author: WALLACE, Judge.

text:
    BACON FAMILY PARTNERS, L.P., a Colorado limited partnership, Appellant, v. APOLLO CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 2D02-4991.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.

      William G. Morris and John N. Jenkins of the Law Offices of William G. Morris, Marco Island, for Appellant.
    Michael R. Whitt and Sanjay Kurian of Becker & Poliakoff, P.A., Fort Myers, for Appellee.
   WALLACE, Judge.

This case involves a condominium dispute. The condominium association, the Apollo Condominium Association, Inc., a Florida not-for-profit corporation (“the Association”), filed an action for injunctive relief and damages against one of the unit owners, Bacon Family Partners, L.P., a Colorado limited partnership (“Bacon”), over Bacon’s use of a deck area in the operation of a restaurant. Bacon answered, raised various affirmative defenses, and counterclaimed for damages. The trial court ordered the parties to nonbinding arbitration. The arbitrator awarded injunctive relief to the Association, denied its claim for damages, and denied Bacon’s counterclaim for damages. Bacon timely moved for trial on the limited issues of the Association’s claim for injunctive relief and Bacon’s counterclaim for damages. The trial court entered an order striking Bacon’s motion for trial and granting a final judgment in accordance with the decision of the arbitrator. Because we find that the trial court erred in denying Bacon a trial on the issues specified in its motion for trial, we reverse the final judgment and remand this case for a trial on the limited issues specified in Bacon’s motion.

FACTS

The Apollo Condominium (“the Condominium”) is a mixed-use condominium located on Marco Island in Collier County, Florida. In January 1998, Bacon acquired the 150-seat restaurant and bar on the ground floor of the Condominium, designated as “Commercial Unit 500” (“the Unit”). Thereafter, Bacon operated the Unit as “The Tides Restaurant.” There is a deck or patio area located directly to the west of and abutting the Unit. The deck faces the beach and the Gulf of Mexico. A bar located within the Unit is situated so as to allow service to customers on the deck as well as to patrons within the confines of the Unit. The dispute between the parties centered on Bacon’s use of the deck.

Upon its acquisition of the Unit, Bacon placed tables and chairs on the deck and used it as part of its restaurant operation. The parties had extensive negotiations concerning improvements to the deck area to be constructed and paid for by Bacon and a lease of the deck area by the Association to Bacon. Nevertheless, no lease of the deck area was ever executed. Despite the absence of a lease, Bacon began the construction of an awning or roof over the deck. The Association, objecting that the construction was not being undertaken in accordance with plans previously submitted and approved, filed a complaint for injunctive relief against Bacon.

THE LITIGATION

The dispute between the parties spawned two civil actions, a mediation that resulted in an impasse, and an arbitration proceeding. In order to understand the issues raised in this appeal, a detailed outline of the procedural history of the litigation is necessary.

A. The Injunction Case

On June 7, 1999, the Association filed the first civil action, circuit court case number 99-1866-CA, against Bacon only. This action will be referred to as “the injunction case” to distinguish it from a second civil action the Association later filed against Bacon. In its amended complaint filed in the injunction case, the Association contended that the deck was part of the common elements of the Condominium and was thus owned by all of the unit owners at the Condominium in proportion to their undivided shares of the common elements. The Association asserted that Bacon had no right to exclusive control and use of the deck or to use the deck as part of its restaurant operation. The Association sought an injunction to terminate Bacon’s use of the deck, plus attorney’s fees and costs.

Bacon answered the amended complaint, raised various affirmative defenses, and counterclaimed for damages. Bacon asserted, in pertinent part, that the deck was actually a “balcony” appurtenant to the Unit within the meaning of the Declaration of Condominium. The Declaration provided, in pertinent part, that “balconies” shall “constitute Limited Common Elements and, as such, are reserved for the use of the unit appurtenant thereto, to the exclusion of other units, and there shall pass with each unit as appurtenant thereto the exclusive right to use the Limited Common Elements so appurtenant.” If the deck was a “balcony” appurtenant to the Unit, then Bacon had the right to its exclusive use. Bacon requested the denial of the Association’s complaint for injunctive relief; Bacon also requested attorney’s fees and costs. In an amended counterclaim (“the Counterclaim”), Bacon sought damages against the Association for increased construction costs, repair costs, and lost profits allegedly resulting from the Association’s interference with the construction of the structure over the deck. The Association filed an answer to the Counterclaim that raised five affirmative defenses. It is significant to the subsequent procedural history of the case to note that Bacon filed a motion to strike all of the Association’s defenses to the Counterclaim.

B. The Lien Foreclosure Case

During the course of the litigation of the injunction case, Bacon became delinquent on one or more of its assessments owed to the Association. On July 21, 2000, the Association filed a separate action against Bacon and three other parties to foreclose its claim of lien for condominium assessments. This action was assigned circuit court case number 00-2543-CA. It will be referred to as “the lien foreclosure case” in order to distinguish it from the already pending litigation designated as “the injunction case,” which had previously been assigned circuit court case number 99-1866-CA.

Bacon filed an answer, affirmative defenses, and counterclaim to the hen foreclosure complaint. This pleading contained the correct party designation for the lien foreclosure case but incorrectly used the case number of the already pending injunction case. The clerk of the circuit court filed the pleading by ease number in the injunction case.

Thereafter, the parties settled the hen foreclosure case and agreed to dismiss it. On September 20, 2000, pursuant to the settlement agreement, the Association filed its notice of voluntary dismissal and discharge of hs pendens in the hen foreclosure case. A few weeks later, on November 3, 2000, Bacon filed its notice of voluntary dismissal of counterclaim. This pleading, like Bacon’s prior filing, bore the party designation of the hen foreclosure case and the case number of the injunction case. The clerk filed the notice by ease number in the injunction case. At the time the papers were filed, neither the trial court nor the parties appear to have been aware of the confusion caused by Bacon’s use of the incorrect case number on papers apparently intended to be filed in the hen foreclosure case.

It is significant that on December 1, 2000, the Association and Bacon filed a stipulation in the injunction case to remove that litigation from the trial calendar. The reason for removing the injunction ease from the trial calendar was that Bacon’s motion to strike the Association’s affirmative defenses to the Counterclaim was still pending. Thus the case was not at issue and was not ready to be set for trial. The filing of this stipulation strongly suggests that in December 2000, both parties regarded Bacon’s notice of voluntary dismissal filed on November 3, 2000, as intended to cause the dismissal of Bacon’s counterclaim in the lien foreclosure case, not in the injunction case.

C. The Arbitration Proceeding

After extensive pretrial proceedings and a mediation that resulted in an impasse, the trial court ordered the parties in the injunction case to nonbinding arbitration pursuant to section 44.103, Florida Statutes (2001), and Florida Rule of Civil Procedure 1.800. The arbitrator conducted a hearing on February 26, 2002, and later received supplemental written submissions from the parties. In its posthearing written submission to the arbitrator, the Association took the position that the notice of dismissal filed by Bacon on November 3, 2000, resulted in the dismissal of the Counterclaim. Thus the Association argued that the arbitrator could not consider any evidence concerning the Counterclaim because Bacon had dismissed it in November 2000. On March 14, 2002, the Association served a copy of this written submission by mail on Bacon’s counsel. Nevertheless, the Association’s counsel informed this court at oral argument that he made no objection to the arbitrator’s consideration of the Counterclaim for damages at the arbitration hearing.

In a detailed written decision dated March 25, 2002, the arbitrator found that the deck was neither part of the Unit nor a limited common element appurtenant to it. The arbitrator further ruled that the deck was part of the common elements and granted the Association’s claim for injunc-tive relief as follows:

D. The ASSOCIATION is entitled to injunctive relief pursuant to Section 718.303(1), Florida Statutes. Defendant, BACON, and BACON’S partners, employees, agents, and others operating pursuant to BACON’S direction and control, are permanently enjoined from having and maintaining exclusive use and possession of the concrete deck area outside Commercial Unit 500. Defendant, BACON, is ordered to cease restaurant and bar operations on the deck area, other than service at the “outside bar,” which is depicted as part of Unit 500 on the plans and surveys. BACON shall immediately remove all tables and chairs from the deck portion of the common elements. Defendant, BACON, shall refrain from any further use of the deck area, other than in accordance with Defendant’s rights as an owner-in-common of a proportionate share of the common elements.

The arbitrator also expressly ruled on Bacon’s claims for damages in the Counterclaim: (1) the arbitrator summarized the issues to be decided by him and included Bacon’s claim against the Association for the cost of the improvements to the Unit and lost business income, (2) the arbitrator noted in his decision Bacon’s itemization of its claims for damages against the Association totaling $104,895, and (3) the arbitrator ruled that Bacon was not entitled to recover any damages against the Association. The arbitrator further denied the Association’s claim against Bacon for rent. Finally, the arbitrator ruled that the trial court should determine the parties’ claims for attorney’s fees and costs.

D. Postarbitration Proceedings in the Trial Court

After the entry of the arbitrator’s decision, Bacon timely filed a motion for trial pursuant to Florida Rule of Civil Procedure 1.820(h) on limited issues specified in the motion. These issues, as stated by Bacon in paragraph 2 of its motion, were as follows:

A. Whether the Plaintiff [the Association] is entitled to a permanent, mandatory injunction prohibiting the Defendant [Bacon] from conducting restaurant and bar operations on the deck area outside Commercial Unit 500, other than service at the outside bar, and mandating the removal of tables and chairs from any portion of the deck area, where the Defendant’s [Bacon’s] use of the deck area is not exclusive.
B. Whether this Defendant [Bacon] is entitled to relief as prayed for in its Counter Claim.

The Association moved to strike Bacon’s motion for trial on the following grounds: (1) it was not timely filed, (2) the issue raised in paragraph 2(A) of the motion was not framed by the pleadings and was never raised as an affirmative defense by Bacon, and (3) the issue raised in paragraph 2(B) of the motion could not be considered because Bacon had dismissed the Counterclaim in November 2000. Then, on May 15, 2002, Bacon filed a “Motion to Set Aside Voluntary Dismissal of Counterclaim” pursuant to Florida Rule of Civil Procedure 1.540(a) and (b) on the asserted ground of inadvertence. Bacon also sought leave to amend its answer pursuant to Florida Rule of Civil Procedure 1.190(e) to add the Counterclaim inadvertently dismissed.

On September 17, 2002, after a hearing that was not reported, the trial court entered the final judgment in the injunction case, which is the subject of this appeal. In its final judgment, the trial court ruled that Bacon’s motion for trial had been timely filed and denied the Association’s motion to strike on that ground. Despite its ruling that Bacon’s motion for trial was timely filed, the trial court granted the Association’s motion to strike and ordered that Bacon’s motion for trial would be stricken. The trial court then entered a final judgment that — with a single exception — enforced the arbitrator’s decision. The arbitrator had denied Bacon the relief it had requested in the Counterclaim. Although the trial court adopted the arbitrator’s findings of fact and conclusions of law, the final judgment did not expressly dispose of the Counterclaim. On September 17, 2002, the trial court also entered a separate order that denied Bacon’s motion to set aside the voluntary dismissal of counterclaim and to amend its answer to add the Counterclaim. Bacon timely appealed the final judgment. The Association has not taken a cross-appeal from the trial court’s ruling that Bacon’s motion for trial was timely filed.

THE APPLICABLE STANDARD OF REVIEW

We find that the standard of review applicable to the denial of a timely request for a trial de novo following nonbinding arbitration should be de novo review. A trial court’s decision to deny a trial to a party to nonbinding arbitration after the filing of a timely motion for trial presents a question of law that can be determined as well by an appellate court as a trial court. Cf. McKey v. D.R. Goldenson & Co., 763 So.2d 409 (Fla. 2d DCA 2000) (holding dismissal of complaint for failure to state a cause of action is a question of law reviewed on a de novo standard). In a related context, an order denying a motion to compel arbitration is generally reviewed on a de novo standard. See Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). Without expressly addressing the point, the Fourth District appeared to use a de novo standard to review a trial court decision dismissing a motor vehicle manufacturer’s timely petition for an “appeal by trial de novo” of the decision of an arbitration board in a “Lemon Law” arbitration. T.A. Enters., Inc. v. Olarte, Inc., 835 So.2d 1235,1240-41 (Fla. 4th DCA 2003).

THE LAW

The trial court had the authority to refer the injunction case to nonbinding arbitration pursuant to section 44.103, Florida Statutes (2001), and Florida Rule of Civil Procedure 1.800. After the completion of the arbitration proceeding and notice to the parties of the arbitrator’s decision, the subsequent procedure is controlled by Florida Rule of Civil Procedure I.820(h), which provides as follows:

Time for Filing Motion for Trial. Any party may file a motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision as provided by section 44.103(4), Florida Statutes.

Thus a party has the right to move for a trial within twenty days after service of the arbitrator’s decision. If no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise. See Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 (Fla. 4th DCA 1993); Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992). A party may properly serve a motion for trial that specifies the part of the arbitrator’s award which the party seeks to challenge. See Venetoff v. Papas, 732 So.2d 453, 454 (Fla. 2d DCA 1999).

ANALYSIS

The Association advanced three arguments in the trial court and on this appeal in support of the trial court’s decision to strike Bacon’s motion for trial and enter final judgment without further proceedings in the trial court. We will consider these reasons separately.

A. Trial Court Discretion

The Association argues that after the conclusion of nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800, the trial court has discretion to consider and deny a party’s timely motion for trial made pursuant to rule 1.820(h). We reject this argument. Nothing in the language of the statute or the rule supports the conclusion that the trial court has the discretion to deny a party’s timely motion for trial. In a case involving an analogous arbitration scheme, the Fourth District held that the trial court erred in dismissing a motor vehicle manufacturer’s timely petition for an “appeal by trial de novo” of the decision of an arbitration board in a “Lemon Law” arbitration conducted pursuant to chapter 681, Florida Statutes (2001). See T.A. Enters., 835 So.2d at 1240. In T.A. Enterprises, the Fourth District said that the existence of a process for review of the arbitration decision “contemplates that the appealing party has the right to offer evidence in support of its position.” Id. at 1240. The existence of a process for a trial de novo of an arbitration award in nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800 likewise contemplates that a party unwilling to accept the decision of the arbitrator has the right to a trial de novo.

We draw additional support for our conclusion from the purpose and informal nature of nonbinding arbitration. In this regard, the discussion of nonbinding arbitration by the Fourth District in Preferred Mutual Insurance, 629 So.2d at 260, is instructive:

[ I]n nonbinding arbitration under rule 1.820, Florida Rules of Civil Procedure, the procedure is quite informal, the rule encouraging restrictions on live testimony and placing primary emphasis on presentation through statements and arguments of counsel. Such a procedure simply does not suffice as a substitute for trial to which the parties are entitled.

(Emphasis supplied.) The Fourth District also noted in Preferred Mutual that an arbitrator’s decision in nonbinding arbitration may be “ ‘vacated’ without any grounds whatever, upon the simple expedient of timely filing a request or motion for trial de novo.” Id. at 260-61.

Moreover, a rule giving the trial court discretion to deny a party a trial after nonbinding arbitration would very likely constitute a denial of access to the courts in violation of article 1, section 21, of the Florida Constitution. See Chrysler Corp. v. Pitsirelos, 721 So.2d 710, 713 (Fla.1998) (holding compulsory arbitration of “Lemon Law” claims constitutional because of the right to a trial de novo appeal proceeding after completion of arbitration); Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55, 59 (Fla.2000) (holding PIP mandatory arbitration provisions unconstitutional as a denial of access to the courts). A construction of rule 1.820(h) that would give trial courts discretion to deny a timely motion for trial after nonbinding arbitration might call into question the constitutionality of nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800. We decline to adopt such a construction of the rule.

B. The Injunction Issue

The Association contended in the trial court and argues here that the issue raised in paragraph 2(A) of Bacon’s motion for trial could not “serve as the basis for de novo proceedings since the issue was not framed by the pleadings, and specifically was never raised as an affirmative defense by Defendant [Bacon].” According to the Association, if the issue was not properly framed in the pleadings before the arbitrator, it would not be appropriate for the trial court to consider it in a de novo trial.

The Association’s argument on this point is not supported by the facts. The Association’s amended complaint requested injunctive relief to prohibit Bacon from using the deck as part of its restaurant operation. Bacon’s answer denied the Association’s right to the injunctive relief requested. The arbitrator’s decision considered the parties’ contentions and awarded the Association the injunctive relief it had requested. We think it is immaterial whether Bacon raised the issue as an affirmative defense or as a denial of the Association’s right to injunctive relief. Moreover, Bacon’s right to a trial after nonbinding arbitration was not contingent upon the use of any particular formulation in its motion for trial. We think Bacon’s motion for trial was adequate to inform both the Association and the trial court that it was requesting a trial on the issue of the injunctive relief awarded by the arbitrator to the Association.

C. Bacon’s Counterclaim

The Association argued before the trial court and in this court that the issue raised in paragraph 2(B) of Bacon’s motion for trial could not “serve as the basis for de novo proceedings as there is no counterclaim pending since the counterclaim was dismissed by Defendant [Bacon] in November, 2000.” Because the Counterclaim had been dismissed, the Association reasoned, it was not properly before the arbitrator and could not form the basis for a trial de novo in the trial court.

We hold that Bacon should have been allowed to proceed to trial on the Counterclaim in the trial court. The issues raised in the Counterclaim were presented to the arbitrator and expressly ruled on by him. Therefore, the arbitrator treated the Counterclaim as having been tried by consent in the arbitration proceeding. In the case of Smith v. Mogelvang, 432 So.2d 119, 124-25 (Fla. 2d DCA 1983), this court listed a variety of factors to be considered in determining the existence or nonexistence of consent by a party to trial of issues not raised by the pleadings:

(1) Of course, the lack of a timely objection is the most significant factor, especially a failure to object on specific grounds that a newly inserted issue is beyond the scope of the pleadings.
(2) Another factor may be the technical or esoteric nature of the subject matter of the new issue and the corresponding difficulty for the opposing party to effectively cross-examine and respond with contrary evidence.
(3) Whether or not there was justification for the party who is attempting to insert the issue into the case to have failed to plead the issue is another possible factor.
(4) Whether the position taken by the party attempting to insert the issue into the case clearly appears to be meritorious may be an additional factor. See Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853, 857 (Fla. 4th DCA 1972).
(5) A further factor may be whether there is sufficient time from when the issue is inserted into the case, or when there is clear notice that the issue will be inserted into the case, to the time when the opposing party has the opportunity to offer evidence, within which the opposing party may fairly be expected to prepare his position on the issue. See C.A. Davis, Inc. v. City of Miami, 400 So.2d 536 (Fla. 3d DCA 1981).
(6) The amount of the evidence on the issue to which the opposing party has made no objection may be an additional factor. See Pike v. National Fidelity Life Ins. Co., 377 So.2d 973, 976 (Fla. 3d DCA 1979).
(7) Another factor may be the degree of relevancy of the new issue to the pleaded issues in the case. Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., [366 So.2d 90, 92 (Fla. 1st DCA 1979) ]. However, any such relevancy by itself may well not be enough to establish implied consent to try the new issue, absent clear indications that the party introducing evidence was attempting to raise a new issue. See International Harvester Credit Corp. v. East Coast Truck, [547 F.2d 888, 890 (5th Cir.1977) ].
(8) The degree, if any, to which the party opposing the new issues should have been aware of the potentiality of the issue in the case e.g., may be a factor, from prior discovery or from other pretrial proceedings. See Ellis v. Arkansas Louisiana Gas Co., 609 F.2d 486 (10th Cir.1979).

This list of potential factors is not exhaustive. In order to show implied consent, “the circumstances should establish lack of unfairness to, or some true acquiescence by, the party opposing the new issue.” Mogelvang, 432 So.2d at 125.

The Association certainly knew from the pretrial proceedings that the issues raised in the Counterclaim were a significant factor in the case. The Association’s knowledge in this regard also bears on the question of whether its objection to the arbitrator’s consideration of the issues raised in the Counterclaim was timely made. In December 2000, approximately one month after the filing of Bacon’s notice of voluntary dismissal, the Association entered into a stipulation with Bacon that treated the Counterclaim as if it were still pending before the court. The arbitration hearing was held on February 26, 2002. If the Association had changed its position concerning the effect of Bacon’s notice of voluntary dismissal in the interim, the Association might have filed a motion pursuant to Florida Rule of Civil Procedure 1.700(b) to dispense with arbitration on the issues raised in the Counterclaim on the ground that the Counterclaim was no longer pending. This procedure would have given both the trial court and Bacon an opportunity to address the question prior to arbitration. At the very least, the Association ought to have raised its objection to arbitration of the issues raised in the Counterclaim during the hearing before the arbitrator. Under all the circumstances, the objection made in the Association’s posthearing submission served on March 14, 2002, came too late.

After a consideration of all the circumstances, including the apparent inadvertent nature of Bacon’s dismissal of the Countérclaim, we think it is reasonable to conclude that the Association tried the issues raised in the Counterclaim by consent before the arbitrator. The arbitrator expressly considered and ruled on the issues raised in the Counterclaim. Therefore, Bacon was entitled to request a trial on those issues pursuant to rule 1.820(h). The trial court should also have permitted Bacon to amend its answer to reallege the Counterclaim, which was then properly before the court to be tried. Fla. R. Civ. P. 1.190.

The decision in Metropolitan Dade County v. Molloy, 456 So.2d 1280 (Fla. 3d DCA 1984), cited by the Association in support of its position, is not to the contrary. The Molloy case involved a trial court decision that vacated an arbitration award made by the Dade County Grievance Appeal Panel. In pertinent part, the panel’s award reduced the pay classification of Molloy, an employee. The trial court vacated the panel’s award. The Third District affirmed the trial court’s order to the extent that it vacated the portion of the panel’s award which had reduced the pay classification of the employee. The Third District explained:

The correctness of Molloy’s reclassification was not a necessary sub-issue to Molloy’s entitlement to back pay, was not framed by the pleadings, tried by consent, or otherwise put into issue by Dr. Molloy and, therefore it was error for the grievance panel to decide this issue and reduce Molloy’s classification as a result.

Id. at 1281 (emphasis supplied; citations omitted). In this case, unlike Molloy, the issues in question were tried by consent.

THE PROPRIETY OF THE INJUNCTION

Bacon also challenges on appeal the propriety of the trial court’s final judgment enforcing the injunction awarded by the arbitrator in favor of the Association and against Bacon. Based upon our disposition of this case, we do not need to address this issue.

RELIEF

For the reasons outlined above, the final judgment is reversed and this case is remanded to the trial court for a trial on the issues raised in Bacon’s motion for trial.

Reversed and remanded.

FULMER and SILBERMAN, JJ., concur.

      . The case was not referred to mandatory nonbinding arbitration pursuant to section 718.1255, Florida Statutes (2001). The dispute was between an association and the owner of a commercial condominium unit. Such disputes are not eligible for arbitration under section 718.1255 pursuant to Florida Administrative Code Rule 61B-45.013(8).

      . We decline to find that the trial court committed error in denying Bacon's motion made pursuant to rule 1.540(a) and (b) to set aside the notice of voluntary dismissal. Bacon was not entitled to relief pursuant to rule 1.540(b) because it did not file its motion until approximately eighteen months after the filing of its notice dismissing the Counterclaim. Rule 1.540(b) provides an outside limit of one year within which to file a motion for relief grounded upon mistake, inadvertence, surprise, or excusable neglect. See Garvin v. S.C. Ins. Co., 528 So.2d 929, 930 (Fla. 2d DCA 1988); Freeman v. Sanders, 562 So.2d 834, 836 (Fla. 1st DCA 1990). Although relief from clerical mistakes may be sought "at any time” pursuant to rule 1.540(a), such relief is limited to errors committed by the court or the clerk. See DiPiazza v. Palm Beach Mall, Inc., 722 So.2d 831 (Fla. 2d DCA 1998); Howard v. McAuley, 436 So.2d 392 (Fla. 2d DCA 1983); State ex rel. Dep’t of Transp. v. Hall, 247 So.2d 777 (Fla. 2d DCA 1971); Underwriters at Lloyd’s London v. Rolly Marine Serv., Inc., 475 So.2d 265 (Fla. 4th DCA 1985). Bacon prepared and filed the notice of voluntary dismissal without court participation.

      . One might take also the view that Bacon’s notice of dismissal was not effective to dismiss the Counterclaim. The notice bore the correct party designation for the lien foreclosure case; only the case number was incorrect. If the clerk of the court had caught the error in the case number, as clerks frequently do, the notice would very likely have been filed in the lien foreclosure case as intended. This raises the question of which part of the case caption controls: the party designation or the case number? If the party designation — and not the case number — controls, then the notice of dismissal could be seen as ineffective to effect the dismissal of the Counterclaim. Cf. Tanner v. State, 744 So.2d 1017, 1018-19 (Fla. 4th DCA 1997) (suggesting that clerk of court should consult alphabetical index in the event file number on paper tendered for filing does not correspond to clerk's records). In the alternative, the clerk’s action in filing the notice in the injunction case could be regarded as a "clerical error” that might be corrected at any time pursuant to Florida Rule of Civil Procedure 1.540(a). Cf. Underwriters at Lloyd’s London v. Rolly Marine Serv., Inc., 475 So.2d 265 (Fla. 4th DCA 1985).
      In their papers filed in the trial court and before this court, both of the parties proceeded on the assumption that Bacon’s notice of dismissal was effective to dismiss the Counterclaim. Therefore, we do not reach and expressly do not decide the issue of whether the notice of voluntary dismissal was actually effective to dismiss the Counterclaim.


source: Caselaw Access Project

author: ALTENBERND, Chief Judge.

license: Public Domain

text:
    Owen M. WARD, Individually and as Trustee under a Declaration of Land Trust dated June 18, 1986, Appellant, v. COLLIER COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 2D01-4845.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2003.

      Richard D. Yovanovieh and Jonathan D. Fishbane of Goodlette, Coleman & Johnson, P.A., Naples, for Appellant.
    David C. Weigel, County Attorney, and Heidi F. Ashton, Assistant County Attorney, Naples, for Appellee.
   ALTENBERND, Chief Judge.

Owen M. Ward, individually and as trustee under a declaration of land trust dated June 18,1986, appeals a circuit court order that denies his request for an award of attorneys’ fees based upon the value of a nonmonetary benefit his attorneys achieved in the settlement of an eminent domain proceeding. Although we are inclined to believe that the nonmonetary benefit achieved in this case had some economic value, the record supports the circuit court’s decision that Mr. Ward did not quantify that benefit with reasonable certainty as required by section 73.092(2)(b), Florida Statutes (2001).

Collier County filed an eminent domain proceeding in 1999 to take a portion of Mr. Ward’s property located between Radio Road and Davis Boulevard near the intersection of these two roads. The County sought to take 1.13 acres of this 4.91-acre parcel. The taking would result in Mr. Ward retaining 3.78 acres near this intersection, 3.39 acres of which Mr. Ward could develop. The County initially deposited $221,500 into the registry of the court based upon its estimate of the value of the land taken. See § 74.051(2), .061, Fla. Stat. (1999). Following discovery and negotiations, the County and Mr. Ward entered into a mediated settlement agreement in March 2001. The County agreed to pay $380,540 for the land. The County also agreed to include a performance clause within the mediation agreement under which it would either complete construction of the improvement project at this intersection on or before September 30, 2002, or pay Mr. Ward $10,000 per month, prorated daily, for the delay.

The County and Mr. Ward agreed that his attorneys were entitled to a statutory fee of $52,483.20 for the monetary component of this award. See § 73.092(l)(c), Fla. Stat. (2001). They could not agree on the fee, if any, that should be awarded for the inclusion of the performance clause in the mediation agreement. As a result, that dispute was submitted to the circuit court for resolution. Section 73.092(2)(b) permits a circuit court considering the proper award of attorneys’ fees in an eminent domain proceeding to “consider non-monetary benefits obtained for the client through the efforts of the attorney, to the extent such nonmonetary benefits are specifically identified by the court and can, within a reasonable degree of certainty, be quantified.”

In order to establish Mr. Ward’s right to this fee, Mr. Ward and his real estate appraisal expert both testified that the performance clause in the mediation agreement was worth $100,000 to Mr. Ward because he was anxious to establish a date when the project would be finished and the land could be developed. Although it may be true that Mr. Ward was anxious to develop the project, from our limited record it does not appear that he provided any logical explanation why his desire to develop the property caused this performance clause to have an economic value of $100,000. The circuit court rejected this testimony as an opinion without a proper foundation in fact. The circuit court was permitted to disregard this testimony. See Thompson v. Dep’t of Children & Families, 835 So.2d 357, 360 (Fla. 5th DCA 2003) (affirming hearing officer’s decision to reject party’s expert testimony regarding fair market value; holding trier of fact may accept or reject all or any part of an expert’s testimony and is in no way bound by uncontroverted expert opinion testimony); Dep’t of Transp. v. Duplissey, 751 So.2d 117 (Fla. 5th DCA 2000) (holding jury was not required to accept uncontro-verted opinion submitted by landowners’ expert in setting severance damages in eminent domain case). As such, we affirm the circuit court’s conclusion that Mr. Ward did not establish the value of this benefit with reasonable certainty and therefore he was not entitled to an additional award of attorneys’ fees based upon this provision in the settlement agreement.

Although we affirm, we note that the circuit court’s order adopted, as an additional reason to deny fees, the County’s argument that the performance clause had no value unless the County failed to perform in a timely fashion. Because the County timely completed this project, it argued that the clause had no value. This argument, however, asks the court to evaluate the performance clause at the wrong point in time. Mr. Ward received a benefit from this clause at the time he successfully negotiated for it in March 2001. At that time, the County agreed to assume some of the monetary risks that Mr. Ward would otherwise bear in the event the County’s project unduly delayed the development of his land. The value of this risk-shifting agreement should be determined as of the date Mr. Ward contracted for it.

At one point, the circuit court accurately noted that the clause was analogous to an insurance policy or a performance bond. Although the parties did not choose to present evidence or argument to support an evaluation based on this analogy, we are inclined to believe this analogy suggests a reasonable approach to value such a performance clause. The value of the clause in March 2001 could be established by estimating what an underwriter would charge to assume the risk of untimely performance. For example, if evidence had established that in March 2001 there had been a 30% risk of a one-month delay in this project, a 15% risk of a two-month delay, and a 3% risk of a three-month delay, the risk to an underwriter would have been approximately $4,800, and the premium to underwrite the risk would have been based on this risk. We do not hold that this is the only way to value such a clause, but it would seem to be a reasonable approach to quantify such a nonmone-tary benefit. It is an approach that demonstrates that the performance clause had some economic value in March 2001. Although we disagree with the circuit court’s alternate holding that the clause had no economic value because the project was completed on time, this alternate reasoning does not affect the circuit court’s conclusion that Mr. Ward failed to quantify the nonmonetary benefit with reasonable certainty. We therefore affirm the order on appeal.

Affirmed.

WHATLEY and SILBERMAN, JJ., concur.

      . Our review is somewhat restricted by the absence of a transcript of this hearing in our record. The parties did, however, prepare an adequate statement of the facts that was settled and approved by the circuit court. See Fla. R.App. P. 9.200(b)(4).

      . This is merely a sum of the risk probabilities. ($10,000 x .30) + ($10,000 x .15) + ($10,000 X .03) = $4,800. Obviously, an underwriter would also charge for overhead and profit.


author: SALCINES, Judge.

text:
    ROLLINS, INC., and Orkin Exterminating Company, Inc., Appellants, v. Mark BUTLAND and Christine Butland, Kris Cornett, and Maria N. Garcia, on behalf of themselves and others similarly situated, Appellees.
    No. 2D02-1809.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2003.
    Michael W. Davis, Stephan Y. Beyer, and Theodore R. Scarborough of Sidley, Austin, Brown & Wood, Chicago, IL; and Douglas B. Brown of Rumberger, Kirk & Caldwell, Orlando, for Appellants.
    Mark H. Ruff of Alvarez, Sambol, Winthrop & Madison, P.A., Orlando, for Ami-cus Curiae Florida Pest Management Association, Inc.
    David S. Oliver of Greenberg Traurig, P.A., Orlando; Daniel J. Clark and Scott Charlton of Clark, Charlton & Martino, P.A.; and George Vaka of Vaka, Larson & Johnson, Tampa, for Appellees.
   SALCINES, Judge.

Rollins, Inc., is a nationwide corporation which operates several divisions and subsidiaries including the licensed termite and pest control company, Orkin Exterminating Co., Inc. The subject of the current appeal is a nonfinal order which granted a motion for class certification filed by the plaintiffs, Mark Butland, Christine But-land, Kris Cornett, and Maria N. Garcia. We reverse.

The plaintiffs brought an action against Rollins and Orkin alleging the companies were guilty of a continuing pattern of fraud, theft, and forgery upon Florida consumers. In preliminary proceedings, the plaintiffs proposed the certification of a class and one subclass. The “Orkin Termite Class” was defined as: “Ail persons who have entered into a Standard Termite Contract during the period from March 9, 1995 to the present.” The “Orkin RICO Subclass” was defined as: “All persons who were induced to and entered into a Standard Termite Contract with Orkin similar to the Plaintiffs based on Orkin’s misleading advertisements and representations that violate Florida Statutes, sections 772.104, 817.06, and 817.41.”

The trial court issued a twelve-page order granting the plaintiffs’ motion for statewide class certification which clearly summarized the argument of the parties relating to the requirements which must be met in order to certify a class. However, the order did not state the factual and legal findings required by Florida Rule of Civil Procedure 1.220(d)(1) to support certification but merely made conclusory statements that the parties had established the prerequisites to qualify for class certification. As in KPMG Peat Marwick, L.L.P. v. Barner, 771 So.2d 56, 56 (Fla. 2d DCA 2000), due to the inadequacy of the order, this court cannot determine whether the trial court abused its discretion by certifying the class. Accordingly, we reverse the order granting the motion for class certification and remand for further proceedings.

Reversed and remanded.

ALTENBERND, C.J., and SILBERMAN, J., Concur.

      . On remand, in addition to making sufficient findings of fact to support the certification and the establishment of the class and subclass, we recommend that the trial court specifically set out the manner in which this matter should proceed for case management purposes. Specifically, the court should address how the parties shall proceed with discovery and with the continuing litigation of this case.


author: POLEN, J.

text:
    Brian J. FREY and Laurie Frey, Appellants, v. Pamela E. LIVECCHI, Appellee.
    No. 4D02-4499.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Sept. 12, 2003.

      Michael E. Greene of Michael E. Greene, P.A., Coral Springs, for appellants.
    John W. Case, Fort Lauderdale, for ap-pellee.
   POLEN, J.

This appeal arises from a trial court’s entry of a default final judgment of eviction. Because the defense raised by the Appellants at the trial court warranted an evidentiary hearing, and the trial court failed to conduct one, we reverse and remand with instructions that the court conduct the appropriate hearing.

The facts of this case warrant some discussion. Pamela E. Livecchi (“Livec-chi”) is the owner of a home in Coconut Creek. In June of 1998, Livecchi entered into a one-year residential lease agreement with Brian and Laurie Frey (“the Freys”). The Freys alleged that at the end of the lease agreement they had entered into a contract to purchase the property. Livec-chi, on the other hand, asserts that at the end of the lease, the Freys became month-to-month tenants.

On May 16, 2002, Livecchi sent the Freys a notice to vacate the premises. On June 5, 2002, the Freys filed an amended complaint in the circuit court seeking, inter alia, specific performance of the contract to purchase the property. No copy of the purported option to purchase was attached to the complaint.

On July 3, 2002, Livecchi filed a complaint for tenant eviction in the county court. The Freys responded to the complaint asserting as a defense that they occupy the premises pursuant to a contract for sale, not a month-to-month tenancy, and that the court lacked jurisdiction based on the Freys’ previously filed complaint. In addition, the Freys filed a motion to determine the amount of rent due, and a motion to transfer the eviction action to the circuit court. The motion to transfer was granted. In the motion to determine rent due, the Freys contended that the statutory requirement to pay rent into the registry of the court, as well as other provisions applicable to lease situations, did not apply because they occupy the property under a sales contract rather than a lease agreement.

After the case was transferred, Livecchi filed a motion to determine possession of property and/or amount of rent due. The motion was based on the Freys’ failure to pay rent and alleged that they were month-to-month tenants.

On September 17, 2002, without having conducted any' evidentiary hearing, the court granted Livecchi’s motion and ordered the Freys to put money into the court registry within ten days to avoid a default final judgment for eviction. Upon the Freys’ failure to pay the money into the registry, the court entered a default judgment for eviction.

Section 83.60(2), Florida Statutes, requires payment of rent into the registry of the court in residential landlord tenant disputes under Part II of Chapter 83. § 83.60, Fla. Stat. (1999). However, section 83.60 does not apply when the occupancy is under a contract for sale of a dwelling unit or the property of which it is a part. § 83.42(2), Fla. Stat. (1999). The Freys claim that this provision is inapplicable because they were not tenants under the statute. Rather, their claim is based on their rights under a contract for sale. The resolution of this factual dispute would determine whether section 83.60 is applicable. Because such a determination would be dispositive, we hold that the trial court was required to conduct an evidentiary hearing before determining whether the Freys were required to pay money into the court registry. Because the trial court failed to conduct such a hearing, we find that the trial court erred in imposing such a requirement, erred in entering the default judgment, and reverse the entry of the final default judgment.

REVERSED and REMANDED.

WARNER and GROSS, JJ., concur.


author: MONACO, J.

text:
    Eugenia AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2844.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Eugenia Austin appeals from a judgment and sentence reflecting her conviction of, among other offenses, aggravated battery with a deadly weapon on a law enforcement officer, and resisting arrest with violence. She was adjudged guilty of both counts and sentenced concurrently to a lengthy prison term. She asserts on appeal that because both crimes involved a single incident with the same victim, her constitutional right to be free from double jeopardy was violated. Our review of § 775.021(4)(a), Fla. Stat. (2001), and the ease law associated with the concept of double jeopardy convince us that Austin was properly adjudicated and sentenced, and therefore, we affirm.

The incident giving rise to this appeal occurred at a shopping mall. Officer Marie Verret responded to a call involving shoplifting at the Belz Factory Outlet Mall. She was given a description of the suspected shoplifters and of the car they were driving. After Officer Verret spotted the car in the mall parking area, she walked up to the vehicle and knocked on the window, identifying herself as a police officer. The driver, Austin, opened the car door and Officer Verret asked her to turn the vehicle off. Austin complied. Austin then opened the door to her vehicle and inquired about the reason she was being detained.

Officer Verret, who was standing between the door of the vehicle and the vehicle itself, directed Austin to remove her hand from the keys. When Austin failed to do so, Officer Verret drew her handgun, telling Austin not to move. Austin, however, restarted the vehicle, put the car in reverse, and began driving backwards. Officer Verret tried to run with the vehicle to keep from getting knocked down, but the car door struck her, knocking her to the ground. Officer Verret was yelling at Austin to stop the car during this entire episode.

Officer Jesse Day of the Orlando Police Department later spoke to Austin at the police station after Austin was apprehended. Austin admitted to Officer Day that she had been shoplifting, and admitted that because she was fearful of going to prison, she backed over Officer Verret. Austin confirmed at trial that she, indeed, had been shoplifting on the day in question, and admitted that her hand was, in fact, on the car key.

The double jeopardy clauses in the state and federal constitutions protect criminal defendants from multiple convictions and punishments for the same offense. Discussions concerning the double jeopardy implications of convictions and punishments for crimes growing out of a single event or transaction generally begin with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In determining whether separate punishment can be imposed, Blockburger requires courts to examine the offenses to ascertain whether each offense requires proof of a fact that the other does not. See State v. Carpenter, 417 So.2d 986 (Fla.1982). If each offense contains an element that the other does not, Blockburger is satisfied, even though a substantial overlap in proof is used to establish the crimes. See Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

The Blockburger same-elements test, along with guidance from the legislature concerning its legislative intent to authorize separate punishments for multiple crimes arising out of the same episode, is codified in § 775.021(4), Fla. Stat. (2001), which reads as follows:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Blockburger, as codified, is relatively straight-forward. The application of the second exception, however, has become more complicated as it has been fleshed out. In Sirmons v. State, 634 So.2d 153 (Fla.1994), the supreme court held that convictions for grand theft of an automobile and robbery with a weapon ran afoul of double jeopardy because these crimes were “aggravated forms of the same underlying offense distinguished only by degree factors.” Id. at 154. In his concurrence, Justice Kogan said the second exception prohibited multiple convictions for certain “core offenses.” Id. at 155-56. See also Goodwin v. State, 634 So.2d 157 (Fla.1994); State v. Anderson, 695 So.2d 309 (Fla.1997).

In Gordon v. State, 780 So.2d 17 (Fla.2001), the supreme court advised that its construction of the second exception required a two-step analysis. First, the court must determine whether the crimes constitute separate offenses under Block-burger, as codified in § 775.021(4)(a). If they do, the court must next examine whether the crimes are “degree variants” or aggravated forms of the same core offense. Given those marching orders, we now turn our attention to the crimes of which Austin was convicted.

In our examination of whether aggravated battery with a deadly weapon on a law enforcement officer and resisting arrest with violence meet the Blockburger same elements test, we are benefitted by the supreme court’s decisions in State v. Henriquez, 485 So.2d 414 (Fla.1986), and Carpenter. In both cases the high court concluded that the offenses of resisting arrest with violence and battery on a law enforcement officer are separate and distinct offenses, based on their statutory elements, even though they frequently occur in conjunction with each other. The court pointed out that one could obstruct or oppose a law enforcement officer by threatening or offering to do violence to the officer, and still not commit a battery on that officer. Similarly, one could batter an officer by placing an unwanted hand on the officer’s arm, or simply by striking the officer without necessarily resisting or obstructing the officer. Compare § 784.07(2)(d) and § 843.01, Fla. Stat. (2001).

Having determined that Blockburger is initially satisfied, we next examine the statutory exceptions, and conclude that only the second exception — whether the offenses are degrees of the same offense— has possible application. A cursory examination of § 784.07(2)(d) (aggravated battery of a law enforcement officer), and § 843.01 (resisting an officer with violence), reflects that the two offenses are not on their face degrees of the same offense. We must now examine whether the crimes are “degree variants” or aggravated forms of the same core offense.

Following the format laid out in Gordon, we look to the evil which each statute was intended to prevent. Aggravated battery seeks to prevent the serious injury of another, in this instance, of a law enforcement officer. See Gordon, 780 So.2d at 23. Resisting an officer with violence, on the other hand, aims to avoid the violent obstruction of the lawful execution of a legal duty by authorized officers. See § 843.01, Fla. Stat. (2001). As the two offenses grow out of different core crimes, they cannot be “degree variants” or aggravated forms of the same core offense. Accordingly, the adjudication and punishment for each separate offense was validly imposed and does not violate the double jeopardy provisions of either the state or federal constitutions.

AFFIRMED.

SAWAYA, C.J., and ORFINGER, J., concur.

      . Officer Verret is with the Orlando Police Department and works as a plainclothes detective. Because she was working a side job off duty, however, she was wearing her full police uniform on the day in question.

      . Article I, section 9, Florida Constitution; U.S. Const, amend. V.

      . We are aware of Casselman v. State, 761 So.2d 482 (Fla. 5th DCA 2000). In that case, however, there were two distinct episodes of criminal activity, and our comments related to a single episode of battery and resisting arrest were dicta and not central to the decision. In Swilley v. State, 845 So.2d 930 (Fla. 5th DCA 2003), on the other hand, we con-eluded that convictions for aggravated assault and resisting an officer with violence growing out of a single episode are not barred by double jeopardy.

      . Battery on a law enforcement officer is not a lesser included offense of resisting arrest with violence. See C.A.T. v. State, 828 So.2d 435 (Fla. 1st DCA 2002).


author: NORTHCUTT, Judge.

text:
    Todd Vincent HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5565.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      S. Grant Halliday, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Todd Howard raises numerous challenges to his convictions and sentences for armed burglary of a residence, grand theft of a firearm, and grand theft. We find merit only in his contention that he cannot be sentenced to consecutive terms as a habitual offender for crimes arising out of the same incident. We affirm all his other points on appeal without comment.

No one disputes that Howard’s three crimes all occurred in the same criminal episode. The court sentenced him to ten years’ imprisonment as a habitual offender for each of his convictions. It suspended the sentences after Howard serves forty-eight months in prison and placed him on community control for two years, followed by four years’ probation. The written sentencing documents state that the three sentences of ten years’ imprisonment are to be served consecutively, while the community control and probation portions of the sentences are to run concurrently.

The State points out that the court’s oral pronouncement of sentence appears to indicate that incarcerative portions of the sentences were also to be served concurrently. Although the transcript is not entirely clear, it may be that the written sentences do not conform to the oral pronouncement and must be corrected. See Hunter v. State, 846 So.2d 1227 (Fla. 2d DCA 2003). But even if the court orally announced consecutive sentences, they cannot stand. A court may not sentence a defendant to consecutive terms as a habitual offender for crimes that arose out of a single criminal episode. Hale v. State, 630 So.2d 521, 524-25 (Fla.1993). Accordingly, we reverse Howard’s sentences and remand with instructions for the court either to correct the written sentencing documents to reflect the orally announced sentences or, if the written documents comport with the court’s oral pronouncement, to resentence him to concurrent terms of ten years’ imprisonment.

Affirmed in part, reversed in part, and remanded.

FULMER and STRINGER, JJ., Concur.


author: DAVIS, Judge.

text:
    Anthony L. WHITEHURST, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2644.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      James Marion Moorman, Public Defender, Bartow, and Heather M. Gray, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Anthony L. Whitehurst challenges his convictions for possession of cocaine with intent to sell, possession of cannabis with intent to sell, and resisting arrest without violence. We find merit in only one of the issues Whitehurst raises on appeal and reverse on that basis alone.

Whitehurst committed his offenses on March 6, 2001. He argues that the law in effect at that time required the trial court to instruct the jury that the State was required to prove, as an element of the crime of possession, that the defendant knew of the illicit nature of the substance. See Chicone v. State, 684 So.2d 736 (Fla.1996). Whitehurst argues further that the trial court’s failure to give his requested instruction was reversible error. See McMillon v. State, 813 So.2d 56 (Fla.2002). Pursuant to the law that was in effect at the time that Whitehurst committed his offenses, he is correct.

Subsequent to Chicone, the Florida Supreme Court took the Chicone analysis a step further and extended the requirement of giving the jury instruction regarding knowledge to even those cases in which the defendant does not deny having knowledge of the illicit nature of the substance. See Scott v. State, 808 So.2d 166 (Fla.2002). In response to Scott and Chicone, the legislature amended chapter 893, Florida Statutes, stating that those two cases were contrary to legislative intent. However, we are still required to apply a Chicone analysis to the instant case due to the timing of Whitehurst’s offenses.

At the time that Whitehurst committed his offenses in March 2001, Chicone was still good law. The superseding legislative amendment was not effective until May 13, 2002, and courts have determined that the amendments are not to be applied retroactively. See Blunt v. State, 831 So.2d 770 (Fla. 4th DCA 2002); Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002), review denied, 845 So.2d 892 (Fla.2003). Having concluded that the court committed reversible error in failing to give the Chicone instruction as requested, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and CANADY, JJ., concur.

      . § 893.101, Fla. Stat. (2002).


author: PER CURIAM.

text:
    Larry WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2943.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    Larry Wallace, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995).

WARNER, SHAHOOD and MAY, JJ., concur.


author: HAZOURI, J. GROSS, J.,

text:
    Jerry MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-876.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    Jerry Miller, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Jerry Miller appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. In his motion, Miller raised numerous claims. We find one of these claims merits relief.

After a jury trial, Miller was convicted of: (1) attempted second degree murder of a law enforcement officer; (2) two counts of aggravated battery of a law enforcement officer; and (3) simple battery of a law enforcement officer. Miller received life sentences on the aggravated battery counts as a habitual felony offender. The charges arose from an incident that occurred at the Martin Correctional Institution (MCI). Miller allegedly threatened and attacked correctional officers after being removed from a transport vehicle. Miller was being brought back to MCI to face charges for a prior incident with prison guards wherein Miller allegedly bit an officer. Miller was severely injured in the prior altercation and required sixty days hospitalization. At trial for this second incident, Miller argued that he acted in self defense. According to Miller, he was brought back to MCI for an “attitude adjustment,” or beating, by prison guards in retaliation for complaints Miller had filed against the guards regarding the force used in the first incident.

Miller’s 3.850 motion alleged ineffective assistance of trial counsel in the failure to object to Miller appearing before the jury in restraint devices. Miller appeared before the jury wearing handcuffs, a waist chain, leg irons, and a stun belt, an electronic restraint device. In fact, Miller alleged a witness identified him from the witness stand by pointing out these devices: “[H]e’s sitting here wearing that white T-shirt. It looks like he’s got a ERD belt on, waist chains, shackles around his legs.”

Allowing a defendant to appear before the jury in restraint devices is an inherently prejudicial practice that undermines the presumption of innocence and the right to a fair trial. Generally, a defendant in a criminal trial has the right to appear before the jury free from physical restraints, such as shackles or handcuffs. See Jackson v. State, 698 So.2d 1299 (Fla. 4th DCA 1997); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). “Because it is an ‘inherently prejudicial practice,’ the use of restraints such as shackles is permissible only where justified ‘by an essential state interest specific to each trial.’ ” See Jackson, 698 So.2d at 1301-02 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)).

Florida courts have found a sufficient showing of necessity to support the use of physical restraints on a defendant where there is a history or threat of escape, or a demonstrated propensity for violence. See Jackson, 698 So.2d at 1303. Use of shackles to restrain a defendant at trial should rarely be employed as a security device; they should be used only when it is necessary to deter escape or prevent disturbance or potential injury to people in the courtroom. See McCoy v. State, 503 So.2d 371 (Fla. 5th DCA). Nothing in the record indicates that Miller had any courtroom outbursts or otherwise demonstrated a potential escape or injury risk while in court. Miller’s prior armed robbery convictions, the most recent in 1985, are not sufficient alone to necessitate the extreme restraint measures that were used here.

If restraint devices were necessary, measures could have been taken to reduce the prejudicial impact. See Dufour v. State, 495 So.2d 154, 162 (Fla.1986) (approving the use of shackles, after a finding of necessity, where a table was used to reduce the visibility of the shackles); Diaz v. State, 513 So.2d 1045, 1047 (Fla.1987) (approving shackling of defendant where trial court suggested that jury’s view of shackles be obstructed by defendant “keeping his pants leg pulled down” or by placing a box or briefcase in front of his feet, and defendant refused to hide shackles); see also Jackson, 698 So.2d at 1303 (setting forth some procedures that have been used to reduce the prejudice caused by shackling). An objection, or motion by counsel, would have allowed the court to consider, or fashion, a procedure to reduce the prejudice.

The state’s argument that Miller’s convictions for crimes of violence justified the use of restraints, therefore negating the need for an evidentiary hearing, is not persuasive. In this case, allowing the charges of violence, for which Miller was on trial, to justify the use of restraint devices is circular reasoning that offends the presumption of innocence, and Miller’s right to a fair trial. As a federal court has noted, we must guard against practices which “unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion.” See Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.1982). Miller was entitled to have the judge determine the necessity of restraint devices before trial on objection and request by counsel. See Bello v. State, 547 So.2d 914 (Fla.1989). Further, an objection by counsel to the mode of in-court identification would have preserved the issue for review. Miller’s claim of ineffective assistance was facially sufficient. The state’s response and record attachments, adopted by the trial court in its summary denial of the 3.850 motion, do not conclusively refute Miller’s claim. See Pineda v. State, 805 So.2d 116 (Fla. 4th DCA 2002). Accordingly, we reverse and remand for an evidentiary hearing or attachment of portions of the record, should any exist, that conclusively refute this claim.

REVERSED and REMANDED.

STEVENSON, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

This court has previously held that counsel may be ineffective for failing to preserve the issue of being compelled to stand trial in identifiable prison clothes. See Palmer v. State, 831 So.2d 725 (Fla. 4th DCA 2002); Pineda v. State, 805 So.2d 116 (Fla. 4th DCA 2002); see also Cramer v. State, 843 So.2d 372 (Fla. 2d DCA 2003); Waters v. State, 779 So.2d 625 (Fla. 1st DCA 2001). These cases require a hearing in this case.

To raise the issue of prison garb or restraints on direct appeal, a defendant must object at trial. The holding of Bello v. State, 547 So.2d 914 (Fla.1989), is that a hearing on the necessity of restraint devices must “precede the decision to shackle if a defendant timely objects and requests an inquiry into the necessity for the restraints.” Jackson v. State, 698 So.2d 1299, 1302 (Fla. 4th DCA 1997) (emphasis added); see Finney v. State, 660 So.2d 674, 682-83 (Fla.1995); Taylor v. State, 848 So.2d 448 (Fla. 4th DCA 2003). Allowing restraint devices is not fundamental error that does not require an objection at trial. Nor is there a rule of criminal procedure that requires a hearing before the decision to shackle, even in the absence of an objection.

Nonetheless, it seems to me that a prudent judge should initiate the inquiry into a defendant’s restraints or shackles at trial, even where there is no objection. This would remove the issue from the post conviction relief arena, where a separate hearing will almost always be required on the issue.

Very little has been written in Florida on what type of issues the trial judge should consider in a 3.850 hearing focusing on the failure to object to prison garb or shackles at trial. Some issues might include whether the failure to object was part of counsel’s trial strategy or that it occurred with the defendant’s consent. See Demurjian v. State, 727 So.2d 324, 327 (Fla. 4th DCA 1999). Another issue might be whether the trial court would have determined that shackling was appropriate had it been raised at trial, because it was justified “by an essential state interest specific to [the] trial.” Jackson, 698 So.2d at 1302 (citation omitted).

A significant issue at a post conviction relief hearing could be whether a defendant can satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant seeking post conviction relief must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Id. at 697, 104 S.Ct. 2052. To prove prejudice, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Strickland defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id. Deciding whether prejudice occurred involves examining the role that counsel’s purported error played in the total context of the trial.

Presented with the same issue as this case, two state courts have examined the strength of the evidence in the case and concluded that the defendant seeking post conviction relief did not meet his burden of proof. See State v. King, 804 So.2d 57, 61 (La.Ct.App.2001); Davis v. Armenakis, 151 Or.App. 66, 948 P.2d 327, 330-31 (1997). As the first district has written in Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), the prejudice analysis on post conviction relief is different from the harmless error analysis engaged in by an appellate court on direct appeal:

Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction. Thus, as Goodwin v. State, 751 So.2d 537, 546 (Fla.1999)] explains, the test for prejudice on direct appeal is the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which trial court error will result in reversal unless the prosecution can prove “beyond a reasonable doubt” that the error did not contribute to the verdict obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that, there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding.

Id. at 506-07 (citation omitted) (emphasis in original).


author: KLEIN, J.

text:
    FIRST PROVIDIAN, LLC, Appellant, v. Morgan EVANS, Sr. and Travelers Insurance Company and Travelers Life and Annuity Company, Appellees.
    No. 4D02-3530.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    James A. Klohn of James A. Klohn, P.A., Lake Park, for appellant.
    Alain E. Boileau of Adorno & Yoss, P.A., Fort Lauderdale, for appellees Travelers Insurance Co. and Travelers Life and Annuity Co.
   KLEIN, J.

Mr. Evans, who settled his personal injury case through a structured settlement, attempted to assign the periodic annuity payments he was receiving from Travelers to First Providian, in exchange for a lump sum. The transfer of structured settlements is regulated by statute and court approval is required. We affirm the trial court’s refusal to approve the assignment.

In order to obtain court approval of a transfer of structured settlement payments, the transferee must provide the court and all interested parties notice of the proposed transfer. § 626.99296(4), Fla. Stat. (2001). A written response to the application for transfer “must” be filed within fifteen days after service of the transferee’s notice. § 626.99296(4)(e).

Travelers filed an objection to the transfer; however, it was several days beyond the fifteen day period. The trial court nevertheless considered Travelers’ response and denied the transfer. First Providian argues that, because the statute provides that the response “must” be filed within fifteen days, the court could not consider Travelers’ untimely objections and should have approved the assignment.

The use of the word “must” in this statute is directory, not mandatory. As our supreme court explained in Schneider v. Gustafson Industries, Inc., 139 So.2d 423, 425 (Fla.1962):

Mandatory language has in a number of cases been construed as directory, dependent upon the history and subject matter of the particular provision, and as a general rule statutes setting the time when a thing is to be done are regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which court jurisdiction depends, [footnote omitted.]

As in Schneider, this statute does not restrain the court from considering a response filed beyond the time period. We therefore find no error in the court’s consideration of the response.

As to the substantive issue of whether the court properly denied the assignment, which has barely been addressed by First Providian, we note that the release, which provides for the structured settlement, prohibits the claimant from assigning or accelerating the periodic payments. Section 626.99296(3)(b) authorizes a court to deny the transfer of a structured settlement if it would “contravene the terms” of the settlement.

According to Travelers, if the periodic payments to the claimant were accelerated, Travelers could lose favorable tax treatment accorded structured settlements under the Internal Revenue Code, 26 U.S.C. § 130. This tax treatment is addressed in Liberty Life Assurance Co. v. Stone St. Capital, Inc., 93 F.Supp.2d 630 (D.Md.2000); Grieve v. General American Life Insurance Co., 58 F.Supp.2d 319 (D.Vt.1999); CGU Insurance Co. of America v. Metropolitan Mortgage & Securities Co., Inc., 131 F.Supp.2d 670 (E.D.Pa.2001). According to these cases, if the settlement complies with 26 U.S.C. § 130, the payment received by the annuity issuer, in return for making periodic payments to the claimant, is not fully taxable as income to the annuity issuer in the year in which the payment is received. One of the conditions for this treatment is nonassignability of the periodic payments. In the above cases the court determined that the risk of adverse tax consequences warranted upholding the nonassignability provision in the structured settlement documents.

Affirmed.

SHAHOOD and GROSS, JJ., concur.


text:
    Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1302.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    Dexter Gunn, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Dexter Gunn (Appellant) appeals an order entered February 12, 2003, summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the trial court ruled, it lacked jurisdiction to do so because its order summarily denying a prior motion filed pursuant to rule 3.850, entered November 4, 2002, was then on appeal in this court, the notice of appeal having been filed on November 14, 2002.

As the state acknowledges in its response to this court, the trial court should have stayed the motion until this court issued its mandate in the prior appeal. Alternatively, it could have dismissed the motion, but this court has noted that staying is preferable. See Cross v. State, 834 So.2d 961 (Fla. 4th DCA 2003); Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002). Accordingly, we vacate the order on appeal and direct the trial court on remand to rule on Appellant’s motion.

SHAHOOD, GROSS and HAZOURI, JJ., concur.

      . The order on appeal purports to deny Appellant's rule 3.850 motion “which was filed on January 9, 2002.” We assume this date is a scrivener's error, as the summary record transmitted to this court indicates the ruling denied the motion which Appellant served on December 6 and filed on December 27, 2002.

      . This court affirmed per curiam without opinion on May 28, 2003, and the mandate issued on June 27, 2003. See Gunn v. State, 848 So.2d 333 (Fla. 4th DCA 2003).


text:
    James C. STALLWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2738.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    James C. Stallworth, appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

ALLEN, KAHN and DAVIS, JJ., concur.


text:
    Elizabeth RECTOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1459.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Appellant, pro se.

      Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), is addressed to the discretion of the trial court. Therefore, this Court has no jurisdiction to review the correctness of the trial court’s disposition of the motion. Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990).

DISMISSED.

ERVIN, BARFIELD and DAVIS, JJ., CONCUR.


author: SCHWARTZ, Chief Judge.

text:
    Henry THORNTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1330.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.
    Bennett H. Brummer, Public Defender and Scott W. Sakin, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Jill K. Traína, Assistant Attorney General, for appellee.

      Before SCHWARTZ, C.J., and FLETCHER, J„ and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

This is an appeal from a conviction after a jury trial for first degree murder. We reverse for two separate reasons, each of which would individually require a new trial.

I.

The first arises from the following question asked by the prosecutor in the attempted impeachment of one of the state’s own witnesses:

[MR. TALPINS]
Q. Did Defendant Thornton talk to you about an incident, where something he did by club V.I.P. or near club V.I.P.?
A. No.
Q. Did Mr. Thornton tell you that he had to quote unquote, “Bum a nigger near the V.I.P. ? ” [e.s.]

It is difficult to imagine a more serious violation of the rules of evidence and due process, indeed of the rule of law itself, than this statement. Since it developed (a) that the only possible source for this comment was an alleged statement by the witness to the prosecutor himself and (b) that it was not shown to be related to the crime with which Thornton was charged, the question was in simultaneous violation of several important principles of law. These include:

1.the principle of Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which forbids references to alleged prior unrelated offenses purportedly committed by the defendant;

2. the doctrine of Smith v. State, 414 So.2d 7 (Fla. 3d DCA 1982) and Marsh v. State, 202 So.2d 222, 224 (Fla. 3d DCA 1967), which precludes a prosecutor from asking questions which imply the existence of damaging facts which are themselves inadmissible into evidence;

The damaging effect of [such] inquiry on the jury is apparent. The representative of the State Attorney’s office by his question must have led the jury to believe that such a statement had been made, and in effect the jury are invited by such a query to weigh the veracity of the appellant-defendant as against that of the State Attorney’s office ... Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Marsh, 202 So.2d at 224; and

3. most serious of all, the rule which forbids even a prosecutorial intimation, let alone the direct accusation that the defendant used a despicable racial slur. See Echemendia v. State, 735 So.2d 555 (Fla. 3d DCA 1999); McCallister v. State, 779 So.2d 615 (Fla. 5th DCA 2001); Perez v. State, 689 So.2d 306 (Fla. 3d DCA 1997).

No trial which contains a statement like this may be permitted to stand.

II.

As a completely separate matter, the state’s final argument, just as the one it made to a separate jury in the case of Thornton’s co-defendant, which resulted in a reversal on that ground in Adams v. State, 830 So.2d 911 (Fla. 3d DCA 2002), was fundamentally improper. Of the depressingly long list of improprieties, we are content to discuss in detail only what is probably the most egregious, the suggestion that defense counsel was involved in coaching his witnesses or worse:

MR. NOVICK [prosecutor]
Mr. Pitts [defense counsel] says to you physical evidence can’t lie, but witnesses, you can get them to say what you want.
Is that what happened with Karen Wilson and Spider Bechum?
They were going to say what the defense wanted them to—
MR. NOVICK: — to place Henry Thornton two years later at their home all day.

As this court sitting en banc stated in the directly applicable decision of Lewis v. State, 780 So.2d 125, 130 (Fla. 3d DCA 2001):

The prosecutor made several attacks on defense counsel’s integrity and implied that he suborned perjury:
If he could walk polka dotted pink elephants into this courtroom, he would do it ... [defense counsel] is a highly skilled attorney with razor sharp skills.
Also, did [the defendant] look like a little kid up on that witness stand yesterday? What you saw was an extremely well produced, and directed, and scripted story. And as sure as I am standing before you right now, you know that they went over, and over, and over, that story until they got it right.
If I had a bridge, I would ask him to sell it for me.
But [defense counsel] will tell you anything to get you to look away from the man who is sitting next to him, the Defendant.
Everything around this circle are the pink elephants that the Defense counsel brings before you, and it’s called reasonable doubt. That’s B.S.
(Emphasis added). The law is clear that attacks on defense counsel are highly improper and impermissible. See Barnes v. State, 743 So.2d 1105 (Fla. 4th DCA), review denied, 744 So.2d 457 (Fla.1999); D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999); Del Rio v. State, 732 So.2d 1100 (Fla. 3d DCA 1999); Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998); Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998); Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993); Valdez v. State, 613 So.2d 916 (Fla. 4th DCA 1993); Ryan v. State, 457 So.2d 1084, 1089 (Fla. 4th DCA 1984); Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984); McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983); Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982); Melton v. State, 402 So.2d 30 (Fla. 1st DCA 1981); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981); Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975); Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973). The most egregious of these comments was the one suggesting that defense counsel had “scripted,” i.e. suborned, what the prosecutor was obviously arguing was the defendant’s perjured testimony. Although the prosecutor is free to suggest to the jury that defendant’s testimony was not credible, if the record evidence suggests that it was not, he was not free to opine that defendant’s lack of candor was scripted by defense counsel.

Accord, e.g., Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998), review denied, 725 So.2d 1109 (Fla.1998); Izquierdo v. State, 724 So.2d 124 (Fla. 3d DCA 1998). Under Lewis v. State, 711 So.2d at 205 and Lewis v. State, 780 So.2d at 125, among many other cases, this argument alone requires a new trial.

In Jackson v. State, 421 So.2d 15, 16 (Fla. 3d DCA 1982), in reversing for prose-cutorial misconduct, we said:

We choose to employ this decision to discuss the broader, very serious problem it exemplifies. For some time, this court has been faced with a veritable torrent of cases which have similarly involved significant prosecutorial improprieties committed by assistant state attorneys in this district. E.g., Chapman v. State, 417 So.2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982); Harper v. State, supra, 411 So.2d 235, 236-37 (Fla. 3d DCA 1982); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Ruiz v. State, supra, 395 So.2d 566 (Fla. 3d DCA 1981); Porter v. State, 386 So.2d 1209, 1213-14 (Fla. 3d DCA 1980); Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979). The volume of these cases — including multiple acts of misconduct by particular prosecutors — is so great that we can no longer believe that they represent merely isolated examples of understandable, if inexcusable, overzealousness in the heat of trial. Instead, we must suspect, however reluctantly, that the improprieties may be deliberately calculated to accomplish just what representatives of the state cannot be permitted — inducing a jury to convict by unfairly prejudicing it against the defendant. It is obvious that this pattern of conduct cannot be tolerated. It is just as apparent, and just as distressing, however, that our prior efforts to eliminate the practice have proven entirely inadequate. Cf. United States v. Modica, 663 F.2d 1173, 1178 (2d Cir.1981). Strong admonitions, such as those administered in Harris, Harper, and Porter, supra, obviously do no good. Even repeated reversals on the basis of prosecutorial impropriety have apparently not achieved this result.

Twenty-one years have passed and nothing has changed.

Reversed and remanded.

      . But are not limited to.

      . See infra note 3.

      . The state contends that this argument was in "fair reply” to the argument of defense counsel that:
      You have seen things that were placed on this board as exhibits, but one thing ladies and gentlemen I want to tell you right now, physical evidence does not lie. Testimonial evidence, words can be changed. But physical evidence does not lie. And I suggest to you that the physical evidence in this case will tell you that the witnesses did not have the opportunity to observe what they say they saw. They didn’t know what they saw.
      The state’s claim on this issue — that the familiar argument that "physical evidence does not lie, but witnesses may be mistaken,” gives rise to a fair comment that the opposing lawyer induced witnesses to lie in the particular case — is an insult to our intelligence.

      . Additional examples include: (a) numerous references to matters not in evidence including ones which intimated the prosecutor's extra-trial knowledge of facts adverse to the defendant. See Martinez v. State, 761 So.2d 1074 (Fla.2000); D'Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999); Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984), pet. for review denied, 456 So.2d 1182 (Fla.1984); (b) improper comments that evidence which could be rebutted only by the defendant was uncontradicted and uncontroverted, which amounted to impermissible comments on his failure to testify. Rodriguez v. State, 753 So.2d 29 (Fla.2000), cert. denied, 531 U.S. 859, 121 S.Ct. 145, 148 L.Ed.2d 96 (2000); Wolcott v. State, 774 So.2d 954 (Fla. 5th DCA 2001); (c) improperly vouching for the credibility of a key prosecution witness by stating that “Reverend Davis thought very carefully as a man of God.” See Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998), review denied, 725 So.2d 1109 (Fla.1998); Brown v. State, 787 So.2d 229 (Fla. 2d DCA 2001); see also Ferrell v. State, 686 So.2d 1324, 1328 (Fla.1996)(judges and attorneys must refrain from discussing religious philosophy or engaging in improper appeals to religious principles), cert. denied, 520 U.S. 1173, 117 S.Ct. 1443, 137 L.Ed.2d 549 (1997); (d) arguing that "the only logical reasonable verdict which follows the law and the evidence which speaks the truth to this community, which the word verdict means.” But see Smith v. State, 818 So.2d 707, 710 (Fla. 5th DCA 2002)(in requesting that the jury return a guilty verdict, prosecutor improperly told the jury that "[y]ou are citizens that speak on behalf of your community in rendering a verdict in this case”. Cf. also Kennerdy v. State, 749 So.2d 507, 507 (Fla. 2d DCA 1999)(defendant’s conviction reversed based upon state comments that defense witnesses had been "spoon-fed” their testimony and that the defendant had "convinced [two witnesses] to come in here, and I would submit to you, commit perjury”); Berkowitz v. State, 744 So.2d 1043, 1044 (Fla. 4th DCA 1999)(defendant’s conviction reversed based upon prosecutor comment that a defense witness and the defendant "got together and 'contrived and concocted’ their story”); Henry v. State, 651 So.2d 1267 (Fla. 4th DCA 1995)(prosecutor's argument that somebody "got to” one of the defense alibi witnesses, without any evidence of any improper contact implied suborning of perjury by the defense and compelled reversal of the defendant’s conviction).

       This may be — although we are loath even to consider the possibility — because some prosecutors believe that keeping a convicted defendant in prison during the sometimes lengthy appellate process is enough to chalk up a “win” even if the conviction is later reversed.


author: SHAHOOD, J.

text:
    Shanna DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-5024.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Shanna Davis, convicted of aggravated assault for threatening the victim with a motor vehicle, appeals her sentence. The issue presented in this appeal is whether it is unlawful for the trial court to sentence appellant to a harsher sentence after she rejected a court initiated plea offer to a less severe sanction.

Appellant argues that the trial court’s imposition of a harsher sentence than that offered during plea negotiations was unlawful because the totality of the circumstances gave rise to a presumption of judicial vindictiveness in sentencing. Appellee maintains the sentence was lawful in that there was evidence presented at the sentencing hearing to support the trial court’s imposition of the harsher sentence.

The Florida Supreme Court recently announced in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), that in cases where a trial judge participates in plea negotiations and the defendant thereafter receives a harsher sentence, a presumption of vindictiveness, which shifts the burden to the state to produce affirmative evidence dispelling judicial vindictiveness in sentencing, may arise.

Based on the record in this ease, specifically the evidence presented at the sentencing hearing, we hold that although a presumption of vindictiveness in sentencing arose, this presumption was sufficiently dispelled to warrant affirmance in this case.

AFFIRMED.

POLEN and STEVENSON, JJ„ concur.