author: SILBERMAN, Judge.

text:
    Chad PETRUCELLI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1755.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.

      James Marion Moorman, Public Defender, and Jean-Jaeques A. Darius, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Chad Petrucelli appeals from his convictions and sentences for burglary to a dwelling, felonious possession of firearms, aggravated assault, and grand theft. He argues that the burglary conviction must be reversed because the trial court erred in reading a stipulation to the jury that did not accurately reflect the agreed-upon facts. We agree. He also argues that the trial court erred by not giving a requested jury instruction and by not allowing him to present evidence in mitigation of his sentence. Although these issues are not a basis for our reversal, we address them because they may have to be considered by the trial court on remand. We affirm Petrucelli’s other issues without discussion.

The State charged Petrucelli with armed burglary, grand theft of firearms, felonious possession of firearms, and aggravated assault. Other than the aggravated assault, the charges arose from an incident that occurred on September 2, 2000, during which property was taken from the home of Charles Smith. Petrucelli pleaded no contest to the charges of felonious possession of firearms and aggravated assault. Following a jury trial, he was convicted of grand theft of a firearm and burglary to a dwelling, the latter a lesser-included offense to the armed burglary charge.

At trial, Petrucelli did not dispute that he entered Mr. Smith’s home on September 2, or that he took firearms from the home. Instead, he claimed that he was invited into the home by his girlfriend of several months, Crystal Crocker, and that while he may have committed a theft, he did not commit a burglary.

Mr. Smith and Ms. Crocker’s mother, Carol Weese, were living together in the home. Ms. Crocker was also living there and had a key to the home. She repeatedly brought Petrucelli into the home, and he slept there on occasion, apparently without the knowledge of Mr. Smith or Ms. Weese. On September 2, 2000, Ms. Crocker again brought Petrucelli into the home.

The parties agreed that the trial court would read a stipulation to the jury. The prosecutor told the trial court that the stipulation would be written out to state that “[t]he Defendant was in possession of a firearm on September the 4th of 2000. This firearm was owned by Mr. Smith, and was proven to be operational.” The trial court confirmed that Petrucelli understood the stipulation, as follows:

COURT: Rather than call in the witness and run the risk that something else will be said or that other testimony will come in, Mr. Michailos [Defense Counsel] is suggested [sic] that you make a strategic decision to allow him to concede that you were in possession of the weapon two days later and that it was operational and then none of the facts surrounding any of the other things that are alleged will come out. So they will be able to establish without you contesting it that you were in possession of the weapon, but the good news is that none of the other circumstances and the other witnesses related to the other crimes that we’re not trying today will be brought before the jury; do you understand that?
Mr. Petrucelli: Yes, Your Honor.

(Emphasis added).

During its case-in-chief, the State requested that the trial court read the stipulation to the jury. The trial court told the jury the following:

I’m now going to read to you a stipulation. And what a stipulation is or means is that the parties have agreed that you can aecept what I am about to read to you as being factually correct. It obviates the need to have to call additional witnesses to establish this testimony.
This stipulation is is [sic] that the Defendant, Chad Petrucelli, was in possession of a firearm on September 4th of 2000 and it was taken in the burglary which occurred on September 2nd of 2000. Further, this firearm was operational at that time.
That’s the stipulation that has been entered between the parties and rather than have a witness testify to those facts, you can accept them as being facts in this case.

(Emphasis added).

Petrucelli argues that the stipulation that was read to the jury did not reflect the facts to which Petrucelli and the State had agreed because the stipulation told the jury to accept as a fact that a burglary had occurred. Petrucelli asserts that the trial court relieved the State of its burden to prove the elements of a burglary beyond a reasonable doubt and that it was directly contrary to his defense that he had permission to be in the house and, at most, had committed a theft. He acknowledges that he did not object to the stipulation that was read, but he claims that the error is fundamental and a denial of due process. The State disagrees that the error was fundamental, and it also argues that any error was harmless.

“A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Jassan v. State, 749 So.2d 511, 512 (Fla. 2d DCA 1999); see also Reeves v. State, 647 So.2d 994, 995 (Fla. 2d DCA 1994) (finding that the trial court committed fundamental error when it gave a misleading jury instruction regarding an essential element of the crime); Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995) (concluding that the trial court committed fundamental error because its instructions relieved the State of its burden to prove an essential element of the offense, deprived the defendant of her sole theory of defense, and may have resulted in an impermissible conviction for a non-existent crime).

Based on the circumstances here, we conclude that fundamental error occurred when the trial court read a stipulation to the jury that was substantially different from the language specifically agreed to by Petrucelli and the State. The trial court’s instruction that the jury had to accept as fact that a burglary had occurred undermined Petrucelli’s defense that he did not commit a burglary because he had consent to be in the home. Because of the erroneous statement to the jury, Petrucelli was denied due process and is entitled to a new trial on the burglary charge.

Petrucelli also raises an issue concerning sentencing on the burglary charge. Our reversal of the burglary conviction renders this error moot; however, we discuss the issue so that error may be avoided on remand.

Petrucelli’s original sentence for the burglary included a prison releasee reof-fender (PRR) designation, subjecting him to a fifteen-year minimum term of imprisonment. Petrucelli filed a motion to correct the sentence and alleged that he did not qualify for a PRR sentence. He also argued that because the PRR designation was improper, he was entitled to be sentenced under the sentencing guidelines and to present mitigating evidence in support of a sentence of less than fifteen years’ imprisonment.

The trial court granted Petrucelli’s motion and removed the PRR designation, but it stated that the fifteen-year sentence was appropriate and that it would not consider Petrucelli’s evidence. Because Florida Rule of Criminal Procedure 3.720(b) states that a trial court “shall entertain submissions and evidence by the parties that are relevant to the sentence,” we conclude that after the PRR designation was stricken, Petrucelli should have been permitted to present mitigating evidence as to sentencing. See also Davis v. State, 642 So.2d 136, 137 (Fla. 3d DCA 1994).

Petrucelli next argues that the trial court erred in denying a requested special jury instruction that an adult who resides in the residence is authorized to give consent to another person to enter the residence. Again, we address this issue because it may resurface in a new trial on the burglary charge.

Consent to enter a premises is an affirmative defense to the charge of burglary. Coleman v. State, 592 So.2d 300, 301 (Fla. 2d DCA 1991). “A defendant has the initial burden of establishing the existence of such a defense, but thereafter the burden shifts to the State to disprove the defense beyond a reasonable doubt.” Id. at 301-02. When consent is placed in issue, the State has the burden to establish that consent was not given or that the person who gave consent did not have the legal ability to give consent. See Haugabrook v. State, 827 So.2d 1065, 1069-70 (Fla. 2d DCA 2002) (noting the State did not establish that the person who purportedly gave consent lacked the legal ability to do so and that this fact was known to the defendant); Hansman v. State, 679 So.2d 1216, 1217 (Fla. 4th DCA 1996) (reiterating that once the defendant has offered any evidence to show consent, the State must disprove consent beyond a reasonable doubt).

The standard jury instruction on burglary incorporates the question of consent, stating that:

Before you can find the defendant guilty of Burglary, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) [entered] [remained in] a [structure] [conveyance] owned by or in the possession of (person alleged).
2. (Defendant) did not have the permission or consent of (person alleged), or anyone authorized to act for him, to [enter] [remain in] the [structure] [conveyance] at the time.
3. At the time of [entering] [remaining in] the [structure] [conveyance] (defendant) had a fully-formed, conscious intent to commit the offense of (crime alleged) in that [structure] [conveyance].

Fla. Std. Jury Instr. (Crim.) Burglary.

Here, the evidence reflects that Crystal Crocker, a resident of the home, consented to Petrucelli’s entry into the home. The trial court gave the standard instruction and identified Charles Smith and Carol Weese as the persons from whom Petru-celli did not have permission or consent. It did not give any specific instruction with respect to Crystal Crocker’s ability to give consent.

It is well established that a trial court has broad discretion in deciding whether to give or withhold a jury instruction. See ITD Indus. Inc. v. Bus. Res. Group, Inc., 779 So.2d 532, 534 (Fla. 2d DCA 2000). “In order to be entitled to a special jury instruction, a defendant must prove that the special instruction was supported by the evidence, was a correct statement of the law and was not confusing or misleading, and the standard instruction did not adequately cover the theory of defense.” Keller v. State, 849 So.2d 385, 388 (Fla. 2d DCA 2008); see also Stephens v. State, 787 So.2d 747, 756 (Fla.2001).

Ms. Crocker acknowledged that she was not allowed to bring Petrucelli into the home and that she would sneak him into the home. This testimony raises serious doubt as to whether Ms. Crocker had the authority to give consent to Petrucelli or whether Petrucelli could have reasonably relied on her consent. As a result, Petru-celli’s proposed instruction that an adult resident was authorized to give consent may have misled or confused the jury, and we cannot agree that the trial court abused its discretion in refusing to give the proposed instruction. However on retrial, a special instruction may be warranted if the evidence supports it, if the instruction is not confusing or misleading, and if the standard instruction is not adequate. See Keller, 849 So.2d 385, 387-88.

Accordingly, we affirm Petrucelli’s convictions for felonious possession of fee-arms, aggravated assault, and grand theft of a firearm, and we reverse his conviction and sentence for burglary of a dwelling and remand for a new trial on that charge.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Keith ALAPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2446.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Keith Alape, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Keith Alape seeks review of an order that denied his rule 3.850 motion without prejudice to permit a proper filing. We find appellant’s sworn motion(s) and memorandum of law to state a legally sufficient claim that his plea was unlawfully induced. We reverse and remand for the trial court to consider the claim on the merits.

POLEN, KLEIN and MAY, JJ., concur.


text:
    Catherine LaFLEUR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1497.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Rehearing Denied Sept. 25, 2003.

      James T. Miller and Thomas G. Fallís, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Catherine LaFleur appeals the judgment and life sentence imposed following her conviction of first degree murder in connection with the shooting death of her husband. Despite LaFleur’s claim that the shooting was accidental, our independent review of the case and the record reveals overwhelming evidence of La-Fleur’s guilt. Thus, even assuming any error occurred in the trial court’s exclusion of the victim’s statements, such error was harmless. Under our evidence code, “the victim’s state of mind may become relevant to an issue in the case where the defendant claims ... that the death was accidental.” Stoll v. State, 762 So.2d 870, 874-75 (Fla.2000). In the present case, appellant argues that certain statements made by the victim to co-workers were consistent with a claim that the victim’s death was the result of an accident rather than the result of the criminal agency of appellant. Although we decide this case based upon harmless error, we note that, in contrast to cases where the victim’s statements are admissible in the State’s case to rebut a claim of accident, the admission of such statements to support the defense theory seems inherently more tenuous because it is difficult to imagine a statement that could be predictive of an accident. See, e.g., Taylor v. State, 855 So.2d 1, 12, 2003 WL 21283161 (Fla. June 5, 2003); Stoll, 762 So.2d at 874-75. Indeed, we have not been directed to, nor have we discovered a case, in which a trial court was reversed under section 90.803(3), Florida Statutes, for failing to admit hearsay evidence predictive of an accident, as opposed to rebutting a claim of accident.

AFFIRMED.

KAHN, VAN NORTWICK, and BROWNING, JJ., CONCUR.


text:
    David L. BROWN, Appellant, v. Warden John Doe PERRINE, Appellee.
    No. 1D02-4940.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Rehearing Denied Oct. 1, 2003.
    Appellant, pro se.
    Donna La Plante, Assistant Attorney General, Tallahassee; Louis A. Vargas, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s responses to this Court’s orders of May 23, 2003, and June 16, 2003, as well as the appellee’s reply filed on June 6, 2003, the appeal is hereby dismissed as untimely. See Florida Rule of Civil Procedure 1.530(b). The appellant brought an original petition for writ of mandamus seeking to compel the appellee, in his official capacity, to perform a legal duty. Because the petition did not seek review of agency action, the civil rules of procedure, rather than the appellate rules of procedure were controlling. Cf. Newell v. Moore, 826 So.2d 1033 (Fla. 1st DCA 2002). Under these rules, the appellant’s motion for rehearing was not timely, therefore, it did not delay rendition of the order on appeal. See Fla. R.App. P. 9.020(h). All pending motions are denied as moot.

AFFIRMED.

BENTON, PADOVANO and BROWNING, JJ., concur.


author: SAWAYA, C.J. TORPY, J.,

text:
    STATE of Florida, Petitioner, v. Raymond GERRY, Respondent.
    No. 5D02-3669.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Rehearing Denied Oct. 1, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Petitioner.
    James B. Gibson, Public Defender and Brynn Newton, Assistant Public Defender, Daytona Beach, for Respondent.
   SAWAYA, C.J.

The State of Florida petitions this court for a writ of certiorari to quash a pretrial order rendered in a criminal case prohibiting one of the State’s witnesses, a nurse practitioner with the Child Protection Team, from testifying at trial regarding her examination of three alleged victims of sexual abuse. We grant the petition and quash the order.

Raymond Gerry was charged with committing numerous sexual offenses against three children: Child I, a female (born 5/21/95), Child II, a male (born 6/19/97), and Child III, a male (born 4/2/00). With the exception of one sexual battery count stemming from the alleged digital penetration of Child I, the remaining counts arise from alleged instances of oral sexual activity (Gerry performing oral sex acts on Child I and Child III and having Child I perform oral sex acts on Gerry), lewd and lascivious molestations (Gerry touching the anal and genital areas of Child III and having Child I fondle Gerry), and lewd, lascivious or indecent acts (Gerry touching the genitals of Child II and having Child II touch Gerry’s genitals). A nurse practitioner, Joanne Sanchez, conducted the physical and sexual abuse examinations of the three children and testified at a pretrial hearing about her qualifications and her findings.

Specifically, Sanchez testified that while the skin in Child I’s genital area appeared red and irritated, there was no breakage of the skin and she saw no abnormalities regarding the hymen. However, she testified that in a large percentage of cases, there is no sign of trauma even if an object touches the hymen because the object does not have to necessarily proceed inside the vagina or through the hymen in order for penetration to occur. She explained that because the hymen is recessed, penetration can occur without any physical findings or abnormalities. No abnormal findings were observed as to Child II, nor did Sanchez expect to find any abnormalities given the nature of the alleged abuse of this child. Sanchez did observe an abnormality in the anal area of Child III that was consistent with abuse.

Gerry filed a motion in limine to have the testimony of Sanchez excluded on several grounds. One of the grounds was that her testimony was unduly prejudicial. Accepting this argument, the trial court entered an order prohibiting the introduction of the medical testimony of Sanchez on the basis that “[t]he medical evidence from Nurse Practitioner Sanchez will not be admitted at trial because, pursuant to Fla. Stat. 90.403, the probative value of her medical testimony is substantially outweighed by the danger of unfair prejudice.” The elimination of her medical testimony, as the trial court has done, eliminates her as a witness.

The State filed its petition for writ of certiorari requesting that this court quash the trial court’s order excluding the testimony of Sanchez. Gerry argues that cer-tiorari review is inappropriate to review the trial court’s order. Moreover, asserts Gerry, even if certiorari is the appropriate vehicle to review the trial court’s order, the State failed to show that the order is a departure from the essential requirements of the law. We disagree.

“[Ijmportant to the fair administration of criminal justice in this state” is the ability of the state to petition the district courts of appeal for certiorari review of pretrial orders rendered in criminal cases. State v. Pettis, 520 So.2d 250, 253 (Fla.1988). Entitlement to issuance of the writ depends on whether the state can show: 1) that the trial court’s ruling violated a clearly established legal principle and 2) that the ruling resulted in material injustice. Id. at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)); State v. Bradford, 658 So.2d 572 (Fla. 5th DCA 1995); see also State v. Cohens, 701 So.2d 362 (Fla. 2d DCA 1997). Specifically, when the state seeks certiorari review of the trial court’s pretrial order excluding one of its witnesses from testifying at trial, cer-tiorari review is appropriate because the state has no right to a direct appeal in the event the defendant is acquitted. See State v. Scheuschner, 829 So.2d 943 (Fla. 1st DCA 2002); State v. Brown, 782 So.2d 526 (Fla. 1st DCA 2001). Hence, in the instant case, the State properly challenges the trial court’s order through a petition for writ of certiorari.

We next determine whether the trial court’s ruling violates clearly established legal principles resulting in material injustice. The trial court excluded the testimony of Sanchez because it determined that her testimony, although relevant, was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. “However, almost all evidence to be introduced by the state in a criminal prosecution will be prejudicial to a defendant. Only where the unfair prejudice substantially outweighs the probative value of the evidence should it be excluded.” Amoros v. State, 531 So.2d 1256, 1260 (Fla.1988) (citation omitted); § 90.403, Fla. Stat. (2002) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”). The burden is on the party attempting to exclude the evidence to make that showing.

The unfair prejudice that section 90.403 attempts to eliminate relates to evidence that “ ‘inflames the jury or appeals improperly to the jury’s emotions.’ ” State v. McClain, 525 So.2d 420, 422 (Fla.1988) (quoting Charles W. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed.1984)); Walker v. State, 707 So.2d 300, 310 (Fla.1997); State v. Tagner, 673 So.2d 57, 60 (Fla. 4th DCA) (“Section 90.403 ... is directed at evidence which inflames the jury or appeals improperly to the jury’s emotions.”) (citation omitted), review denied, 677 So.2d 841 (Fla.1996). “Only when that unfair prejudice substantially outweighs the probative value of the evidence is the evidence excluded.” Walker, 707 So.2d at 310 (quoting Ehrhardt, supra).

In order to make this determination, a balancing test must be utilized where the probative value for the party seeking to introduce the evidence is weighed against the danger of unfair prejudice to the party who objects to the introduction of the evidence. Walker; McClain; Marchina v. State, 702 So.2d 1369 (Fla. 1st DCA 1997). When applying this balancing test, appropriate considerations include “ ‘the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.’ ” McClain, 525 So.2d at 422 (quoting Ehrhardt, supra); see also Taylor v. State, 28 Fla. L. Weekly S439 (Fla. June 5, 2003); Mansfield v. State, 758 So.2d 636, 648 (Fla.2000), cert. denied, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001); Walker, 707 So.2d at 310; Steverson v. State, 695 So.2d 687 (Fla.1997). In accordance with the general rule that “[ajdmission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion,” a trial court’s ruling that determines whether evidence should be eliminated under section 90.403 is generally reviewed, like the admissibility of most other types of evidence, pursuant to the abuse of discretion standard. Mansfield, 758 So.2d at 648.

Our thorough review of the record in the instant case leads us to conclude that the trial court misapplied the appropriate standard in excluding the testimony of Sanchez, thereby violating the clearly established legal principles we have just discussed. We have reviewed the transcript of Sanchez’s testimony in its entirety, and we conclude that it is not evidence that would inflame the jury or appeal to the jury’s emotions. Examples of that type of evidence include testimony that a defendant was arrested in a high crime area, general behavior of drug dealers, racial slurs, traffic citations, a party’s financial status, evidence of drug use and the criminal history of a defendant. Brown v. State, 719 So.2d 882 (Fla.1998). Evidence that would inflame the jurors or appeal to their emotions improperly implies that the defendant is guilty simply because he or she has a propensity to commit crimes or is a person of bad character. The medical testimony of Sanchez is not of that nature. Sanchez’s testimony simply relates the observations she made, as a qualified nurse practitioner, when she conducted her examinations of the children. Sanchez does not render an opinion that Gerry sexually abused the children; rather, she states her findings based on her examination and personal observations of the children and explains why, given the specific charges brought against Gerry, physical trauma may not be present with regard to Child I and Child II. This is relevant evidence the State is entitled to present to the jury so that the jury may not be misled into believing that a conviction is inappropriate unless the State produces evidence of physical trauma to the victims. See Heuss v. State, 660 So.2d 1052 (Fla. 4th DCA 1995) (involving a nurse who, after conducting examination of three children of alleged sexual abuse, testified as to her physical findings of trauma to one child and no findings of trauma to the other two children), approved, 687 So.2d 828 (Fla.1996). We thus conclude that the trial court erred in finding this evidence unduly prejudicial under section 90.403.

Moreover, the State argues that Sanchez’s testimony is necessary because the very young age of the children at the time of the alleged abuse renders the children incapable of making any allegations of abuse. Moreover, the State argues convincingly that Gerry made the statement to his wife that he touched Child III twice with his fingers, but because Gerry did not specify the part of the child’s body he touched, it is thus necessary to have the evidence of physical trauma presented to the jury by Sanchez to corroborate the wife’s statement. Even Gerry’s attorney admitted at the hearing that “the only evidence of any sexual abuse to [Child Ill’s] anal area would be the testimony of Nurse Sanchez.” Elimination of Sanchez as a witness may virtually eliminate the State’s ability to prove that charge.

Furthermore, Gerry will have full opportunity to confront and cross-examine Sanchez regarding her examination and findings. It will then be up to the jury, after appropriate argument by counsel for both parties, to evaluate the testimony and give it whatever weight it deems appropriate. If any party has been unfairly prejudiced here, it is the State, because without Sanchez’s testimony, its ability to prosecute this case against Gerry has been substantially impaired. We reject the suggestion made in the dissent that the State has not made this showing. The trial court’s ruling virtually eliminates the State’s witness who conducted the medical examination of the children after the alleged abuse and who can testify as to the physical findings as to each child. Moreover, elimination of Sanchez as a witness may essentially eliminate the State’s ability to prove the charges of sexual abuse relating to at least one of the children. Quite frankly, if the trial court’s ruling in the instant case does not significantly impair the State’s ability to prosecute its case against Gerry, we have a very difficult time discerning what would.

“The right to call witnesses is one of the most important due process rights of a party and accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done.” Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000). This right applies to both the state and the defendant because each is entitled to a fair trial. Hence, the courts have carefully guarded the state’s right to present relevant evidence and testimony through certiorari review of pretrial orders that attempt to exclude such evidence in trial proceedings. See Richardson v. State, 706 So.2d 1349 (Fla.1998) (approving a decision of the Fifth District Court of Appeal that granted certiorari quashing a pretrial order excluding Williams rule evidence); Scheuschner (granting certiorari and quashing an order prohibiting a witness for the state from testifying based on the trial court’s belief that the testimony of the witness was unworthy of belief); State v. Johnston, 743 So.2d 22 (Fla. 2d DCA 1999) (issuing writ of certiorari quashing a trial court’s order prohibiting the state from introducing victim impact evidence in the penalty phase of a murder trial based on the trial court’s finding that, pursuant to section 90.403, the probative value of the evidence was substantially outweighed by the prejudicial effect of the evidence); State v. Andres, 552 So.2d 1151, 1153 (Fla. 3d DCA 1989) (holding that the trial court abused its discretion in granting a pretrial motion to exclude a tape recording of an undercover drug deal pursuant to section 90.403 because, “[a]lthough the statements were detrimental to the defendant’s case, they did not prejudice him unfairly.”).

For example, in State v. Wells, 538 So.2d 1292 (Fla. 2d DCA 1989), the state sought a writ of certiorari to quash an order excluding evidence that included the deposition testimony of a state’s witness taken to perpetuate that testimony. The trial court held that the testimony was inadmissible under section 90.403 because it was cumulative. Citing to Pettis, the district court quashed the trial court’s order and held:

Section 90.403, Florida Statutes (1987) provides that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by ... the needless presentation of cumulative evidence.” To characterize the testimony of a victim as cumulative, when the victim was wounded by a bullet alleged to be from Wells’ gun in a case charging Wells with attempted homicide, defies logic. This witness is an important witness. The only other eyewitness to the alleged shooting was the second victim, Donnie Ray Allen. As a result of the trial court’s ruling, the state would be prevented from adducing evidence of Mrs. Wells’ statements to Wells at the time of the shooting. Furthermore, the state alleges that it anticipates that the defense will attempt to impeach Allen’s credibility with evidence of the prior confrontations between Wells and Allen and of their dislike for each other. The introduction of the wife’s testimony, which the state alleges will relate an account of the shooting consistent with Allen’s account, would rebut such impeachment and strengthen the state’s case.

538 So.2d at 1295. We also find instructive the court’s decision in State v. Nemeth, 581 So.2d 627 (Fla. 2d DCA 1991). In that case, the trial court granted the defendant’s motion in limine to exclude the testimony of a state witness on the grounds that because the witness had changed his testimony, his testimony was unworthy of belief. The state sought a writ of certiorari to quash that order. In granting the writ and quashing the trial court’s order, the court stated:

This decision, which is tantamount to excluding the witness or striking his testimony, is not supported by the facts of this case-Where a witness is competent to testify, and the defendant is fully afforded the right of confrontation, the testimony of that witness should not be stricken even where shown to be unreliable or inaccurate. Perhaps a different result would be required upon proof of deliberate prosecutorial suppression or some other form of tampering; but whatever the source of Mr. Roberson’s apparent memory lapse, the weight to be given his testimony should be the sole province of the trier of fact.

581 So.2d at 629 (citations omitted).

Just as in the instant case, in Wells, Nemeth and some of the other decisions we have cited, the trial court erroneously exercised its discretion in excluding the testimony of a state’s witness and in each case, the district court granted a writ of certiorari quashing the trial court’s' order of exclusion. Implicit in the decisions in Wells and Nemeth is the admonition that exclusion of relevant testimony of a witness must be done with extreme caution. Because section 90.403 is a restatement of Rule 403, Federal Rules of Evidence, the decisions of the federal courts applying the federal rule are considered instructive by, and persuasive on, the Florida courts. We note with interest that the federal courts consistently agree that

the court’s discretion to exclude evidence under Rule 403 is narrowly circumscribed. “Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.” United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984); accord United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir.), cert. denied, 469 U.S. 843, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984). The balance under the Rule, therefore, should be struck in favor of admissibility.

United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.), cert., denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed.2d 154 (1989); see also United States v. Fallen, 256 F.3d 1082, 1091 (11th Cir.2001); United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.1992); United States v. Moore, 732 F.2d 983 (D.C.Cir.1984).

Contrary to what the dissent seems to imply, the discretion afforded a trial court regarding evidentiary matters is not so broad, and the standards that govern cer-tiorari review of their pretrial orders are not so limited, that district courts of appeal are prevented from correcting -erroneous evidentiary rulings that eliminate a witness from testifying. Otherwise, under the umbrella of discretion and the limits of certiorari review, it would be the trial courts, rather than the state, that choose what evidence the state may present to the trier of fact. This is not the role of the trial courts. “As a general matter, ... the State has a reasonable interest in presenting the case in its own way and providing the jury with evidentiary value and depth in establishing the elements of a charged crime.” Brown, 719 So.2d at 887. The proper function of the trial courts is' to correctly apply the rules of evidence and properly exercise their discretion in preventing the introduction at trial of unfairly prejudicial evidence that substantially outweighs its probative effect. Based on the facts and circumstances of this particular case, the trial court failed to properly exercise that judicial function and abused its discretion in eliminating Sanchez as a witness, thus depriving the State of its right to a fair trial.

To summarize, the State has shown that it needs to present Sanchez’s testimony in order to properly prosecute its case against Gerry, and we do not believe that this evidence will evoke a particular emotional response from the jury or suggest to it any improper basis for its verdict. Gerry failed to meet his burden of establishing that the admission of Sanchez’s testimony results in unfair prejudice that substantially outweighs its probative value. Hence, the trial court’s exclusion of Sanchez’s testimony violated clearly established legal principles. The trial court’s ruling results in material injustice because it substantially impairs the ability of the State to prosecute this case. Because the State is prohibited from appealing in the event Gerry is acquitted, certiorari review by this court is essential to correct the trial court’s erroneous ruling.

Accordingly, we grant the petition for certiorari, quash the order under review, and remand to the trial court for further proceedings consistent with this opinion.

PETITION GRANTED; ORDER QUASHED; REMANDED for further proceedings.

PLEUS, J., concurs.

TORPY, J., dissents with opinion.

TORPY, J.,

dissenting.

To obtain certiorari relief the state must show that the lower court’s ruling significantly impairs its ability to prosecute its case. Richardson v. State, 706 So.2d 1349, 1358 (Fla.1998); State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Dreggors, 813 So.2d 170 (Fla. 5th DCA 2002); State v. Bradford, 658 So.2d 572, 573-574 (Fla. 5th DCA 1995). In its petition, the state acknowledges that this is its burden. The majority implicitly makes the same acknowledgment and concludes that the state has met its burden. I disagree and would deny the petition.

The ruling involved in this case is an order excluding one of the state’s witnesses from testifying regarding the witness’ examination of the three alleged sexual abuse victims. In dealing with the exclusion of evidence, “significant impairment” occurs when the excluded evidence is so essential to a successful prosecution that the failure to grant the relief will “effectively negate [the state’s] ability to prosecute.” Pettis, 520 So.2d at 253. Thus, only “highly prejudicial” trial error is subject to challenge using this extraordinary remedy. Richardson, 706 So.2d at 1358. Although circumstances might exist when “significant impairment” can be inferred from the nature of the excluded evidence, such is not usually the case and is certainly not the case here. Therefore, the state is obligated to proffer facts or point to record evidence from which we can reach this conclusion without speculation.

Here, the excluded testimony is that of a nurse practitioner, and in essence is as follows:

Regarding the witness’ findings as they relate to the female victim, D. G.:

Q. During this examination, did you make findings?
A. Well, it’s a couple of things I found. First of all her skin in her perineal, which was in her genital area was kind of red and irritated looking. But there was no breakage of the hymen, which is the opening in the vagina to see if there is any abnormal findings there.
Q. And before we talked about the hymen, you mentioned a redness area in her vaginal area. Is there anything significant about that as it relates to the allegations?
A. No, that can be a normal finding in a child of her age who soap and water or hygiene at this age is difficult. It’s just the tissue is irritated.

As to the younger male victim, R.G. Ill, she described the “abnormality” as follows:

A. Normally around the anus or the anal opening, the skin folds are kind of folded, the whole area are skin folds. He had a flat smooth area. We look at it as a clock, and we say at five o’clock there was a flat smooth area.
Q. And what is that indicative of?
A. According to the literature, it’s indicative of a normal finding which would be his normal variant or it can be a sign of sexual abuse.

As to the older male victim, the witness stated that the exam results were normal. The witness also opined that her findings were “consistent” with sexual abuse. However, this conclusion was based on the aforementioned facts and adds nothing to the probative value of her opinions, because even a normal physical finding would be “consistent with” the type of sexual abuse alleged here.

In its petition, the totality of the state’s argument relative to the importance of the excluded evidence is contained in one sentence: “[Gjerry had made a statement to his wife that he had touched [R.G., III] twice with his fingers, but did not say what part of the body he did that to, so it was important to have such testimony from [the witness] to corroborate the statement.” My colleagues find this argument to be “convincing.” I do not. I fail to see how inconclusive physical findings such as these can be said to corroborate this allegation. In fact, not only is the evidence inconclusive, it’s not probative. And if the evidence is not probative for this or any other purpose, its exclusion can hardly be said to result in the significant impairment of the state’s case.

Equally problematic for me is the fact that the state’s petition is curiously devoid of any farther proffer or argument calculated to meet its burden of showing substantial impairment. How are we to conclude that the lower court’s decision “effectively negates [the state’s] ability to prosecute” the defendant when we are left in the dark about the nature and extent of the other available evidence against the defendant? Quite frankly, if the state’s case is effectively gutted by the exclusion of this evidence, I am left in doubt as to whether the state’s case can ever be proven, even with this evidence. Surely, the state’s case must be based upon more substantial evidence.

Even if I were to agree with the majority that the state met its burden of showing that its prosecution has been significantly impaired, I would still deny the petition because the state has not demonstrated that the trial judge abused his discretion by excluding the evidence. Although the exact reason given by the trial judge for excluding the evidence might not pass muster, valid reasons for excluding the evidence do exist. I would apply the “tipsy coachman” rule, therefore, and conclude that the trial judge was correct, albeit for the wrong reason. Robertson v. State, 829 So.2d 901 (Fla.2002).

Section 90.403, Florida Statutes, gives the trial judge broad discretion to exclude otherwise admissible evidence if the probative value of the evidence is substantially outweighed by the “danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2002); State v. McClain, 525 So.2d 420, 422 (Fla.1988) (trial court has “large measure of discretion” under 90.403); Pierce v. State, 718 So.2d 806 (Fla. 4th DCA 1997) (trial court has broad discretion under 90.403). This is an exercise that is “best performed by the trial judge who is present and best able [to make the comparison],” because the determination involves not only evaluating what the witness said but also how it is said. Sims v. Brown, 574 So.2d 131, 133 (Fla.1991). In performing this analysis it is the trial court’s duty to:

[W]eigh the logical strength of the proffered evidence ... against the other facts in the record and balance it against the strength of the reason for exclusion. In undertaking this balancing, the trial judge may consider the need for the particular evidence, the availability of alternative means of proof and the likelihood that the jury will follow a limiting instruction by the court.

Charles W. Ehrhardt, Florida Evidence § 403.1 (2001 ed.) (emphasis added).

I do not think the trial judge abused his broad discretion here. The need for this evidence is debatable. Indeed, it will offer little to no assistance to the jury in its quest for the truth. Moreover, the trial judge might well have believed that there existed a real danger of jury confusion here, where a highly trained professional witness was to give the ambiguous opinion that the physical findings were “consistent with sexual abuse.” Although innocuous enough to the trained ears of lawyers and judges, the trial judge could conclude, within the bounds of his discretion, that a jury might be misled by this opinion. Even if not properly excluded under section 90.403, the trial judge could have properly excluded it under section 90.702, Florida Statutes, by making the determination that it will not assist the trier of fact. Hosbein v. Silverstein, 358 So.2d 43, 44 (Fla. 4th DCA 1978) (trial judge has broad discretion to exclude expert testimony if he or she determines it will not assist the trier of fact).

Whether we as appellate judges would have reached the same conclusion is irrelevant. We should carefully avoid the temptation to substitute our judgment for that of the trial judge, especially when it involves evidentiary rulings on matters such as this, where the legislature has conferred upon the trial judge the discretion to make the judgment call.

      . Ray v. State, 755 So.2d 604, 610 (Fla.2000) (citing Alston v. State, 723 So.2d 148 (Fla. 1999)).

      . Child I was allegedly abused when the child was approximately 6 1/2 years old; Child II was allegedly abused in the first year of his life; and Child III was allegedly abused in the first eighteen months of life.

      . Brown, 719 So.2d at 885.

      . When applying a Florida rale of evidence patterned after a federal rule of evidence, the Florida courts generally consider as persuasive decisions rendered by federal courts interpreting the federal rule. Ellis v. State, 622 So.2d 991 (FIa.1993); Moore v. State, 452 So.2d 559 (Fla.1984); First Union Nat’l Bank v. Turney, 824 So.2d 172 (Fla. 1st DCA 2001), review denied, 828 So.2d 385 (Fla.2002); Russell v. State, 614 So.2d 605 (Fla. 1st DCA 1993); Sikes v. Seaboard Coast Line R.R., 429 So.2d 1216 (Fla. 1st DCA 1983), petition for review denied, 487 So.2d 1118 (Fla. 1st DCA 1986).

      .Having conceded that the trial court’s decision to exclude Sanchez’s testimony might be erroneous, the dissent argues for application of the tipsy coachman rule, suggesting that the evidence might be excluded under section 90.702 and other provisions of section 90.403, Florida Evidence Code. The only basis for excluding Sanchez’s testimony presented by Gerry and considered by the trial court was unfair prejudice under section 90.403. Hence the State was never put on notice that the testimony might be excluded on the alternative grounds advanced by the dissent and has never had an opportunity to be heard on those issues. While the tipsy coachman rale may allow an appellate court to affirm an erroneous ruling on grounds not presented to the trial court, the Florida Supreme Court has limited application of the rule to instances where there is support in the record for the alternative theory or principle of law. Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (“The key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.’’); see also State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002). Like the court in Robertson, which held that the tipsy coachman rule did not apply because the trial court failed to make the required determinations for admitting Williams rule evidence, the trial court in the instant case never engaged in the weighing process under section 90.403 to determine whether the evidence should be excluded under the alternative grounds advanced by the dissent. Furthermore, we fail to discern how the testimony of Sanchez could mislead the jury, confuse the issues or not be of assistance to the jury in resolving the issues.

      . We note that Gerry will be entitled to argue that the absence of findings of physical trauma may be evidence that he did not sexually abuse the children. In the event that Gerry makes this argument, it will be up to the jury to evaluate the testimony and give it whatever weight it deems appropriate.

      . For example, the exclusion of the victim's testimony in an assault case would give rise to a reasonable inference that the state’s case is significantly impaired because "fear" must be proven. State v. Cecil, 533 So.2d 884, 886 (Fla. 3d DCA 1988).

      . The majority assumes that the victims are too young to testify. This might be a fair assumption regarding the youngest victim but not the older two victims. In fact, the record reflects that the oldest victim gave a statement to investigators that implicated defendant.


author: TAYLOR, J.

text:
    Ronald STRAUSS, Appellant, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 4D02-4581.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Helene Hvizd Morris, West Palm Beach, and John F. Romano of Romano, Eriksen, Cronin, and Mullins, P.A., West Palm Beach, for appellant.
    Angela C. Flowers of Kubicki Draper, Miami, for appellee.
   TAYLOR, J.

Ronald Strauss appeals a non-final order dismissing his complaint against Allstate Insurance Company on the ground of forum non conveniens. We reverse and remand for an evidentiary hearing.

Appellant was involved in a car accident in Pleasantville, New Jersey on August 9, 1998. The accident was allegedly caused by the negligence of Thomas Pankowicz, a Pennsylvania resident. Appellant was taken from the scene by ambulance to a New Jersey hospital, where he was treated for his injuries. Both appellant and Pankow-icz were insured by Allstate. Appellant’s policy included underinsured motorist coverage. After Allstate tendered the policy limits available under Pankowicz’s liability coverage, appellant filed suit against Allstate to recover underinsured motorist benefits under his own policy.

Allstate moved to transfer venue to Atlantic County, New Jersey. As grounds, Allstate alleged: (1) the accident occurred in that county; (2) two other drivers involved in the accident lived in New Jersey and Pennsylvania; (3) appellant fives in his Florida home eight to nine months of each year and stays in his Ventnor, New Jersey home the remaining months; (4) appellant was residing in his New Jersey home when the accident occurred; (5) appellant was treated at a hospital in New Jersey and saw at least one or two physicians in New Jersey after the accident; (6) appellant did not return to Florida until seven to nine weeks after the accident; (7) appellant and his wife filed a bodily injury lawsuit in New Jersey; and, (8) appellant gave a deposition in New Jersey in connection with the claim.

Earlier, appellant had filed an affidavit attesting to the following: (1) he is a resident of Palm Beach Gardens, Florida; (2) he is registered to vote in Florida; (3) his car is registered in Florida; (4) the subject insurance policy was issued in Florida; and, (5) he was treated before and after the accident by an orthopedic surgeon in Florida.

At the hearing on Allstate’s amended motion to transfer venue, appellant asserted that the motion was mistitled because Allstate was not moving for a change of venue, but rather was seeking dismissal on forum non conveniens grounds under Florida Rule of Civil Procedure 1.061 and Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996). Appellant argued that the facts in this case did not satisfy the Kinney test for forum non con-veniens. Appellant further argued that venue is proper in Florida because this is essentially a contract action concerning a Florida resident’s uninsured motorist coverage under a policy issued in Florida and covering an automobile registered in Florida. According to appellant, Florida law should apply to the interpretation of a Florida contract.

Applying statutory and case law pertaining to motions seeking an intrastate transfer of venue, the court entered a written order granting Allstate’s amended motion to change venue “based on forum non con-veniens.” The order changed venue to Atlantic County, New Jersey and dismissed the case in this jurisdiction without prejudice.

Appellant seeks a reversal of the order, arguing that the trial court erroneously applied case law governing change of venue, when Allstate actually sought dismissal of this case in Florida on forum nonconveniens grounds under Florida Rule of Civil Procedure 1.061 and Kinney. Appellant argues that the trial court should have addressed the factors enunciated in Kinney before dismissing his case. Allstate concedes that the trial court mistakenly relied on the change of venue statute rather than the appropriate rule of civil procedure, but argues that the court’s ruling was correct because the record supports the court’s finding that Florida is an inconvenient forum.

“Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney, 674 So.2d at 87. In Kinney, the Florida Supreme Court adopted the federal forum non con-veniens doctrine, which sets out factors a court should consider in determining whether an action should be dismissed because it was brought in an inconvenient forum. The Kinney factors were later codified in rule 1.061(a). See Ira Mex, Inc. v. Southeastern Interior Constr., Inc., 777 So.2d 1107, 1109 (Fla. 4th DCA 2001). Rule 1.061(a) provides that an action may be dismissed on the grounds that relief can be sought in a more convenient forum if:

(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

Here, the record does not demonstrate that the trial court conducted the requisite analysis of the above four factors before dismissing appellant’s action against Allstate and transferring it to New Jersey. Accordingly, we reverse and remand for a determination of the Kinney factors. See Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830 (Fla. 4th DCA 1997)(reversing order granting motion to dismiss on forum non conveniens ground and remanding for the trial court to adequately set forth its findings and conclusions under Kinney).

REVERSED and REMANDED.

WARNER and SHAHOOD, JJ., concur.


author: THOMPSON, J.

text:
    Marvin I. HOROWITZ and Horowitz & Gudeman, P.C., Appellants, v. Edward LASKE & Ruth E. Laske, etc., Appellees.
    No. 5D98-1944.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 2, 2003.

      Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for Appellants.
    Marvin I. Horowitz, Farmington Hills, pro se.
    Robert E. Austin, Jr. and Bradford D. Fisher of Austin & Pepperman, P.A., Leesburg, for Appellees.
   THOMPSON, J.

This case is on remand from the Florida Supreme Court. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). In Wendt, the supreme court reversed Horowitz v. Laske, 751 So.2d 82 (Fla. 5th DCA 1999), in which we held that the trial court erred in denying a motion to dismiss for lack of long-arm jurisdiction. The supreme court reversed and remanded the case to this court to make the threshold determinations of whether Wendt’s third-party complaint against Horowitz states a cause of action, and if so, whether the cause of action arose out of communications Horowitz made into Florida.

This case arose out of a failed investment scheme. Investors were told that they would receive interest on loans they made to K.D. Trinh Investments, Inc. (“K.D.Trinh”), a Canadian corporation. Bernard Wendt was a Florida resident who solicited investors for K.D. Trinh. Investors Edward and Ruth Laske filed a class action against Wendt, alleging that he was a broker and promoter of the promissory notes, which turned out to be worthless, and that the sale of the notes violated securities laws. They alleged that K.D. Trinh had been conducting a Ponzi scheme.

Wendt filed an amended third-party complaint against Horowitz, a Michigan resident who had given legal advice to K.D. Trinh, and Horowitz’ Michigan law firm (collectively “Horowitz”). In the jurisdictional statement, Wendt alleged that Horowitz committed a tortious act in Florida by negligently responding to inquiries about the scheme made by Florida securities regulators and by negligently drafting loan documents that were knowingly intended by Horowitz to be evidence of loans to be made by Florida residents. Wendt also alleged that Horowitz caused personal injuries in Florida by negligently advising K.D. Trinh about the investment program.

In the first count against Horowitz, count VII of the third-party complaint, Wendt sought contribution from Horowitz. The jurisdictional allegations were incorporated into this count. Wendt also alleged that Horowitz entered an attorney-client relationship with K.D. Trinh to provide K.D. Trinh legal services in connection with the loans. Thereafter, Wendt alleged, Horowitz provided legal services to K.D. Trinh for the use of K.D. Trinh and for the use of individuals promoting the loans. Further, Wendt alleges that the legal services were intended for the use and benefit of individuals promoting the loans, and Horowitz knew that individuals promoting the loans would rely on the legal services provided by Horowitz. Wendt alleged that he was “a member of the class by whom and for whom the legal services of Horowitz ... were intended and expected to be used.” Wendt alleged that Horowitz negligently analyzed the loans and notes, negligently advised K.D. Trinh about securities laws, and negligently responded to state regulators. Wendt alleged that certain investors claimed that Wendt was responsible for their damages and that he was entitled to contribution from Horowitz.

In count VIII, Wendt sought indemnity from Horowitz. The jurisdictional allegations were incorporated into this count, as were the allegations that Horowitz provided K.D. Trinh legal services that would be used by the promoters of the loans and that Wendt was “a member of the class by whom and for whom the legal services of Horowitz ... were intended and expected to be used.” Wendt further alleged that he fulfilled any fiduciary duty (to the investors, presumably) he may have had by exercising due diligence and investigating through reliable sources K.D. Trinh’s reputation as a legitimate business. He alleged that he had had no reason to know that the loans and the notes were not lawful or that the transactions might violate Florida law. Wendt alleged that he was without fault, that his responsibility, if any, was constructive or derivative, and that he was entitled to indemnification from Horowitz for any damages awarded against him.

In Count IX, the jurisdictional allegations were incorporated, as were the allegations that Horowitz provided K.D. Trinh legal services that would be used by the promoters of the loans and that he was “a member of the class by whom and for whom the legal services of Horowitz ... were intended and expected to be used.” Wendt alleged that he would not have made a loan or presented the loans to his customers if he had known that the loans were not lawful. As a result of the negligence of Horowitz, Wendt alleged, certain of his customers lost their principal and refused to do further business with Wendt. Also as a result of Horowitz’ negligence, complaints were asserted against Wendt that resulted in his having been subjected to administrative charges, an administrative penalty, a federal securities class action, criminal charges, arrest, incarceration, and publicity in local newspapers causing him personal injuries, including embarrassment, humiliation, and emotional distress. Further, as a result of Horowitz’s negligence, Wendt suffered mental anguish, loss of earnings, loss of the ability to earn money, defamation, and loss of business reputation.

On remand from the supreme court, this court ordered the parties to brief the issues raised by the supreme court. We also ordered the parties to identify the tort alleged in the complaint along with its elements, and to state what ultimate facts pleaded in the complaint satisfied the elements of the tort. Our order was not idle, Florida is a fact-pleading jurisdiction. Continental Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994); see also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (“Florida Rule of Civil Procedure 1.110(b)(2) requires that ‘[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief ”). Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Continental Baking Co., 6S4 So.2d at 244. Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988).

The complaint in the instant case falls mightily short. To state a cause of action for legal malpractice a plaintiff must show: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence resulted in and was the proximate cause of loss to the client. Bolves v. Hullinger, 629 So.2d 198 (Fla. 5th DCA 1993). The liability of attorneys for negligence in the performance of their professional duties is limited to clients with whom they share privity of contract. Angel, Cohen and Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 194 (Fla.1987). Here, Wendt has alleged the employment of Horowitz, but he has alleged that Horowitz was employed by K.D. Trinh, not by Wendt. The privity requirement has been relaxed where it was the apparent intent of the client to benefit a third party. Id. Wendt alleges that he was among the “class” of those intended to benefit from Horowitz’s advice. However, that is a legal conclusion devoid of ultimate facts supporting it. Without more, the fact that Wendt was an agent of K.D. Trinh, the client, does not establish that Horowitz owed a duty to Wendt. Compare Brennan v. Ruffner, 640 So.2d 143 (Fla. 4th DCA 1994) (holding that in the absence of special circumstances or an agreement to also represent the shareholder individually, an attorney representing a corporation does not become the attorney for the individual stockholders merely because the attorney’s actions on behalf of the corporation may also benefit the stockholders).

Moreover, Wendt has not pleaded the attorney’s neglect of a reasonable duty. Wendt has alleged that Horowitz was negligent in responding to the inquiries of state regulators, in analyzing securities laws, and in advising K.D. Trinh, but these allegations are bare legal conclusions. See Rios v. McDermott, Will & Emery, 613 So.2d 544 (Fla. 3d DCA 1993) (affirming dismissal of complaint where complaint did not state what law firm may have done wrong in its efforts to remove the lis pen-dens and did not illuminate any of the specifics of the alleged malpractice); see also Bankers Trust Realty, Inc. v. Kluger, 672 So.2d 897 (Fla. 3d DCA 1996) (complaint, which merely stated that attorneys “negligently, carelessly, unskillfully and tardily conducted the ... action and delayed obtaining a judgment therein” stated insufficient legal conclusion and was properly dismissed for failure to state a cause of action). Indeed, Wendt does not allege that he was privy to the advice Horowitz gave K.D. Trinh or to the statements Horowitz made to state regulators.

Because the alleged professional negligence of Horowitz provides the underpinning for the three counts of the counter-claim, they do not state causes of action. Contribution, the claim asserted in count VII, is exclusively a statutory remedy. Florida Patient’s Compensation Fund v. St. Paul Fire & Marine Insurance Co., 559 So.2d 195, 197 (Fla.1990). Section 768.31, The Uniform Contribution Among Tortfeasors Act, provides:

(2) Right to contribution.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

The law of contribution is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. Nesbitt v. Auto-Owners Ins. Co., 390 So.2d 1209 (Fla. 5th DCA 1980). To state a claim for contribution, the claimant must allege a common liability to the injured party. Insurance Co. of North America v. Quality Commercial Group, Inc., 687 So.2d 960 (Fla. 5th DCA 1997). Wendt has not stated a cause of action for contribution because there are no ultimate facts alleged which would show that Horowitz is liable to the investors.

In count VIII, Wendt sought to be indemnified by Horowitz for the investors’ losses, alleging that he was without fault because he diligently investigated K.D. Trinh’s reputation and had no reason to know that the investment scheme was unlawful. The right to indemnity arises through express or implied contract. City of Clearwater v. L.M. Duncan & Sons, Inc., 466 So.2d 1116, 1118 (Fla. 2d DCA 1985). Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other, and is available only where the whole fault is in the one from whom indemnity is sought. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 492-93 (Fla.1979). It shifts the entire loss from one who, although without fault, has been obligated to pay because of some vicarious, constructive, derivative, or technical liability to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable. Id. at 493. For the right to indemnification to arise, there must be a special relationship between the parties that gives rise to the technical liability of the would-be indemnitee. See id. (the allowance of indemnity is premised upon a special relationship between the primary defendant and the third-party defendant). Here, Wendt has failed to allege ultimate facts showing a special relationship between him and Horowitz that would make Wendt technically liable for wrong acts on the part of Horowitz.

According to Wendt, count IX states a claim under the “wrongful act doctrine,” which he nevertheless acknowledges is not an independent cause of action. Where a defendant has committed a wrong toward the plaintiff and the wrongful act has caused the plaintiff to litigate with third persons, the wrongful act doctrine permits the plaintiff to recover, as an additional element of damages, plaintiffs third party litigation expense. State Farm Fire & Cas. Co. v. Pritcher, 546 So.2d 1060, 1061-62 (Fla. 3d DCA 1989). We conclude that this is a claim for damages, including special damages, for legal malpractice. Because Wendt has not alleged a factual basis for legal malpractice claim, as discussed above, count IX also fails.

Where the threshold question of jurisdiction turns on whether a tort is committed in Florida, the court necessarily must review the allegations of the complaint to determine if a cause of action is stated. Wendt, 822 So.2d at 1260 (citing 8100 R.R. Ave. Realty Trust v. R.W. Tansill Constr. Co., 638 So.2d 149, 151 (Fla. 4th DCA 1994)). The order denying the motion for lack of jurisdiction is reversed because, since there is no cause of action alleged, there is no basis for personal jurisdiction. See 8100 R.R. Ave. Realty Trust, 638 So.2d at 151.

REVERSED.

GRIFFIN and TORPY, JJ., concur.


author: PALMER, J.

text:
    J.P., Father of A.P., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-207.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    Ryan Thomas Truskoski of Ryan Thomas TruskosM, P.A., Orlando, for Appellant.
    Charles D. Peters and Jodi Abramowitz of the Department of Children and Family Services, Orlando, for Appellee.
   ON MOTION FOR REHEARING

PALMER, J.

We grant appellant J.P.’s motion for rehearing in part, withdraw our prior opinion, and issue this corrected opinion in its stead.

J.P. (father) appeals the final order entered by the trial court directing him to comply with various terms of a case plan as a condition precedent to his receiving custody of his dependent child, A.P. Concluding that the requirements of the case plan imposed on the father are authorized by Florida law, we affirm.

The Department of Children and Families (DCF) filed a petition for dependency as to both of A.P.’s parents. After conducting a hearing, the trial court issued an order adjudicating A.P. dependent as to the mother, but finding that DCF had failed to sustain its burden of proving that the child was dependent with regard to the father. However, the court reserved ruling on the issue of placement of the child pending a positive home study of the father.

At a subsequent disposition hearing, the court was advised by the father’s counsel that the father was not prepared to take custody of the child since he had no stable home or employment, but counsel argued that the father should not be required to participate in a case plan since he was found to have been a non-offending parent. Counsel also objected to portions of the proposed case plan, including requirements that the father complete a batterer’s intervention program, a substance abuse evaluation, a psychological evaluation, and a domestic violence program. Upon consideration, the court modified the terms of the proposed case plan, ruling that the father would be required to submit to a psychological examination and then comply with any recommendations made by the evaluator.

The father challenges this ruling, arguing that the trial court erred in ordering him to participate in a psychological examination as part of his case plan since he was found to be a non-offending parent. We disagree.

In Bailey v. Dep’t of Health & Rehabilitative Servs., 703 So.2d 1224 (Fla. 5th DCA 1998) this court recognized that section 39.407(14) of the Florida Statutes specifically authorizes trial courts to order mental health examinations in dependency matters upon a showing that the parent’s mental condition is in controversy and good cause exists to require an examination. Accord S.N. v. State Dep’t of Health & Rehabilitative Servs., 529 So.2d 1156 (Fla. 1st DCA 1988). Section 39.521 of the Florida Statutes (2001) also provides such authority, stating in relevant part:

39.521. Disposition hearings; powers of disposition.—
[l](b) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child has the power by order to:
1. Require the parent and, when appropriate, the legal custodian and the child, to participate in treatment and services identified as necessary.

(Emphasis added).

The instant record demonstrates that the trial court acted within its legal authority in ordering the father to submit to a psychological evaluation as an element of his case plan since the record indicated that the father had participated in incidents of domestic violence and possessed a criminal history which included incidents of violence. Based upon the evidence of record, the trial court properly directed the father to submit to a psychological exam for the purpose of investigating whether any services or mental health counseling would be necessary prior to the time A.P. is placed in his custody. Importantly, the father will be required only to comply with the recommendations made by the evaluator once the testing is completed. As such, the father will not be required to submit to any unnecessary classes or counseling. See B.W. v. Dep’t of Children & Families, 842 So.2d 1000 (Fla. 3d DCA 2003)(holding that in a proceeding for adjudication of child as dependent as to mother, trial court’s order terminating county’s jurisdiction over child and placing child in father’s care was premature, where the court placed the child with the father without requiring DCF to complete and file a home study on the father as dictated by statute); D.M. v. Dep’t of Children & Families, 807 So.2d 90 (Fla. 5th DCA 2002), rev. denied, 819 So.2d 134 (Fla.2002)(holding that trial court was warranted in ordering a case plan by which the mother could in time resume her parenting responsibilities, though children were not found to be dependent as to the mother, given that mother admitted she was unable to care for her children and voluntarily permitted the children to be placed in out-of-home care).

AFFIRMED.

SAWAYA, C.J., and SHARP, W., J., concur.


text:
    Jasper R. KIRTSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0393.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that the trial court illegally retained jurisdiction over one-third of his sentence. Because the appellant has stated a facially sufficient claim that his sentence is illegal that is not refuted by the record, we reverse.

On May 2, 1982, the appellant was adjudicated guilty of one count of armed robbery and sentenced to 90 years in prison with the court retaining jurisdiction over one-third (30 years) of that sentence. The appellant alleged that his sentence is illegal because the trial court did not justify the retention of jurisdiction over one-third of his sentence. In order to retain jurisdiction over the appellant’s sentence, the trial court must provide justification “with individual particularity.” See § 947.16(3)(a), Fla. Stat. (1981); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000). The record contains no such justification.

Furthermore, contrary to the trial court’s ruling, this issue is cognizable in a rule 3.800 motion. See Hampton, 764 So.2d at 830; Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

We accordingly reverse the summary denial of this claim and remand for the trial court to address this claim on the merits.

REVERSED AND REMANDED.

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


author: WARNER, J.

text:
    Willie Henry JACKSON, Jr. and Pamela Jackson, Petitioners, v. STATE of Florida, Respondent.
    Nos. 4D03-1896, 4D03-2053.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, Steven H. Malone and David Casals, Assistant Public Defenders, West Palm Beach, for petitioner Willie Henry Jackson, Jr.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for petitioner Pamela Jackson.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

In these consolidated petitions for writ of prohibition, petitioners seek to prohibit their further prosecution in the case pending against them after the trial court judge granted a mistrial in their first prosecution and then denied their written motion to dismiss on double jeopardy grounds. Because we conclude that there was no manifest necessity to grant a mistrial based upon the defense counsel’s comment in opening statement, double jeopardy bars further prosecution. We grant the petition.

Petitioners are husband and wife, and the charges against them arose from a confrontation they had with Mangonia Park police. As a result of the confrontation, petitioner Willie Jackson was charged with corruption by threat against a public official and resisting an officer without violence. Petitioner Pamela Jackson was charged only with corruption by threat.

At trial, the voir dire of the jurors dealt with the jurors’ attitudes about police and their believability. It appears that the defense planned to attack the credibility of the officers and the necessity of their actions. The state objected to many of the questions asked by defense counsel that touched on the areas of racism, bias, police officers singling out African-Americans and harassing them, and government officials using their power to harass. Each time the state’s objection was sustained, defense counsel did not ask the question. The state itself asked questions about bias and race.

After the jury was sworn, the state objected to a remark made by Willie Jackson’s defense counsel, Mr. Casals, in opening statement, referring to the Mangonia police officers as “these jerky, little jerky cops of Mangonia Park.” The court stopped the proceedings, calling counsel to the bench. The court thought that the remarks were egregious. At the court’s invitation, the state moved for a mistrial, which the court granted, discharging the jury over the defense objection that a curative instruction would suffice.

Later, Pamela Jackson filed a motion to dismiss, in which her husband joined, arguing retrial was barred by double jeopardy because the jury was discharged without the defendants’ consent, for a legally insufficient reason, without manifest necessity. They argued that because the statement had come early in the trial, any error could have been cured by an instruction to the jury to disregard the improper statement and reminding the jury that what the attorneys say is not evidence. Willie Jackson’s attorney intended to present evidence of misconduct on the part of the police as part of his client’s defense, which tied into all of his questions on voir dire.

The state argued that none of the officers whom Mr. Casals had deposed gave him any information to support the “ridiculous statement” he made to the jury. While the prosecution conceded that none of the violations by Mr. Casals alone would give rise to a finding that a mistrial was necessary, it claimed the combination of violations committed over the two days had resulted in a belligerent attitude of the jurors.

The judge found that there was a manifest necessity for the mistrial. He acknowledged that he had allowed wide latitude to defense counsel in questioning the jury but that counsel’s characterization of the officers in opening statement exceeded the limits of propriety. He emphasized that defense counsel’s questioning in voir dire attempted to get the jury to commit to the idea that police are bad people. He concluded that the jurors’ minds were poisoned by the improper matters the jury was asked to consider and the argumentative and vicious statement expressing a derogatory opinion of the police without a factual context. The court determined that the state could not receive a fair trial, therefore it denied the motion.

Prohibition is the proper remedy to prevent a violation of the constitutional proscription against double jeopardy. See Strawn v. State ex rel. Anderberg, 332 So.2d 601, 602 (Fla.1976). Jeopardy attaches when the jury is selected and sworn. See Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In the absence of manifest necessity for granting the mistrial, a retrial violates the fundamental principal that a defendant is entitled to have his trial completed by a particular tribunal. See Perkins v. Graziano, 608 So.2d 532, 532-33 (Fla. 5th DCA 1992).

The discharge of the jury for a legally insufficient reason, without the defendant’s consent and without manifest necessity, is equivalent to an acquittal. See Spaziano v. State, 429 So.2d 1344, 1345 (Fla. 2d DCA 1983). “When a mistrial is granted over a defendant’s objection, the prosecution has a heavy burden to show that the mistrial was justified by manifest necessity.” Id. at 1346 (citing Brady v. Samaha, 667 F.2d 224 (1st Cir.1981)). As the Spaziano court stated:

[A] valid reason for declaring a mistrial must be predicated on either of two bases: (1) On some misfortune which, although the fault of neither party, renders continuation of the trial impossible or unreasonably prejudicial to the substantial interest of either the judicial process itself, the defendant, the state, or both, or (2) upon some unfair or wrongful tactic, action or conduct on the part of the defendant, by which a substantial interest in the state is unfairly frustrated or embarrassed.

Id. (citing State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla. 2d DCA 1974)) (footnote omitted).

In this case, the mistrial was predicated on Mr. Casals’ remark in his opening statement, in which he referred to Mango-nia police officers as “these jerky, little jerky cops of Mangonia Park.” Because an attorney’s opening remarks do not constitute evidence, they are rarely sufficient for the granting of a motion for mistrial. For example, in Spaziano, the defense counsel informed the jury in opening argument that certain evidence would be presented but then failed to present this evidence. The court found this did not unreasonably prejudice either the judicial process or the state because a party has the right to make tactical changes in his defense as the trial progresses and the state could have reminded the jury in closing argument that the representations of defense counsel cannot be considered as evidence. Id.; see also Turner v. State, 851 So.2d 276, 278-79 (Fla. 4th DCA 2003).

Misconduct by the defense in opening statement which rises to the level necessitating a mistrial typically involves comments on evidence that the jury is not permitted to hear or presentation by the defense of perjured testimony. See, e.g., Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (finding mistrial proper where defense notified jury that defendant’s conviction had been reversed for new trial because state withheld evidence); Walsh v. State, 418 So.2d 1000 (Fla.1982) (upholding mistrial where defendant testified that he passed polygraph examination although the court ruled such evidence inadmissible); Quinones v. State, 766 So.2d 1165 (Fla. 3d DCA 2000) (denying defendant’s petition for writ of prohibition where mistrial was granted after defense counsel repeatedly attempted to reveal impermissible matters to the jury and improperly editorialized the evidence presented and the prosecutor’s motives.)

The state maintains this case is similar to Clark v. State, 756 So.2d 244 (Fla. 5th DCA 2000). In Clark, the court held that double jeopardy did not preclude retrial where, after the trial court granted a defense motion in limine to exclude any reference to drugs lost by the state which were to be introduced into evidence, defense counsel referred to drugs in opening statement and falsely stated that drugs were absent from the scene of the crime. Id. at 246. The appellate court concluded that either a curative instruction to disregard the statement or permitting the state to present evidence that the drugs were found at the scene, but lost, would unduly prejudice the jury and shift the focus at trial. See id.

The facts of this case are distinguishable. While in Clark the defense counsel falsely informed the jury of material facts, here the defense counsel simply disparaged the police by referring to them using the pejorative term “jerky.” We hardly think that the jury was unduly tainted by the defense counsel’s antics. Defense counsel did not convey to the jury any undisclosed evidence, nor did he suggest that the state had engaged in unethical conduct. While his remark was undoubtedly highly unprofessional and inappropriate, and he should have been admonished for such a comment, it could have been cured. The court did not consider a curative instruction or admonishing defense counsel in front of the jury. Cf. Turner, 851 So.2d at 278-79.

When denying the motion to dismiss, the court indicated that Mr. Casals’ offensive remark in opening statement was the culmination of his overreaching in voir dire. During voir dire, while the prosecutor objected to several of the questions asked by Mr. Casals, the trial court simply told counsel not to get into the facts of the case. The prosecutor never objected to any questions on the ground that the jury was being unduly tainted, and the prosecutor never asked that the jury be dismissed on this ground.

Moreover, the state has not pointed to any questions asked during voir dire that it deems excessively prejudicial, nor did it identify any at trial. Mr. Casals maintained that all of his questions were entirely within bounds, he was merely seeking to learn the jury’s attitude toward the defense. We have examined the questions and have not identified any that would have irreparably tainted the jury.

As the state has conceded, the remark in opening statement would not require a mistrial. The state did not object to the defense’s voir dire questioning on the grounds asserted in its response to the motion to dismiss. Therefore, we conclude that no manifest necessity for a mistrial was shown. We grant the petitions and order petitioners’ discharge.

GUNTHER and SHAHOOD, JJ., concur.


author: MAY, J.

text:
    Teresa GERARD, Appellant, v. Sumner GERARD, Appellee.
    No. 4D02-4413.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.

      Lewis Kapner, West Palm Beach, for appellant.
    G. Russell Peterson and Lisa D. Harpr-ing, Vero Beach, for appellee.
   MAY, J.

The wife challenges a dissolution order, which declared her marriage irretrievably broken. The trial court entered the order after granting the wife’s motion to dismiss for lack of personal jurisdiction, and granting the husband’s motion to bifurcate the dissolution and equitable distribution issues. Several arguments are raised concerning the timing and manner in which the dissolution issue was set for final hearing. We agree that there was a failure to comply with the reasonable time requirement of Florida Rule of Family Procedure 12.440 and reverse. We decline to address the other procedural issues raised.

On August 17, 2001, the husband, a Florida resident, filed a petition for dissolution of marriage and served the wife at her place of residence in New York. The wife filed a motion to dismiss for lack of personal jurisdiction. She alleged that the husband had failed to comply with Florida’s long-arm statute. She filed an affidavit in support of her motion, in which she attested that the couple had lived in several countries over the course of the marriage. She had not lived with the husband in the State of Florida since 1989, and had not visited the State of Florida since 1990. The husband moved to bifurcate the issues.

The trial court held an evidentiary hearing on the motion to dismiss. On September 13, 2002, the court orally granted the wife’s motion to dismiss for lack of personal jurisdiction. At the same time, the court found that it had jurisdiction over the marital res and bifurcated the issues. At the conclusion of the hearing, the court suggested that the attorneys set the dissolution matter for hearing on motion calendar.

On September 17, 2002, the husband’s attorney noticed the case for final hearing on the dissolution issue for September 20, 2002. On September 18, 2002, the wife faxed to the husband’s counsel an objection to the final hearing and an answer in which she denied that the marriage was irretrievably broken. She continued to object to personal jurisdiction.

At the hearing on September 20, 2002, the parties debated whether the wife was entitled to file an answer after she had successfully contested personal jurisdiction. The court then questioned whether the dissolution was uncontested.

THE COURT: This is effectively an uncontested divorce; is it not?
MR. KAPNER: Well, it might be an uncontested divorce, but we’re not sure yet. We haven’t explored our options about whether to appeal or not to appeal, but the point is, even if it was uncontested, it still has to be set in the manner that the rules require. And if it’s not, it just would not be a valid hearing and not be a valid divorce.
THE COURT: That would certainly throw a big monkey wrench in how all divorces are scheduled in the state of Florida for the Appellate Courts to say that uncontested divorces require a notice of trial and an order setting trial.
MR. KAPNER: Well, it wouldn’t be because how many times have people objected to it being set like that, and if there is no objection, then there’s no objection and you can proceed like that. But if there is an objection, you have to follow the rules.

Thereafter, the court overruled the wife’s objection and proceeded with the final hearing. The wife did not personally attend, but her attorney was present and cross examined the husband on the relevant issue of whether the marriage was irretrievably broken. The court then ruled that the marriage was irretrievably broken and entered a final judgment of dissolution.

Florida Family Law Rule of Procedure 12.440(a) provides in pertinent part:

If the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial, and setting a pretrial conference, if necessary. In the event a default has been entered, reasonable notice of not less than 10 days shall be given unless otherwise required by law. Trial shall be set within a reasonable time from the service of the notice for trial....

Here, the trial court granted the wife’s motion to dismiss as to the equitable distribution issue, but retained jurisdiction over the marital res to determine whether the marriage should be dissolved. See Shammay v. Shammay, 491 So.2d 284 (Fla. 3d DCA 1986); Arnstein v. Arnstein, 422 So.2d 1052 (Fla. 4th DCA 1982). The court orally ruled on September 13, 2002, but did not enter a written order until September. 19, 2002. The final hearing took place on September 20, 2002.

Florida Family Law Rule of Procedure 12.140 states that “[djefenses shall be governed by Florida Rule of Civil Procedure 1.140.” Florida Civil Procedure Rule 1.140 provides for service of an answer within twenty days. See Fla. R. Civ. P. 1.140(a)(1). However, when the pleader files a motion to dismiss rather than an answer, and the motion is denied, then “the responsive pleadings shall be served within 10 days after notice of the court’s action ... unless a different time is fixed by the court_” Fla. R. Civ. P. 1.140(a)(2).

Here, the wife filed a motion to dismiss, which the trial court granted as to the equitable distribution issue, but in essence denied as to the dissolution issue on September 13, 2001. Pursuant to the rules, the wife was entitled to file a responsive pleading on the dissolution issue within ten days of the trial court’s denial. She did so on September 18, 2002, disputing that the marriage was irretrievably broken. Her answer rendered the dissolution issue contested.

While motion calendar is routinely used for uncontested dissolutions, and rightfully so, it is an unlikely forum for a contested dissolution matter. We agree with the trial court’s observation that to require adherence to the requirement of Florida Family Law Rule of Procedure 12.440 for uncontested divorces “would certainly throw a big monkey wrench in how all divorces are scheduled....” Nevertheless, in this contested divorce, the wife had only seven days from the court’s oral pronouncement on the motion to dismiss and only two days from the serving of her answer to prepare for a contested hearing. This is not a reasonable amount of time as required by Florida Family Law Rule of Procedure 12.440. See, e.g., Regalado v. Regalado, 748 So.2d 625 (Fla. 2d DCA 1999) (trial set in less than ten days held to be unreasonable).

Florida Rule of Civil Procedure 1.440 provides for a thirty-day period of time. We do not suggest that all hearings must be set beyond a thirty-day period of time; however, the time frame must be such that a party has a reasonable time to prepare. That did not occur in this case.

We therefore reverse the order of dissolution and remand the case to the trial court for the setting of a contested dissolution hearing within a reasonable time as contemplated by the rule.

WARNER, J., and ARAMONY, SUSAN, Associate Judge, concur.

      . We note that counsel did not aid the court in determining whether the matter was contested. Neither counsel provided the court with a definitive answer to the court's inquiry.