author: CANTERO, J. BELL, J., WELLS, J.,

text:
    Traci Ann GROSVENOR, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1307.
    Supreme Court of Florida.
    March 25, 2004.
    Rehearing Denied May 26, 2004.

      Robert S. Griscti, Gainesville, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kellie A. Nielan and Pamela J. Roller, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   CANTERO, J.

We review Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA 2002), which certified conflict with Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000), and Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. This case involves a defendant seeking to vacate a guilty plea because of ineffective assistance of counsel in failing to advise of a possible defense. We must decide whether, in asserting prejudice, defendants must allege that the defense would have succeeded at trial. For the reasons stated below, we hold they do not.

I.

Petitioner Traci Ann Grosvenor and a male companion went on a week-long alcohol and cocaine binge, driving from Sarasota to Tampa and ending in Bushnell in Sumter County. Because of tire problems, they stopped at an auto store closed for the night. A police officer saw them stealing a tire from a car parked in the lot and called the store’s owner, who drove to the store with his son. The officer questioned the two travelers and locked Grosvenor’s friend in the patrol car. Grosvenor left her car with a handgun and shot the officer. An exchange of gunfire occurred, in which the store owner’s son was killed and the store owner wounded. Grosvenor also was hit. A laboratory report revealed traces of marijuana and cocaine in Grosve-nor’s system when she arrived at the hospital.

Grosvenor was indicted for capital first-degree murder, attempted first-degree murder of a law-enforcement officer, attempted first-degree murder with a firearm, robbery with a firearm, and resisting arrest with violence. She was represented by two attorneys from the Fifth Judicial Circuit’s Public Defender’s Office. She told her attorneys that she had used drugs and alcohol on the day of the incident. A tape recording and transcript of a statement she gave to the police confirmed her statement. Her attorneys never discussed with her the possibility of a voluntary intoxication defense.

Grosvenor pleaded guilty to first-degree murder. Later, Grosvenor called a local newspaper and told a reporter that she did not kill anyone and if she had a “split hair chance” at a trial she wanted to take it. The trial judge, after reading the article, sua sponte vacated the guilty plea and attached a copy of the newspaper article to his order. Later, an investigator for the Public Defender’s Office interviewed Grosvenor, as did a psychologist. She detailed her drug and alcohol abuse to both. Again, her attorneys did not advise her about a voluntary intoxication defense. Grosvenor later accepted her attorneys’ advice to avoid a trial and the concomitant possibility of the death penalty. She entered a plea of nolo contendere and was sentenced to two life terms, two fifty-year terms, and one five-year term, all running concurrently.

After she was sentenced, Grosvenor filed a motion for postconviction relief seeking to vacate the judgments and sentences. The motion alleged that “had [she] been informed of her viable defense of voluntary intoxication ... she would not have entered the plea agreement and instead would have proceeded to trial.” The trial court granted an evidentiary hearing on the issue of ineffective assistance of counsel.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel must prove both deficient performance of counsel and prejudice to the defendant. In this case, the court agreed to assume for purposes of the initial hearing that trial counsel’s performance was deficient and consider only whether Grosvenor suffered prejudice. Grosvenor presented witnesses who testified about her frequent intoxication and her demeanor when intoxicated. Eyewitnesses, however, testified in their depositions that she did not appear intoxicated at the time of the crime. Grosvenor herself told police officers after the incident that she had not been too intoxicated to drive a vehicle, but only had been “a little high, tipsey [sic].”

The deposition of Grosvenor’s lead trial attorney was also admitted into evidence at the hearing. He stated that he considered the voluntary intoxication defense and “decided it was not a valid defense.” Moreover, he stated that Sumter County juries do not even consider drug and alcohol abuse as mitigation — they treat it as another aggravating factor.

The court found that Grosvenor’s voluntary intoxication defense was not “viable” and therefore concluded that she had not demonstrated prejudice.

Grosvenor appealed. The Fifth District affirmed, holding that defendants challenging their guilty pleas based on ineffective assistance of counsel must show that they had a “viable” defense. Grosvenor, 816 So.2d at 822. The court recognized that its decision conflicted with decisions of other district courts and certified conflict with those decisions.

II.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court established a two-pronged test for determining claims of ineffective assistance of counsel relating to guilty pleas. The first prong is the same as the deficient performance prong of Strickland. See Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Regarding the second prong, the Supreme Court in Hill held that a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. The Court followed that statement, however, with an explanation that has caused much confusion:

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than going to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (C.A.7 1984) (“It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received”). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the “idio-syncracies of the particular decisionmaker.” Id., at 695,104 S.Ct. 2052.

474 U.S. at 59-60,106 S.Ct. 366.

Given this language, courts in both Florida and other jurisdictions have interpreted Hill’s explanation of the prejudice prong differently. In Florida, three of the five district courts of appeal have held that a defendant asserting ineffective assistance of counsel relating to a guilty plea is not required to allege a viable defense. Instead, the viability of the defense is relevant to the credibility of the assertion that the defendant would have insisted on going to trial if informed of that defense. See, e.g., Cordes v. State, 842 So.2d 874 (Fla. 2d DCA 2003); Hobbs v. State, 790 So.2d 1164, 1166 (Fla. 4th DCA 2001); Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). Several other jurisdictions, including the overwhelming majority of federal circuit courts, also have adopted this approach.

Two districts, however, have interpreted Hill as requiring a defendant to allege that, had the plea not been entered, the defendant would have prevailed at trial. See, e.g., Maples v. State, 804 So.2d 599 (Fla. 5th DCA 2002); Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988). A few other jurisdictions also have held that Hill requires that defendants allege that their affirmative defenses would likely have succeeded at trial. These courts rely on the paragraph from Hill quoted above, which explains that in many cases, “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” 474 U.S. at 59, 106 S.Ct. 366 (emphasis added).

In our judgment, however, these courts overlook two things. First, they ignore the- conditional language in the Court’s statement, which notes that such a resolution will occur in many, not all, cases and also notes that the prejudice inquiry will depend largely, but not totally, on the merits of the defense. That in many cases the prejudice inquiry will “largely” resemble a merits analysis, however, does not make them coextensive. Rather, it simply means that the merits of the defense is closely related to the credibility of the defendant’s claim that he would not have pleaded guilty if advised of the defense. Second, these cases ignore the immediately preceding paragraph in Hill, in which the Court first states that the prejudice inquiry “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process ” and then holds unequivocally that “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366 (emphases added). In our view, these statements leave no room for a contrary interpretation.

The First District Court of Appeal has offered a cogent analysis of Hill:

As the Court explained in Hill, the “prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (emphasis added). And the Court further elaborated that, in order to show prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. (emphasis added). Immediately following this language, the Court offered a footnote indicating that several federal appeals courts had previously “adopted this general approach” in their decisions. Id. Thomas v. Lockhart, 738 F.2d 304 (8th Cir.1984), and United States v. Gavilan, 761 F.2d 226 (5th Cir.1985), were cited as examples of such decisions. These federal appeals court decisions in turn make it clear that the relevant inquiry for purposes of a Strickland, prejudice analysis in conjunction with a motion to withdraw a plea because of attorney incompetence is whether the outcome of the “plea proceedings” would have been different had competent assistance of counsel been provided. See Thomas v. Lockhart, 738 F.2d at 307; United States v. Gavilan, 761 F.2d at 228.

Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002). We agree with this analysis and conclude that the proper interpretation of Hill is to follow its express language. The merits of any defense, as the Court explained in Hill, is relevant to the credibility of the defendant’s assertion that he would have insisted on going to trial. If the defense was meritless, the defendant’s claim carries much less weight. As one federal court has explained, “[i]t is not necessary for the defendant to show that he actually would have prevailed at trial, although the strength of the government’s case against the defendant should be considered in evaluating whether the defendant really would have gone to trial if he had received adequate advice from his counsel.” Miller v. Champion, 262 F.3d 1066, 1069 (10th Cir.2001).

Our conclusion is buttressed by the Supreme Court’s recent reaffirmation of Hill in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores-Ortega, counsel failed to notify the defendant of his right to appeal. In granting relief, the Supreme Court explained that the defendant need not demonstrate grounds for a meritorious appeal or even “specify the points he would raise were his right to appeal reinstated.” Id. at 486, 120 S.Ct. 1029. Instead, all that is required is that the defendant show that but for counsel’s error he would have appealed. The Court noted that although evidence of non-frivolous grounds for appeal will give weight to the contention that the defendant would have appealed, such evidence is not required where there are other substantial reasons to believe he would have appealed. Id.

In Flores-Ortega, the Court expressly noted that its analysis “[broke] no new ground, for it mirrors the prejudice inquiry applied in [Hill ].” Id. at 485, 120 S.Ct. 1029. The Court then compared the failure to advise of an appeal to the failure to advise of an available defense:

Like the decision whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with the defendant and, like this case, counsel’s advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled. We held that “to satisfy the ‘prejudice’ requirement [of Strickland ], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, supra, at 59, 106 S.Ct. 366.

Id. at 485, 120 S.Ct. 1029 (emphasis added). Thus, if Hill needed any clarification, Flores-Ortega provided it.

In sum, we must follow the holding of Hill v. Lockhart. A defendant who has pleaded guilty who claims that defense counsel was ineffective for failing to advise of an available defense establishes Strickland’s prejudice prong by demonstrating a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Counsel’s effectiveness is determined according to the totality of the circumstances. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Therefore, in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial. As the Supreme Court emphasized in Hill, these predictions “should be made objectively, without regard for the ‘idiosyncracies of the particular decisionmaker.’ ” 474 U.S. at 59-60, 106 S.Ct. 366 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).

III.

We address one last issue concerning the procedure employed in this case to consider Grosvenor’s ineffective assistance of counsel claim. Grosvenor requested that the circuit court consider the issue of prejudice first, and to assume for the moment that counsel’s performance was deficient. The purported purpose of such bifurcation was the conservation of time and resources. As this case demonstrates, however, sometimes such a process fails to achieve the desired efficiency. In many ineffective assistance of counsel claims — and perhaps more often when the claim concerns a guilty plea — the deficient performance prong and the prejudice prong are related and can involve similar issues. See Roe v. Flores-Ortega, 528 U.S. at 485-86, 120 S.Ct. 1029 (“We recognize that the prejudice inquiry we have described is not wholly dissimilar from the inquiry used to determine whether counsel performed deficiently in the first place.... ”). Where a defendant claims ineffective assistance on the ground that counsel failed to advise of a viable defense, counsel’s consideration of the defense is relevant to whether counsel performed de-ficiently and also informs the credibility of the assertion that the defendant would have gone to trial if told of the defense. Although Hill v. Lockhart itself is silent on the issue, several courts applying it have considered the viability of the defense under the deficient performance prong. See, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir.1991) (where “there was a high likelihood” that the intoxication defense would have failed at trial and would have exposed the defendant to a longer sentence, “counsel served adequately during the plea negotiations because he had no duty to disclose the intoxication defense under these circumstances.”) (emphasis added); Savino, 82 F.3d at 602 (relying on an assessment that the defendant could not have presented a “viable intoxication defense” in concluding that there was no showing of deficiency). We agree that the viability of a defense is relevant to determine whether counsel performed deficiently in failing to inform the defendant about that defense.

In this case, much of the evidence presented at the evidentiary hearing would have been relevant to counsel’s alleged deficient performance as well as to prejudice. For example, Grosvenor’s trial counsel testified that he considered the voluntary intoxication defense but that Sumter County juries do not view such a defense with favor. This testimony is relevant to whether Grosvenor’s counsel performed deficiently in failing to inform her of the voluntary intoxication defense. Because the evidentiary hearing and the trial court’s order specifically focused only on the prejudice prong, however, we cannot now consider this evidence to evaluate counsel’s performance.

For all these reasons, we are not convinced that bifurcating the hearing in this case achieved any efficiency. Moreover, when a court considers only the prejudice prong and concludes that no prejudice ensued, a later reversal — which may not happen until more than a year later — may require another evidentiary hearing on the deficient performance prong, thereby unnecessarily prolonging the process. We suggest that courts consider such problems when determining whether to bifurcate an ineffective assistance of counsel claim.

V.

For the reasons stated, we quash the Fifth District’s decision in this case and remand to the circuit court for further proceedings consistent with this opinion. In determining Grosvenor’s claim of ineffective assistance of counsel the trial court is free to consider both the deficient performance and the prejudice prongs of Strickland.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

BELL, J., concurring in part and dissenting in part with an opinion.

WELLS, J., dissenting with an opinion.

BELL, J.,

concurring in part, dissenting in part.

I concur with the majority opinion except for the decision to remand the case back to the circuit court for further proceedings.

When a defendant who has pleaded guilty seeks to raise a claim of ineffective assistance of counsel in connection with that guilty plea, he or she satisfies the prejudice prong of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), by demonstrating “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366. The focus of the inquiry is not whether there is a reasonable probability that the defendant would have succeeded at trial (had he or she pleaded not guilty). Rather, as the United States Supreme Court stated in Hill, and as the majority opinion stresses, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id. (emphasis added). That must be the postconviction court’s ultimate focus.

I would emphasize, however, that the standard must be an objective one. As the United States Court of Appeals for the Fourth Circuit has noted, “[although [the prejudice prong of the Hill test] focuses the inquiry on a subjective question [that is, whether the defendant would not have pleaded guilty], the answer to that question must be reached through an objective analysis.” Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.1988). A subjective test, analyzed from the defendant’s ex post perspective, would be difficult to administer and would upset the State’s strong interest in preserving the finality of guilty pleas. The very purpose of requiring a defendant to prove not only that his or her counsel’s performance was constitutionally deficient but also that he or she was prejudiced by the deficient performance is to “serve the fundamental interest in the finality of guilty pleas.” Hill, 474 U.S. at 58, 106 S.Ct. 366. In Hill, the United States Supreme Court stressed this interest and quoted from its previous decision in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979):

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions re-suit from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

Id. at 784, 99 S.Ct. 2085 (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971) (Stevens, J., dissenting)).

A prejudice prong that focuses merely on the “credibility of the defendant’s assertion” that he or she would not have pleaded guilty, see majority opinion at 9, would not adequately safeguard this critically important interest. In Miller v. Champion, 262 F.3d 1066 (10th Cir.2001), the United States Court of Appeals for the Tenth Circuit held that the defendant’s assertion that he would not have pleaded guilty, standing alone, is “insufficient to entitle him to relief. Rather, we look to the factual circumstances surrounding the plea to determine whether [he] would have proceeded to trial.” Id. at 1072 (citation omitted). This is precisely the reason that the postconviction court, when deciding whether the defendant has demonstrated that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, must look “to the totality of the circumstances.” Majority op. at 1181. As the majority opinion holds,

in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Id.

Furthermore, when the postconviction court examines the circumstances that the defendant was facing, or would have been facing had counsel’s performance been adequate, the court must make its ultimate determination from an objective standpoint. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), when discussing Hill, the United States Supreme Court stated that “when, in connection with a guilty plea, counsel gives deficient advice regarding a potentially valid affirmative defense, the prejudice inquiry depends largely on whether that affirmative defense might have succeeded, leading a rational defendant to insist on going to trial.” 528 U.S. at 486, 120 S.Ct. 1029 (emphasis added).

With that understanding, I agree with the majority that the district court decisions which have held that a defendant must demonstrate that he or she would not have pleaded guilty and would have suc ceeded at trial should be quashed. However, I do not agree that this ease should be remanded to the trial court. While the district court may have applied the wrong standard in affirming the trial court, I believe the trial court applied the correct law in rejecting Grosvenor’s claim.

Grosvenor claims that her counsel was deficient in not informing her of the possibility of raising the defense of voluntary intoxication. When addressing the prejudice prong, the trial court had to determine whether there was a reasonable probability that, had she been so informed, she would not have pleaded guilty. As I have noted above, Grosvenor’s bare allegation or assertion on this point is not sufficient to carry her burden of proof. She had to demonstrate that based on the totality of the circumstances that existed at the time she entered her plea, there is a reasonable probability that, had she been informed of the possibility of raising the voluntary intoxication defense, she would not have pleaded guilty and would have instead decided to go to trial.

The trial court articulated the standard as follows:

The standard for determining if there was prejudice is whether there is a reasonable probability that, but for counsel’s deficiencies, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, that means that, but for counsel’s deficiencies, the case would have gone to trial and the Defendant would have been found Not Guilty or been found guilty of a lesser offense that could have resulted in a sentence less than she received.

It is true that this is not the same standard the majority opinion articulates and which I agree is the correct interpretation of Hill, broadly speaking. But as applied to the facts of this case and to Grosvenor’s particular claim, I do not believe that the trial court applied the law incorrectly.

“Attorney errors come in an infinite variety. ...” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must recognize that a defendant’s decision to plead guilty or not guilty will be affected differently by different types of errors. This is implicit in the United States Supreme Court’s opinion in Hill. After articulating the prejudice prong in its most general terms — that a defendant must demonstrate that but for counsel’s errors he or she would not have pleaded guilty — the Court goes on to differentiate between different types of claims. Some claims will allege that counsel failed to investigate or discover potentially exculpatory evidence; other claims will be like the claim here where “the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged.” Hill, 474 U.S. at 59,106 S.Ct. 366. The claim at issue in Hill was that counsel gave “erroneous advice as to eligibility for parole under the sentence agreed to in the plea bargain.” Id. at 60,106 S.Ct. 366.

This, I believe, is the importance of the Court’s statement that

[i]n many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Hill, 474 U.S. at 59, 106 S.Ct. 366. The Court recognized the specific effect such errors will usually have on a defendant’s decision to plead guilty or not guilty.

Grosvenor’s claim was that she was not informed of a particular defense. We must assume, therefore, that at the time she entered her plea, the only thing she did not know about the “totality of the circumstances” that she faced was the “possibility” of raising the defense of voluntary intoxication. The facts found by the trial court — particularly, that the facts of Grosvenor’s case did not support the defense — lead inescapably to the legal conclusion that she has failed to demonstrate that had her lawyer told her about the defense and about her chances of succeeding with the defense, there is a reasonable probability that she would not have pleaded guilty. Her claim is that if she had any chance for success at trial, whether it be an acquittal or merely a conviction on a lesser charge, she would have taken that chance and proceeded to trial. Therefore, she claims, had she known that voluntary intoxication could be used as a defense to first-degree murder, she would not have pleaded guilty. But as the trial court found, the facts of her case did not support such a defense. Judging her claim objectively and from that point in time when she decided to plead guilty, it cannot be said that there is a reasonable probability that had she known about a defense that she would not have been able to use, she would have gone to trial in reliance on that unavailable defense.

Such a conclusion becomes all the more apparent when one examines the rest of the circumstances that Grosvenor faced at the time she entered her plea, particularly the severity of the sentence that she faced if convicted (the death penalty), the strength of the State’s case, and the relative favorability of the plea deal offered by the State. In a very similar case, the United States Court of Appeals for the Seventh Circuit, in a decision cited favorably by the United States Supreme Court in Hill, held that the defendant had failed to “satisfy the requirement of ‘affirmatively proving] prejudice.’ ” Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984). After detailing the facts which made it “inconceivable that a jury would have acquitted Evans because he was too intoxicated to form the [specific] intent required to commit these crimes,” the Court stated that it “is inconceivable to us, and not merely improbable ... that Evans would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received.” Evans, 742 F.2d at 374-75. I believe that here “[i]t is sufficiently clear that [Grosve-nor] had no hope at all of an acquittal to enable us to infer that [she] would not have changed [her] plea to not guilty.” Id. at 375 (quoting Morgan v. Israel, 735 F.2d 1033, 1036 (7th Cir.1984)).

I therefore concur with the majority’s analysis of Hill v. Lockhart, but I dissent from the decision to remand the case to the trial court for further proceedings.

WELLS, J.,

dissenting.

I dissent from disapproving the Fifth District’s holding that to maintain a claim of ineffective assistance of counsel in connection with a plea of guilty or nolo con-tendere, a defendant must allege and demonstrate that he or she had a viable defense. I conclude that this requirement is consistent with Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Roe v. Flores-Ortega, 528 U.S. 470, 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

I conclude that for present purposes the key statement from Hill is:

Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

I recognize that the majority does not eliminate consideration of the viability of the defense but, rather, subsumes the consideration within the consideration of “the credibility of the defendant’s assertion that she would have insisted on going to trial if informed of that defense.” Majority op. at 1179. I conclude that the Supreme Court’s later decision in Roe is helpful to a correct understanding here but not for the reason set out by the majority. I conclude Roe is helpful in further instructing on the interrelationship of the deficiency and prejudice prongs of Strickland in respect to postconviction ineffective assistance of counsel claims concerning guilty pleas, while making clear that both prongs are to be considered.

The majority draws too fine and subtle a distinction in disapproving the district court decisions which “have interpreted Hill as requiring a defendant to allege that, had the plea not been entered, the defendant would have prevailed at trial,” see, e.g., Maples v. State, 804 So.2d 599 (Fla. 5th DCA 2002); Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988), majority op. at 1180, and then holding that “the viability of a defense is relevant to determine whether counsel performed deficiently in failing to inform the defendant about that defense.” Majority op. at 1182. I do not believe that the statement from Hill that “the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded,” Hill, 474 U.S. at 59, 106 S.Ct. 366, either intends or requires such a distinction. I am concerned that the majority’s decision will be read to require many evidentiary hearings which will only demonstrate that the defendant had no viable defense to assert.

I believe that the majority reaches the same conclusion as I do, which is that in order to be entitled to relief for ineffective assistance of counsel in respect to a plea of guilty, there has to be a finding by the postconviction court that the. defendant had a defense which likely would have succeeded at a trial and which the guilty plea foreclosed presenting. If there has to be such a finding by the trial court, then I do not understand why that must not be pled in good faith by the defendant, since the defendant has the burden of proof on postconviction. Nor do I understand why this allegation is not required to set forth a basis for this “prejudice prong” of ineffective assistance of counsel.

The correct inquiry, when clearly boiled down, is whether there was a viable defense and not the credibility of the defendant in stating that the defendant would not have pled guilty. Whether the determination is within the deficiency prong or the prejudice prong, the determination is whether the defense had a sufficient chance of success such that the defendant would have probably gone to trial rather than pleading guilty. ,

Moreover, it does not make sense to me for the focus of this posteonviction decision to be placed upon the credibility of the after-sentence statement of the defendant that he would not have entered the plea. This focus plainly ignores that when the defendant is serving the sentence, the benefits of the plea have faded into the reality of the present punishment.

Judge Kahn wrote an important concurring opinion in one of the conflict cases here for review. In Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999), Judge Kahn states:

I write separately because I believe that the holdings of the two cases with which the present majority notes conflict are worthy of serious consideration by our Supreme Court. Both Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988), and Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991), rely upon this court’s opinion in Frazier v. State, 447 So.2d 959 (Fla. 1st DCA 1984), for the proposition that a defendant seeking to set aside a no contest or guilty plea must show the existence of a viable defense. The trial and appellate courts of this state are literally barraged with post-conviction motions after guilty or no contest pleas. Most of these cases do not involve the unusual facts of the present claim. I see no reason why a post-conviction petitioner, should not normally have to allege, as support for the claim of prejudice in fact, that the petitioner either had a procedural defense to the charge or a factual defense that would have been viable had the case proceeded to trial, instead of concluding with a plea.

Id. at 372 (Kahn, J., concurring). I believe that there is great merit to what Judge Kahn wrote, and I would adopt Judge Kahn’s opinion.

Additionally, the Supreme Court of Connecticut has adopted an analysis which I believe is correct. In Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718, 729-30 n. 18 (1995), the court set out the following analysis:

The likelihood of a successful outcome at trial has been interpreted to include either the likelihood of acquittal or the likelihood of a more favorable sentence. In [Hill], 474 U.S. at 59, 106 S.Ct. 366, after the court explained that “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial,” the court cited to Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984), as an example. In [Evans] at 375, a case involving an allegation of ineffective assistance of counsel during the plea process, the court found it inconceivable that the defendant’s potential defense of intoxication would have resulted in an acquittal or, if the defendant had been convicted as charged, that he would have been given a shorter sentence than he actually received. This implies that, under the Hill prejudice requirement, the petitioner must show that the decision to plead not guilty would have been based on the likelihood that either: (1) the defense would result in an acquittal of the charged offense; or (2) the defense would result in a lesser sentence than what the petitioner ultimately received. This dual outcome analysis has been applied by other courts, after Hill, to evaluate whether the prejudice standard has been satisfied in a particular case. See, e.g., Creech v. Arave, 928 F.2d 1481, 1487 (9th Cir.1991), rev’d in part on other grounds, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), quoting [Evans] at 375; Ames v. New York State Division of Parole, 772 F.2d 13, 16 (2d Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1379, 89 L.Ed.2d 605 (1986) (evaluating lesser included charges of which defendant could have been convicted if he had gone to trial and comparing sentence he received through plea bargaining to potential sentence he would have received if he had gone to trial to determine whether prejudice standard was satisfied); Lyman v. Hopkins, 875 F.Supp. 631, 642 (D.Neb.1995) (in evaluating prejudice court must analyze: (1) whether reasonable person would have gone to trial; (2) whether it is conceivable that defendant would have been acquitted at trial; and (3) “even if not acquitted, is it conceivable that the defendant would have been given a shorter sentence than he actually received”); Isaraphanich v. United States, 632 F.Supp. 1531, 1534 (S.D.N.Y.1986) (finding no prejudice after reviewing both potential for acquittal and lesser sentence if defendant had not pleaded guilty and had gone to trial). Therefore, we interpret Hill to require the petitioner in this case to show that the defense that was not discovered or explained to him during the plea process would have likely resulted in either an acquittal, or a more favorable sentence following a conviction of the charged offense or of a lesser included offense.

I conclude that this is the correct analysis.

I would not approve either Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000), or Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). Cousino has no analysis of this issue but merely adopts the view of the First District. The lineage of the First District’s decision on this issue is traced to Price v. State, 487 So.2d 34 (Fla. 1st DCA 1986). Price, in turn, held only that the motion in that case was sufficient to warrant an evidentiary hearing.

None of the cases from the First District give effect to the plain statement in Hill that the “ ‘prejudice’ inquiry will depend largely on whether the affirmative defense would have succeeded at trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. I also believe that it is noteworthy that the other district courts have followed Diaz, 534 So.2d at 817, which requires a showing that the defendant had a viable defense. To change this rule after fifteen years will be a dramatic change in postconviction proceedings.

When the plain statement from Hill is given its effect, I have to conclude that for a defendant who pleads guilty or nolo con-tendere to sufficiently allege and prove a claim for relief based upon ineffective assistance of counsel in connection with the plea, the defendant must allege and then prove that there' existed a viable defense. I would approve the decision of the Fifth District affirming the decision of the trial court that Grosvenor was not entitled to relief because she had failed to set forth a viable defense.

      . See, e.g., United States v. Todd, 287 F.3d 1160, 1163-64 (D.C.Cir.2002); Daniel v. Cockrell, 283 F.3d 697, 707-08 (5th Cir.2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir.2001); Weeks v. Snyder, 219 F.3d 245, 157 (3d Cir.2000); Witherspoon v. Purkett, 210 F.3d 901, 903 (8th Cir.2000); Warner v. United States, 975 F.2d 1207, 1214 (6th Cir.1992); Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir.1991); Holmes v. United States, 876 F.2d 1545, 1551-52 (11th Cir.1989); Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.1988); Key v. United States, 806 F.2d 133, 138 (7th Cir.1986); Iaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir.1986); United States v. Giardino, 797 F.2d 30, 31 (1st Cir.1986); People v. Robles, 74 P.3d 437 (Col.Ct.App.2003), cert. denied, No. 03SC241 (Colo. Aug.18, 2003); People v. Rissley, 206 Ill.2d 403, 276 Ill.Dec. 821, 795 N.E.2d 174, 204 (2003); State v. Muriithi, 273 Kan. 952, 46 P.3d 1145, 1148-49 (2002).

      . See Savino v. Murray, 82 F.3d 593, 599 (4th Cir.1996) (apparently conflicting with Hooper v. Garraghty), Copas v. Comm’r of Corr., 234 Conn. 139, 662 A.2d 718, 726 n. 10 (1995); State v. Van Cleave, 674 N.E.2d 1293, 1302 (Ind.1996); Mowdy v. State, 638 So.2d 738, 742 (Miss.1994).

      . See also United States v. Horne, 987 F.2d 833, 835-36 (D.C.Cir.1993) (“Admittedly, the prejudice part of the Hill-Strickland test may pose a difficulty in some cases because it is by no means obvious how a court is to determine the probability that a defendant would have gone to trial. It is clear enough that a defendant must make more than a bare allegation that he ‘would have pleaded differently and gone to trial,’ but it is not clear how much more is required of him.”); Hooper, 845 F.2d at 475 (“[W]e do not put great weight in Hooper's representation that ... he would have chosen to go to trial. Although it carries some probative value, such a statement suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision.”); Patterson v. LeMaster, 130 N.M. 179, 21 P.3d 1032, 1039 (2001) ("Because courts are reluctant to rely solely on the self-serving statements of defendants, which are often made after they have been convicted and sentenced, a defendant is generally required to adduce additional evidence to prove that there is a reasonable probability that he or she would have gone to trial.”).

      . Additionally, the trial court's factual findings would also support the de novo legal conclusion by this Court that Grosvenor failed to demonstrate that her counsel’s performance was deficient. Although the circuit court did not address the deficient performance prong, the court's findings of fact — particularly its finding that the voluntary intoxication defense was not viable — allow us to affirm the court’s denial of the claim. Both the deficiency and the prejudice prongs are mixed questions of law and fact. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Accordingly, when we review a circuit court’s order, we defer to the circuit court’s factual findings and review the legal conclusions — that is, whether counsel’s performance was constitutionally deficient or prejudicial— de novo. See Carroll v. State, 815 So.2d 601, 610 (Fla.2002).
      I do not see how counsel’s failure to advise a defendant of a nonviable defense could ever constitute deficient performance. In fact, a better argument could be made that distorting a defendant's sense of the strengths and weaknesses of his or her position by falsely raising his or her hopes of success could itself constitute deficient performance. Because the circuit court found that Grosvenor could not have presented a viable defense of voluntary intoxication, we could affirm the circuit court's denial of her claim on the ground that she failed to demonstrate that her counsel’s performance was deficient.

      . See also Hooper, 845 F.2d at 475-76 ("Even if Hooper had had a psychiatric report similar to the one produced in 1986, his only rational conclusion would have been that he faced serious obstacles in attempting to pursue an insanity defense. By accepting the plea agreement, Hooper was able to have the principal charge against him reduced to second degree murder.... Examining the 1986 psychiatric report against the background of the circumstances Hooper faced at the time he decided to plead guilty, we are not persuaded that it is sufficient evidence to establish a reasonable probability that had Hooper’s lawyers obtained a sanity evaluation in 1979, Hooper would have declined the plea bargain in favor of a jury trial.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Reginald A. HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2585.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Kellom v. State, 849 So.2d 391 (Fla. 1st DCA 2003).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Charles Reginald ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-129.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied June 23, 2004.
    Charles Reginald Anderson, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Charles Reginald Anderson moved for rehearing of our February 23, 2004 affir-mance of the lower court’s denial of Anderson’s second motion for postconviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We granted rehearing and vacated our prior decision based upon his recitation of extenuating circumstances that impeded his filing of a timely brief.

Anderson’s brief has now been filed and he claims that his convictions for grand theft auto are illegal because the victim-owner of the property has submitted an affidavit that states Anderson was his friend and had permission to take his automobile, the subject of the crime. Furthermore, the affidavit asserts that had Anderson’s lawyer interviewed him while the charges were pending, the victim would have appeared at trial to verify that permission had been granted.

Anderson’s convictions did not result from a trial, but followed his entry of a plea of guilty. He claims that he had no knowledge that the victim-owner had expressed his consent to the use of the automobile until just prior to filing his second motion for postconviction relief and that his attorney was ineffective for not discovering this fact before he entered his plea. Anderson contends that he is excused from the bar prohibiting successive motions because the evidence from the victim-owner was newly discovered. The State agrees that a motion for postconviction relief is not successive if the facts upon which the claim is based were unknown to the mov-ant and could not have been discovered by the exercise of due diligence. E.g., Steinhorst v. State, 636 So.2d 498 (Fla.1994).

Anderson must demonstrate that he did not and could not have ascertained the facts alleged in the victim-owner’s affidavit prior to the time the affidavit was submitted. See, e.g., Owen v. Crosby, 854 So.2d 182 (Fla.2003); Toro v. State, 862 So.2d 68, 70 (Fla. 5th DCA 2003). We agree with the State that the information presented in Anderson’s second motion for postconviction relief could have been discovered by Anderson through the exercise of due diligence, and so it was not newly discovered evidence. Indeed, the motion itself alleges that prior to his plea, Anderson was personally aware that the victim-owner was not cooperating with the prosecution as the victim-owner was his friend who did not want to prosecute him for the theft of the automobile. Anderson further asserted that he informed defense counsel that the victim-owner was his friend and did not want to prosecute him for the theft of the automobile. The fact that Anderson waited over two years to obtain an affidavit from the victim-owner to that effect does not make this information newly discovered.

Accordingly, the trial court correctly determined that Anderson was not excused from the prohibition against filing a successive motion for postconviction relief because the motion itself demonstrates that the information upon which the second motion was based was known to Anderson prior to entry of his plea, and thus, did not constitute newly discovered evidence. No abuse of discretion has been demonstrated.

AFFIRMED.

PETERSON, GRIFFIN, and MONACO, JJ., concur.


text:
    Valerie BRITT, Appellant, v. The CITY OF JACKSONVILLE, Appellee.
    No. 1D03-2173.
    District Court of Appeal of Florida, First District.
    May 10, 2004.

      Appellant, Pro se.
    Richard Mullaney, Esquire, Jason Teal, Esquire, and Tracey Arpen, Esquire, of General Counsel’s Office, City of Jacksonville, Jacksonville, for Appellee.
   PER CURIAM.

Appellant Valerie Britt appeals the trial court’s order dismissing her action against appellee City of Jacksonville without prejudice for failure to comply with Florida Rule of Civil Procedure 1.070®. Appellant initially filed her complaint with the clerk’s office within the required 30 day period for actions brought under section 163.3215(3), Florida Statutes (2002), but served appellee 124 days after she filed her complaint, just outside the 120-day period of Rule 1.070®. Appellant states that she may not now refile her complaint because the 30-day period provided in section 163.3215(3) has long passed.

In dismissing appellant’s complaint, the trial court stated, “Having found an absence of a showing of “persistent”, “diligent,” and “good faith” efforts to serve the city, Rule 1.070® ... requires that this lawsuit be' dismissed without prejudice.” (Citation omitted). Prior to an amendment in 1999, Rule 1.070® required the dismissal of a plaintiffs action if he or she failed to timely serve the defendant and could not show good cause why service was not timely made. See Amendment to Fla. R. Civ. P. 1.0700) — Time Limit for Serví, 720 So.2d 505, 505 (Fla.1998). The application of this rule sometimes acted as a severe sanction. Id. “For example, even if dismissal under the rule is without prejudice, a plaintiff would be unable to refile suit in cases where the statute of limitations has expired.” Id. Therefore, Rule 1.070® was amended in 1999 to eliminate the sometimes harsh effects of the rule. See Amendment to Fla. R. Civ. P. 1.0700) — Time Limit for Serv., 746 So.2d 1084 (Fla.1999); Amendment to 1.0700), 720-So.2d at 505.

The Rule, as amended and in pertinent part, states as follows:

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period-A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

This amendment, intended to be consistent with Federal Rule of Civil Procedure 4(m), “grant[ed] a court broad discretion to extend the time for service even when good cause has not been shown.” Totura & Co., Inc. v. Williams, 754 So.2d 671, 677 (Fla.2000) (emphasis added) (quoting Amendment to 1.070(j), 720 So.2d at 505-06). The trial court in the instant case failed to recognize that even absent appellant showing good cause, it still had the discretion to determine whether an extension for time of service was warranted.

A court may grant relief from dismissal even where good cause has not been shown if the applicable statute of limitations would bar the refiled action. See Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001) (reversing an order dismissing the plaintiffs action for failure to comply with Rule 1.070 because the statute of limitations had run and service had been obtained by the time of the hearing); Nationsbank, N.A. v. Ziner, 726 So.2d 364, 367 (Fla. 4th DCA 1999) (reversing an order dropping a defendant as a party based on the failure of the plaintiff to timely serve the defendant because the statute of limitations had long expired); Boley v. Kaymark, 123 F.3d 756, 758-60 (3rd Cir.1997) (stating that when reconsidering whether the plaintiff was entitled to a permissive extension for service of the initial complaint, the trial court should consider the fact that the applicable statute of limitations would bar refiling); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir.1996) (same); Espinoza v. United States, 52 F.3d 838, 842 (10th Cir.1995) (stating that “relief may be justified ... if the applicable statute of limitations would bar the refiled action,” quoting the advisory committee’s notes on Federal Rule 4(m)).

Because the trial court in the instant case failed to determine whether the running of the statute of limitations warranted an extension of time for service, we REVERSE and REMAND for reconsideration in light of this opinion.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: TAYLOR, J.

text:
    Mariano R. GONZALEZ and Rene Gonzalez, Appellants, v. FLAMINGO ESTATES MAINTENANCE ASSOCIATION, INC., a Florida corporation not-for-profit, Appellee.
    No. 4D03-1902.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied July 8, 2004.

      Mariano R. Gonzalez of the Law Offices of Gonzalez & Associates, P.A., Miami Lakes, for appellants.
    David L. Brough and Scott L. Pestcoe of Bakalar, Brough & Chadrow, P.A., Plantation, for appellee.
   TAYLOR, J.

Mariano and Rene Gonzalez appeal a final summary judgment granting permanent injunctive relief to the Flamingo Estates Maintenance Association, Inc. (“Flamingo”). The mandatory injunction, which resulted from unauthorized modifications appellants made to the exterior of their home, requires appellants to alter the dimensions of their patio, relocate their hot tub, remove unapproved landscaping, and enclose a screen over the hot tub and Tiki hut, to comply with the architectural plans originally approved by Flamingo.

We reverse the order granting Flamingo’s summary judgment motion as to the Gonzalezes’ affirmative defense that Flamingo’s actions in denying their request for deviations from the approved plan were arbitrary, capricious, and unreasonable. As to this defense, there remained genuine issues of material fact precluding summary judgment. See Prisco v. Forest Villas Condo., 847 So.2d 1012, 1014 (Fla. 4th DCA 2003)(recognizing that a homeowner may defend against enforcement of an otherwise valid restrictive covenant on the ground that the enforcing authority acted in an unreasonable or arbitrary manner); Killearn Acres Homeowners Ass’n v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992)(holding that the party challenging enforcement of a restrictive covenant has the burden of proving defensive matters such as unreasonable or arbitrary enforcement, and noting that the burden is a heavy one where the enforcing party has the absolute right to approve or disapprove any plans which it deems are not suitable or desirable, even for purely aesthetic reasons); Anderson v. Rosetree Vill. Ass’n, 540 So.2d 173 (Fla. 2d DCA 1989)(holding that where the townhouse association did not controvert the defense of arbitrary and capricious action factually or establish its legal insufficiency, the summary judgment must be reversed).

We affirm as to all other issues raised by appellants, but reverse and remand for further proceedings to allow appellants to present their affirmative defense of unreasonable or arbitrary enforcement.

AFFIRMED in part, REVERSED in part, and REMANDED.

WARNER and KLEIN, JJ., concur.


author: EDWARDS-STEPHENS, S., Associate Judge.

text:
    Romulus BRINKLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1978.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Rehearing Denied June 23, 2004.

      Joerg F. Jaeger of Jaeger and Blankner, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS-STEPHENS, S., Associate Judge.

The defendant appeals from his conviction and sentence for manslaughter by culpable negligence with a firearm. This case involves a tragic incident in which the defendant shot and killed his live-in partner’s adult daughter, thinking she was a burglar.

The defendant raises as his point on appeal that the trial court erred in denying his motion to dismiss the indictment because the State failed to produce competent evidence contradicting his reasonable hypothesis of innocence. Because we conclude the State demonstrated a prima facie case, we affirm.

The defendant asserts that the standard of proof in ruling on a motion to dismiss where the State’s case is based entirely on circumstantial evidence requires that the evidence not only be consistent with the defendant’s guilt, but also must be inconsistent with any reasonable hypothesis of innocence. The defendant argues that the State failed in its burden of presenting competent evidence inconsistent with his reasonable belief that he was acting out of fear for his life.

This Court has previously held that in order to withstand a motion ,to dismiss, the State need only demonstrate a prima facie case. State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984). The State is not obligated to produce evidence sufficient to sustain a conviction. State v. Bonebright, 742 So.2d 290 (Fla. 1st DCA 1998). Furthermore, if the State’s evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all the evidence has been presented. State v. Bonebright; State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

In determining whether the trial court erred in denying the defendant’s motion to dismiss, this Court must review the particular facts presented as they relate to the elements of the criminal charge. The defendant was charged with manslaughter by culpable negligence with a firearm. § 782.07, Fla. Stat. (2002). The elements of manslaughter by culpable negligence require the State to prove the killing of a human being by an act of culpable negligence without lawful justification. § 782.07(1), Fla. Stat. (2001). Culpable negligence required to sustain a manslaughter charge must be of a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public; or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them. In re J.C.D., 598 So.2d 304, 305 (Fla. 4th DCA 1992), quoting Preston v. State, 56 So.2d 543, 544 (Fla.1952).

The defense moved to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) on the basis that the defendant was legally justified in shooting the victim, Jodi Reis, at the home the defendant shared with the victim’s mother. The defendant maintained that he shot Reis in the garage because he thought she was a burglar and that he was in fear for his life. The State filed a traverse which included the following circumstantial evidence of the defendant’s negligence: (1) the defendant had told the victim’s mother that his philosophy was to “shoot first, ask questions later”; (2) the defendant’s awareness that Reis frequently stayed at her mother’s house; (3) Reis knew there was a key to the back door in the garage; (4) Reis did not usually call before coming home and it was not unusual that she would come over about 1:00 or 2:00 a.m.; (5) the defendant told police he thought he “had a good one”; and (6) the defendant did not announce himself or try to give any warning even though it might have been Reis. The State maintained that whether the defendant was justified in using deadly force was a factual issue for the jury. The defendant supplemented his motion to dismiss accepting the State’s additional facts. The defendant still maintained that the State failed to establish a prima facie case.

In analyzing a motion to dismiss, the trial court must determine whether the State presented sufficient evidence to set forth a prima facie case of guilt against the defendant, that there are no material disputed facts, and that the undisputed facts establish a prima facie case of guilt against the defendant. If the State has not met this burden, the defendant’s motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) should be granted. See State v. Sacco, 849 So.2d 452, 454 (Fla. 4th DCA 2003); State v. Bonebright. Only where the most favorable construction to the State would not establish a prima facie case of guilt should a Rule 3.190(c)(4) motion be granted. The State can use circumstantial evidence and all inferences therefrom result in the State’s favor. State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000). Ordinarily when a material factual allegation in a Rule 3.190(c)(4) motion is denied or disputed in a traverse, as in the instant case, the trial court must deny the motion to dismiss. State v. Lu-kas, 652 So.2d 1177, 1178 (Fla. 2d DCA 1995). However, the traverse did not necessitate denial of the motion to dismiss in the present case because the defendant filed a supplement to his motion in which he accepted the State’s version of the facts as presented in the traverse resulting in there being no material disputed facts. The issue becomes whether the undisputed facts established a prima facie case against the defendant.

The State alleged facts that would establish that the defendant’s fear was unreasonable, thus withstanding the motion to dismiss. The question of reasonableness was one that a trier-of-fact needed to decide by weighing the evidence presented. This evidence included that the defendant did not announce himself or try to give any warning; the defendant was aware that Reis frequently stayed at her mother’s home; Reis did not usually call before coming over; and it was not unusual for Reis to come over around 1:00 or 2:00 a.m. The fact that the defendant told police that he thought that he “had a good one,” and that he previously told Reis’ mother that his philosophy was to “shoot first and ask questions later,” raises a question of whether he had a predisposition to shoot with little regard for human life or safety of persons or reckless indifference to the rights of others.

To reiterate, based on the facts presented, a question existed as to whether the defendant reasonably believed he needed to shoot in order to save himself before even inquiring or warning the suspected intruder, since he was aware that Reis came to the house at all times of night. Whether the “castle doctrine” should apply because the defendant reasonably believed he was defending his home against a real or perceived threat which justified the use of deadly force was one for a jury. See Kelvin v. State, 610 So.2d 1359 (Fla. 1st DCA 1992). The operative question, whether the defendant’s belief was reasonable, was for a trier-of-fact, the jury, under the facts of this case. These are facts that a jury should consider and give weight. The trial judge could look only to prima facie sufficiency and not evaluate evidence. State v. Cole, 710 So.2d 122 (Fla. 1st DCA 1998); State v. Bailey, 508 So.2d 1268 (Fla. 4th DCA 1987); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA 1986); State v. Milton, 488 So.2d 878 (Fla. 1st DCA 1986); State v. Lukas; State v. Williams, 400 So.2d 1326 (Fla. 4th DCA 1981). The trial court correctly denied the motion to dismiss.

AFFIRMED.

PLEUS, J., concurs.

GRIFFIN, J., dissents, without opinion.

      . The defendant pled nolo contendere to the charge following denial of his motion to dismiss. The defendant reserved his right to appeal denial of the motion which the State stipulated was dispositive.


author: GRIFFIN, J.

text:
    Harold Lamar CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4085.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Rehearing Denied May 28, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, and Harley I. Gutin, Cocoa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Harold Cummings [“Cummings”], appeals his judgment and sentence for possession of cocaine with intent to sell/deliver. Cummings raises four claims of error. Although we find no reversible error, we believe one of the issues merits discussion. Cummings contends that the trial court erred in denying his motion for a mistrial because the prosecutor engaged in numerous acts of misconduct during closing argument.

Cummings correctly argues that during his closing argument, the assistant state attorney violated several of the limitations that have been identified in the case law concerning arguments that should not be made. Mainly, the prosecutor made certain factual assertions not in evidence and attempted to bolster the credibility of witnesses by expressing his own belief in it. Perhaps the most egregious example was his effort to recount things he had heard from bystanders during the jury view. Defense counsel alertly and appropriately objected in virtually every instance and the trial court sustained the objections. The trial court did not find the prosecutor’s statements, singly or as a group, to warrant a mistrial, however, and Cummings’ requests for this relief were denied.

Sophomoric as the prosecutor’s errors were and much as we are aware that some prosecutors are disinclined to improve their skills and curb their excesses in the absence of appellate rebuke, we have examined the entire closing argument with care, and we simply cannot say the trial court abused its discretion by failing to mistry the case. See, e.g., Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002). The improper argument was not so frequent or so egregious as to deprive Cummings of a fair trial, and any harm was attenuated by the trial court’s actions in sustaining the objections and instructing the jury to disregard the remarks. Our view is reinforced by the fact that the improper argument pertained only to evidence on the charge of attempted second-degree murder, and the jury acquitted Cummings of this charge.

AFFIRMED.

MONACO, J., concurs.

SAWAYA, C.J., dissents, without opinion.


author: ORFINGER, J.

text:
    William A. BROWNING, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-3468.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.

      William A. Browning, Worthville, KY, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

William J. Browning appeals the denial of unemployment compensation benefits based on a finding that he voluntarily left his job without good cause. Because competent substantial evidence supports that finding, we affirm.

Browning was employed by QIS,- Inc. as a construction inspector. He was assigned to a project in Georgia and received daily pay and travel expenses. After that job was completed, Browning was offered a similar position on a project in Pennsylvania. As the Pennsylvania project was coming to an end, QIS offered Browning employment at a project in Maryland. The hearing officer found, based on conflicting evidence, that the terms of Browning’s employment in Maryland differed from his previous jobs in Georgia and Pennsylvania in that he would be paid and receive travel expenses only for those days actually worked. Consequently, Browning would receive no pay or expenses for days no construction was performed due to weather or other circumstances. Because Browning averaged only three days of work per week in Pennsylvania, his earnings and travel reimbursement were low, and as a result, he resigned.

A claimant who voluntarily leaves work without good cause is disqualified from receiving .unemployment benefits. Good cause “includes only such cause as is attributable to the employing unit or which consists of illness or disability of the individual requiring separation from his or her work.” § 443.101(1)(a)(1), Fla. Stat. (2003). The hearing officer found that Browning voluntarily resigned his position because of his dissatisfaction with the compensation and reimbursement package he had agreed to. Because that finding is based on competent, substantial evidence, we affirm. While we recognize that the evidence was disputed, the determination of credibility falls solely within the purview of the hearing officer’s discretion as the finder of fact. Glover v. Sanford Child Care, Inc., 429 So.2d 91, 92 (Fla. 5th DCA 1983).

AFFIRMED.

THOMPSON and TORPY, JJ., concur.


author: SHARP, W., J.

text:
    Travis FAIRROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3893.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.

      Travis Fairrow, East Palatka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR CLARIFICATION

SHARP, W., J.

We grant the state’s Motion for Clarification, withdraw our previous opinion and issue this opinion in its place.

Fairrow appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He was tried and convicted of burglary of a dwelling while armed and three counts of aggravated assault with a deadly weapon. The jury found he carried a firearm, concerning all counts, and he was sentenced to a ten year minimum mandatory term for the burglary and consecutive three year minimum mandatory terms for each of the three aggravated assaults, for a total of nineteen years.

Fairrow raises three grounds in this motion. We find the first two, newly discovered evidence and ineffective assistance of triál counsel, lack merit. However, his third ground — that the trial court erred in stacking the minimum mandatory sentences — may have merit.

The state points out that Fairrow questioned the propriety of the consecutive minimum mandatory sentences in his direct appeal, which was preserved by his having filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). This court affirmed without opinion. See Fairrow v. State, 842 So.2d 129 (Fla. 5th DCA 2003). However, the issue raised there— that the court misapprehended that consecutive terms were mandatory and not discretionary — is different from the issue raised here — that consecutive minimum sentences are not authorized under section 775.087(2) at all, because the offenses were committed during a single criminal episode. See, e.g., Perreault v. State, 853 So.2d 604 (Fla. 5th DCA 2003); Green v. State, 845 So.2d 895 (Fla. 3d DCA 2003); Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003); Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003).

Based on our reading of the facts stated in Fairrow’s initial appeal, his convictions appear to have arisen from a single criminal episode. Thus, the trial court should either have corrected the consecutive mandatory terms and imposed a legal sentence, or attached portions of the record showing that the offenses were not part of a single criminal episode. See Ellis v. State, 869 So.2d 52 (Fla. 5th DCA 2004). Accordingly, we affirm as to the first two grounds, but remand this case to the trial judge to address ground three.

AFFIRMED in part; REVERSED in part; REMANDED.

THOMPSON and MONACO, JJ., concur.


text:
    Katherine D. WOLFORD and Barry Wolford, husband and wife, Petitioners, v. Scott A. BOONE, M.D. and Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital, Respondents.
    No. 5D03-556.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Desiree E. Bannasch, Orlando, for Petitioners.
    Patrick H. Telan and Jack E. Holt, III, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Respondent, Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital.

      Michael A. Estes and Eric P. Gibbs, of Hannah, Estes & Ingram, P.A., Orlando, for Respondent, Scott A. Boone, M.D.
   PER CURIAM.

Katherine D. Wolford and her husband, Barry Wolford [“the Wolfords”], plaintiffs below, seek certiorari review of the circuit court order denying their motion to strike the responsive pleadings of the defendants below, Scott A. Boone, M.D., and Adventist Health System/Sunbelt, Inc., doing business as Florida Hospital [“Respondent”]. For the reasons that follow, we grant the writ, in part.

On May 26, 1999, Dr. Boone performed a laproscopically assisted vaginal hysterectomy and vaginal cuff suspension on Katherine Wolford while she was a patient at Loch Haven OB/GYN Group, which is owned and operated by Florida Hospital. When she continued to experience pain, numbness and sexual dysfunction, Dr. Boone performed an exploratory laparoto-my and surgical repair with removal of Katherine’s ovaries. However, Katherine continued to suffer pain and injuries and retained counsel to file a medical malpractice action.

On January 6, 2000, Katherine’s counsel requested her medical records in a letter addressed to Loch Haven OB/GYN, to the attention of Dr. Boone and Dr. Frederick Hoover. When there was no response, a second letter was sent on February 24, 2000, noting that the requested documents had not been received. Again, no response was received.

On March 7, 2000, the Wolfords’ counsel sent notices of intent to initiate litigation by certified mail, return receipt requested, to Dr. Boone and to Loch Haven. A third request for Katherine’s medical records was included. Also included were other requests for presuit discovery, including a request to take the unsworn statement of Dr. Boone at 10:00 a.m. on March 29. The notice requested an alternative date or time if the one chosen were inconvenient. The return receipts were signed for on March 9, 2000, by a Florida Hospital employee assigned to Loch Haven. Dr. Boone acknowledged receiving the notice of intent package, and he testified that he forwarded it to risk management. He was not thereafter contacted by risk management, and he did not contact risk management to follow up.

On March 10, 2000, Katherine’s medical records were finally forwarded to her attorney. However, no other response to the notice of intent was received, so the Wolfords’ attorney faxed another letter to Dr. Boone on March 27, 2000, to remind him of the scheduled unsworn statement. Receipt was confirmed by facsimile printout. The same letter was also sent Federal Express Overnight to Dr. Boone and was signed for by the same employee on March 28, 2000. Nonetheless, Dr. Boone failed to respond to the letter, and he failed to appear for his unsworn statement. Although he admitted receiving the March 7, 2000, notice of intent package, he claimed not to know his statement was noticed for March 29 until he received the March 27 letter.

Two hours after the scheduled statement was to take place, Dr. Boone contacted the Wolfords’ attorney. He said he had “just read” the March 27 letter from the Wolfords’ attorney and that obviously he would not be able to appear as indicated because the hour had passed. Dr. Boone claimed he offered to reschedule his statement, but Katherine’s counsel denied this. Dr. Boone was advised by Katherine’s counsel to contact his insurance company regarding the notice of claim and notice of intent, and a follow-up letter was mailed to him confirming this advice. Again, the receipt for the letter was signed by the same employee. No further communication was received from Dr. Boone or anyone representing him.

In June 2000, suit was filed by the Wol-fords against Dr. Boone and Loch Haven OB/GYN Group. A second amended complaint was later filed against Adventist Health System/Sunbelt, Inc., doing business as Florida Hospital.

Answers and affirmative defenses were filed on behalf of respondents, denying liability. Dr. Boone also alleged as an affirmative defense that his failure to respond to presuit notices was the result of mistake, inadvertence and/or excusable neglect. Adventist alleged as an affirmative defense that it was never directly placed on notice of intent to initiate litigation and therefore could not be sanctioned as a result of any failure to participate in pre-suit discovery on the part of Dr. Boone.

At his deposition, Dr. Boone stated that he recalled seeing the January 6, 2000, letter and had instructed some employee to provide the requested medical records. When he received the second letter, he says he alerted someone that the records had not been sent. He also acknowledged seeing the notice of intent and said that he forwarded the notice by interoffice mail to the risk management office and then waited for instructions from them. Dr. Boone made a similar allegation in his response to the request for admissions, stating that his conduct was based on mistake, inadvertence and excusable neglect. Florida Hospital admitted in its response to the request for admissions that correspondence and a notice of intent had been sent to Loch Haven, but claimed that it had never received any records request addressed to it. However, Florida Hospital did admit that Dr. Boone was its employee.

The Wolfords filed a motion to strike respondents’ pleadings. The Wolfords argued that respondents had failed to timely provide medical records, that Dr. Boone had failed to attend the scheduled unsworn statement, and that respondents had failed to conduct a presuit investigation, as required by law. Accordingly, the Wolfords argued that section 766.206(8), Florida Statutes (1999), required the court to strike respondents’ answer, and section 766.106(3)(a), Florida Statutes (1999), justified dismissal of the claims and defenses.

In reply, Dr. Boone’s attorney filed his own affidavit, stating that shortly after he was retained in June 2000, he had Katherine’s medical records reviewed by board certified obstetrician and gynecologist, Dr. Andrea Rapkin, who advised that Dr. Boone’s care met the relevant standard of care and that he was not negligent. Dr. Boone’s attorney also alleged in his affidavit that in preparation for the motion to strike, he had the records reviewed by a second specialist, Dr. Cordell Mitchell, who agreed with Dr. Rapkin. In short, because he had a colorable defense, his failures to comply with the presuit procedures of the medical malpractice statute should not deprive him of the right to defend himself. A hearing was held on the motion to strike, and the trial court subsequently entered an order denying the motion to strike without explanation.

The Wolfords argue with considerable justification and force that this court is bound by the approach taken in Torrey v. Leesburg Regional Medical Center, 796 So.2d 644 (Fla. 5th DCA), review denied, 797 So.2d 590 (Fla.2001). In Torrey, this court held that the trial court had abused its discretion in failing to dismiss a malpractice complaint where the plaintiff had failed to attach a medical expert’s opinion to the notice of intent, the opinion belatedly served was defective, and the plaintiff failed to make discoverable information available after a second request. This court said that the presuit procedures are mandatory and, because Torrey did not comply, her complaint must be dismissed. Id. at 546. The Wolfords rightfully argue that the failure to apply the statute as interpreted in Torrey even-handedly to both physicians and malpractice claimants would be unjust.

The trial court in Torrey had expressly decided that plaintiffs actions did not rise to the level of willful non-compliance requiring dismissal, but this court held that sustaining that finding would require ignoring the purpose of the statute. Id. The Torrey panel decided that the trial court’s finding of lack of willfulness could not be supported by the record, because although a first failure to provide requested information could be construed as non-willful, a second failure could not be. Id. The court concluded, therefore, that plaintiffs willful failure to provide discoverable information after a second request required dismissal. Id. The facts of this ease appear to be more egregious, yet the physician and hospital were not sanctioned.

In general, the law should favor a decision on the merits of these claims, and an appellate court should uphold such a decision by the trial court whenever possible. Although claimants and physicians should be sanctioned for their failure to follow the rules to an equivalent degree, the striking of pleadings or dismissal of a case should be reserved for the most contumacious behavior. In saying that failing twice to respond to presuit discovery requests must be deemed willful and must result in dismissal because the legislature wants the adjudication of medical malpractice cases to be fast and cheap, Torrey at 546, the Torrey panel may have said too little- about the legislature’s other goals— to determine which claims do have merit and to preserve the right of trial by jury. See § 766.201(l)(b), Fla. Stat. (2003). We do not read Torrey as establishing a bright line “two strikes and you’re out” policy, but we do believe it places a burden on the defaulting party to demonstrate how its failure to comply with the statute’s pre-suit requirements did not frustrate the statute’s goals or prejudice the opposing party.

Because our role is to review orders imposing or declining to impose a sanction for abuse of discretion, it is impossible for this court to carry out any meaningful review without findings by the trial court. In Torrey, the trial court had sufficiently explained the basis for his ruling. In this case, there is no explanation of the trial court’s analysis of the relevant facts or any explanation why the analysis in Torrey is not applicable. We simply cannot tell whether the trial court abused its discretion in apparently concluding that respondents’ conduct was not wilful or that Torrey did not apply. Accordingly, we grant the petition to the extent that the order at issue lacks findings. And, in future, we will require the trial court to explain the legal or factual basis for its ruling on sanctions in medical malpractice cases, at least where, as here, the basis for the decision is not apparent.

PETITION GRANTED in part; DENIED in part.

SAWAYA, C.J., PETERSON and GRIFFIN, JJ., concur.

      . No separate notice was sent to Florida Hospital.


text:
    Kermitt D. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1531.
    District Court of Appeal of Florida, First District.
    May 17, 2004.
    Rehearing Denied June 23, 2004.
    Kermitt D. Williams, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and BROWNING, JJ., concur.


author: KLEIN, J.

text:
    Debra E. FLORES, Appellant, v. Victor R. FLORES, Appellee.
    No. 4D02-1658.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Michael H. Bloom of the Law Offices of Michael H. Bloom, Coconut Grove, for appellant.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellee.
   KLEIN, J.

The wife appeals a dissolution judgment, arguing that the trial court failed to make the required findings regarding the parties’ income in order to calculate child support. The husband cross-appeals, arguing that the court, after recognizing at the final hearing that the amount of temporary support may have been excessive, should have reduced temporary payments retroactively so that his arrearage would be lower.

The husband concedes that the trial court erred in not making findings as to the parties’ income in order to calculate child support, Jones v. Jones, 636 So.2d 867 (Fla. 4th DCA 1994), and we accordingly reverse and remand for a redetermi-nation of child support. The wife also argues that the trial court erred in refusing to impute income to the husband and in denying her request for attorney’s fees, but we affirm those issues without further discussion. That leaves the issue raised by the husband on cross-appeal.

At the final hearing the husband requested that the trial court retroactively reduce temporary alimony and child support payments on the ground that he had been without counsel at the temporary relief hearing and lacked the ability to present the trial court with an accurate financial picture. Although the trial court recognized that the temporary relief order may have awarded excessive amounts, it denied the husband’s request to reduce the arrearage.

The wife contends that temporary support payments are vested and accordingly cannot be retroactively reduced. She argues that our decision in Allison v. Allison, 605 So.2d 130 (Fla. 4th DCA 1992), which squarely holds that a temporary support order may be retroactively reduced, is in conflict with Israel v. Israel, 824 So.2d 953 (Fla. 4th DCA 2002), Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999), and Warner v. Warner, 692 So.2d 266 (Fla. 5th DCA 1997).

In Israel, Kraus and Warner, however, the trial courts were reversed for retroactively increasing support payments, which created immediate arrearag-es. They stand for the proposition that a trial court cannot retroactively increase temporary support payments beyond the date the motion seeking the increase is filed. Those cases are distinguishable in that they involved retroactive increases, not decreases. The wife’s interpretation of Israel, Kraus and Warner, which would prohibit retroactive decreases, would be contrary to Duss v. Duss, 92 Fla. 1081, 111 So. 382, 384 (1926), in which our supreme court held that past due or unpaid installments of temporary support may be “annulled or modified.” Burton v. Burton, 216 So.2d 480 (Fla. 4th DCA 1968) (authorizing retroactive decrease in temporary support).

We are unable to determine whether the trial court was under the impression it could not retroactively reduce, but, as we noted earlier, the court did recognize at the final hearing that the payments required by the temporary order may have been excessive. We have concluded that, on remand, the trial court should reconsider this issue. As Judge Stringer observed in his concurring opinion in Dent v. Dent, 851 So.2d 819, 821-22 n. 1 (Fla. 2d DCA 2003):

A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often entered based upon an abbreviated hearing and limited evidence. The court often has little more than the parties’ financial affidavits to guide it in calculating support. These forms can be complicated to fill out accurately, particularly for pro se parties or parties who are unable to review the affidavit with their counsel in detail prior to the temporary hearing. As the case progresses, the developing evidence or changes in the parties’ financial circumstances may reveal inequities or errors in the prior support awards that require adjustment in the final analysis.

Affirmed in part and reversed in part.

WARNER and GROSS, JJ., concur.


author: MAY, J.

text:
    Otheniel ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2795.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Rehearing Denied June 25, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

Following a plea of nolo contendere, the defendant appeals his conviction and sentence on charges of two counts of sexual battery on a child less than 12 years of age, and lewd or lascivious battery. He argues that the trial court abused its discretion by failing to sua sponte appoint conflict-free counsel at the time of his sentencing to argue a motion to withdraw his plea. We affirm.

The record reflects that following the plea, but prior to sentencing, defense counsel filed a motion to withdraw the plea on the basis it was not freely and voluntarily made and the defendant did not knowingly and intelligently waive his rights. The trial court denied the motion without a hearing.

Defense counsel then requested appointment of experts to determine the defendant’s competency to be sentenced. The defense expert found the defendant competent. Defense counsel then filed a motion for downward departure and requested that the defendant be sentenced as a youthful offender.

At the sentencing, the defendant told the court that his attorney had lied to him and told him he would be sentenced as a juvenile. He told the court he did not “really want the deal” unless the court would give him time served. Defense counsel responded by advising the court that it had denied a motion to withdraw plea, and that he believed his client was “under the opinion that I am the one forcing him to go forward with the sentencing as opposed to the Court.” The State agreed to a downward departure. The court sentenced the defendant to 15 years in Florida State Prison followed by 20 years of sex offender probation.

The defendant suggests that his discussion with the court at the sentencing hearing should have alerted the court to appoint conflict-free counsel to argue a motion to withdraw his plea. We disagree for several reasons. First, there was no written motion to withdraw plea pending at the time of the sentencing. Second, we decline to interpret his verbal conversation with the court as an ore tenus motion to withdraw plea. Third, even if we were to do so, no written order was rendered. Thus, we lack jurisdiction to review the issue. Pannier v. State, 849 So.2d 1105 (Fla. 4th DCA 2003). And fourth, the record does not reflect that defense counsel was adversarial with the defendant at the time of sentencing. Therefore, the court was not obligated to appoint conflict-free counsel. Stone v. State, 798 So.2d 861 (Fla. 4th DCA 2001).

We therefore affirm the conviction and sentence. This affirmance is without prejudice to the defendant’s ability to pursue available post-conviction relief.

FARMER, C.J., and POLEN, JJ., concur.


text:
    Jerry SULLIVAN, Appellant, v. COMMUNICATIONS, CONCEPTS AND INVESTMENTS, INC., a Florida corporation d/b/a Crown Communications, Global Collections, Inc., a Florida corporation, and Lawrence Levinson, Appellees.
    No. 4D02-4505.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    John A. Willis and Steven M. Goldsmith, Boca Raton, for appellant.
    Franklin L. Zemel and John M. Cooney of Broad and Cassel, Ft. Lauderdale, for appellees.
   KLEIN, J.

Plaintiff appeals an order dismissing his case because he filed a unilateral pretrial statement, after defendants refused to agree to his proffered joint pretrial statement. Although the dismissal order stated it was without prejudice, the statute of limitations had run. We reverse.

At a case management conference requested by defendants, in which they alleged that plaintiffs counsel was not cooperating on a joint pretrial order, defense counsel advised the court that he objected to the joint stipulation he received from plaintiffs counsel because it was not concise and impartial. Plaintiffs counsel replied that defense counsel had not timely responded to his proposed joint pretrial stipulation, and he filed the unilateral statement as a precaution, in case they could not ultimately agree. The following colloquy then ensued:

THE COURT: How come you have not joined in a joint pretrial stipulation?
MR. SPOLTER (plaintiffs counsel): Because until the deadline Mr. Zemel [defendant’s counsel] never responded to our proposed pretrial stipulation.
THE COURT: What has that got to do with no joint pretrial stipulation?
MR. SPOLTER: Because, Your Honor, I can’t do a pretrial joint stipulation when the defendant never responds to my proposed joint pretrial stipulation ....
THE COURT: Have you ever, ever read my pretrial order form?
MR. SPOLTER: Yes, I did, ... plaintiffs case can be stricken.
THE COURT: I’m going to do that. It’s dismissed without prejudice.
MR. SPOLTER: Your Honor—
THE COURT: Have a nice day, gentlemen.

When the court was advised by both sides that the dismissal would require a finding of wilfulness, the court replied that they were wrong, that wilfulness was not necessary.

Defendants concede that the order must be reversed because the trial court made no findings that the failure to comply with the pretrial order was wilful, but contend that we should remand for the trial court to make the findings which would warrant dismissal. Under the facts in this case, in which the initial proposed joint stipulation was rejected by defense counsel, and nothing significant occurred thereafter, the failure to file the joint stipulation could not have been wilful. We therefore reverse. Cushman & Wakefield, Inc. v. Hughes, 645 So.2d 1091 (Fla. 4th DCA 1994) (where failure to file pretrial stipulation is not wilful disobedience of a court order, dismissal is an abuse of discretion).

STONE and TAYLOR, JJ., concur.