison term is an implication that his sentence was to consist entirely of a prison term. Of course, that is not the only conclusion one could draw from these facts. A more reasonable explanation is that other potential sanctions were simply left open.

After the sentencing hearing, the defendant’s lawyer argued that the total sentence including the probationary term exceeded the judge’s promise for a cap of ten years. If there had been any possible chance the defendant had been confused about the conditions of his plea, the judge would have allowed him to withdraw the plea then and there. However, the judge immediately dismissed the argument. It was obvious to him, as it should have been to everyone else, that the defendant understood the risk he was facing when he entered his plea.

The majority opinion points out that the defendant could eventually receive more time than he bargained for, but that much could be said of anyone who is placed on probation. The weakness in this argument is that a greater sentence could be imposed only if the defendant were to commit a substantial violation of his probation. That would be a new event that would trigger a new set of rights and obligations. With an exception for those who receive suspended sentences, no defendant who violates probation has a right to a sentence that is within the terms of the original plea agreement.

I would affirm on the ground that the sentence does not violate any reasonable expectation the defendant may have had at the time he entered his plea.

      . [O]nce the court revokes probation ..the court resentences the offender on the original charge, and may "impose any sentence which it might have originally imposed before placing the probationer ... on probation....” § 948.06(1), Fla. Stat. (1995). The court then is to grant credit for time served, unless such credit has been waived as part of a plea bargain.

        Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000).

      . MR. WEAVER: I just wanted to put on the record our bench conference. I approached and explained to the Court that the plea had been for an adjudication of guilt and a cap of ten years DOC and that that plea was' accepted by the Court about two months ago.
      I’m arguing to the Court that the ten years probation, restitution and court costs goes beyond the cap the Court had already set for the sentence.

      . In arguing that the state had not been a party to the agreement, the prosecutor did not take issue with defense counsel's description of the agreement:
      MR. GEISSEL: No, the Court agreed to a ten year cap. The state never agreed to a ten year cap.
      MR. GEISSEL: You indicated that you would do the ten year cap.

      . MR. WEAVER: Just for the record, I make a motion to vacate the probationary part of the sentence and reduce the restitution to a civil judgment.
      THE COURT: That motion is denied.

      . Although he argued against the probationary term, Mr. Rollman's trial counsel did not move to withdraw the nolo contendere plea. Accordingly, Mr. Rollman seeks only vacation of the probationary portion of his sentence on the present appeal; he does not seek an opportunity to withdraw his plea. See Anderson v. State, 215 So.2d 618, 619 (Fla. 4th DCA 1968) ("Reversal on appeal is not to be expected in the absence of judicial error of the lower court assigned, stated and argued in appellants’ brief.").


author: SHARP, W„ J.

text:
    Perry ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2672.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.

      Perry Alexander, Raiford, pro se.
    No Appearance for Appellee.
   SHARP, W„ J.

Alexander appeals from the trial court’s order which summarily denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. On appeal, he raises two grounds.

Alexander argues the trial court erred in denying his motion to withdraw his guilty plea. In the case below he pled guilty to one count of attempted sexual battery and two counts of committing a lewd act upon a child. This claim is procedurally barred since it is one that could or should have been raised on direct appeal. In fact, it was raised on his direct appeal to this court in 5D00-3336, as indicated by this court’s records in that case.

But even if we reach the merits of this point, Alexander is not entitled to relief. Alexander argues his counsel coerced him into entering into the plea by failing to show him medical evidence against him and by warning him he could be sentenced to 165 years in prison, if convicted at trial. The attached transcript of the plea hearing reflects that counsel discussed with him his options and the terms of the plea agreement. Since he was originally facing three life sentences on three capital sexual battery charges, any coercion that may have existed is solely attributable to the sheer seriousness of the charges themselves.

Alexander also claims his appellate counsel was ineffective. However, as the lower court points out in its order denying relief, a claim of ineffective assistance of appellate counsel is not cognizable in a rule 3.850 motion, but rather must be raised in a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c), filed in the appellate court.

We affirm the lower court, but without prejudice to Alexander to file a petition for belated appeal properly raising the issue of ineffective assistance of appellate counsel.

AFFIRMED.

PETERSON and MONACO, JJ., concur.

      . §§ 794.011(2) and 800.04(1), Fla. Stat. (1997).


author: PER CURIAM.

text:
    Sidney HOWARD, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-1126.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Sidney Howard, petitioner, pro se.
    William L. Camper, General Counsel, and Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, for respondent.
   PER CURIAM.

Sidney Howard seeks certiorari review of the circuit court’s denial of his petition for writ of habeas corpus, in which he challenged the revocation of his conditional release supervision. We grant the petition, quash the circuit court’s order, and remand for reconsideration in light of Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1st DCA 2003).

Howard was charged with violating the terms of his conditional release supervision when a urinalysis test conducted three days after his release from prison yielded a positive result for the presence of marijuana. He admitted at the revocation hearing that he had smoked marijuana approximately one week before his release from prison, unaware at the time that he would be “on parole” following his release. The parole examiner accepted Howard’s testimony that his drug use occurred before he was placed on conditional release supervision, and thus found him not guilty of the alleged violation. Notwithstanding the examiner’s factual determination, the Parole Commission revoked Howard’s conditional release, finding that he had admitted his violation at the revocation hearing.

We conclude that the record presented to the circuit court does not support the conclusion that Howard admitted violating the terms of his conditional release supervision. Although the parole examiner’s written summary of the revocation hearing reflects that Howard entered a plea of “guilty” to the alleged violation, it is apparent from the substance of the summary that Howard was admitting only that he had used marijuana while still in prison and before being placed on conditional release. While the circuit court did not have the benefit of our decision in Tedder at the time it ruled, that decision makes it clear that the Parole Commission was not at liberty to reject the parole examiner’s factual finding that Howard’s misconduct occurred prior to his placement on conditional release supervision, or to otherwise interpret the evidence to fit its desired conclusion. Moreover, because Howard’s admitted misconduct occurred prior to entry of the order placing him on conditional release supervision, we reject the Parole Commission’s assertion that it may lawfully serve as a basis for revocation. Cf. Hinton v. State, 462 So.2d 583 (Fla. 2d DCA 1985); compare Stafford v. State, 455 So.2d 385 (Fla.1984).

Accordingly, the order denying Howard’s petition for writ of habeas corpus is quashed, and as in Tedder, we remand the matter to the circuit court for reconsideration. We further direct the circuit court to expedite its reconsideration of Howard’s petition.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Sunil A. AMIN, Appellant, v. MAYORS JEWELERS, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 1D03-3200.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Sunil A. Amin, pro se, appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for appellees.
   PER CURIAM.

Appellant seeks review of an order of the Unemployment Appeals Commission which found that an appeals referee had erred in determining that the claimant is entitled to benefits. Although a hearing was held before the appeals referee, only the employer made a telephone appearance at that hearing.

The Unemployment Appeals Commission moves for a relinquishment of jurisdiction, stating that it has concluded that appellant’s failure to appear at the hearing was attributable to a failure to affix sufficient postage to appellant’s copy of the notice of hearing. Neither party has timely responded to the motion.

Rather than relinquishing jurisdiction, the proper procedure in this circumstance is to reverse the order on appeal and remand to the agency for further proceedings. Stacey v. Department of Professional Regulation, Board of Nursing Home Administrators, 547 So.2d 241 (Fla. 1st DCA 1989). Accordingly, we so order.

REVERSED AND REMANDED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Shedrick STATEN, as personal representative of the Estate of Robert Taylor, deceased, and Shedrick Staten, Individually, Appellant, v. Celso M. GONZALEZ-FALLA, as trustee for the Gilman Article III Trust, Appellee.
    No. 1D03-2856.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Thomas E. Stone, Madison, for Appellant.
    George T. Reeves, Madison, for Appel-lee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated July 24, 2003, as well as the appellant’s response to the Court’s order dated August 19, 2003, this appeal is hereby dismissed as premature. In an order granting an easement, a reservation of jurisdiction to determine the metes and bounds of the easement necessarily renders the order nonfinal because the issue is not collateral to the action nor does it merely require a ministerial act. See generally McDuffie v. City of Jacksonville, 763 So.2d 1201 (Fla. 1st DCA 2000) (holding trial court lacked jurisdiction to vacate final order to correct legal description once appellate jurisdiction had been invoked). Additionally, such an order may not be “deemed” final pursuant to McGurn v. Scott, 596 So.2d 1042 (Fla.1992). See Raymond James & Associates, Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003).

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


text:
    Osborne J. HART, Appellant, v. PEOPLES GAS SYSTEM, a Florida Corporation, Berman Brothers, a Florida Corporation, Milton Berman, Individually, and Florence Berman, as Personal Representative of the Estate of Harry W. Berman, Deceased, Appellee.
    No. 1D03-2892.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.

      Donald W. St. Denis, Brett A. Hastings and John J. Glenn of Anderson Law Offices, Jacksonville, for Appellant.
    Timothy McDermott of Akerman, Sen-terfitt & Eidson, Jacksonville; Frank Hession of Matthews & Hession, Jacksonville; and Pedro F. Bajo, Jr., of Akerman, Sen-terfitt & Eidson, Tampa, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s show cause order of July 24, 2003, the Court has determined that the order on appeal, an order granting a motion to dismiss one count of a multi-count complaint, is not a final order. See Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995); S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The appellant’s request for an extension of time within which to file the docketing statement is denied as moot.

DISMISSED.

BARFIELD, BENTON and VAN NORTWICK, JJ., concur.


text:
    Keith Dwayne HEAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2599.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    George F. Schaefer, Gainesville, for petitioner.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Keith Dwayne Head is hereby afforded a belated appeal from denial of postconviction relief in Alachua County case number 1996-4425-CF-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Michael KENDRICK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-1586.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Michael Kendrick, pro se, petitioner.
    William L. Camper, General Counsel, and Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent.
   PER CURIAM.

We determine that the circuit court departed from the essential requirements of law when it denied Kendrick’s petition for writ of mandamus without issuing an order to show cause. It appears that the sworn allegations concerning the absence of a subpoenaed witness at the Conditional Release revocation hearing were sufficient to state a preliminary basis for relief such that an order to show cause should have issued. See Department of Highway Safety and Motor Vehicles v. Snell, 832 So.2d 177 (Fla. 5th DCA 2002); Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Comm’rs, 810 So.2d 526 (Fla. 2d DCA 2002); see also Rightler v. Pompano Beach Police and Fireman’s Pension Fund, 467 So.2d 461 (Fla. 4th DCA 1985). Accordingly, the circuit court’s order which denied the petition for writ of mandamus is quashed and the cause is remanded for further proceedings. We further direct the circuit court to expedite its proceedings.

PETITION GRANTED.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Andre John HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1961.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Andre John Hall appeals an order revoking his probation and an order denying his motion for postconviction relief on the basis of newly discovered evidence. We conclude that there must be a new probation revocation hearing and remand for that purpose.

At the probation revocation hearing, the arresting officer testified that he saw defendant-appellant Hall in possession of a small off-white object which appeared to the officer to be crack cocaine. The defendant was a passenger in an automobile which had been stopped for a traffic violation. The resulting search turned up crack cocaine. The trial court denied the defendant’s motion to suppress the evidence and revoked the defendant’s probation.

On the basis of this same incident, the State filed a substantive charge against the defendant for possession of cocaine. When the same officer’s deposition was taken in the substantive case, he testified that he saw the defendant holding a small object but “I don’t know what it was, though.” As we read it, this directly contradicts the testimony the officer gave during the probation revocation proceeding. The officer’s testimony in the probation revocation proceeding that he recognized the small object to be crack cocaine was the testimony supporting probable cause to conduct the search which led to the seizure of the crack cocaine.

During the pendency of the appeal on the probation revocation, we relinquished jurisdiction to allow the trial court to consider the defendant’s motion for postcon-viction relief on the basis of newly discovered evidence. The trial court denied that motion and the appeal of that order has been consolidated with the appeal of the probation revocation order.

We conclude that postconviction relief should have been granted on the basis of newly discovered evidence. See Jones v. State, 709 So.2d 512, 521 (Fla.1998); Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997); Jones v. State, 591 So.2d 911, 915 (Fla.1991). Based on the version of events the officer testified to in the later deposition, we do not see how the defendant’s probation could have been revoked on the basis of the cocaine possession charge.

Naturally at the new hearing it may turn out that there is an explanation for the discrepancy between the officer’s testimony at the probation revocation hearing and his subsequent deposition testimony in the substantive case. We do not say that the defendant must be acquitted of the violation of probation charge, but only that, at this point, he is entitled to a new probation revocation hearing.

The State’s alternative argument is that the probation revocation should be upheld because the defendant was also found to have damaged the police car after he was taken into custody, thus amounting to criminal mischief. The problem here is that the same officer was the sole source of the evidence regarding the damage to the police car, and thus there must be a new trial on that charge as well. The State is, of course, free to bring in evidence from other sources regarding the damage to the police car, if it wishes to do so.

For the stated reasons, the orders now before us are reversed and the cause remanded for a new hearing.


author: WARNER, J.

text:
    STAR CASUALTY, Appellant, v. U.S.A. DIAGNOSTICS, INC., Appellee.
    No. 4D02-1465.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Maria Elena Abate and Sandy P. Fay of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for appellant.
    Roberts J. Bradford, Jr. of Marks & Fleischer, P.A., Fort Lauderdale, for ap-pellee.
   WARNER, J.

The county court certified the following as a question of great public importance:

WHERE THE INSURED HAS ASSIGNED HIS/HER BENEFITS TO HIS/HER MEDICAL PROVIDER, DO SECTION 627.736(5)(a) AND/OR SECTION 627.736(5)(d), FLORIDA STATUTES, REQUIRE THE INSURED TO COUNTERSIGN THE MEDICAL BILLS SUBMITTED ON HCFA FORM 1500, AND IS THE INSURER PERMITTED UNDER THESE CIRCUMSTANCES TO DENY PAYMENT ENTIRELY OF REASONABLE, NECESSARY, AND RELATED MEDICAL BILLS INCURRED BY THE INSURED IN THE ABSENCE OF A COUNTERSIGNATURE?

After reviewing this case, we decline to exercise our discretionary jurisdiction and transfer this appeal to the circuit court of Broward County.

Pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A), the district court of appeal has discretionary jurisdiction to accept jurisdiction of appeals from final judgments of the county court in which the county court certifies a question of great public importance. The district court has absolute discretion whether to accept jurisdiction, and there is little case law to guide us. District courts of appeal themselves can certify questions of great public importance to the supreme court. Again there is no standard to guide the court. However, one general guide is that a question should be certified where our decision will affect a large segment of the public and the extant decisional law may not coalesce around a single answer to the question posed.

In Bradley v. State, 615 So.2d 854, 855 (Fla. 1st DCA 1993), the court determined that it should accept jurisdiction over a county court certified question because the decision was “one of constitutional magnitude and the orders suggested that the issue [was] one which is frequently raised but with inconsistent results in the lower tribunals.” We ourselves declined to exercise jurisdiction over a certified question where “[n]othing in the record indieate[d] that the interpretation of the applicable statute involve[d] such complex or difficult issues, or that the ease ha[d] such widespread ramifications, so as to make the case of ‘great public importance.’ ” Everard v. State, 559 So.2d 427, 427 (Fla. 4th DCA 1990).

The statute involved in this case, section 627.736, Florida Statutes, was originally passed by the legislature in 1971. See Ch. 71-252, §§ 1-14, at 1355-71, Laws of Fla. It has remained essentially unchanged for the past twenty-five years, and county courts have adjudicated under this statute the rights and obligations of insurers, insureds, and medical providers. Some of those decisions have been appealed to circuit courts which have uniformly interpreted the countersignature requirement in section 627.736(5)(a) as a permitted, not mandatory, mechanism that does not require the insured’s signature on the reimbursement form where the insured has assigned benefits to the medical provider. See Hialeah Med. Assocs., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 738b (Fla. 11th Cir.Ct. Sept. 17, 2002); Total Health Care of Fla., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 659a (Fla. 11th Cir.Ct.App.Div. Aug. 13, 2002), reh’g denied, 9 Fla. L. Weekly Supp. 737a (2002); S. Fla. Open MRI v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 397a (Fla. Miami-Dade Cty. Ct. Mar. 26, 2002); Health Care Assocs. of S. Fla. Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 397b (Fla. Dade Cty. Ct. Mar. 12, 2002); Premier Ctr. for Pers. Injuries v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 501a (Fla. Miami-Dade Cty. Ct. May 21, 2001); Dr. Steven Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458a (Fla. Dade Cty. Ct. Apr. 24, 2001); Dr. Steven Brown v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 567a (Fla. Broward Cty. Ct. June 26, 2002); Choice Med. Ctr., d/b/a Injury Treatment Ctr. of Boynton Beach, Inc. v. Seminole Casualty Ins. Co., 9 Fla. L. Weekly Supp. 196c (Fla. Palm Beach Cty. Ct. June 15, 2002); Dr. Jason T. Marucci d/b/a Spinal Health Rehab. Ctrs. v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 871b (Fla. Broward Cty. Ct. Oct. 25, 2002); Med. Specialists & Diagnostic Servs. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 708a (Fla. Orange Cty. Ct. Aug. 28, 2002); Stacey Mochnick v. State Farm Mut. Auto. Ins. Co., 7 Fla. L. Weekly Supp. 1a (Fla. 4th Cir.Ct. Aug. 31, 1999); AMC Rehab. & Pain Center, v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 250b (Fla. Miami-Dade Cty. Ct. Oct. 9, 2001); Yolanda Rodriguez v. Ocean Harbor Cas. Ins. Co., 8 Fla. L. Weekly Supp. 500b (Fla. Miami-Dade Cty. Court Apr. 20, 2001). We note that most of these cases were brought by United Auto Insurance, which appellee informs us is a related company to Star Casualty.

Given the plethora of cases uniformly interpreting the statute, we elect not to exercise our discretionary jurisdiction.

Case transferred.

STONE and STEVENSON, JJ., concur.


author: STONE, J.

text:
    Dieurold LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1063.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Michael J. Neimand, Assistant Attorney General and Alison F. Smith, Certified Legal Intern, Fort Laud-erdale, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for Ap-pellee.
   STONE, J.

Louis appeals his convictions for sexual battery and indecent assault upon a child on the ground that his confession was erroneously admitted. We affirm, concluding that the trial court’s finding of a valid waiver of Miranda rights was supported by the evidence notwithstanding that Louis’ native language was Creole.

Louis, age eighteen, had been in the United States for two years and attended a public high school. The victim, age eleven, testified at trial that on multiple occasions, Louis touched her breasts and vagina, and inserted his penis into her vagina. After the victim went to the police, Detective Cubas found Louis at his high school. After informing Louis of the charges against him, Detective Cubas told Louis he wanted to speak to him at the police station. Louis agreed to go and was transported to the station.

At the station, Louis signed a Miranda waiver form. Cubas also recited Louis’ rights before questioning him. Louis told Cubas, in English, that there had been sexual contact between him and the victim, but that the victim was the aggressor. He described how she would take his “dick” out and put it in her “pussy.” He also admitted to several incidents in which the two would “rub together” with their clothes on.

Prior to trial, Louis moved to suppress his statement on the ground that he could not have given a voluntary waiver of Miranda where he did not have an adequate comprehension of the English language. The trial court denied the motion.

Review of a motion to suppress is a mixed question of law and fact. State v. C.F., 798 So.2d 751, 754 (Fla. 4th DCA 2001). We review the trial judge’s application of the law to the court’s factual findings de novo. Id.

Initially, we note that Miranda is implicated only where there is a custodial interrogation. See Dixon v. State, 816 So.2d 172 (Fla. 4th DCA 2002). Here, we conclude that Louis was in custody. There are four factors which guide this determination: “(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave.... ” Mansfield v. State, 758 So.2d 636, 644 (Fla.2000). In this case, Louis was summoned by police while at school and taken to an interrogation room at the police station. He was specifically questioned about the allegations made by the victim and the record fails to reflect that he was ever told he was free to leave. See Pollard v. State, 780 So.2d 1015 (Fla. 4th DCA 2001).

Although we reject the state’s contention that this was not a custodial interrogation, there was, nevertheless, a valid waiver of the Miranda protections.

The state must prove that Miranda was waived by a preponderance of the evidence. Balthazar v. State, 549 So.2d 661, 662 (Fla.1989). The voluntariness of the waiver is a two-part inquiry. The first is whether the waiver was a free choice on the part of the defendant and not the product of intimidation, coercion, or deception. The second is whether the waiver was made with a full awareness of the nature of the right being abandoned and the consequences of the abandonment. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Although the state’s burden in proving volun-tariness is heavier when a defendant claims a language barrier, the standard of proof remains the same. Balthazar, 549 So.2d at 662.

As to the first part of the inquiry, there was competent substantial evidence before the trial court that the waiver was not the product of intimidation, coercion, or deception.

As to the second part of the inquiry, there was competent substantial evidence that Louis had the requisite level of English comprehension to waive Miranda. The record showed that Louis was of average intelligence and suffered from no mental infirmity. He was an adult just shy of his 19th birthday. At the time of the interrogation, he had been in the United States for two years and was attending a public high school where he was taught classes in English as well as Creole. Louis was able to converse with Detective Cubas in English, and he did not need the questions repeated to him and answered the questions.

This case is comparable to Soto v. State, 751 So.2d 633 (Fla. 4th DCA 1999), where we recognized a voluntary waiver of Miranda despite the claims that the defendant did not understand the warnings as delivered in English. There, this court found that the state produced sufficient evidence where the defendant had attended English speaking schools, had communicated with the police in English, and the tape of the conversation itself had demonstrated a voluntary waiver. Id. at 635. Here, as in Soto, both the recording and transcript of the interrogation shows that Louis understood the questions posed to him and was able to respond in English.

In affirming the final judgment, we also reject the argument that Detective Cubas was misleading as to the role of an attorney within the context of Miranda. During questioning, and after Louis had signed a waiver of rights form, Detective Cubas asked Louis if he knew what was an attorney. The transcript shows Louis’ response as: “Attorney? ... Attorney is some lawyer ... make some business.” Detective Cubas went on: “I explained to you that an attorney is somebody that represents you in court. Okay? ... He’s a person that stays in the courtroom and he’s the one who defends you.... He’s the one who speaks for you to the judge ... And you have the right to the presence of the attorney prior to any questioning. Do you understand that?” Louis said, “yes” and the interview continued.

This issue is governed by the supreme court’s decision in Almeida v. State, 737 So.2d 520 (Fla.1999). There, the court stated:

Accordingly, we hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise — i.e., to give an evasive answer, or to skip over the question, or to override or “steamroll” the suspect — is to actively promote the very coercion that Traylor[ v. State, 596 So.2d 957 (Fla.1992)] was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. Once the officer properly answers the question, the officer may then resume the interview.... Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State.

Id. at 525.

Here, interpreting Louis’ comment as questioning what was an attorney, Detective Cubas’ response was proper under Almeida. Detective Cubas’ answer as to the definition of an attorney was simple and straightforward. He explained the role of an attorney in the context of an attorney’s most prominent role, as the one who would represent Louis in court before a judge. He then explained that prior to questioning, Louis could have an attorney present. It cannot be said that Detective Cubas’ answer was evasive or was designed to “steamroll” Louis.

The instant case is distinguishable from Isom v. State, 819 So.2d 154 (Fla. 2d DCA 2002), relied on by Louis. There, the defendant was apprehended as a suspect in a high speed chase. As the apprehending officer was advising the defendant of the Miranda warnings, the defendant asked, “I need a lawyer cause I was hitch-hiking?” Id. at 155. The officer answered “no” and then continued with the interview. The district court held the officer’s response to be improper under Almeida, deeming it to be misleading. The court held the officer should have clarified the reason for the interrogation so there would be no question that any waiver of counsel was made with the defendant’s full knowledge of the circumstances under which he was being questioned. Id.

Here, it cannot be said that Louis’ rights were not explained simply and directly. Unlike in Isom, the record does not indicate that Detective Cubas misled Louis by his answer. Finding no error or abuse of discretion, and deferring to the trial court’s findings that are supported by the evidence, we affirm.

POLEN, J. and ROSENBERG, ROBERT, Associate Judge, concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Danny NADAL a/k/a Danny Torres, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2276.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Robyn J. Cohen and Rebecca Plasencia, Certified Legal Interns, for ap-pellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Danny Nadal appeals an order revoking his probation. We conclude that the order cannot be sustained on the present record and reverse it. This is, however, without prejudice to further proceedings in the trial court.

The evidence at the hearing showed that the defendant had been in possession of a firearm. It is evident that the trial court revoked his probation on the theory that as a convicted felon, it was illegal for the defendant to possess a firearm. See § 790.23, Florida Statutes (2002).

However, the affidavit of violation of probation did not make this charge. The affidavit charged that the defendant had committed the offense of grand theft of a firearm. At the revocation hearing, there was no evidence that the defendant stole the firearm, only that he possessed it. We therefore must reverse the finding that the defendant committed the offense of grand theft of a firearm. See Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA 1984); Hodges v. State, 370 So.2d 78, 79 (Fla. 2d DCA 1979); Mack v. State, 342 So.2d 562 (Fla. 2d DCA 1977).

We do not fault the trial court for this because neither party called this issue to the attention of the trial judge. It is, however, fundamental error to convict on a crime not charged. See Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001). On remand the State is free to seek revocation of the defendant’s probation on the correct charge. Hodges, 370 So.2d at 79 n. 1.

The State seeks to defend the revocation order on an alternative ground: that the written order found the defendant guilty of failure to timely report to the probation officer on one occasion. On this count, however, the trial court’s oral pronouncement was that the court would not revoke the probation for this violation. Thus, the written order does not conform to the oral pronouncement.

The State relies on another alternative ground: a ruling in the written revocation order that the defendant had failed to pay the costs of supervision. The transcript indicates, however, that the trial court never reached this issue, having determined to revoke the probation on the basis of the firearm charge. Further, there was no oral testimony on this issue and the written documentation introduced into evidence, on which the State relies, cannot be located by the clerk of the court. We thus reverse this part of the order, but without prejudice to the State to renew this charge at a new revocation hearing and present evidence on it.

For the stated reasons, the revocation order is reversed and the cause remanded for further proceedings consistent herewith.


author: POLEN, J.

text:
    D.N., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3587.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

D.N., a thirteen-year-old child, pled no contest to charges of resisting an officer without violence and trespass on school grounds for which he received probation on January 23, 2002. D.N. was scheduled to be released on August 20, 2002. The relevant terms of probation required that D.N. successfully complete fifty hours of community service, which could be satisfied by attending anger management classes, attending school including every class assigned, and fulfilling various other requirements. The State filed an affidavit of violation of probation alleging four violations, of which the State proceeded on only the two involving community service and school attendance.

D.N. claimed that he attended anger management counseling under the supervision of Stacey Britton, D.N.’s re-entry counselor, which should have evidenced progress toward completing his probation requirement. D.N. testified on his own behalf that Britton had told him that every hour he spent with the anger management counselor would count as a community service hour. D.N. also testified that he reported his sessions to Britton, and estimated completion of about two months worth or about twenty-four sessions plus an additional ten sessions with a bereavement counselor.

The Public Defender’s Office was given the affidavit of violation the week before the final hearing, which was scheduled for Tuesday, August 20, 2002. On the Thursday before the final hearing, Miss Sugar-man, the originally appointed public defender, appeared before the court and confirmed that the defense “would be prepared to go forward on the violation on [August 20, 2002].” Notwithstanding, Miss Sugarman was in Spain on August 20, 2002, and the replacement public defender was handed the case on Monday afternoon, the day before the final hearing was scheduled. Though D.N. spoke with the public defender on August 19, and more extensively the next day, prior to the final hearing D.N. moved for a continuance because the defense was not prepared to go forward. Neither Britton nor the anger management counselor, Carey Little, was available to testify at the final hearing. Hence, D.N. sought a continuance to procure their testimony. At the hearing on the motion for continuance, the trial court stated the Public Defender’s Office had sufficient time and, furthermore, in light of the fact that D.N. was due to be released that very day and the Department of Juvenile Justice felt that, if released, D.N. could present a danger to society, the trial court denied the motion based on exigent circumstances. The order denying the motion for continuance was entered the morning of the final hearing, and the hearing was conducted at 2:00 p.m. as scheduled.

At the final hearing, the public defender specifically stated for the record that if she had more time she would have subpoenaed the two witnesses who possibly have information regarding the community service hours record, and she would have asked for a psychological evaluation. Another discussion ensued in which similar arguments as those made in the continuance hearing were again stated on the record. Thereafter, the final hearing proceeded. Despite D.N.’s testimony that he performed some community service hours under Britton’s supervision, D.N.’s probation officer, Edwin Woods, testified that Brit-ton never relayed to him any information that D.N. had performed community service hours, although she would normally have done so. Woods further testified that he would have given D.N. some, if not full, credit for any anger management counseling. The trial court stated to the extent that there is any conflict in the record regarding D.N.’s testimony and that of other witnesses, the trial court found the other witnesses more reliable. The trial court thereby found D.N. guilty of both alleged violations, and this appeal followed.

D.N. argues on appeal that the trial court erred by denying his motion for continuance. The granting or denial of a motion for continuance is within the trial court’s discretion. See Bouie v. State, 559 So.2d 1113 (Fla.1990). Denial of a motion for continuance “should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion” that “clearly and affirmatively” appears in the record. Magill v. State, 386 So.2d 1188, 1189 (Fla.1980). “The common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense.” Weible v. State, 761 So.2d 469, 472 (Fla. 4th DCA 2000) (quoting Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988)).

In McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986), the First District set out seven factors to consider in determining whether denial of a continuance was error due to lack of adequate time to prepare a defense. Those factors include:

(1) the time actually available for preparation,
(2) the likelihood of prejudice from the denial,
(3) the defendant’s role in shortening preparation time,
(4) the complexity of the case,
(5) the availability of discovery,
(6) the adequacy of counsel actually provided, and
(7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.

Id. at 1282. Upon application of these factors to the facts before us, we conclude the trial court abused its discretion by failing to grant D.N. a continuance, thus resulting in a denial of his due process rights. The replacement public defender was not given adequate time to procure the testimony of all relevant and necessary witnesses. Had there been more time for discovery, it is possible that D.N.’s testimony could have been corroborated, and alternative legal theories could have been explored. Therefore, a likelihood of prejudice is present. Furthermore, it should be stressed that these circumstances occurred through no fault of D.N. While we note that the trial court based its ruling upon exigent circumstances, it is unclear from the record why the trial court could not grant a short continuance and simply detain D.N. until the final hearing. Regardless, the due process rights of the individual triumph over these other considerations.

It is unnecessary for us to reach the other issue in this appeal because we hereby reverse the order revoking probation, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WARNER and STEVENSON, JJ., concur.