author: TORPY, J. GRIFFIN, J., SAWAYA, J.,

text:
    Justin Lee ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3211.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

      James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman and Patrick W. Krechowski, Assistant Attorneys General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant was convicted of first-degree murder and sentenced to life in prison. Appellant raises one issue on appeal: whether the trial judge erred in permitting the State to reopen its case in the middle of closing argument for the purpose of introducing a previously suppressed confession. We reverse.

On January 5, 2000, Thomas Rogers, Appellant’s uncle, died from five gunshot wounds. Appellant confessed to deputies that he had killed his uncle while robbing him. The confession was obtained during a custodial interrogation. Despite numerous requests by Appellant for a lawyer, sheriffs deputies continued to interrogate him until he confessed by saying, “I just pulled the gun out; I shot, man! I closed my eyes and I shot!” During the remainder of the confession, Appellant described in detail what had occurred and emphasized on numerous occasions that he did not “mean to” kill his uncle. The State and Appellant stipulated that the confession should be suppressed. Based thereon, the trial judge entered an order suppressing the confession.

The State proved its case against Appellant primarily through the testimony of three co-defendants, all acquaintances of Appellant who had accepted negotiated “plea bargains” in exchange for their agreements to provide truthful testimony in the trial of Appellant. All of the co-defendants testified that they went with Appellant to his uncle’s house the night of January 5, 2000, and each acknowledged some degree of culpability. Christy Larsen, for example, testified that she drove Appellant and the other co-defendants to the victim’s house on the night of the murder, knowing that Appellant had a gun and having reason to believe that Appellant intended to rob the victim. Shortly after Larsen saw Appellant approach the victim’s home, she heard the gunshots. Appellant returned to the vehicle and told her to leave quickly, and she drove Appellant from the scene of the murder. Later, Larsen rented a motel room using the victim’s money and snorted cocaine which had been purchased using the victim’s money. Nick Northfield, another co-defendant, assisted Appellant in attempting to borrow a gun from Larsen’s neighbor, Ed Spagenski. He rode in the vehicle to the victim’s house on the night of the murder and admittedly assisted in discarding the murder weapon after the murder. Nick Haggermeister admitted to having assisted Appellant in stealing the gun to be used in the robbery from Spagenski, admitted that he knew Appellant’s intended purpose for procuring the gun, and assisted Northfield in discarding the murder weapon in a wooded area in Sanford.

All of the co-defendants acknowledged that they initially lied to police concerning their knowledge of the murder. Later, however, they changed their stories and implicated Appellant as the murderer. All three testified that they waited in the car while Appellant shot and robbed the victim, and that Appellant had confessed to them.

The State also presented the testimony of Justin Hall and Kelly Snyder, friends of the co-defendants, who testified that Appellant had admitted to them that he had shot his uncle, and James Greeley, who testified that Appellant had told him around Christmas of 1999 that he intended to rob and kill his uncle. Greeley was an acquaintance of Appellant for some time before the murder.

Ed Spagenski testified that Appellant tried to borrow his gun the day before the murder. Spagenski refused. The next day Spagenski discovered that his apartment had been burglarized, and his gun was missing. Although the murder weapon was not recovered, it was established without dispute that the gun that fired the fatal shots was the same gun that had been stolen from Ed Spagenski.

The defense strategy was to suggest that the co-defendants had falsely implicated Appellant so as to minimize their own liability, and that one of the co-defendants could have been the shooter. During cross-examination of the co-defendants, defense counsel elicited information about the plea bargains made with the State to establish a motivation to lie. Defense counsel further elicited from each co-defendant the fact that they had repeatedly lied to police about their knowledge of the robbery/murder. Finally, each co-defendant was asked, without objection, whether they (the co-defendants) had in fact committed the murder, a fact which each denied.

After the State rested, the defense rested without offering evidence. Defense counsel then delivered his first closing. He argued that the proof was consistent with the co-defendants having robbed and killed the victim and having blamed Appellant to minimize their liability. He pointed out that the gun was taken from Larsen’s neighbor, then was wrapped in North-field’s shirt after the murder and hidden in a place suggested by Haggermeister. He further argued that Northfield and Larsen had used the dead man’s money to buy drugs and rent a room. These facts, which defense counsel called “hard evidence,” were what counsel argued tended to prove that the co-defendants had committed the murder. Conversely, argued defense counsel, no “hard evidence” implicated the defendant. All of these arguments were consistent with the theory of defense presented during opening and during cross-examination of the State’s witnesses.

The State never objected to defense counsel’s closing argument. Instead, after the first closing was concluded, the State asked the Court to permit it to reopen its case for the purpose of playing Appellant’s recorded confession. The State argued that defense counsel’s closing argument had opened the door for introduction of the otherwise inadmissible confession. After hearing argument on this issue, although acknowledging that it was “out on a limb,” the trial court authorized the State to reopen its case and play the previously suppressed confession. While the confession was being published to the jury, and at the point on the taped confession where Appellant admitted shooting his uncle, Appellant, apparently provoked by the playing of the tape, exclaimed as follows:

Turn it off, man! Turn it off! God damn, man, turn the fucking thing off! I didn’t mean to do it, man! I didn’t mean to kill my uncle! You-all mother fuckers got what you wanted!

After Appellant’s courtroom outburst, the court ordered a recess during which time a Motion for Mistrial was made by Appellant but was denied. Thereafter, the trial resumed. During defense counsel’s second closing, he argued that Appellant was guilty of no more than second-degree murder. The jury found Appellant guilty as charged, and the court adjudicated him guilty and sentenced him to life in prison without the possibility of parole.

The State concedes, as it conceded below, that Appellant’s confession was obtained in violation of the rights guaranteed to him by the United States Constitution. The State argues, nevertheless, that because defense counsel made argument that he knew to be false in fact, the admission of the confession was necessary to prevent Appellant from misleading the jury by suppressing the truth. We disagree.

Although the search for truth is the goal in all legal controversies, established rules must be followed or the truth might be suppressed. Application of the exclusionary rule, for example, usually results in the suppression of evidence, either physical or testimonial, that might disrupt the truth-seeking objective of a jury trial. On balance, however, the courts have reasoned that the suppression of truth is justified when important constitutional rights are to be vindicated. There are limits, however, beyond which a defendant may not go without losing the shield of the exclusionary rule. For example, in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court recognized that a defendant may not use the shield of the exclusionary rule to permit the defendant to “affirmatively resort to perjurious testimony in reliance on the government’s disability to challenge his credibility.” Id. at 225, 91 S.Ct. 643. Thus, the Court held that a statement procured in violation of Miranda may nevertheless be used to impeach a testifying defendant in the same manner as any other prior inconsistent statement. The Court reasoned that use of an otherwise voluntary confession, even though obtained wrongfully by police, was justified to avoid a greater wrong, to-wit: perjury.

The State suggests that the Court’s reasoning in Harris applies here, and this court should extend Harris to permit the suppressed confession to be used to rebut statements made by an attorney in closing argument. No court has thus far extended Harris in this manner, and we believe to do so is erroneous.

There is a marked contrast between perjured testimony and statements made by an attorney during closing. Perjured testimony is evidence; statements made by an attorney during closing are not. Perjury is a crime and, if not exposed by the tools of the adversary process, might lead to an injustice. Although improper closing argument, left unchecked, might result in an injustice, appropriate rules exist to prevent improper argument or to temper its impact. We do not believe, therefore, that the use of a confession procured in violation of the Constitution is justified to rebut a misleading closing argument under the reasoning of Harris.

Even assuming that use of an impermissibly obtained confession is justified to rebut improper argument by counsel, the facts of this case do not justify use of the confession because the argument of counsel here was not improper. It was the State’s burden to prove beyond a reasonable doubt that Appellant was guilty. It was not Appellant’s burden to prove his innocence. A reasonable doubt might occur when evidence is lacking or when it is discredited. Therefore, a defense lawyer’s duty during closing is to challenge the sufficiency and credibility of the State’s proof. Counsel is free to argue these issues using all reasonable inferences that might be drawn from the evidence. That is all that was done here. We conclude, therefore, that the court erred in admitting the confession.

Having determined that the admission of the confession was error, we turn our attention to the issue of whether the error was harmless beyond a reasonable doubt. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Our function in performing this analysis is to consider how the error might have affected the jury. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). This requires that we evaluate the strength of the evidence that was properly before the jury to determine if the error impacted the jury’s decision. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. The parties dispute which evidence was properly before the jury for purposes of our inquiry. The State urges that Appellant’s in-court outburst was properly before the jury. Because the outburst was equally as prejudicial as the recorded confession, the State argues that any error in admitting the recorded confession was harmless. Conversely, Appellant argues that the outburst should not be considered because it constitutes so-called “fruit of the poisonous tree,” citing Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The difficulty we have in accepting either position is that, due to the unusual circumstances, the trial judge never had the opportunity to make findings of fact that are necessary for us to determine whether the outburst would constitute admissible evidence.

In Harrison, the defendant was tried for felony murder. During his trial, the court admitted three confessions made by the defendant. Although the defendant had previously determined not to testify, upon the court’s decision to admit the confessions, the defendant elected to testify in an effort to contradict the confessions. Id. at 220, 88 S.Ct. 2008. The defendant was convicted, appealed and his conviction was reversed because the confessions had been illegally obtained. Id. Upon retrial, the court permitted the State to read into evidence the defendant’s testimony from the first trial. Id. at 221, 88 S.Ct. 2008. Again convicted, the defendant challenged on appeal the admissibility of his former testimony at his retrial. The Court held that the testimony was not admissible because it was the tainted “fruit of the poisonous tree,” relying upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Seventeen years after Harrison, the Court revisited the issue of whether the “fruits” doctrine applies to Fifth Amendment violations. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court held that the “fruit of the poisonous tree doctrine” has no application to “noncoer-cive Miranda violations.” Id. at 308, 105 S.Ct. 1285. When a tainted, noncoerced confession precedes a confession that otherwise comports with Miranda’s dictates, the subsequent confession is not rendered inadmissible merely because it might be the product of the tainted confession. Id. at 318, 105 S.Ct. 1285. Rather, the relevant inquiry, said the Court, is whether the subsequent confession was voluntarily made. Id. Although the premise upon which Harrison was predicated was rejected in Elstad, the Court did not expressly overrule its holding. Rather, the Court restated the Harrison holding as follows:

If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal [the testimony may not be used on retrial].

Id. at 316, 105 S.Ct. 1285. (emphasis supplied). This language makes clear that the holding in Harrison has limited application to the unique circumstances wherein a defendant is forced to waive his privilege to rebut a confession that is improperly admitted. Elstad also makes clear that the broad rule of exclusion known as the “fruits” doctrine has no application to cases involving mere technical Miranda violations.

Here, Appellant’s outburst, although perhaps triggered by the court’s erroneous ruling, was not compelled by the need to rebut the confession. Rather, it was the apparent product of Appellant’s lack of self control. Moreover, the outburst did not rebut the confession; the outburst echoed the confession’s exact substance. Harrison is therefore distinguished. Because the parties stipulated that the recorded confession would not be used, however, the record is unclear as to whether the recorded confession was suppressed exclusively because of a technical violation of Miranda or because it was also the product of actual coercion. Furthermore, because the outburst came without warning, the trial court was unable to make a finding of fact concerning whether the outburst was a voluntary act. On this record, therefore, we are unable to determine whether the outburst was properly before the jury under Elstad for purposes of our harmless error analysis.

We are left, therefore, with the task of considering the impact of the recorded confession on the jury in light of the other evidence properly admitted. Although the State’s case was strong, we cannot say beyond a reasonable doubt that the confession did not contribute to the verdict. The admission of the confession in the middle of defense counsel’s closing argument so completely undermined his entire trial strategy that all counsel could do was to urge the jury to find Appellant guilty of a lesser murder charge. Under these peculiar circumstances, we are constrained to require a new trial. Therefore, the judgment and sentence are reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED.

GRIFFIN, J., concurring and concurring specially.

SAWAYA, J., concurring in part; dissenting in part.

GRIFFIN, J.,

concurring and concurring specially.

I agree that the appellant should have a new trial. The record strongly suggests, however, that the initial confession was elicited in violation of Rogers’ right to counsel, not coerced. Also, the record strongly suggests that there was nothing “involuntary” about Rogers’ outburst. Therefore, on retrial, the statement may be admissible and the verdict may be the same.

Our opinion should not be read to give criminal defendants faced with an erroneous ruling admitting adverse evidence a free shot to communicate directly with the jury in hopes they will side with him. If it were not for the fact that the error presented here rose to a level implicating due process, this would be a harmless error case precisely because of the outburst.

SAWAYA, J.,

concurring in part, dissenting in part.

I agree that the decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), should not be extended to instances where an illegally obtained confession is admitted to rebut defense counsel’s closing argument and that it was error to admit the defendant’s previously suppressed confession into evidence. I also agree that defense counsel’s closing argument was appropriate comment on the evidence introduced by the State. Finally, I agree that the conviction must be reversed and this case remanded for a new trial. However, I respectfully disagree with the majority that the harmless error analysis applies in this case. In my view, the error in admitting the defendant’s confession is per se reversible error.

Prior to trial, the State stipulated that the confession the police extracted from the defendant, who was eighteen years old at the time, was illegally obtained and that the defendant’s motion to suppress should be granted. Based on that stipulation, the trial court suppressed the defendant’s confession and all of his subsequent statements to the police. In reliance on the State’s stipulation and the trial court’s order of suppression, the defendant presented his opening statement to the jury wherein he submitted his theory of defense without objection from the State. The theory of defense was that the State’s evidence would show that one of the co-defendants committed the murder. The defendant advanced that theory throughout the course of the trial without objection from the State. The defendant did not testify and did not present any evidence; thus, the defendant’s attorney was entitled to present his closing statement first with rebuttal to follow the State’s closing statement. The defendant’s attorney argued the same theory of defense throughout his initial closing statement without objection from the State.

After defense counsel completed his initial closing statement, the State made its motion to reopen its case to present to the jury the previously suppressed confession. The basis of the motion was the State’s contention that defense counsel’s argument, which had been advanced through the entire course of the trial without objection, inappropriately argued to the jury that the State’s evidence pointed to individuals other than the defendant as having committed the murder.

The trial court granted the motion without conducting a hearing on the defendant’s motion to suppress. The jurors were brought back into the courtroom and the confession was presented to them. During this presentation, the jury was subjected to the specter of the defendant’s emotional outburst as he heard his confession, which he knew had previously been suppressed, actually being presented to the jury. The courtroom was cleared and a recess was taken. The jurors were subsequently returned to the courtroom to have the conclusion of the confession presented to them. Thereafter, the defendant’s attorney notified the court that he had no alternative but to abandon his defense that the defendant was not guilty and, instead, argue to the jury that defendant was guilty of a lesser included offense. The State then presented its closing argument to the jury.

Stripped of his defense and with his credibility with the jury completely destroyed, the demoralized defense attorney presented his rebuttal closing argument. He told the jury that “Justin Rogers is guilty of Manslaughter. He’s not guilty of First Degree Murder.” The attorney concluded with this simple request: “Please do the right thing and find him guilty of the charge that he actually committed.” Despite having no legal basis to admit the confession, the majority nevertheless concludes that the trial court’s erroneous decision to do so is subject to harmless error analysis. I disagree. In my view, the error constitutes reversible error per se.

The per se reversible error rule exists to ensure that an accused’s rights to due process are not violated and to ensure that errors that are so fraught with prejudice to the accused’s right to a fair trial are corrected. See State v. Franklin, 618 So.2d 171 (Fla.1993).

There are many examples of per se reversible error that are not subject to harmless error analysis: failing to conduct a Faretta inquiry; responding to a request from the jury without the state, the defendant, and the defendant’s attorney being present; providing jurors with a copy of the written instructions without notifying either counsel; a bailiff responding to jurors’ request to hear a replay of evidence by telling them to rely on their own memories, even though the trial judge stated on the record that that was the response he would have given the jury anyway; the trial court initiating plea negotiations with the defendant; denying the Sixth Amendment right to counsel; erroneously denying a peremptory or cause challenge; allowing an alternate juror to replace an incapacitated juror, regardless of the cause, once jury deliberations have begun; omitting a necessarily lesser included offense from the verdict form, precluding the jury from exercising its pardon power; repeating the Allen instruction and sending a jury back for further deliberations after it has announced a second deadlock; submitting some, but not all, of the standard jury instructions to the jury in writing; orally pronouncing departure reasons at sentencing, but not reducing them to writing until several days later; and failing to provide a defendant a hearing on his or her motion to suppress.

If these are examples of errors that require application of the per se reversible error rule, then conducting a trial by ambush in the manner done here must surely rise to the top of the list. The significance of the error committed by the trial court in admitting the confession is that it completely obliterated any semblance of a fair trial for the defendant. The defendant and his counsel lost all credibility with the jury, they lost their viable defense, and the jury was left with no choice but to convict the defendant. I believe that if ever a case warranted application of the per se reversible error rule, this is it.

In my view, no court should indulge the type of error committed in this case as being potentially harmless, depending on the court’s view of the strength of the evidence presented by the party who actually caused the error to occur. I believe that this sends a wrong message — that this sort of trial tactic may be excused by courts, based on the harmless error doctrine. To do so, I fear, may encourage those who are inclined to engage in such practices to take improper evidentiary risks. Rather, I believe that the emphasis should be on preserving the integrity of all of the constitutional protections that guarantee every person a fair trial rather than on analyzing the strength of the evidence presented in a particular case by a litigant who may believe otherwise. We, the judiciary, must never “permit the noble art of trial practice to degenerate into a free-for-all” and we must be steadfast in our unwillingness “to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing.”

The majority expends much time and effort discussing the admissibility of the outburst Rogers made as he heard his confession being played to the jury. This discussion seems to culminate in the predictions made by Judge Griffin in her concurring opinion that the outburst “may be admitted in the retrial and the outcome may be the same.” Although I believe the expression of these predictions is wrong for several reasons, I will mention only one. The issue whether the statement the defendant made is admissible in the retrial is not an issue that the parties raised in these proceedings and therefore is not an issue that either the State or the defendant has been given an opportunity to address. This court has emphatically held that “[w]e do not address issues not clearly set out in the issues on appeal.” Florida Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 So.2d 631, 636 (Fla. 5th DCA 2001) (citing F.M.W. Prop., Inc. v. Peoples First Fin. Sav. & Loan Ass’n, 606 So.2d 372, 376 (Fla. 1st DCA 1992) (stating that the “failure to organize arguments under cogent and distinct issues on appeal presents sufficient reason for an appellate court to decline consideration of a matter.”)). Hence, the parties will become acquainted with this issue and the reasoning supporting Judge Griffin’s predictions for the first time when the concurring opinion is received and read by them.

I must make one final response to Judge Griffin’s opinion. She states that defendants should learn from this case that they should not attempt to curry favor or sympathy from the jury as the defendant did when he made his now infamous outburst. Quite frankly, I do not believe that the defendant’s statement that “you mother fuckers got what you want” after he admitted shooting his uncle was an attempt on his part to curry favor or sympathy from the jury. Apparently the jury was of the same view because it rendered an unsympathetic verdict finding him guilty as charged of first-degree murder.

      . Bullets recovered from an area where Spa-genski had conducted target practice with the revolver were matched ballistically to the projectiles recovered [from the body of the victim.

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

      . Standard jury instructions caution juries that closing arguments do not constitute evidence. Ethics rules prohibit lawyers from making improper arguments, and trial judges have the power to prevent improper argument by granting timely objections.

      . This is a different case than that presented in People v. Payne, 98 Ill.2d 45, 74 Ill.Dec. 542, 456 N.E.2d 44 (1983). When a lawyer questions a witness, the answer is evidence. If a lawyer’s questions falsely suggest a lack of evidence that the lawyer knows exists but which was subject to pretrial suppression, the door might well be opened for introduction of the evidence. See also McCrae v. State, 395 So.2d 1145, 1151 (Fla.1980) (misleading cross examination might open door.)

      . Furthermore, the “fruits” doctrine does not apply, ipso facto, to exclude confessions obtained subsequent to a coerced confession if the subsequent confession is sufficiently attenuated so as to remove the taint of the coerced confession. Elstad, 470 U.S. at 310, 105 S.Ct. 1285.

      . If a party, in closing argument, mischarac-terizes the evidence or argues facts not in evidence, the opposing party may object and request the trial court to put a stop to it. Moving to reopen the state's case for the purpose of introducing a defendant's previously suppressed confession after defense counsel presents his closing argument, however, is certainly not a mechanism or procedure recognized or approved by any court of this state to address the issue of inappropriate closing argument.

      . The defendant in his motion to suppress requested, and the State stipulated, that the confession and all subsequent statements be suppressed. The State contends, and Judge Griffin apparently agrees in her concurring opinion, that the confession was suppressed only because it was obtained in violation of the defendant's Miranda rights; the defendant contends that it was also suppressed because it was coerced and involuntarily given. Clear distinctions have been drawn between confessions that are given without appropriate Miranda warnings and coerced confessions that are not voluntarily given. The courts agree that statements given by a defendant subsequent to an illegally obtained confession are suppressed only if the confession was involuntarily given. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Perez v. State, 781 So.2d 1178 (Fla. 3d DCA), review denied, 796 So.2d 537 (Fla.2001); State v. Nash, 718 So.2d 269 (Fla. 5th DCA 1998); State v. Polanco, 658 So.2d 1123 (Fla. 3d DCA 1995); see also Haynes v. State, 729 So.2d 498 (Fla. 1st DCA 1999). Therefore, it appears that the motion and order of suppression, although not explicitly stating so, were based on both Miranda violations and involuntariness.

      . Clary v. State, 818 So.2d 686 (Fla. 5th DCA 2002).

      . Williams v. State, 488 So.2d 62 (Fla.1986); Ivory v. State, 351 So.2d 26 (Fla.1977); Stephens v. State, 779 So.2d 580 (Fla. 5th DCA), review denied, 796 So.2d 538 (Fla.2001); McGlynn v. State, 697 So.2d 571 (Fla. 4th DCA 1997).

      . State v. Franklin, 618 So.2d 171 (Fla.1993).

      . State v. Merricks, 831 So.2d 156 (Fla.2002).

      . State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002).

      . Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002).

      . Gilliam v. State, 514 So.2d 1098, 1099 (Fla.1987); Austing v. State, 804 So.2d 603 (Fla. 5th DCA 2002); Arnold v. State, 755 So.2d 696 (Fla. 4th DCA 1999).

      . Williams v. State, 792 So.2d 1207 (Fla.2001).

      . Macri v. State, 689 So.2d 1280 (Fla. 5th DCA 1997) (citing State v. Wimberly, 498 So.2d 929 (Fla.1986); Nelson v. State, 665 So.2d 382 (Fla. 4th DCA 1996); Crapps v. State, 566 So.2d 62 (Fla. 5th DCA 1990)); Prater v. State, 608 So.2d 559 (Fla. 2d DCA 1992).

      . Washington v. State, 758 So.2d 1148 (Fla. 4th DCA), review denied, 786 So.2d 1192 (Fla. 2000); Tomlinson v. State, 584 So.2d 43, 45 (Fla. 4th DCA), review denied, 592 So.2d 682 (Fla.1991).

      . Wilson v. State, 746 So.2d 1209 (Fla. 5th DCA 1999); Bowe v. State, 600 So.2d 26 (Fla. 4th DCA 1992).

      . Pease v. State, 712 So.2d 374 (Fla.1997); State v. Colbert, 660 So.2d 701 (Fla.1995).

      . See Chapman v. State, 446 So.2d 1186 (Fla. 4th DCA 1984); Ferrazzoli v. State, 442 So.2d 1056 (Fla. 1st DCA 1983); Barker v. State, 438 So.2d 1014 (Fla. 4th DCA 1983); see also Ross v. State, 779 So.2d 300 (Fla. 2d DCA 1999); Martin v. State, 654 So.2d 978 (Fla. 1st DCA 1995); Gadson v. State, 600 So.2d 1287 (Fla. 4th DCA 1992); Williams v. State, 548 So.2d 898 (Fla. 4th DCA 1989). In the instant case, based on the State's pretrial stipulation, the trial judge, without an evidentiary hearing, entered the order suppressing the confession and all subsequent statements of the defendant. When the State moved to reopen its case, the trial judge, who was not the judge that entered the suppression order, simply reviewed the transcript of the confession to determine whether the statements made by the defendant conflicted with defense counsel’s closing argument. Concluding that they did, the judge ruled that the confession would be admitted. Hence, the defendant in the instant case has never been afforded an evidentiary hearing and the trial court has never considered the totality of the circumstances surrounding the confession. Furthermore, despite the revelation of defense counsel that the motion to suppress was based on Miranda violations and the involuntariness of the confession, the trial court made no findings whatsoever regarding the voluntariness of the confession and there is nothing in the record to support the conclusion that the trial judge found the confession to be voluntary by a preponderance of the evidence. Not only did the State fail to meet its burden of proving by a preponderance of the evidence that the confession was voluntary, it made no showing at all. It simply argued, and erroneously so, that the confession should be admitted because of the allegedly false statements made in the defendant's closing argument that the evidence presented by the State pointed to individuals other than the defendant who could have committed the murder.

      . Nelson v. Reliance Ins. Co., 368 So.2d 361, 361 (Fla. 4th DCA 1978).

      . Borden, Inc. v. Young, 479 So.2d 850, 851 (Fla. 3d DCA 1985), review denied, 488 So.2d 832 (Fla.1986).


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Jeffrey HRYNKIW, Appellant, v. ALLSTATE FLORIDIAN INSURANCE COMPANY, Appellee.
    No. 5D02-1942.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

      Karla T. Torpy of Graham, Moletteire & Torpy, P.A., Melbourne, for Appellant.
    Jessica M. Farrelly and David B. Shelton of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   SAWAYA, J.

Jeffrey Hrynkiw appeals the final judgment rendered in the declaratory judgment action filed by Allstate Floridian Insurance Company to resolve a coverage dispute concerning a homeowners insurance policy Allstate issued to Robert and Mary Jane Thompson. Pursuant to Allstate’s motion for judgment on the pleadings, the trial court entered the judgment under review finding that Allstate has no duty to defend or indemnify the Thomp-sons or their minor son, Lon, in the underlying personal injury suit brought against them by Hrynkiw. We affirm.

We will discuss, in the following order, the factual allegations and procedural background, the pertinent clauses in the policy and our legal analysis.

Factual Allegations And Procedural Background

A motion for judgment on the pleadings must be decided only on the pleadings without the aid of outside matters. See Cartan Tours, Inc. v. ESA Servs., Inc., 833 So.2d 873, 875 (Fla. 4th DCA 2003) (citation omitted). Accordingly, the allegations in the pleadings filed in the personal injury action by Hrynkiw against the Thompsons formed the nucleus of the trial court’s decision to declare that no coverage exists under the insurance policy issued to the Thompsons. What follows is a compendium of those allegations and an explanation of the procedural background of the instant case.

Hrynkiw alleges in his complaint that Lon willfully and intentionally committed a battery on Hrynkiw when he obtained possession of a pistol belonging to his parents, Robert and Mary Jane Thompson, pointed the pistol at Hrynkiw’s head and fired at close range. The bullet pierced Hrynkiw’s skull near the bridge of his nose and exited behind his right ear. The complaint further alleges that Lon “intended to cause harmful or offensive contact ... in that he fired the pistol at the victim’s head and knew that such an act was substantially certain to result in harm or death.”

In separate counts of the complaint, Hrynkiw also alleges that he is entitled to recover from Robert and Mary Jane Thompson based on their negligence in failing to safely store the pistol in their home and in failing to exercise parental control over Lon. It was generally alleged that Robert and Mary Jane knew that Lon was on probation with the State of Florida for violent behavior committed against another victim, that Lon had dangerous propensities and that Lon was unfit to use a firearm.

When the Thompsons looked to Allstate to provide them with coverage under their policy and a defense to the suit Hrynkiw filed against them, Allstate reserved its right to deny coverage, provided a defense pursuant to that reservation of rights and filed the instant declaratory judgment action naming the Thompsons and Hrynkiw as defendants. The Thomp-sons did not answer the suit. Allstate moved for judgment on the pleadings, and the trial court granted Allstate’s motion finding that, as a matter of law, coverage was excluded for the injuries suffered by Hrynkiw based on two clauses contained within the policy: the intentional or criminal act exclusion clause and the joint obligations clause.

The Clauses

Exclusion clauses, like the intentional or criminal act exclusion clause contained in the policy issued to the Thomp-sons, are generally considered contrary to the fundamental protective purposes of insurance. Thus, the courts give a strict interpretation to exclusion clauses, as opposed to the liberal interpretation accorded coverage provisions. When determining the meaning and scope of an exclusion clause or other provisions of an insurance policy, legal niceties, technical terms, and phraseology extracted from the vernacular of the insurance industry should never transcend the common understanding of the ordinary person. Therefore, the proper inquiry is not whether a legal scholar can, with learned deliberation, comprehend the meaning of an insurance policy provision, but instead, whether it is understandable to a layperson. Hence, we will apply everyday meaning to the language of the instant policy and not strain for a contrary interpretation. With these principles in mind, we turn to the provisions of the clauses at issue in the instant case.

The pertinent part of the intentional or criminal act exclusion clause in the Thompsons’ policy provides that it does “not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person.” The everyday meaning of this clause is that the policy does not insure against damages that an insured intentionally inflicts or that are reasonably expected to result from an insured’s intentional or criminal acts. The willingness of the courts to uphold intentional or criminal act exclusion clauses is premised on the jurisprudential maxim that no person should be allowed to profit from his or her own wrong. Lawyers and laymen alike generally understand that the public policy against insuring for losses resulting from intentional or criminal acts is usually justified by the assumption that such acts would be encouraged, or at least not dissuaded, if insurance were available to shift the financial burden of the loss from the wrongdoer to the insurer. The intentional or criminal act exclusion in the Thompsons’ policy is sustainable without further comment.

The joint obligations clause of the Thompsons’ policy provides in pertinent part:

The terms of this policy impose joint obligations on persons defined as an insured person. This means that the responsibilities, acts and failures to act of a person defined as an insured person will be binding upon another person defined as an insured person. ■

The policy defines “insured person” as “you and, if a resident of your household: a) any relative; and b) any dependent person in your care.” The policy further defines “you” and “your” as “the person named on the Policy Declarations as the insured and that person’s resident spouse.”

This clause “forges the various parties insured by a policy into a joint and inseparable legal entity” so that “when the conduct of one insured defeats liability protection for a given loss, the policy deprives all other insureds of liability proteetion for that loss, even if the loss was also proximately caused by one of those parties.” Allstate Ins. Co. v. Raynor, 143 Wash.2d 469, 21 P.3d 707, 713 (2001) (citation omitted). We believe that the joint obligations clause is unambiguous and understandable to the ordinary person. Thus, the clause is enforceable.

We proceed next to determine whether coverage is excluded for the alleged negligent acts of the parents based on the intentional or criminal act exclusion clause and the joint obligations clause. Parenthetically, we note that Hrynkiw concedes that the intentional or criminal act exclusion clause does exempt coverage for the count alleging a cause of action based on Lon’s act of shooting him.

Legal Analysis

Allstate contends that coverage is exempted for the negligent acts of Lon’s parents because the intentional or criminal act exclusion clause and the provisions of the joint obligations clause impose joint liability on the parents for the intentional or criminal acts of Lon. Because the Florida courts have not had occasion to consider the appropriate application of the joint obligations clause to the intentional or criminal act exclusion clause, we will begin with an analysis of decisions from other jurisdictions that have considered and applied them.

Although labeling a joint obligations clause identical to the clause at issue in the instant case as “more than a little mysterious,” the court in Allstate Insurance Co. v. Steele, 74 F.3d 878 (8th Cir.1996), observed that such clauses have nevertheless been consistently construed to mean that an insured’s intentional act bars a claim against another insured for negligent supervision. Id. at 881 (citing Allstate Ins. Co. v. Pond Bar, 1995 WL 568399 (D.Minn. May 19, 1995); Castro v. Allstate Ins. Co., 855 F.Supp. 1152 (S.D.Cal.1994); Allstate Ins. Co. v. McCranie, 716 F.Supp. 1440 (S.D.Fla.1989), aff'd, 904 F.2d 713 (11th Cir.1990); Allstate Ins. Co. v. Lobracco, 1992 WL 356270 (Ohio Ct.App. Nov. 24, 1992)); see J.C. v. N.B., 335 N.J.Super. 503, 762 A.2d 1062 (App.Div.2000); Raynor. The rationale of these decisions is that the underlying cause of both the intentional and negligent claims is the intentional act of the wrongdoer. In essence, regardless whether the immediate intentional act inflicts the injury or the antecedent negligence sets in motion the events that lead to that injury, it is the underlying cause of the injury — the intentional act for which all of the insureds are equally responsible — that determines coverage. Hence, the injured person should not be allowed to circumvent the intentional act exclusion clause by filing a claim for negligence based on the same underlying intentional act that actually caused the injury. This is especially true when the policy contains a joint obligations clause that makes all of the insureds responsible for the acts of another.

We agree with this rationale because it is logical, reasonable and comports with Florida law. In Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989), the insureds committed acts of sexual abuse against children placed in their daycare center and were convicted of criminal charges stemming from that wrongful conduct. The parents brought suit against the insureds for gross negligence in the insured’s care and supervision of the children and for intentional harm. Allstate, which had issued a homeowners insurance policy to the insureds, brought a declaratory judgment action claiming that there was no coverage based on the intentional act exclusion clause contained in the policy. The court affirmed the trial court’s ruling that coverage was excluded for injuries suffered by the children by the intentional acts of the insureds even though the gist of the action filed against them was negligence.

We find Landis analogous to the instant case because, based on the joint obligations clause, we must treat the Thomp-sons and Lon as “a joint and inseparable legal entity” so that the act of Lon, in essence, becomes the act of the Thomp-sons for purposes of coverage under the policy. Therefore, under Landis, Hrynkiw should not be allowed to bypass the intentional or criminal act exclusion clause by suing the Thompsons for their negligent supervision or negligent failure to safely store the firearm. Based on the clear and unambiguous language of the joint obligations clause contained in the Thompsons’ policy, we conclude that coverage was excluded for the alleged negligent acts of Lon’s parents.

Hrynkiw brings to our attention the decision by the Alaska Supreme Court in C.P. v. Allstate Insurance Co., 996 P.2d 1216 (Alaska 2000), which supports his argument that coverage is not excluded for the alleged negligence of the Thompsons. In C.P., the court held that coverage was not excluded by application of an intentional or criminal act exclusion clause and a joint obligations clause, both of which are very similar to the clauses in the instant case, when the insureds were sued for their negligent supervision of another insured who committed acts of sexual abuse against the victim. We find C.P. distinguishable based on various provisions of Alaska law that are not in accord with Florida law. For example, the court in C.P. held that, based on the doctrine of reasonable expectations, the exclusion clauses should be narrowly construed to be more consistent with the reasonable expectations of the insureds that they would be covered against the claims that they negligently caused the injury. However, the doctrine of reasonable expectations has not been looked upon with favor by the Florida courts and its rejection as a viable legal principle in cases involving insurance policy interpretation is premised on the view that its application may implicate rewriting insurance policies. Deni Assocs.; Castillo.

The court in C.P. also held that the joint obligations clause did not effectively deal with multiple causes of the injury. Under Florida law, the issue of multiple causes in cases involving coverage disputes is usually decided by application of the concurrent cause doctrine. This doctrine, which permits coverage when the injury is caused by multiple causes and one of the causes is an insured risk, only applies when the causes are not related and dependent, but rather involve separate and distinct risks. American Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So.2d 1096 (Fla. 1st DCA 2001), review denied, 814 So.2d 439 (Fla.2002); Transamerica Ins. Co. v. Snell, 627 So.2d 1275 (Fla. 1st DCA 1993), review denied, 639 So.2d 981 (Fla.1994). Based on the record in the instant case, we are unable to say that the alleged acts of negligent supervision and failure to properly secure the firearm are sufficiently separate and distinct from Lon’s act of shooting the victim with the firearm. Thus, the concurrent cause doctrine as applied by the Florida courts would not support the conclusion reached by the court in C.P.

Conclusion

We conclude, based on the allegations contained in the pleadings and the provisions of the two clauses we have analyzed, that coverage was excluded for the claims presented by Hrynkiw based on the intentional acts of Lon and the alleged negligent acts of the Thompsons. Hence, Allstate was clearly entitled to a judgment as a matter of law, and the trial court correctly granted Allstate’s motion for judgment on the pleadings.

AFFIRMED.

MONACO, J. and LAMBERT, B„ Associate Judge, concur.

      . Declaratory judgment actions are typically filed to resolve coverage disputes. See, e.g., Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989); American Reliance Ins. Co. v. Perez, 712 So.2d 1211 (Fla. 3d DCA 1998).

      . See Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998); Union Am. Ins. Co. v. Maynard, 752 So.2d 1266 (Fla. 4th DCA 2000); Premier Ins. Co. v. Adams, 632 So.2d 1054, 1055 (Fla. 5th DCA 1994).

        .See State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002); Maynard; Thomas v. Prudential Prop. & Cas., 673 So.2d 141 (Fla. 5th DCA 1996); Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636 (Fla. 3d DCA 1994), review denied, 651 So.2d 1194 (Fla.1995); see also Prudential Property & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 471 (Fla.1993) (quoting Gulf Life Ins. Co. v. Nash, 97 So.2d 4, 9-10 (Fla.1957)).

      . Thomas, 673 So.2d at 142-43.

      . The inclusion of the foreseeability provision in this exclusion clause differentiates this clause significantly from the typical intentional act exclusion clause that has been the subject of so much litigation in the past. See, e.g., Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467 (Fla.1993).

      . It is application of the joint obligations clause that differentiates the instant case from other cases where the insureds are sued for negligent supervision and there is no basis for concluding that the insureds were involved in or personally responsible for the actual acts of sexual abuse committed against the victims. See, e.g., Sunshine Birds & Supplies, Inc. v. United States Fid. & Guar. Co., 696 So.2d 907 (Fla. 3d DCA 1997) (holding that Landis was inapplicable because the insureds were not involved in, or directly responsible for, the sexual abuse of the victims and the sole basis for their alleged liability was their negligent supervision of the actual abuser).

      .' Allstate also contends that with or without a joint obligations clause, where the policy excludes coverage for bodily injury intended or expected by "an” or "any” insured, courts in other jurisdictions deny coverage for both the intentional act and for the negligent supervision claim. See American Family Mut. Ins. Co. v. Mission Med. Group, Chtd., 72 F.3d 645 (8th Cir.1995); Allstate Ins. Co. v. Gilbert, 852 F.2d 449 (9th Cir.1988); Western Mut. Ins. Co. v. Yamamoto, 29 Cal.App.4th 1474, 35 Cal.Rptr.2d 698 (1994); Fire Ins. Exch. v. Altieri, 235 Cal.App.3d 1352, 1 Cal.Rptr.2d 360 (1991); Hewitt v. Allstate Ins. Co., 726 So.2d 1120 (La.Ct.App.1999); Noftz v. Ernsberger, 125 Ohio App.3d 376, 708 N.E.2d 760 (1998); Allstate Ins. Co. v. Jordan, 16 S.W.3d 777 (Tenn.Ct.App.1999). These courts reason that the inclusion of these terms imposes joint liability on all insureds for the intentional acts of another insured, much like a joint obligations clause. Allstate urges this court to adopt the reasoning of these courts because the intentional or criminal act exclusion clause in the policy issued to the Thompsons contains similar terminology. We decline to decide this specific issue because of our conclusion that the provisions of the joint obligations clause imposes joint obligations on the Thompsons for the intentional or criminal acts of Lon.


author: MONACO, J.

text:
    Vantese JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2160.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

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

Vantese Jones was convicted by jury of robbery, kidnaping and armed burglary (with a special finding that he used a firearm in the commission of these offenses), and grand theft of an automobile. In this appeal from the judgment and sentence he raises issues concerning the in-court identification of him by a victim, and whether the kidnaping was only incidental to the commission of the other crimes. We affirm.

FACTS

David Singh, a profoundly hearing impaired native of Guyana, was working as a custodian at the First Baptist Church of Central Florida and School in Orlando. On the night in question Singh observed Jones, who was armed with a semi-automatic weapon, and two other men enter the building. Even though Jones was wearing a hood and white gloves, Singh testified that he immediately recognized him because Jones used to work for an outside cleaning company that the church had employed for about a year.

Jones pointed the gun at Singh, knocked him to the floor, and took his wallet and school keys. Jones then picked Singh up, led him at gunpoint to the financial office, and demanded that Singh show him where any money was located. Singh, however, did not know where any money was kept. According to Singh, Jones then began opening cabinets using the keys that he had taken. When the other two males came into the office, Singh recognized one as Jones’ brother who had also worked for the cleaning company. Singh was then laid down on the floor again.

Shortly thereafter, Jones’ brother tied Singh’s hands behind his back, and placed a see-through white plastic bag over his head. Singh was picked up, moved into a hallway and placed on the floor again. Singh testified that he worked the plastic bag up and saw that Jones and his accomplices were attempting to break into a soda machine. Singh laid on the ground in the hallway for approximately 90 minutes. When Jones and the others turned out the lights, Singh escaped through a rear door and went across the street to a parking lot at a Lowes home improvement store.

As Singh ran from the school, he saw a green car parked .next to his own red car, which he noted had been moved from where he had earlier parked it. A few minutes later Singh and some Lowes’ employees observed the green car and Singh’s red car race through, the parking lot in opposite directions.

The police responded to the church around midnight. Singh, through an interpreter told Investigator Linguanti what had transpired. The investigation revealed that all of the soda machines and multiple offices had been ransackesd. They observed that a white powdery substance was on the floor and that footprints had been left in it. At the trial an FDLE crime lab specialist testified that she was “100% sure” that Jones’ left shoe made the impressions in the substance.

After the owner of the cleaning service that had employed Jones identified him, a patrol car was sent to Jones’ house, and confirmed that Jones owned a green car. In the early morning hours immediately after the events at the church school, Investigator Linguanti showed Singh a photo line-up. Singh immediately identified Jones as the perpetrator and circled his picture.

Jones was arrested twelve hours after the robbery. At the time of the arrest the police found a coin wrapper, some loose coins and a plastic bag full of coins in his car. The police then located Singh’s car and found a white powdery substance on the floor of the driver’s side, along with some tools that did not belong to Singh.

The case proceeded to trial in due course. When the State called Singh as a witness, he was asked to identify Jones as the perpetrator of the crimes, and he successfully did so. As his testimony progressed, however, he became more and more difficult to understand, and the trial judge called a recess to discuss this problem with counsel outside the presence of the jury. During this discussion the trial judge suggested that the State work with the interpreters for Singh in an attempt to “move things along a little faster” for the next day.

On the following morning the State related that prior to Singh’s testimony the previous day, and prior to his in-court identification of Jones, it had showed Singh the photo line-up and talked with him about where Jones and the other defendants were seated in the courtroom. Jones moved for a mistrial based on the suggestive in-court identification. The trial court denied the motion, but allowed Jones to cross-examine Singh regarding the identification. On redirect examination Singh testified that on the night of the robbery no one had told him which photo was that of Jones.

After the State rested, Jones moved for a judgment of acquittal on all counts, arguing that the kidnaping, aggravated assault, armed burglary and grand theft were all subsumed into the robbery. The court denied the motion, finding that the physical moving of the victim by Jones was not inherent in the robbery, and therefore constituted a separate crime. The jury found Jones guilty as charged.

THE IN-COURT IDENTIFICATION

Jones asserts that the State engaged in prosecutorial misconduct when it counseled with Singh regarding where Jones would be sitting in the courtroom, and that his motion for mistrial should have been granted. The standard of review in considering the denial of a motion for mistrial is abuse of discretion. Franklin v. State, 825 So.2d 487 (Fla. 5th DCA 2002) (citing Cole v. State, 701 So.2d 845, 853 (Fla.1997)), cert. denied, 523 U.S. 1051, 118 S.Ct. 1370, 140 L.Ed.2d 519 (1998). A motion for mistrial should only be granted when necessary to ensure that a defendant receives a fair trial. Franklin, 825 So.2d at 489. Here we conclude that the trial court did not abuse its discretion.

As applied to cases involving faulty identification procedures, a new trial should be granted only if it is demonstrated that a criminal defendant’s due process rights and concomitant right to a fair trial have been violated as a result of an irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The danger of allowing improper identifications of a criminal defendant is, obviously enough, that innocent persons might be convicted. See Macias v. State, 673 So.2d 176, (Fla. 4th DCA), review denied, 680 So.2d 423 (Fla.1996). It is for that reason that impermissibly suggestive identification procedures that might lead to an irreparable misidentification breaches a criminal defendant’s right to a fair trial in violation of that person’s right to due process.

There is, however, no per se rule associated with an in-court identification that is tainted with faulty or suggestive out-of-court identification procedures. Mcmson. Essentially, when faced with this circumstance a court is charged with the responsibility of determining whether under the “totality of circumstances” there is a substantial likelihood of irreparable misidentification. See Johnson v. State, 717 So.2d 1057 (Fla. 1st DCA 1998).

In Neil, 409 U.S. at 199-200, 93 S.Ct. 375, the United States Supreme Court articulated the factors making up the “totality of circumstances” that a trial court should consider in assessing the reliability of an identification obtained by suggestive procedures. These include the opportunity of the witness to view the criminal at the time of the crime; the degree of attention of the witness; the accuracy of the witness’ prior description of the perpetrator; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. See also Edwards v. State, 538 So.2d 440 (Fla.1989). These factors have been applied by the courts of this state to evaluate impermissibly suggestive in-court identifications. See, e.g., Tumblin v. State, 747 So.2d 442, (Fla. 4th DCA 1999).

In the present case Jones learned about the improper “coaching” of Singh prior to his cross-examination of the witness, and therefore had the opportunities both to bring the impropriety to the attention of the jury, and to use the suggestion to attack the credibility of the witness. Indeed, it was the State that candidly brought this problem to the attention of Jones and the trial court. More importantly, the suggestion to the witness regarding the location of Jones in the courtroom, while improper, had some mitigating factors associated with it. Because Singh was hearing impaired and had limited ability to speak English, and because he had never been in a courtroom before, the State attempted to explain the trial process to him, and showed Singh where the jury, the judge, the testifying witness, the prosecution, the defendants and the spectators would sit during the trial. The trial court recognized in denying Jones’ motion for mistrial that the State was trying to make the witness more comfortable with the setting, and was not suggesting where Jones would be located so that the witness could make an in-court identification.

In addition, the other facts' surrounding the identification of Jones by Singh reflect that when applying the Biggers factors, the danger of misidentification was negligible. On the night of the incident, for example, Singh immediately recognized Jones as a former employee of an independent cleaning company the church had previously used, and accurately described Jones to the investigator. Singh was with Jones for approximately ninety minutes during which time he had ample opportunity to study Jones’ features. Singh testified that while he did not really ever speak to Jones, he had worked in his presence on several occasions at the church, and immediately picked Jones out of a photo line-up on the night the incident occurred. Throughout his testimony, Singh unwaveringly insisted that Jones was one of the men that robbed him.

Finally, independent evidence existed that placed Jones at the crime scene. There was expert testimony that the footprints found at the crime scene matched the soles of Jones’ sneakers. Both Singh and some employees of Lowes testified that they saw a green car leave the scene, and that Jones possessed a green car. The same white powdery substance from the crime scene was later found in Singh’s car after Jones was seen driving away with it. Items similar to those that were stolen were found in Jones’ car and apartment.

Upon review of the totality of the circumstances, therefore, we have determined that sufficient evidence was presented to support the conclusion that Singh’s in-court identification was based on his independent recollection from the time of the crime. Thus, Jones was not on this basis deprived of a fair trial. See Johnson, 717 So.2d at 1063.

THE KIDNAPING CHARGE

Jones asserts that the trial court erred when it denied his motion for judgment of acquittal concerning the kidnaping charge. He argues that because the movement of Singh from one room to another was incidental to and inherent in the robbery, it was not a distinct crime. Given the facts of this case, we do not agree.

A de novo standard of review is used when reviewing the denial of a motion for judgment of acquittal. See Sutton v. State, 884 So.2d 332 (Fla. 5th DCA 2003). In moving for a judgment of acquittal a defendant admits both the facts stated in the evidence and every reasonable conclusion favorable to the state that the trier of fact might fairly infer from the evidence. Lynch v. State, 293 So.2d 44 (Fla.1974).

Jones was charged with kidnaping pursuant to Section 787.01(l)(a)(2), Fla. Stat., which provides:

The term ‘kidnaping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
(2) commit or facilitate commission of any felony.

In Faison v. State, 426 So.2d 963 (Fla.1983), the supreme court established a three-prong test to determine whether confinement of a person to facilitate another crime constitutes this variety of kidnap-ing as it is defined by the statute. See also Walker v. State, 604 So.2d 475 (Fla.1992); Maxwell v. State, 803 So.2d 815 (Fla. 5th DCA 2001). First, the confinement of the victim must not be slight, inconsequential and merely incidental to the other crime. Second, the confinement must not be inherent in the nature of the other crime. Finally, the confinement must have some significance independent of the other crime in that it makes the other crime substantially easier to commit or it lessens the risk of detection. The confinement, thus, must be the kind that is not likely to naturally accompany the underlying felony. Berry v. State, 668 So.2d 967, (Fla.1996).

Here, viewing the evidence in the light most favorable to the State, the confinement was not slight, inconsequential or incidental to the other crimes. Jones initially moved Singh to the finance office without tying his hands or covering his face. Later, however, one of the accomplices tied Singh up and placed a white trash bag over his head. The confinement continued for ninety minutes until Singh finally escaped.

The binding of Singh also satisfies the second prong of Faison. See Berry, supra. The confinement was not of the sort inherent in the robbery because it was clearly unnecessary to bind and blindfold Singh in order to commit the robbery. That is to say, Jones would have been convicted of robbery even if he had not tied up Singh. Berry, 668 So.2d at 970.

Regarding the third prong, it is clear that tying Singh made the robbery substantially easier to commit and helped prevent the risk of detection. See Ferguson v. State, 533 So.2d 763, 764 (Fla.1988). Singh was bound for approximately ninety minutes of the two hours that the defendants were in the church, and Jones frequently moved Singh from room to room.

Berry suggests that had the robbers confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room, closed the door and ordered them not to come out, a kidnaping conviction could not stand. Berry, 668 So.2d at 969. Neither of these situations occurred in the present case. Because the State presented competent evidence from which a jury could conclude that Jones committed the crime of kidnaping, the trial court did not err when it denied Jones’ motion for judgment of acquittal. Sutton, 834 So.2d at 334.

AFFIRMED.

THOMPSON, C.J., and ORFINGER, J„ concur.


author: PER CURIAM.

text:
    Bassam ABIFARAJ and Rayya Abifaraj as parents and natural guardians of Samer Abifaraj, Appellants, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, John Rinella, M.D., Rinella, Hudanich, Greenberg, Ralph & Sijin, P.A., Joaquin Taranco, M.M. and Taranco & Associates Anesthesiology Group, P.A., d/b/a/ Plantation-Tamarac Anesthesia Group, P.A., and Plantation General Hospital, Appellees.
    No. 1D03-0334.
    District Court of Appeal of Florida, First District.
    May 9, 2003.

      Barbara Green, Miami; Mayer Gatteg-no, Coral Springs; Timothy M. Martin, Miami Lakes, for Appellants.
    Kenneth J. Plante and Wilbur E. Brew-ton of Brewton, Plante & Plante, Tallahassee; Nancy W. Gregoire and Darlene Sto-sik of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, Ft. Lauderdale; Hal B. Anderson and John W. Mauro of Billing, Cochran, Heath, Lyles & Mauro, Ft. Laud-erdale; Mark Casteel, Tallahassee; Esther E. Galicia, Merrilee A. Jobes and Liana Silsby of George, Hartz, Lundeen & Ful-mer, Ft. Lauderdale, for Appellees.
   PER CURIAM.

The appellants have sought review of an Amended Final Order and Award, which determined compensability under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”), created by section 766.303, Florida Statutes (2002). However, because this order does not complete the judicial labor and bring the administrative adjudicative process to a close, it is not an appealable final order. See Hill v. Div. Of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Accordingly, we dismiss this appeal for lack of jurisdiction. Fla. R.App. P. 9.110(m).

The administrative order on appeal determined that appellants’ claim is compen-sable under the Plan, ordered the payment of previously incurred expenses, and “accorded a lump sum award of $100,000” to the appellants. However, the order did not make findings as to the amount of the previously incurred expenses which the ap-pellee was ordered to pay. On the Court’s own motion the appellants were directed to show cause why the appeal should not be dismissed as premature because the order did not appear to conclusively end the administrative adjudicative process. The appellants responded to this Court’s order asserting that the order is final. Alternatively, the appellants argue that the order should be deemed final pursuant to McGurn v. Scott, 596 So.2d 1042 (Fla.1992). Finally, if the order is not final, the appellants request that this Court relinquish jurisdiction so that they may obtain a final order. The appellees have also filed a response to this Court’s order. However, the appellees’ arguments point out efficiency problems that arise in the implementation of the administrative process required by the Plan and are more appropriately directed to the Legislature.

The order on appeal is not final because the award of expenses was not waived nor is it an ancillary or collateral issue like attorney’s fees and costs. The appellants take the position that because the order included a “waiver of any claim to an award of reasonable expenses incurred in connection with the filing of the claim,” they are not entitled to any award of previously incurred expenses. Therefore, there is no need to make a determination as to the amount of the award. Alternatively, if there is a need to make this determination, it can be made later without interfering with the order’s finality because it is an ancillary or collateral issue. The appellants’ reading of the order fails to recognize the distinction between “actual expenses” arising from a compen-sable injury, which comprise the element of compensation provided for in section 766.31(l)(a), and “reasonable expenses” that are incurred in connection with bringing the claim, which comprise a separate element of compensation provided for in section 766.31(l)(c). The waiver of expenses incurred in bringing a claim does not nullify the award of expenses caused by the injury. Therefore, we reject the appellants’ argument that there is no need to make a determination as to the amount of the award of previously incurred expenses. Similarly, upon distinguishing “actual expenses” and “reasonable expenses” it is clear that an award of compensation under section 766.31(l)(a) is not an ancillary or collateral issue. We do not reach the question of whether an award under section 766.31(l)(c) is an ancillary or collateral issue.

The appellants argue in the alternative that this Court should deem the order final because it is styled in the form of a final order and requires an immediate monetary payment. See McGurn v. Scott, 596 So.2d 1042 (Fla.1992); Emerald Coast Communications, Inc. v. Carter, 780 So.2d 968 (Fla. 1st DCA 2001). However, unlike the orders on review in McGum and Emerald Coast, the instant order is an administrative order and not an ordinary civil order for money damages. Additionally, this administrative order should not be deemed final because it does not appear final in most respects, nor does it state that execution could issue. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). Therefore, we reject the appellants’ argument that the instant order should be deemed final.

Finally, we deny the appellants’ request to relinquish jurisdiction in order to obtain a final order. The appellants have not identified any exceptional circumstance necessitating relinquishing jurisdiction. Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

DISMISSED.

BOOTH, WOLF and KAHN, JJ., concur.


text:
    Willie Earl WALKER, Appellant, v. Pamela L. WALKER, Appellee.
    No. 1D03-1003.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Thomas F. Rosenblum, Jacksonville, for appellant.
    No appearance for appellee.
   PER CURIAM.

DISMISSED. See Shields v. Colonial Penn Ins. Co., 513 So.2d 1363 (Fla. 5th DCA 1987).

BOOTH, WOLF and KAHN, JJ., concur.


author: COVINGTON, Judge.

text:
    Nathaniel Jerome OTTESEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5629.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   COVINGTON, Judge.

Nathaniel Jerome Ottesen appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Ottesen raised fifteen grounds of ineffective assistance of counsel. The trial court dismissed the motion on the ground that it did not have jurisdiction to consider the motion because an appeal was pending in this court. See Johnson v. State, 657 So.2d 11 (Fla. 2d DCA 1995). However, as Ottesen noted in his motion, his direct appeal had been final for almost two years when he filed this motion. See Otteson v. State, 773 So.2d 549 (Fla. 2d DCA 2000) (table). Therefore, the trial court did not lack jurisdiction to consider this motion due to a pending direct appeal.

At the time Ottesen filed the rule 3.850 motion, an appeal of the denial of a motion to correct illegal sentence filed pursuant to rule 3.800(a) was pending in this court. However, the pending rule 3.800(a) appeal did not deprive the trial court of jurisdiction to consider the current rule 3.850 motion because the issues raised in the motions are unrelated. See Jones v. State, 787 So.2d 35 (Fla. 2d DCA 2001); Ali v. State, 732 So.2d 481 (Fla. 2d DCA 1999); Montague v. State, 710 So.2d 228 (Fla. 2d DCA 1998). Accordingly, we reverse and remand for the trial court to consider the merits of Ottesen’s rule 3.850 motion.

Reversed and remanded.

ALTENBERND, C.J., and KELLY, J„ Concur.


text:
    John STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4831.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, Kenneth D. Pratt, Assistant Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

The appellant challenges the order by which the trial judge summarily denied his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse the order because the motion sets forth colorable claims which are not conclusively refuted by attachments to the order.

The appellant alleged colorable claims that his trial counsel was ineffective for fading to call eight witnesses, including the appellant, and for interfering with the appellant’s right to testify. Although the judge attached a portion of the trial transcript to his order, the attachment does not conclusively refute the appellant’s claims. See Farnbaugh v. State, 778 So.2d 369, 370-371 (Fla. 2d DCA 2001). Because these facially sufficient claims are not conclusively refuted by the attachment, the order is reversed and this case is remanded for further proceedings under rule 3.850.

REVERSED and REMANDED.

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


text:
    Colby Allen SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4098.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the order by which the trial court denied his Florida Rule of Criminal Procedure 3.800(a) motion. We conclude that only one of the appellant’s claims has merit. Because the record confirms the appellant’s claim that the trial court did not orally pronounce a habitual offender sentence when resen-tencing the appellant pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), his written habitual offender sentence violates double jeopardy and is illegal. See Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), approved by Ashley v. State, 28 Fla. L. Weekly S18, — So.2d -, 2003 WL 60564 (Fla. Jan. 9, 2003); see also Trotter v. State, 825 So.2d 362 (Fla.2002) (holding that resentencing pursuant to Heggs is a de novo proceeding which must comport with all constitutional requirements); see also Hopping v. State, 708 So.2d 263 (Fla.1998)(holding that a double jeopardy claim may be raised in a rule 3.800(a) motion when the double jeopardy violation can be determined from the face of the record).

We therefore reverse the order to the extent that it reflects the trial court’s denial of the double jeopardy claim, but we otherwise affirm the order under review. This case is remanded to the trial court for entry of a new written sentencing order which is consistent with the oral pronouncement at resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

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


text:
    Ronnie Eugene DAVENPORT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-3570.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Ronnie Eugene Davenport, pro se, petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney-General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Ronnie Eugene Davenport is hereby awarded a belated appeal from the order of June 24, 2002, which denied petitioner’s motion for post-conviction relief in case number 97-4410-CFA in the Circuit Court in and for Es-cambia County. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, LEWIS and HAWKES, JJ., concur.


text:
    Fred CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0363.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Fred Carter, pro se, petitioner.
    Charlie Crist, Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Fred Carter is hereby awarded a belated appeal from the order of May 2, 2002, which denied petitioner’s motion for postconviction relief in case number 99-11275-CF-A in the Circuit Court in and for Duval County. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, LEWIS and HAWKES, JJ., concur.


author: WEBSTER, J.

text:
    Frank SCHAFER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D02-2045.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Sanford Z. Chevlin, Hallandale, for Appellant.
    Gail Scott Hill, Department of Business and Professional Regulation, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of a final order of the Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, imposing a $8,000.00 fine. He contends that the Board erred in denying his request for a formal hearing and adopting the allegations of the administrative complaint. Because it is clear that no material fact was in dispute, and that the undisputed facts support the Board’s action, we affirm.

The challenged order recites that appellant “filed an Election of Rights admitting the facts and requesting an informal hearing.” Appellee correctly concedes that the order is erroneous in that regard and that, although appellant admitted some facts, he disputed others and requested a formal hearing. However, it argues that this scrivener’s error is harmless in this case. We agree.

When material facts are not in dispute, an agency need not refer a matter to the Department of Administrative Hearings for a formal hearing, even if such a hearing is requested by a party. It may, instead, proceed informally. See, e.g., Nicolitz v. Bd. of Opticianry, 609 So.2d 92, 93-94 (Fla. 1st DCA 1992); Village Saloon, Inc. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation, 463 So.2d 278, 285 (Fla. 1st DCA 1985) (on denial of rehearing). Appellant was charged with a violation of section 489.533(l)(m)4, Florida Statutes (2001), which authorizes the imposition of a fine when an electrical contractor “fails, within 18 months, to pay or comply with ... a judgment obtained against the contractor or a business qualified by the contractor and relating to the practice of [electrical] contracting.” Appellant admitted that a money judgment had been entered against R & R Associates, and that he had been the qualifier for that entity. Moreover, he did not dispute the facts that the judgment had remained unpaid for more than 18 months and that it related to the practice of electrical contracting. No additional facts were necessary to establish the violation with which appellant was charged. Accordingly, the Board was free to proceed informally, and to enter the challenged order.

Appellant makes additional arguments which are without merit. The final order of the Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, is affirmed.

AFFIRMED.

ALLEN, C.J., and BROWNING, J., concur.


author: THOMPSON, C.J.

text:
    Elton A. PURDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3397.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

      James B. Gibson, Public Defender and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

Elton A. Purdy appeals his sentencing under the habitual felony offender statute. We affirm.

Purdy was convicted of two counts of battery on a law enforcement officer, one count of resisting an officer with violence, and one count of resisting an officer without violence. Purdy was adjudicated a habitual offender and sentenced to ten years on each felony count. Purdy argues that the trial court improperly habitualized him for battery on a law enforcement officer because battery is a misdemeanor reclassified as a felony due to the victim being a law enforcement officer. Therefore, it is double jeopardy to enhance his sentence and then to sentence him as a repeat felony offender. Further, he argues that we incorrectly decided King v. State, 763 So.2d 546 (Fla. 5th DCA 2000), wherein this court held that it was the legislature’s intent to impose the harsher treatment on a person convicted of battery on a law enforcement officer and who meets the criteria for sentencing as a habitual felony offender. In Mills v. State, 822 So.2d 1284 (Fla.2002), the Florida Supreme Court reviewed sections 784.07(2)(b) and 775.084, Florida Statutes, and stated:

[T]he Legislature has made the offense of battery, which is otherwise a misdemeanor, a third-degree felony when the victim is a law enforcement officer. See § 784.07(2)(b), Fla. Stat. (Supp.1998). In section 775.084, the Legislature has also authorized increased sentences for defendants who qualify as habitual felony offenders. Thus, the imposition on a qualifying defendant of one sentence under the habitual felony offender statute for the crime of battery on a law enforcement officer is proper, and not vio-lative of double jeopardy. Indeed, if a conviction pursuant to section 784.07 were not treated as a qualifying offense under section 775.084, this would, in effect, nullify the clear legislative expression in intent to treat battery on a law enforcement officer as a felony.

AFFIRMED.

GRIFFIN and SAWAYA, JJ„ concur.

      . § 775.084, Florida Statutes (1999).

      . § 784.07(2)(b), Fla. Stat. (1999).

      . § 843.01, Fla. Stat (1999).

      . § 843.02, Fla. Stat. (1999).


text:
    Kerry D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1821.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant challenges a finding of violation of probation based on a violation of law by refusing to comply with directions given him by a police officer. We determine that there was insufficient evidence to support this charge and reverse the finding of violation of probation. V.L. v. State, 790 So.2d 1140 (Fla. 5th DCA 2001).

BARFIELD, WOLF and DAVIS, JJ., concur.


text:
    Steven D. SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-965.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges his probationary split sentences imposed on February 6, 2002. He timely filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, essentially asserting that, pursuant to Waters v. State, 662 So.2d 332 (Fla.1995), he was entitled to credit towards the probationary portion of his split sentences for time previously spent on probation. The state conceded error, and the trial court entered amended orders purporting to adjust the termination dates for the underlying sentences. But the amended orders were not entered within 60 days from the filing of the appellant’s motion as required by the rule. Consequently, the trial court lacked jurisdiction to enter the amended orders. See Campbell v. State, 789 So.2d 1213 (Fla. 1st DCA 2001). Accordingly, the sentences imposed on February 6, 2002, are REVERSED, the amended orders entered on July 22, 2002, are QUASHED, and the case is REMANDED for resentencing in accordance with Waters.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.


author: PETERSON, J.

text:
    E.B. Father of A.B., A.C. and E.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-2916.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.
    R. Wm. Lyng, III of R. Wm. Lyng, P.A., Kissimmee, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PETERSON, J.

The father, E.B., appeals an award of long-term custody of his child, A.B., to the child’s maternal grandmother. E.B. contends that he was not given the opportunity to present evidence during the hearing leading to the award and that the unpre-sented evidence would show his efforts to comply with the case plan designed to reunify him with A.B.

A.B. and a slightly older sibling, S.B., were born during a relationship between E.B. and the children’s mother. E.B. was badly injured in an auto accident shortly after AB.’s birth and spent five weeks in a hospital. Released from the hospital, he found that the mother had vacated their home and terminated their relationship. Later, the mother relinquished custody of S.B. to E.B; and he and the child moved to Vermont where he had family ties.

In 1998, when A.B. was less than six-months old, the Department of Children and Families (DCF) brought a dependency action against the mother and she consented to an order declaring A.B. to be dependent. E.B.’s subsequent request for placement of A.B. with him in Vermont was granted by the trial court, but reversed upon appeal by DCF on the grounds that Vermont, the receiving state, must first approve the placement under the Interstate Compact on Placement of Children (“ICPC”) (codified in Florida as section 409.401, Art. I-Art. X, Florida Statutes). This court then ordered that A.B. remain in Florida until the Vermont authorities agree to A.B.’s placement in that state. Department of Children and Families v. Benway, 745 So.2d 437 (Fla. 5th DCA 1999).

E.B. then returned to Florida with S.B. and an order was subsequently entered declaring A.B. dependent as to E.B. and a case plan was imposed with a goal of reunification. Later, DCF alleged that E.B. failed to comply with that case plan and requested that the trial court place A.B. in the long-term custody of the maternal grandmother. It is from the order granting DCF’s request to place A.B. in the long-term custody of the maternal grandmother that E.B. appeals.

E.B. complains that he was denied due process when the trial court did not give him an opportunity to present evidence of his efforts to comply with his case plan and of his attempts to visit A.B. that were allegedly thwarted by the maternal grandmother when she had temporary custody. After review of the transcript of the hearing, we agree that the order was entered primarily upon the arguments of DCF’s counsel and that E.B. should have been given the opportunity to be heard before a decision was made to place A.B. in the long-term custody of the maternal grandmother.

We vacate the long-term custody placement and remand to the trial court for an evidentiary hearing geared toward a reunification of E.B. with A.B., unless the court determines that E.B. has not substantially complied with the terms of his case plan to the extent that the safety, well-being, and physical, mental and emotional health of the child is endangered by reunification § 39.522(2), Fla. Stat. (2002); C.F. v. Dep’t of Children and Families, 822 So.2d 571 (Fla. 5th DCA 2002); see also L.L.C. v. Dep’t of Children and Families, 790 So.2d 1239 (Fla. 5th DCA 2001).

ORDER VACATED; REMANDED.

SHARP, W. and ORFINGER, JJ., concur.

      . We note that E.B. has apparently successfully parented A.B.’s sibling S.B. That fact alone is not determinative of A.B.'s placement, but it seems incongruous with the result reached in the instant case in the absence of an evidentiary hearing.


author: PLEUS, J.

text:
    Oscar F. HUDSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D01-1461, 5D03-276.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

This is a sexual battery case we remanded for a limited evidentiary hearing on the issue of the state DNA expert’s qualifications in statistical analysis. See Hudson v. State, 820 So.2d 1070 (Fla. 5th DCA 2002). On remand, the trial court conducted an evidentiary hearing and found that the expert was qualified. We affirm the trial court’s ruling as well as Hudson’s conviction.

On appeal, Hudson argues that the state failed to prove by a preponderance of evidence that its DNA analyst, Emily Booth, was qualified to render an opinion in statistical analysis because (1) she is not a mathematician; (2) she is not a statistician; (3) she could not establish the scientific reliability of the statistical formulas used; and (4) she lacked sufficient knowledge of the DNA database used.

The test on this issue is not whether the expert is a mathematician or statistician. See Darling v. State, 808 So.2d 145 (Fla.2002) (holding that fact that expert not a statistician is “not a sound basis to exclude his expert testimony regarding the statistical results”); see also Fay v. Mincey, 454 So.2d 587, 595 (Fla. 2d DCA 1984) (noting that an expert does not need a special degree or certificate in a specialized area if he has experience, skill and independent study a particular field). Nor is the expert required to personally compile the statistics in the database used, Lomax v. State, 727 So.2d 376 (Fla. 5th DCA 1999), or even have practical experience in statistics, Murray v. State, 692 So.2d 157, 164 (Fla.1997). Rather, the state must prove by a preponderance of evidence that an expert testifying about DNA statistical and population genetics analysis must demonstrate “sufficient knowledge of the database grounded in the study of authoritative sources.” Id.

In the instant case, Booth demonstrated sufficient knowledge of the Florida Department of Law Enforcement (“FDLE”) database used in performing her calculations. She explained the number of samples taken, the geographic areas from which they were taken and how the samples were used to establish the database. She explained that the database was constructed according to National Research Council (“NRC”) guidelines and had been independently validated. Booth noted that the number of samples collected and the manner in which they were collected met NRC requirements. Booth was familiar with the NRC guidelines, stating they are the standard she and her lab follows in conducting DNA analysis.

Booth also performed statistical analysis in this case using the FBI database. She testified she was familiar with the data used in compiling that database and had read the literature regarding its validation in the scientific community. Thus, Booth demonstrated sufficient knowledge of each database grounded in the study of authoritative sources.

In addition to satisfying this minimum standard, Booth had first-hand experience working on the FDLE database, having collected samples, extracted DNA and performed quantitative analysis. She also had years of practical experience performing statistical analysis as part of her work as a DNA analyst. Finally, she maintains her certification in DNA analysis, a component of which involves passing regular testing in statistical analysis.

Regarding the statistical methods used and their general acceptance, Booth gave a detailed explanation of the statistical method she used as well as the actual calculation she performed in this case. She noted that the statistical method employed was generally accepted and used nationwide. Accordingly, the trial judge correctly concluded that Booth was qualified to present the statistical component of her DNA analysis.

AFFIRMED.

THOMPSON, C.J., and SHARP, W„ J., concur.


text:
    Vicky Royals MILLS, Petitioner, v. Nathaniel GLOVER, Sheriff of Duval County, Florida, Respondent.
    No. 1D03-1782.
    District Court of Appeal of Florida, First District.
    May 12, 2003.
    Louis 0. Frost, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellee.
   PER CURIAM.

The petitioner is charged under section 827.03(3)(b), Florida Statutes, with child neglect causing great bodily harm, a second-degree felony. She has petitioned for a writ of habeas corpus following the trial court’s denial of her motion to reduce bail set at $65,000. Because the record provides little indication that the petitioner presents a flight risk, and also suggests that she is of modest financial means, the petition is granted and this case is remanded for.the trial court to take further evidence as to the petitioner’s access to personal and family financial resources. Upon receipt of such evidence, the trial court is directed to set reasonable bail in an amount not to exceed $20,000. The petitioner’s pretrial release may also be made subject to other reasonable non-financial conditions.

ALLEN, C.J., WEBSTER and VAN NORTWICK, JJ., concur.