author: ROTHENBERG, Judge. COPE, C.J.

text:
    Larry DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1655.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing Denied June 15, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Larry Diaz (“Diaz”) appeals a judgment of conviction for armed robbery, claiming that reversal is mandated as: (1) the State impermissibly commented on his right to remain silent, (2) the trial court committed reversible error in the curative instruction it gave after Diaz violated an order in limine, and (3) the motion for judgment of acquittal should have been granted as the State did not rebut his reasonable hypothesis of innocence. After carefully reviewing the entire record, we affirm.

The issue at trial was whether Diaz was involved in an armed robbery of a Westar gas station. Diaz claimed that he was unaware that the co-defendant, Juan Carlos Fernandez (“Fernandez”), intended to commit the robbery; that he was not involved in the robbery; and that he was forced by Fernandez, at gunpoint, to drive him away from the scene of the robbery.

The evidence at trial established that Fernandez robbed a cashier at a Westar gas station at gunpoint while wearing a mask. Additionally, a witness saw Fernandez leaving the station still wearing the mask and carrying the gun, and then observed him getting into Diaz’s vehicle, which was opened for him from the inside. When law enforcement stopped the vehicle, Diaz was driving and Fernandez was seated in the front passenger seat. After the stop, law enforcement observed in plain view a black bag, with money sticking out of it, on the floor behind the driver’s seat. A search of the vehicle, which Diaz consented to, revealed that the bag contained $160.00 and a .45 caliber semiautomatic gun. A pair of black gloves was located on the driver’s seat floor mat, a white grocery bag containing more money was located in between the driver and the passenger seats, and a .38 caliber revolver and mask were found under the front passenger seat.

Diaz testified at trial that, on the day of the robbery, Fernandez called him and said that he wanted to “hang out” with him. Diaz picked Fernandez up, they went out to breakfast, and they drove to a shooting range. Diaz testified that he kept two firearms in a black bag in the trunk of his car. After driving to the shooting range, however, Diaz claimed that he realized he only had $15.00 with him, and therefore, decided to drive to an ATM machine to obtain additional funds. Diaz testified that on the way to the ATM machine, he stopped at a Hess station to buy some gas. He claimed he left Fernandez in the car and went inside the Hess station to prepay for the gas, but when he returned, Fernandez was no longer in the car. After waiting for a minute or so, he claimed he saw Fernandez walking quickly from the Westar gas station across the street with a white bag in his hands, and drove over to pick him up. He denied seeing Fernandez carrying a gun or seeing a ski mask. Diaz testified that when Fernandez got into the car, he pulled a gun out from under his shirt, pointed it at Diaz’s head, ordered him to drive, and threatened to kill him if he did not. Diaz testified that he drove the car at gunpoint until he saw a police officer, at which point he drove towards the officer and was stopped by the police. He explained that upon being stopped by the police, he exited the car and told the officer that he had nothing to do with the robbery. Additionally, he testified in direct examination that while being transferred to the police station, Fernandez threatened to kill him if he talked to the police:

Q. What happened after you got close to the cop?
A. I told them, they told me from a distance to stop the car and I did so and put the hand on, I put my hand on the wheel. And Officer Bello I believe was the one that testified yesterday asked me to turn off the car. I did, to exit the car. I did. I put my hands on top of the ear and I explained that I have nothing to do with that and of course at that time Juan is like trying to hide the money and, you know, and throw things around and whatever and I am outside and he is on the other side and then they handcuffed us together and took us to the Hialeah police station.
Q. Well, what happened when they handcuffed you together?
A. Okay. That is very interesting. They put us in the same car together in the back of [sic] car and the first thing that he said is, “man, if you talk you are dead. If you talk against me, you are dead.”
Q. That is what Juan said?
A. That is what he said to me that if I said anything against him that I was dead and I kept quiet.

(Emphasis added).

On cross-examination, the State elicited testimony from Diaz over defense objection, that while he told the police that he was not involved, he did not tell the police that Fernandez had forced him to drive at gunpoint.

Q. And when you were pulled over by the police, you know, you said something very interesting on direct, you said that you told Sergeant Bello that you didn’t have anything to do with this; is that correct?
A. Absolutely, yes.
Q. You didn’t tell Sergeant Bello that he is making me do this, that he had a gun to my head and he told you to drive away did you?
A. No, I didn’t say that.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. You didn’t tell him that he has a gun and he was pointing it at me the whole time, I was afraid, did you?
A. No.
Q. In fact, you didn’t tell any of those police officers that, did you?
A. No, I was in shock.
During closing arguments, the State reminded the jury that, while Diaz testified that he was forced to drive at gunpoint, he did not tell this to the police when they stopped him. The defense timely objected, the objections were overruled, and Diaz’s motion for mistrial was denied, as was his motion for a new trial.

The first issue on appeal is whether the State committed reversible error by commenting upon the defendant’s right to remain silent. A review of the record demonstrates that the State did not commit reversible error.

Under Florida constitutional law, a prosecutor is prohibited from commenting upon, or attempting to impeach a defendant with, the defendant’s silence at the time of his arrest prior to the receipt of his Miranda warnings. Art. I, § 9, Fla. Const, (prohibiting a defendant from being compelled to be a witness against himself); State v. Hoggins, 718 So.2d 761 (Fla.1998); Robbins v. State, 891 So.2d 1102 (Fla. 5th DCA 2004). This prohibition applies to all comments that are fairly susceptible of being interpreted by the jury as a comment upon silence. Hoggins, 718 So.2d at 769; State v. Smith, 573 So.2d 306, 317 (Fla.1990). Given the statements documented in this opinion, we normally would have concluded that, when the State asked Diaz if he had told the police when they pulled him over that Fernandez was forcing him to drive at gunpoint, it constituted an impermissible comment on Diaz’s right to remain silent. Consequently, we would have found that the trial court erred in overruling Diaz’s objection. Based upon a review of the record, however, we find no error, as Diaz put his failure to tell the police that he was forced to drive at gunpoint at issue during his direct examination testimony, which the State properly inquired about in cross-examination.

It is undisputed that Diaz offered unsolicited exculpatory statements to the police when he was stopped. Diaz, himself, testified on direct examination that when he was stopped by the police, he told them he had nothing to do with the robbery. More importantly, in direct examination, prior to any inquiry by the State, Diaz specifically offered an explanation as to why, after telling the police he had nothing to do with the robbery, he did not tell them that Fernandez was holding a gun to his head or that he had forced him to drive. Specifically, Diaz testified in direct examination that he did not provide this information to the police because Fernandez threatened to kill him if he did. As Diaz provided an explanation to the jury regarding why he did not provide this information to the police during direct examination, we conclude that the State’s questioning of Diaz in cross-examination amounted to a mere clarification of what Diaz had himself already told the jury. We, therefore, find no error in the State’s cross-examination or closing argument.

The dissent relies on Hoggins, Smith, Robbins and Hosper v. State, 513 So.2d 284, 235-37 (Fla. 3d DCA 1987), in concluding that the inquiry by the State resulted in a comment upon Diaz’s right to remain silent. However, in none of the cases relied upon, does the defendant, himself, provide an explanation of why he did not provide additional information to law enforcement prior to the State’s questioning of the defendant, as occurred in the instant case. In Smith, the testimony was actually elicited by the State as substantive evidence to establish the defendant’s guilt in its case-in-chief, through its own witness. At no time did the defendant open the door to the testimony. Thus, the evidence was neither invited by the defendant nor cumulative of his own testimony to the jury.

While we find no error based upon the fact that Diaz, himself, offered the objected-to evidence, prior to any questioning by the State, even if we were to find that the State’s cross-examination of Diaz and the argument to the jury were error, we would conclude that it was harmless beyond a reasonable doubt. The Florida Supreme Court and this court have held that comments a jury may interpret as a comment upon the defendant’s silence are subject to the harmless error doctrine. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Robbins, 891 So.2d at 1107; Hosper, 513 So.2d at 236 (Fla. 3d DCA 1987). “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So.2d at 1135. We find this test was met in the instant case.

Our finding that the error was harmless beyond a reasonable doubt is supported by the evidence. Diaz claimed he did not have any knowledge or involvement in the robbery prior to Fernandez entering his car, pulling out a gun, and ordering him to drive. An independent witness testified at trial, however, that he saw Fernandez exiting the store with a gun in his hand and a mask on, and saw him get into Diaz’s car after Diaz opened the door from inside of the vehicle for Fernandez. Diaz testified that he kept his black bag with two guns in it in the trunk of his car. The bag was, however, found in the backseat with one gun, and the other gun was found under the front passenger seat along with the mask. A pair of black gloves was found on the driver’s floorboard. Diaz claimed that they went to breakfast, stopped for gas, and were going to get some money at an ATM because he only had $15.00. However, when the police searched the vehicle, they found money in a plastic bag between the driver’s seat and passenger seat, plus $160.00 and a gun in Diaz’s black bag behind the driver’s seat. Thus, money-taken in the robbery somehow ended up in Diaz’s black bag in the backseat behind Diaz, even though, according to Diaz, Fernandez, who was seated in the front passenger seat, never put down the gun that he was supposedly pointing at Diaz. Diaz claimed he saw no gun or mask, while a witness saw Fernandez exiting the store with these items clearly visible, and getting into Diaz’s awaiting vehicle. These items were found under the passenger seat, not concealed on Fernandez’s person. Diaz claimed Fernandez was forcing him to drive at gunpoint, yet the officer saw no evidence of that when he stopped them, and if Fernandez was controlling Diaz with the gun, it is not reasonable that he would have allowed Diaz to intentionally drive towards the police. Therefore, based upon the evidence presented and Diaz’s unsolicited explanation of why he did not tell the police he was forced to drive at gunpoint, the comments made by the State in cross-examination and closing argument would, if error, constitute harmless error.

The second claim argued on appeal is that the trial court erred in giving the curative instruction it gave when Diaz intentionally violated the trial court’s order in limine precluding him from testifying that he had never been arrested before. We agree.

During his testimony, Diaz stated, “I was totally shocked.... I am a 44 year old man, never been arrested.” The State objected to this statement. The trial court sustained the objection and gave the following curative instruction:

Okay. Ladies and gentlemen, Mr. Diaz’s comment that he has never committed a crime before is something that you are not to consider in any way, shape or form. He stands here accused of the crime of armed robbery. If in fact, he did commit this crime, robbers have to start somewhere. That is why the fact that he has no priors, if that is in fact true, is completely meaningless. Because when somebody commits a crime it is their first crime, whether it is a murder or a robbery or a theft or a burglary or anything else. There is always a first crime. You are to evaluate the evidence to determine whether or not the evidence proves that he committed this crime. There is no value at all to a suggestion that it is the first crime so therefore he should walk or he should be acquitted. He should be acquitted if the evidence didn’t prove that he is guilty. If the evidence convinces you that he is guilty, then it is his first crime. That is why it is completely merit-less and you should disregard it, okay. Thank you.

Diaz asserts that this statement tended to express the judge’s view as to his credibility and guilt and destroyed the impartiality of the trial judge. Before addressing the merits of this argument, we feel compelled to address the testimony that gave rise to the complained-of curative instruction. Prior to trial, the State moved in limine to preclude Diaz from testifying regarding his lack of a prior criminal record. The motion was granted and Diaz’s attorney specifically informed him of the court’s ruling and instructed Diaz not to testify that he had never been arrested before. Despite the trial court’s ruling and his lawyer’s admonition, Diaz told the jury, totally unsolicited:

“That is what he said to me that if I said anything against him that I was dead and I kept quiet. And I was totally shocked. I mean, I am a 44 year old man, never been arrested.”

We find that this statement, which violated the motion in limine, the trial court’s order, and his own lawyer’s instructions, was not inadvertent and resulted in the curative instruction given by the trial court. The complained-of instruction would not have been given had Diaz simply complied with the trial court’s order and his lawyer’s instructions.

In addressing the merits of Diaz’s argument, we agree that the trial court’s curative instruction went too far and was improper. We do not, however, conclude that the instruction, when viewed in its entirety, either expressed the judge’s view as to the credibility and the guilt of the defendant or destroyed the impartiality of the trial judge. The instruction, as a whole, makes it clear that the trial court was not commenting on the evidence, did not infer Diaz’s guilt, and cautioned the jury that it should find Diaz not guilty if the evidence did not prove that he committed the crime. The trial court instructed the jury, in part, as follows:

He stands here accused of the crime of armed robbery.
You are to evaluate the evidence to determine whether or not the evidence proves he committed the crime....

He should be acquitted if the evidence didn’t prove he is guilty. Since the objectionable comments were given within the context of a larger instruction, which explained to the jury that whether Diaz had been previously arrested was not relevant, and emphasized that he should be found not guilty if the evidence did not prove he committed the crime, we find that there is no reasonable possibility that the error contributed to Diaz’s conviction. See State v. DiGuilio, 491 So.2d at 1135.

The final argument raised on appeal is that the trial court erred in denying Diaz’s motions for judgment of acquittal as the conviction was wholly based upon circumstantial evidence and the State failed to present sufficient evidence to exclude Diaz’s reasonable hypothesis of innocence. Our review of Diaz’s motion for judgment of acquittal is de novo, see Boyd v. State, 910 So.2d 167, 180 (Fla.2005); Tibbs v. State, 397 So.2d 1120 (Fla.1981), viewing the evidence in the light most favorable to the State. Boyd, 910 So.2d at 180; Banks v. State, 732 So.2d 1065 (Fla.1999). When, as here, the State’s evidence is wholly circumstantial, there must not only be sufficient evidence establishing each element of the offense, but there must also be sufficient competent evidence to exclude every reasonable hypothesis of innocence. See Orme v. State, 677 So.2d 258 (Fla.1996). The State, however, is not required to conclusively rebut Diaz’s claims. It need only introduce evidence which is inconsistent with Diaz’s theory of events. See Toole v. State, 472 So.2d 1174 (Fla.1985). It then becomes the jury’s task to determine if the evidence presented is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So.2d 187, 188-89 (Fla.1989).

Based upon the evidence presented (and briefly mentioned earlier in this opinion), we conclude that the State clearly met its burden and that in viewing the evidence in the light most favorable to the State, there was sufficient competent evidence presented from which the jury could exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Affirmed.

SHEPHERD, J., concurs in result.

COPE, C.J.

(concurring in part and dissenting in part).

We should reverse the conviction and remand for a new trial. First, there was an impermissible comment on silence. Second, the trial court gave a curative instruction to the jury which — whether intended or not — conveyed that the judge believed the defendant to be guilty.

I.

The trial court erred by overruling the defense objection to State cross-examination which amounted to a comment on silence.

According to the defendant’s testimony, he and co-defendant Juan Carlos Fernandez were driving to a gun range for target practice. The defendant was the driver and Fernandez was the passenger.

The defendant stopped at a Hess gas station to buy gas and use an automatic teller machine. When the defendant came outside Fernandez was nowhere to be seen. After a minute or two, the defendant saw Fernandez walk out of a Westar gas station across the street with a bag in his hands. The defendant drove over to pick him up.

Fernandez had just held up the Westar station and the bag contained the money. Fernandez got into the passenger side of the defendant’s car. Diaz testified that he did not know Fernandez was going to rob the station. When Fernandez got into the car, he pulled a gun and said, “Larry, I am sorry I had to do this, but I needed to do it. And drive or I will kill you.” TR. 222. The defendant drove as ordered.

Soon the defendant saw some police officers and drove toward them. The police stopped the car and ordered both men to get out. At this point the defendant was in custody but had not been given Miranda warnings. The defendant testified, “I put my hands on top of the car and I explained that I have nothing to do with that and of course at that time Juan is like trying to hide the money....” TR. 224.

On cross-examination the State asked whether the defendant told the arresting officer that Fernandez held a gun to the defendant’s head. The defense objection was overruled. The cross-examination was:

Q. And when you were pulled over by the police, you know, you said something very interesting on direct, you said that you told Sergeant Bello that you didn’t have anything to do with this; is that correct?
A. Absolutely, yes.
Q. You didn’t tell Sergeant Bello that he is making me do this, that he had a gun to my head and he told you to drive away, did you?
A. No, I didn’t say that.
MRS. LEWIS: Objection.
THE COURT: Overruled.
Q. You didn’t tell him that he has a gun and he was pointing it at me the whole time, I was afraid, did you?
A. No.
Q. In fact, you didn’t tell any of those police officers that, did you?
A. No, I was in shock.

TR. 228-29.

Under applicable Florida precedent, the objection should have been sustained.

It is of course settled that the defendant has a right to remain silent and no comment can be made at trial on the defendant’s exercise of that right. See State v. Hoggins, 718 So.2d 761, 770-71 (Fla.1998).

In this case the defendant was in custody and had not yet been given Miranda warnings. He made a volunteered statement that he had nothing to do with the crime, but said nothing else and gave no details. Under Florida law, if a defendant makes a volunteered statement of fact A, the prosecution is not allowed to comment that the defendant failed to state fact B.

The case of State v. Smith, 573 So.2d 306, 317 (Fla.1990), is very similar to this one. In Smith, the defendant said at the scene of the crime, “You’ve got the wrong person. I haven’t done anything.” 573 So.2d at 317 (internal quotation marks omitted). He also said, “I just shot someone. He was going for my daughter.” Id. Over objection, the trial court then allowed the prosecution to ask the sheriffs deputy the following:

Q [By Mr. Miller] Deputy, at the time you heard these statements being made to Deputy Cosimi, what, if anything, did this defendant say about being frightened of the victim of this case?
A None.
Q [By Mr. Miller] What, if anything, did you overhear the defendant say at that time about his daughter being sexually assaulted by the victim in this case? A None.

Smith, 573 So.2d at 317. The Florida Supreme Court ruled that this was reversible error.

“The prosecution is not permitted to comment upon a defendant’s failure to offer an exculpatory statement prior to trial, since this would amount to a comment upon the defendant’s right to remain silent.” Id.; see also State v. Hoggins, 718 So.2d 761, 770-71 (Fla.1998); Robbins v. State, 891 So.2d 1102, 1106-07 (Fla. 5th DCA 2004); Hosper v. State, 513 So.2d 234, 235-37 (Fla. 3d DCA 1987). The majority opinion agrees that these are the rules.

According to the prosecutor, it was not enough for the defendant to blurt out (after his car was stopped) that he had nothing to do with the robbery. According to the State, the defendant should have said that he had nothing to do with the robbery AND that Fernandez held a gun to his head. The cross-examination on this point clearly violated Smith, Hoggins, Robbins, and Hosper.

The majority opinion states the foregoing cases are inapplicable. The majority maintains that the defendant’s testimony opened the door to being cross-examined on this issue. The majority opinion says that in his direct examination the defendant testified (a) that he said nothing to the police about Fernandez holding a gun to his head because (b) Fernandez threatened to kill him if he did.

Respectfully, the majority opinion is wrong about the time line. The defendant did not testify that Fernandez told the defendant to keep silent at the time the police officers stopped the car. The defendant testified that Fernandez’ threat came after his volunteered statement, not before.

In the direct examination the defendant testified:

A.... I put my hands on top of the car and I explained that I have nothing to do with that and of course at that time Juan is like trying to hide the money and, you know, and throw things around and whatever and I am outside and he is on the other side and then they handcuffed us together and took us to the Hialeah police station.
Q. Well, what happened when they handcuffed you together?
A. Okay. That is very interesting. They put us in the same car together in the back of car and the first thing that he said is, “man, if you talk you are dead. If you talk against me, you are dead.”
Q. That is what Juan said?
A. That is what he said to me that if I said anything against him that I was dead and I kept quiet.

TR. 224.

Thus the defendant testified to the time line as follows: (1) the police officers stopped the defendant’s car; (2) the defendant said he had nothing to do with it; (3) the police handcuffed the defendant to Fernandez and put them in the police car; (4) Fernandez told the defendant he would kill the defendant if he spoke against Fernandez. According to this testimony, the defendant’s proclaiming of his innocence (step (2)) came before Fernandez’ threat (step (4)).

The entire reason for the State’s cross-examination was to bring out a point that the defendant had not made in his direct testimony. The State’s question to the defendant was whether, in his volunteered statement at roadside, he ever told the police that Fernandez held a gun to his head. The defendant had not testified about this on direct examination.

The cross-examination was impermissible. The State cannot cross-examine by asking whether, in his volunteered statement, the defendant failed to include other exculpatory matters. Smith, 573 So.2d at 317.

I am unable to agree that the error was harmless. The State repeated in closing argument its assertion that an innocent person would have blurted out that he had been held at gunpoint, and this defendant did not. The cross-examination was not merely cumulative of the direct examination. The majority opinion argues that there was other evidence of the defendant’s guilt, majority opinion at 382-83, but that is not enough to satisfy the requirement that the error must be harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

II

The defendant’s second issue is also meritorious. We simply cannot sustain a trial court’s instruction which — referring to the defendant — tells the jury that “robbers have to start somewhere.” TR. 225.

Prior to trial the State obtained an order in limine prohibiting the defendant from saying, in front of the jury, that he had never been arrested. The trial court granted the motion.

During the defendant’s testimony quoted above, the defendant testified that he was threatened by Fernandez after the two were handcuffed and put in the back of the police car. The defendant testified that Fernandez said, “man, if you talk you are dead. If you talk against me, you are dead.” TR. 224.

The following then transpired:

Q. That is what Juan said?
A. That is what he said to me that if I said anything against him that I was dead and I kept quiet. And I was totally shocked. I mean, I am a 44 year old man, never been arrested.

TR. 224.

The State objected and the trial court called for a sidebar conference.

THE COURT: You are so not going to like the curative instruction that I am about to give this jury, okay.
MRS. LEWIS: Just so that we are clear he was instructed not to say that.
THE COURT: Okay. I am going to tell the jury that a person who commits a crime always starts with a clean record. That an armed robber at some point has no record and if they commit an armed robbery they are still a person without a prior record and that is why it is completely meaningless that he threw that out for his consideration.
MR. SISSELMAN: Note our objection to the instruction talking about an armed robber. You can say that whether a person has or does not have a prior conviction is not relevant.
THE COURT: He is accused of an armed robbery. I don’t have a problem.
MR. SISSELMAN: Note our objection.

TR. 224-25.

The trial court then instructed the jury as follows:

THE COURT: Okay. Ladies and gentlemen, Mr. Diaz’s comment that he has never committed a crime before is something that you are not to consider in any way, shape or form. He stands here accused of the crime of armed robbery. If, in fact, he did commit this crime, robbers have to start somewhere. That is why the fact that he has no priors, if that is in fact true, is completely meaningless. Because when somebody commits a crime it is their first crime, whether it is a murder or a robbery or a theft or a burglary or anything else. There is always a first crime. You are to evaluate the evidence to determine whether or not the evidence proves that he committed this crime. There is no value at all to a suggestion that it is the first crime so therefore he should get a walk or he should be acquitted. He should be acquitted if the evidence didn’t prove that he is guilty. If the evidence convinces you that he is guilty, then it is his first crime. That is why it is completely meritless and you should disregard it, okay. Thank you. Let’s continue.

TR. 226 (emphasis added).

Respectfully, this curative instruction cannot stand. The court told the jury that “robbers have to start somewhere,” and went on several times to say that there is always a first crime. Whether the trial court meant to do so or not, these remarks convey the idea that the court believed the defendant to be guilty.

Under Florida law a trial judge “should avoid making any remark[] within the hearing of the jury that is capable directly or indirectly, expressly, inferentially, or by innuendo of conveying any intimation as to what view he takes of the case or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.” Seward v. State, 59 So.2d 529, 531 (Fla.1952) (citation and internal quotation marks omitted).

The Seward case is similar to the present one. In Seward the trial court said:

Before we go into that, I want to instruct the Jury that you will disregard any statement that this defendant made touching upon his wife’s use of narcotics. That was not responsive to any question that had been asked. It wouldn’t make any difference if she were a narcotic addict. You don’t have the right to kill people for narcotic addiction. And, even if you were entitled to kill them for narcotic addiction, it would have to be done after a trial. They have Courts to try and condemn persons and individuals are not permitted to do it.

Id. (emphasis added).

The Seward court said, “Such a statement made in the presence of the jury was the equivalent of expressing an opinion that the defendant had attempted to kill the prosecuting witness because of her narcotic addition.” Id. The court reversed for a new trial.

This court has said that where a judicial “comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled.” Hamilton v. State, 109 So.2d 422, 424-25 (Fla. 3d DCA 1959). See also § 90.106, Fla. Stat. (2004); Charles W. Ehrhardt, Florida Evidence § 106.1 (2006); Jacques v. State, 883 So.2d 902, 905-06 (Fla. 4th DCA 2004); Acosta v. State, 711 So.2d 225, 227 (Fla. 3d DCA 1998).

When the trial judge told the jury in this case that “robbers have to start somewhere,” and that “[tjhere is always a first crime,” he sent a signal to the jury (whether intended or not) that the defendant was guilty. As in Seward, that was reversible error, and cannot be deemed to be harmless error. For this additional reason there should be a new trial.

III.

The final point on appeal is the defendant’s claim that the evidence was legally insufficient to convict him and that his motion for judgment of acquittal should have been granted. I concur with the majority that the evidence was legally sufficient.

IV.

For the stated reasons, we should reverse for a new trial.

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

      . According to the majority opinion, the defendant’s statement that he had never been arrested violated the order in limine, which is true. The majority opinion goes on, however, to make a "finding” that the violation "was not inadvertent_” Majority opinion at 384 (emphasis added). Respectfully, we are a reviewing court, not a fact-finding court. The trial court made no finding about whether the violation was intentional or unintentional.


source: Caselaw Access Project

author: PER CURIAM. FARMER, J.

license: Public Domain

text:
    Shean SPRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4786.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Thomas B. Luka of Thomas B. Luka, P.A., Orlando, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

WARNER, FARMER and KLEIN, JJ., concur.

On Motion for Rehearing

FARMER, J.

We grant the motion for rehearing and again affirm. Defendant claims he was illegally sentenced in absentia and that under rule 3.850 he is entitled to resen-tencing according to our decision in Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001). He misreads Zuluaga.

We note that defendant’s rule 3.850 claim does not state under oath that his failure to appear for sentencing was involuntary. We take that omission to be in the nature of a negative pregnant assertion: he alleges that he was absent from the sentencing (he was arrested in New York) but not that he was somehow prevented from attending. He claims he is entitled to seek relief under rule 3.850 anyway because, as he argues, the time for filing such motion begins to run only when he is returned to Florida custody.

It is true that in Zuluaga we disclaimed making any determination as to whether the 2-year period for filing rule 3.850 claims for post-conviction relief begins to run from the sentencing when a defendant voluntarily absents himself from the proceeding. Nevertheless, our decision on the merits foretells the outcome on that issue. If the voluntary failure of a defendant to appear at sentencing does not render the sentence illegal, there seems little reason to suppose that the time to seek post-conviction relief from the sentence does not begin to run from that legal sentencing. In any event, we now make that holding explicit. When a convicted defendant voluntarily flees from the sentencing and remains away while the court pronounces sentence in his absence, in the absence of any direct appeal from the sentencing or other legal circumstance resulting in a tolling, the time for seeking relief from the sentence under rule 3.850 begins to run from the pronouncement.

WARNER and KLEIN, JJ., concur.

      . Effectually described as a negatively pregnant admission, allegation or assertion of a particular fact that implies or makes one understand a positive/affirmative within the allegation. See http://www.legal-explanations. com/definitions/negative-pregnant.htm. Here his claim is that he was absent from the sentencing without qualifying that statement by a positive assertion that his absence was involuntary.


author: ROTHENBERG, Judge.

text:
    Nelson Julio HERNANDEZ, Appellant, v. Maria De Los Angeles GIL, as Personal Representative of the Estate of Jose Manuel Hernandez Vicente, and as Personal Representative of the Estate of Alicia Hernandez Abislaiman, and as Trustee of their Trusts, Appellee.
    No. 3D06-622.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.

      Billbrough Marks, P.A., and Geoffrey B. Marks, Coral Gables, for appellant.
    Tescher Gutter Chaves Josepher Rubin Ruffin Forman, P.A., Boca Raton, and Norman A. Fleisher, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Nelson Julio Hernandez (“Hernandez”) appeals an order of the probate court enforcing, for the second time, a global settlement agreement (“GSA”) entered into by Hernandez, his mother, Alicia Hernandez Abislaiman (“Doña Alicia”), and Maria De Los Angeles Gil (“Gil”) as executrix and personal representative of the estate of Hernandez’s father, Jose Manuel Hernandez Vicente (“Don Manolo”), and as trustee of the Manolo and Alicia Hernandez Abislaiman Trust dated December 28, 1999 (“Trust”). Pursuant to this court’s decision in Hernandez v. Gil, 907 So.2d 537 (Fla. 3d DCA 2005), and pursuant to the clear and unambiguous language of the GSA and the general releases executed concurrently therewith, we affirm.

As reiterated in numerous court decisions, “[t]he public policy of the State of Florida ... highly favors settlement agreements among parties and will seek to enforce them whenever possible.” Sun Microsystems of Ca., Inc. v. Eng’g & Mfg. Sys., C.A., 682 So.2d 219, 220 (Fla. 3d DCA 1996); see also Sec. Ins. Co. of Hartford v. Puig, 728 So.2d 292, 294 (Fla. 3d DCA 1999)(“Settlement agreements are governed by contract rules and are highly favored.”). It is well established that where the language of a settlement agreement is clear and unambiguous, courts may not indulge in construction or modification, and the express terms of the settlement agreement control. Puig, 728 So.2d at 294. Similarly, where the language of a release is “clear and unambiguous, the courts cannot indulge in construction or interpretation of its plain meaning.” Vermut v. Gen. Motors Corp., 773 So.2d 126, 128 (Fla. 4th DCA 2000)(quoting Hurt v. Leatherby Ins. Co., 380 So.2d 432, 433 (Fla.1980)).

The clear and unambiguous language of the GSA specifies that, in exchange for certain real and personal property, Hernandez agreed to exchange general releases with the parties to the GSA and to dismiss a petition he had previously filed objecting to the probate of his father’s will. Pursuant to the clear and unambiguous language of the first general release executed by Hernandez, Hernandez agreed to release his mother, Doña Alicia, from any and all causes of action and to renounce any right in Doña Alicia’s estate, except to the extent, if any, that Doña Alicia named him a beneficiary under her will. Further, if not named as a beneficiary under his mother’s will, Hernandez agreed not to contest the validity of the will and waived his right to enter an appearance in any probate proceeding pertaining to his mother’s estate and, to the extent that he would make such challenge or enter any such appearance, he would be deemed to have predeceased his mother. In a second analogously termed release, Hernandez agreed to renounce any right, title, or interest, vested or contingent, he had, has, or may have in the future in the Trust and in any other trust in which either of his parents was a settlor or beneficiary. In a third release, Hernandez agreed to release Gil, individually, and in her capacity as executrix and personal representative of Don Manolo’s estate, and in her capacity as the trustee of the Trust, from any and all claims whatsoever, in law or in equity, which he ever had, has, or may have in the future. By order dated December 3, 2002, the trial court approved the GSA and specifically reserved jurisdiction over the parties to enforce the terms of the GSA.

The record indicates that Doña Alicia died in July 2003 and did not name Hernandez as a beneficiary under her last will and testament. Not surprisingly, Hernandez entered an appearance in the probate proceedings of his mother’s estate and filed a petition challenging the administration of her will, in clear contravention of the express terms of the GSA. Hernandez also filed a lawsuit against Gil, individually, for tortious interference with his rights to his mother’s inheritance. Pursuant to the clear and unambiguous language of the GSA and the corresponding releases, Hernandez bargained away his right to challenge his mother’s will and in the event that he did so, he would be deemed to have predeceased his mother. Having challenged his mother’s will, Hernandez is deemed to have predeceased her and therefore, has no right to any inheritance from his mother.

Hernandez readily accepted the benefit of his bargain but has, however, on numerous occasions attempted to circumvent his contractual obligations by filing lawsuits relating to the same claims he agreed to release per the express terms of the GSA and the corresponding releases. Consequently, we find that the trial court did not err in enforcing, for the second time, the GSA and finding Hernandez to be in breach thereof. Given a trial court’s inherent authority and jurisdiction to enforce court-approved settlement agreements, we affirm the order of the trial court in its entirety. See Sun Microsystems, 682 So.2d at 221.

Affirmed.


author: WALLACE, Judge.

text:
    Charles HALM, a/k/a Charles Edward Halm, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-137.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    Rehearing Denied May 3, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Charles Edward Halm raises four issues in his appeal of his judgment and sentence for first-degree murder. All of these issues are without merit, and we affirm Halm’s judgment and sentence. However, we write to address Halm’s argument that he was improperly subjected to custodial interrogation by a state agent after he had invoked his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

While Halm was in jail on unrelated charges, two homicide detectives employed by the Pinellas County Sheriffs Office attempted to interrogate him about the brutal slaying of a St. Petersburg woman. Upon being advised of his rights under Miranda, Halm refused to answer any questions. Afterwards, the detectives recruited one of Halm’s friends to speak with Halm in the jail about various aspects of the homicide that the detectives were investigating. The false friend spoke with Halm on two or three occasions at the Pinellas County Video Visitation Center and induced Halm to make statements that implicated himself in the murder. Halm’s conversations with his false friend were recorded on videotape while one of the detectives monitored the discussions from a separate room. All of Halm’s videotaped conversations with his false friend occurred before Halm was charged with the murder.

Halm moved to suppress the videotapes on the ground that they were obtained in violation of his Fifth Amendment right to remain silent and his Fifth Amendment right to counsel. In its opposition to the motion, the State relied primarily on the United States Supreme Court’s decision in Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). The trial court denied the motion to suppress, and an edited version of Halm’s jailhouse conversations with the false friend was played for the jury at Halm’s trial.

The facts in Perkins bear some similarity to the facts in Halm’s case. While Perkins was in jail on unrelated charges, police who were investigating a murder placed an undercover agent and a cooperating inmate in Perkins’ cell. Id. at 294-95, 110 S.Ct. 2394. Perkins then made statements to the agent that implicated Perkins in the murder that was the subject of the police investigation. Id. at 295, 110 S.Ct. 2394. After Perkins was charged with the murder, he moved to suppress these statements. Id. The trial court granted the motion, and the State of Illinois appealed. Id. The Illinois appellate court affirmed the trial court’s ruling, holding that Miranda “prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response.” Id.

On review by certiorari, the United States Supreme Court emphatically rejected the Illinois court’s conclusion. The Court held that Miranda warnings to an incarcerated suspect are not required before an undercover law enforcement officer may ask the suspect questions that might elicit an incriminating response. Id. at 300, 110 S.Ct. 2394. The rationale of the Court’s decision in Perkins focused on the element of coercion as the foundation of the concerns about custodial interrogation that were expressed in Miranda. The Court explained:

Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.

Id. at 296-97, 110 S.Ct. 2394 (citations omitted). Although Miranda forbids coercion, it does not prohibit the sort of ‘strategic deception” that the police had used against Perkins. Id. at 297, 110 S.Ct. 2394. Accordingly, “[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” Id. Based on this reasoning, the Court reversed the Illinois court’s decision. Id. at 300, 110 S.Ct. 2394.

The rationale of the Court’s decision in Perkins is quite broad. It applies not only to undercover police officers but also, as in this case, to private citizens who act as agents of law enforcement. Halm seeks to distinguish Perkins on the ground that unlike the accused in Perkins, Halm had been advised of his Miranda rights and had asserted them before he unwittingly made inculpatory statements to a law enforcement agent.

After a thorough review of the record and the pertinent authorities, we conclude that the trial court properly denied Halm’s motion to suppress. As an initial matter, we agree with Halm that he unambiguously invoked his Fifth Amendment right to remain silent, but we disagree with his argument that he also invoked his Fifth Amendment right to the assistance of counsel. However, our rejection of Halm’s argument that he invoked his Fifth Amendment right to the assistance of counsel is not material to our disposition of this case. The dispositive question here is whether the false friend’s conversations with Halm — conducted after Halm had invoked his right to remain silent — constituted custodial interrogation within the meaning of Miranda. We hold that they did not. See United States v. Stubbs, 944 F.2d 828, 831-32 (11th Cir.1991); Alexander v. Connecticut, 917 F.2d 747, 750-51 (2d Cir.1990); State v. Anderson, 117 P.3d 762, 763-67 (Alaska Ct.App.2005); State v. Hall, 204 Ariz. 442, 65 P.3d 90, 97-100 (2003); People v. Guilmette, 1 Cal.App.4th 1534, 2 Cal.Rptr.2d 750, 751-54 (1991); State v. Bagshaw, 141 Idaho 257, 108 P.3d 404, 406-09 (2004). But cf. Boehm v. State, 113 Nev. 910, 944 P.2d 269, 270-73 (1997) (reaching a contrary result on state constitutional law grounds). Therefore, no violation of Halm’s Fifth Amendment rights occurred.

Halm correctly points out that the homicide detectives recruited and directed the false friend in a manner that the detectives intended would evade Halm’s unequivocal assertion of his right to remain silent. However, we need not consider whether the detectives’ deceptive stratagem violated Halm’s due process rights because Halm did not raise the issue in the trial court. Cf. Voltaire v. State, 697 So.2d 1002 (Fla. 4th DCA 1997) (holding that the police violated the defendant’s due process rights by placing an undercover officer in a jail cell with the defendant to extract incriminating statements from him after the defendant had refused to speak with the arresting officer).

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.

      . In exchange for the false friend’s cooperation, the detectives agreed to speak to the prosecutor about recommending leniency for the false friend's wife in an unrelated sentencing proceeding.

      . Signs posted in the visiting area warned inmates that their conversations might be recorded.

      . Halm also moved to suppress the videotapes on the ground that the detectives violated his Sixth Amendment right to counsel by recruiting the false friend to interrogate him about the murder while Halm was in custody. However, Halm’s Sixth Amendment right to counsel is not implicated here because the videotaped conversations between Halm and the false friend occurred before Halm was charged with murder. The Sixth Amendment right to counsel is offense specific, and it "does not attach until a prosecution is commenced.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

      . "To determine whether a private individual acts as an instrument of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends. State v. Alexander, 810 So.2d 552, 557 n. 2 (Fla. 5th DCA 2002). Under this test, Halm's false friend undoubtedly qualified as a state agent.


author: PER CURIAM. ALTENBERND, Judge,

text:
    James Marion MOORMAN, as attorney for and next friend of L.A., a child, and James Calvin Ingram, Petitioners, v. Janie HATFIELD, Manager, Tenth Judicial Circuit Electronic Court Recording Office; Janice Conway, Manager, Twelfth Judicial Circuit Digital Court Recording Office; and Office of the Attorney General, Respondents.
    No. 2D06-536.
    District Court of Appeal of Florida, Second District.
    March 7, 2007.
    James Marion Moorman, Public Defender, and Robert A. Young, Assistant Public Defender, Bartow, for Petitioners.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Respondents Hatfield and Conway.

      Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent Office of the Attorney General.
   PER CURIAM.

James Marion Moorman, as attorney for and next friend of L.A., a child, and James Calvin Ingram (petitioners), filed a petition for writ of mandamus in this court seeking relief to address certain electronic court recording and transcription issues in the Tenth and Twelfth Judicial Circuits. As respondents, they named Janie Hatfield in her official capacity as manager of the Tenth Judicial Circuit Electronic Court Recording Office and Janice Conway in her similar official capacity for the Twelfth Judicial Circuit. In addition, the Office of the Attorney General was permitted to respond to the petition. The problems discussed in this petition arise from two significant changes in trial court case management: (1) the shift away from using trained professional court reporters in all courtroom proceedings to the use of less costly digital recording and transcription and (2) the shift in the funding of indigent cases from local government to the state under revision 7 to article V of the Florida Constitution, see Art. V, § 14, Fla. Const. Although these matters undoubtedly warrant attention and clarification, after considerable reflection we conclude that this court cannot resolve the problems discussed in the petition through the issuance of an extraordinary writ to any of the respondents. Accordingly, we deny the petition.

I. THE ISSUES RELATING TO JAMES CALVIN INGRAM

When this petition was filed, Ingram had a pending criminal appeal in this court in which he was represented by the public defender. That appeal challenged an order from the Tenth Judicial Circuit holding Ingram in contempt for failure to honor a witness subpoena. The record included a transcript, but it contained significant errors. Among other errors, the transcript purported to include an appearance by an attorney on behalf of Ingram when no such attorney existed. The transcript was not based on the work of a court reporter, but on an electronic audio recording that had been transcribed by a “Tenth Judicial Circuit electronic court reporter” who certified that she was “authorized to transcribe the foregoing proceeding.” It appears that the transcriptionist was confused and believed that Ingram was represented by counsel because there were two assistant state attorneys in attendance at the hearing.

This court reviewed the record in Ingram’s pending appeal. Even though the transcript was problematic, the remaining portions of the record revealed serious due process issues surrounding Ingram’s conviction for contempt. The parties obtained a corrected transcript that acknowledged that Ingram was not represented by counsel during the criminal contempt hearing. This record was sufficient to require the reversal of Ingram’s conviction; indeed the State conceded that reversal was required. Accordingly, this court has already issued an opinion reversing the order on appeal. See Ingram v. State, 933 So.2d 734 (Fla. 2d DCA 2006).

Nevertheless, the petitioners argue that we should not dismiss or deny this portion of the petition as moot. They claim that errors in transcripts under the new methods of electronic or digital recording are so pervasive that we should use our powers of mandamus to compel better transcripts. The Office of the Attorney General agrees that digital recording has resulted in a substantial decline in the quality of transcription.

Mandamus is generally available only when a petitioner has no other adequate, specific remedy. See City of Coral Gables v. State ex rel. Worley, 44 So.2d 298 (Fla.1950). In Ingram’s case, because a corrected transcript was obtained and his adjudication reversed, we decline to issue a writ of mandamus.

II. THE ISSUES RELATING TO L.A.

The issues presented by L.A. are more complex. L.A. is an indigent minor child who was adjudicated delinquent in the Twelfth Judicial Circuit. L.A. filed an appeal of the adjudication and disposition on August 8, 2005. That appeal is currently pending in this court as case number 2D05-3966. Supplemental designations to the court reporter were filed in December 2005, requesting transcription of both the adjudicatory hearing and the disposition hearing. Nevertheless, no transcript has been filed, and no motion to compel has been filed in that proceeding to date. Accordingly, the appellate proceeding is not perfected, no briefs have been filed, and this court is currently unable to review the appeal.

The petition for mandamus and the appendix provided with it explain that this delinquency proceeding was not recorded by a court reporter; it was electronically recorded. When the public defender filed the standard request for a transcript from a court reporter, the Twelfth Judicial Circuit Digital Recording Office provided a compact disk (CD) to the public defender containing a digital audio recording from microphones inside the courtroom where L.A. was tried but did not provide a typed transcript. Ms. Conway, in a letter to an assistant public defender in James Marion Moorman’s office, describes this CD as a “CD transcript.” Pursuant to a local administrative order, Ms. Conway takes the position that the public defender is responsible for “retain[ing] a transcriptionist who should promptly file the transcript with the Clerk of Court. The transcriptionist invoice should be submitted by the Twelfth Circuit PD to the Justice Administrative Commission for payment.” The public defender has declined to follow Ms. Conway’s suggestions and has filed this petition instead, asking this court, among other things, to compel Ms. Conway “to provide the transcription that she has been funded to provide.” Thus, the parties to this proceeding disagree on whose duty it is to both provide and pay for the transcript that is necessary to perfect the underlying appeal.

Mandamus is an extraordinary writ that can be used to compel public officials to perform nondiscretionary, ministerial duties to which the petitioner has a clear legal right. See, e.g., City of Miami Beach v. Mr. Samuel’s, Inc., 351 So.2d 719 (Fla.1977); Jackson v. State, 802 So.2d 1213 (Fla. 2d DCA 2002); see generally Angela C. Flowers, “Mandamus,” in Florida Appellate Practice, § 10-C.2 (6th ed. Fla. Bar 2006). Because we are unable to conclude that the public defender has demonstrated that Ms. Conway has an indisputable legal duty to provide and pay for the transcript requested by the public defender, we must deny the petition.

However, we hasten to add that we are also unable to conclude that the duty lies with the public defender as Ms. Conway argues. The genesis of the dispute underlying this writ proceeding is the implementation of revision 7 of article V of the Florida Constitution. In their arguments, the parties raise a myriad of real problems and unanswered questions resulting from the interplay of various court rules, statutory provisions, and reports of committees and commissions involved in the implementation of revision 7 as it pertains to the funding of Florida’s court system. Before the constitution was amended by revision 7, the cost of court reporters was generally borne by the counties. Since the amendment, these costs, often described as a portion of the costs of “due-process services,” are now covered by the state budget. Unfortunately, a review of the rules and statutes cited by the parties that relate to these due-process services reveals that it is not entirely clear who within state government must bear the responsibility for obtaining and paying for the transcript at issue in the underlying appeal. As such, petitioners have not demonstrated a clear legal right to compel any of the respondents to provide the transcription service in this case.

Petition for writ of mandamus denied.

FULMER, C.J., and CANADY, J., Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the decision to deny this petition for writ of mandamus. As to the issues relating to James Calvin Ingram, I agree that we cannot use mandamus to order the large group of people involved in the process of recording and transcribing court proceedings to do a better job. Quality control is simply not a function that mandamus is designed to perform or achieve.

The fact that we cannot improve the quality of transcripts by issuing a writ of mandamus, however, should not be read as a statement that we believe the current methods of digital recording are necessarily working well. From my perspective, at least, there appears to have been a marked decline in the quality of transcripts since the trial courts began increasing their reliance upon electronic recording and minimizing the use of trained professional court reporters.

Many trial courts, especially criminal courts, are courts of record. Their proceedings are expected to be available for the public to review after the fact. We do significant damage to the legitimacy of this branch of government when we accept records that do not accurately explain the proceedings that occurred in open court. I am convinced that modern digital methods can eventually produce adequate records to safeguard courts of record; I am less convinced that those methods are currently providing adequate transcripts for appellate review. Hopefully, both the public and the legislature understand that there are real costs associated with any change in technology that deteriorates the quality of the record in courts of record.

As to the issues relating to L.A., I also concur that mandamus is inappropriate. However, I would write to address more fully those issues, which include questions regarding what constitutes a proper transcript, who is responsible for paying for that transcript, and who should be permitted to prepare a transcript from electronically recorded proceedings. Even though we are denying mandamus relief in this case, I would specifically announce that a CD recording is not a transcript, and that, pursuant to the Florida Rules of Appellate Procedure, a transcript for purposes of appellate review must be transcribed by a court reporter.

What Is a Transcript?

First, it should be clearly understood that a CD containing the sounds recorded in a courtroom is not a “transcript.” Although all of the parties to this proceeding now agree that a CD recording is not a transcript, over the last several years we have repeatedly had trial courts and clerks of trial courts suggest that a “CD transcript” would suffice for appeal. It is worthwhile to explain why that argument is incorrect.

The specifications for a “transcript” are contained in Florida Rule of Judicial Administration 2.535(e). The rule requires that a transcript “shall be uniform in and for all courts throughout the state.” Rule 2.535(e)(1) specifically requires a “printed” and “bound” transcript. A CD containing a digital recording of sounds in a courtroom does not satisfy these uniform requirements. Likewise, Florida Rule of Appellate Procedure 9.200(b)(2) requires that a transcript be “securely bound in consecutively numbered volumes not to exceed 200 pages each,” a requirement that obviously cannot be fulfilled with a mere recording of sound. Moreover, a representation of fact in a brief must be supported by a citation to the appropriate volume and page of the transcript. Fla. R.App. P. 9.210(b)(3). Thus, under the existing rules a CD recording of the sounds in a courtroom cannot serve as a transcript.

Who Pays for a Transcript?

The parties have spent a significant amount of time arguing over this issue. The Twelfth Judicial Circuit has attempted to resolve this issue through Administrative Order 2006-6-2, which clearly contemplates that the public defender must pay for the transcription of any electronically recorded proceedings.

It seems unlikely that the revisions to rule 2.535(g) regarding transcription of electronic recordings by persons other than court reporters contemplated placing a multi-track recording in the hands of a criminal defendant or his attorney with instructions to prepare an official transcript for use in his or her appeal. While there would appear to be no similar conflict of interest in asking the public defender to pay for an official transcript prepared by a court reporter or other court representative from the public defender budget, if that is what the statutes and rules require, this leaves unresolved many other issues, such as who would pay for the transcript if an indigent criminal defendant elected to proceed pro se. I agree with the majority, however, that the various court rules, statutory provisions, and reports of committees and commissions involved in the implementation of revision 7 do not establish a clear legal right as to who must pay for a transcript. Thus mandamus is not an appropriate means to address these important questions.

Who Can Prepare an Official Transcript for Appellate Purposes?

Because we do not yet have a transcript in the L.A. case, I recognize that the issue of whether the transcript must be prepared by a court reporter is not necessarily ripe for review. On the other hand, the administrative order from the Twelfth Judicial Circuit does not, in my opinion, “provide a means to have the recording transcribed” when it simply provides for a copy of a CD to be given to a party and tells them to find someone somewhere to transcribe it. I do not believe that the administrative order is sufficient to comply with rule 2.535(g)(3)(B) and the relevant appellate rules.

The judges on this panel have struggled to understand the interplay between several rules of judicial administration that admittedly are somewhat confusing. While the majority opinion does not discuss this issue, it is reasonable to assume that the majority does not accept my individual analysis of this issue. Nevertheless, I conclude that it is worthwhile to at least explain the issue so that the relevant rules committees may consider clarifications to the relevant rules.

The Florida Rules of Judicial Administration have contemplated the use of electronic recording and transcription since their inception in 1978. See In re Florida Rules of Judicial Administration, 360 So.2d 1076 (Fla.1978). Although the initial version of then rule 2.070 regarding court reporting did not specify that a court reporter had to transcribe any electronic recordings, it appears that the rule was either interpreted to require this or that this naturally evolved as a common practice. In Amendments to the Florida Rules of Judicial Administration, 780 So.2d 819 (Fla.2000), however, the rule was amended to specifically permit circuit-wide administrative orders permitting electronic recording and “transcriptions by persons other than court reporters.” Thus, this amendment to what is now rule 2.535 authorizes a transcript to be prepared by someone who is not a court reporter or an officer of the court.

I conclude, however, that this provision must be read together with the Florida Rules of Appellate Procedure. To the extent rule 2.535(g)(3) conflicts with specific rules of appellate procedure, I conclude the appellate rules take precedence over rule 2.535(g)(3) in review proceedings before the district courts of appeal and the Florida Supreme Court.

Rule 2.110, which appears as the first rule of judicial administration, generally states, “These rules shall supersede all conflicting rules and statutes.” The third rule, however, rule 2.130, is entitled “Priority of Conflicting Appellate Rules” and specifically states, “The Florida Rules of Appellate Procedure shall control all proceedings in the supreme court and the district courts ... notwithstanding any conflicting rules of procedure.” Reading the two rules together, when an issue is addressed in the Florida Rules of Appellate Procedure and applies to proceedings within the supreme court or district courts of appeal, the appellate rule on that issue supersedes any other rules of procedure— including those rules of procedure contained within the Florida Rules of Judicial Administration.

The Florida Rules of Appellate Procedure do not recognize the existence of someone described as a “transcriptionist.” The rules contemplate that a transcript will be prepared by a “court reporter.” Rule 9.200(b)(2) mandates that “[wjithin 30 days of service of a designation, or within the additional time provided for under subdivision (b)(3) of this rule, the court reporter shall transcribe and deliver to the clerk of the lower tribunal the designated proceedings and shall furnish copies as requested in the designation.” The court-approved forms contain only a designation to a court reporter. See Fla. R.App. P. 9.900(g). Thus, to the extent that rule 2.535 permits transcription by persons other than court reporters, I believe that rule conflicts with rule 9.200(b)(2). In an appellate proceeding, rule 2.130 requires that rule 9.200(b)(2) override the otherwise applicable provisions of rule 2.535(g)(3).

Court reporters, at least for these functions, are officers of the court. See Fla. R. Jud. Admin. 2.535(f). Moreover, by statute, the supreme court is required to establish minimum standards for court reporters. See § 25.383, Fla. Stat. (2005). It has no such obligation for any profession known as “transcriptionist.” If we allow rule 2.535 to override the rules of appellate procedure in this respect, then we face a future in which criminal defendants, their family members, or others with interest in a case may seek to prepare and file the transcript that becomes an official part of the record on appeal. People who do not possess a high school diploma may prepare such a transcript. In a digital world, such transcriptionists may not even reside in Florida or in the western hemisphere. It may not be essential that the Florida Rules of Appellate Procedure have a valid and logical reason to require the use of court reporters for those rules to override rule 2.535(g)(3), but it is reassuring to understand the importance of using court reporters for all transcripts used in appellate proceedings.

As a result, although I concur with the majority that a writ of mandamus is inappropriate to address the compelling issues raised in this proceeding, I would take this opportunity to explain that a digital recording is not a transcript and that any transcript presented to this court in its review capacity must be prepared by an official court reporter.

      . The petitioners note that this transcript was produced without requiring payment from the due-process services account of the local public defender. See § 29.018, Fla. Stat. (2005).

      . Under the authority granted to the chief judge in rules 2.215 and 2.535, Florida Rules of Judicial Administration (renumbered from rules 2.050 and 2.070, respectively, on September 21, 2006, see In re Amend, to Fla. Rules of Jud. Admin., 939 So.2d 966 (Fla.2006)), this administrative order provides a court reporting plan for the use of stenographic court reporting and electronic or digital court recording of all proceedings required to be reported or recorded at public expense. The administrative order may be viewed at http://12circuit.state.fl.us/Admin% 200rders/Section2/06-06-02.pdf.

      . Prior to September 21, 2006, this rule was Florida Rule of Judicial Administration 2.070(e). See In re Amendments to the Florida Rules of Judicial Administration — Reorganization of the Rules, 939 So.2d 966 (Fla.2006).

      . The Florida Rules of Judicial Administration were adopted in 1978 and have always included the introductory provision that the rules "supersede all conflicting rules and statutes.” In re Florida Rules of Judicial Administration, 360 So.2d 1076 (Fla.1978). Certainly, rule 2.110 indicates that these rules "supersede,” i.e., supplant or replace, any conflicting rules that existed on January 1, 1978. I am not certain that it was the intent for these rules to control over all rules of procedure created thereafter. The current rules of appellate procedure went into effect on March 1, 1978. See In re Proposed Florida Appellate Rules, 351 So.2d 981 (Fla.1977).

      . This specific rule was added to the Rules of Judicial Administration in 1997. See In re Amendments to the Florida Rules of Judicial Administration, 682 So.2d 89 (Fla.1996).

      . I note that this interpretation does not deprive rule 2.535(g)(3) of meaning. Although a court reporter would be required to transcribe the electronic recording for appellate proceedings in the supreme court or district courts, the circuit court could continue to employ transcriptionists for other purposes. Indeed, rule 2.535(g)(3)(B) acknowledges that transcripts are often necessary for the trial court's purposes in pending proceedings. I note that circuit courts have also effectively used electronic recordings for hearings before general magistrates or hearing officers, which are then transcribed for review by the circuit courts. The portion of the rule requiring transcription by persons other than court reporters would thus remain in effect for all purposes other than the transcribing of an appropriate appellate record in the supreme court or district courts.


author: LaROSE, Judge.

text:
    Milton MAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-733.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.
    Rehearing Denied May 3, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Milton May appeals his convictions and sentences for possession of marijuana, methamphetamine, and drug paraphernalia. He argues that the trial court erroneously denied his motion to suppress contraband found during a traffic stop of a truck in which he was a passenger. Because Mr. May was legally detained and abandoned the contraband, we affirm.

Deputy Cronin stopped a truck driven by Raymond Maines because it had no tag light. He asked Mr. Maines for his license and registration; he asked Mr. May for identification. Mr. Maines admitted that his license was suspended, thus providing probable cause for his arrest. See Renard v. State, 675 So.2d 1006, 1008 (Fla. 2d DCA 1996); State v. Pugh, 635 So.2d 999, 1000 (Fla. 2d DCA 1994). Mr. May gave Deputy Cronin an identification card. Deputy Cronin returned to his cruiser to run a name check. Deputy Kincaid arrived as backup. He walked around the truck to ensure there was nothing on the ground. Deputy Cronin returned to the truck to arrest Mr. Maines and ordered him out of the vehicle. Mr. May tried to exit at the same time, but Deputy Cronin ordered him to stay inside.

As Deputy Cronin talked to Mr. Maines, Deputy Kincaid stood by the right passenger door. Mr. May attempted to reach into his jacket pocket. Mr. May opened the door and tried to exit several times, but Deputy Kincaid directed him to stay in the truck. At one point, Deputy Kincaid saw a small blue pouch, an orange pill bottle, and a pack of cigarettes fall to the ground from the passenger side. He noticed that Mr. May’s jacket pocket was turned inside out.

After arresting Mr. Maines, Deputy Cronin placed him in the cruiser. Even though the deputies had the right to search the truck incident to the arrest, see State v. Frierson, 926 So.2d 1139, 1145 (Fla.2006), Mr. Maines consented to a search of his truck. All the while, Mr. May remained seated in the truck. Deputy Cronin left Mr. Maines secured in the cruiser and returned to the truck to talk to Mr. May.

Deputy Kincaid told Deputy Cronin that Mr. May had dropped the pouch, pill bottle, and cigarette pack from the truck. Deputy Kincaid examined these items and found a syringe, baggies of methamphetamine, marijuana, and a spoon with methamphetamine residue. Mr. May admitted to owning the cigarette pack. When Deputy Cronin searched the truck bed, he found a duffle bag containing a scale dusted with methamphetamine residue. The bag also contained a letter addressed to Mr. May. Mr. May was arrested for drug-related offenses.

Mr. May moved to suppress the contraband found on the ground, arguing that Deputy Kincaid seized it through an illegal detention and search. The State argued that Mr. May was legally detained and had abandoned the contraband. See Williams v. State, 640 So.2d 1206, 1208 (Fla. 2d DCA 1994). The trial court agreed with the State and denied Mr. May’s motion.

If a defendant abandons property as a result of an illegal detention, the trial court should suppress the evidence. Welch v. State, 689 So.2d 1240, 1241 (Fla. 2d DCA 1997); Cox v. State, 586 So.2d 1321, 1322 (Fla. 2d DCA 1991). Here, however, the deputies lawfully detained Mr. May. See State v. Holland, 680 So.2d 1041, 1044 (Fla. 1st DCA 1996), aff'd, 696 So.2d 757 (Fla.1997) (holding that detention is legal where valid objective reason supports it). Because Mr. Maines’ driver’s license was suspended, Deputy Cronin had reasonable cause to arrest him; thus, he also had authority to search the truck incident to the arrest. See Frierson, 926 So.2d at 1144. All occupants may be detained during a valid search of a vehicle. See State v. Cromatie, 668 So.2d 1075, 1077 (Fla. 2d DCA 1996); State v. Breed, 917 So.2d 206, 209 (Fla. 5th DCA 2006). The contraband found on the ground was admissible against Mr. May because he abandoned it during his legal detention. See Williams, 640 So.2d at 1208. Consequently, we affirm the trial court’s denial of his motion to suppress.

Affirmed.

CASANUEVA and SALCINES, JJ., Concur.

      . The items discovered in the truck bed were not the subject of Mr. May's motion to suppress.