author: GRIFFIN, J. ORFINGER, J.,

text:
    Gaeton “Guy” DELLA PENNA, Appellant, v. Don ZABAWA, et al., Appellee.
    No. 5D05-1324.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Rehearing Denied June 19, 2006.

      William T. Kirtley, of William T. Kirtley, P.A., Sarasota, for Appellant.
    Don Zabawa, Boynton Beach, pro se.
    Giovanni P. Prezioso, General Counsel, Jacob H. Stillman, Solicitor, and Mark Pennington, Assistant General Counsel, Washington, D.C., Amicus Curiae for Securities and Exchange Commission.
   GRIFFIN, J.

This is an appeal of a final order' vacating an order entered by a predecessor judge and confirming an arbitration award. We affirm.

Don Zabawa, the appellee, became disabled in a bicycle accident in March 1997 and has since been unable to work. In an attempt to remedy his worsening financial situation, he decided to invest in the stock market. In September 1997, he was referred to Randy Derouin, a stockbroker with Wealth Management Financial Group, Inc. (“Wealth Group”).

Zabawa is a high school graduate with no investment experience, and he gave Derouin complete control of his account. From September 1997, through December 2000, Derouin used Zabawa’s monies to make a series of disastrous investments. When the account dwindled, Derouin urged Zabawa to provide him with additional funds. Zabawa, who was under severe financial pressure, did this by taking out advances on numerous credit cards, settling his personal injury action for less than it was worth, and taking out multiple mortgages on his property. When the smoke cleared, the account was worthless and Zabawa had lost nearly $300,000.

Zabawa’s transactions were processed by a company called FAS Wealth Management Services, Inc. (“FAS Wealth”) and its predecessor, Executive Wealth Management Services, Inc. (“Executive Wealth”). FAS Wealth was a member of the National Association of Securities Dealers, Inc. (“NASD”), a self-regulatory organization (“SRO”) registered with the Securities and Exchange Commission. As part of the registration process, the firm, through its owner, had signed a Form U-4, entitled “Uniform Application for Securities Industry Registration or Transfer” form, which provided for arbitration of disputes as follows:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Item II as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

(emphasis in original). NASD Rule 10101, read in combination with Rule 10301, required its members to arbitrate, among others, “any dispute, claim, or controversy [with its customers] arising out of or in connection with the business of any member of the Association....”

Apparently relying on these provisions, on December 27, 2000, Zabawa filed a statement of claim with NASD. The claim alleged that defendants had engaged in numerous improper practices with respect to his account, such as churning, trading on margin without signed documents, buying unsuitable securities, making false statements, and buying penny stocks in violation of the law. The named defendants were Derouin, the stockbroker who had managed the account, and FAS Wealth, which had processed the transactions.

Following NASD’s procedures, Zabawa and the defendants jointly selected a panel of arbitrators. However, on July 2, 2001, Zabawa filed a motion to amend his statement of claim to include claims for negligent supervision against two men who allegedly had supervision of Derouin. The first was Gaeton “Guy” Della Penna (“Della Penna”), who was president, CEO, and the primary control person of FAS Wealth. The second was Lee Siler (“Siler”), who was a registered representative of FAS Wealth. Siler was also president and controlling owner of Wealth Group, the company that employed Derouin. Derouin had allegedly represented to Zabawa that they were all the same entity, but FAS Wealth was apparently the only entity registered with NASD.

The panel was already seated with respect to Zabawa’s claims against Derouin and FAS Wealth when Zabawa moved to amend the statement of claim to include Della Penna and Siler. The panel permitted the amendment, which added claims against the new defendants under federal and state securities laws, NASD’s conduct rules and Florida’s common law.

An evidentiary hearing was held on Za-bawa’s claims in January 2002. At the hearing, Siler objected to the arbitration on the basis that he had not been permitted to participate in selecting the arbitrators. He objected, despite having signed a “Uniform Submission Agreement” prior to the hearing, in which he agreed to submit the dispute with Zabawa to arbitration. Siler’s objection was rejected by the panel. Della Penna did not sign a “Uniform Submission Agreement,” but voiced no objections to the arbitrators at the hearing. On February 15, 2002, the arbitrators awarded Zabawa $125,000 in compensatory damages on his claims, for which defendants were held to be jointly and severally liable. Zabawa was also awarded reasonable attorneys fees and costs.

Zabawa filed a motion in the lower court to confirm the award. On October 24, 2002, however, Judge Alley agreed with defendants that the award should be vacated as to Della Penna and Siler because they had not been permitted to participate in the selection of the arbitrators. Judge Alley found this to be a violation of NASD’s rules and “the Securities and Exchange Commission’s overriding concern that parties have a significant role in determining the composition of their arbitration panels.” A motion for rehearing was denied and two appeals to this court were dismissed for lack of jurisdiction.

Upon dismissal of his second appeal, Zabawa, acting pro se, moved to recuse Judge Alley on June 14, 2004. Three days later, on June 17, 2004, Zabawa also filed a motion seeking confirmation of the award that had been vacated by Judge Alley. Judge Alley entered an order disqualifying herself on June 21, 2004, while observing that the motion had been “filed in bad faith seeking another forum.”

Following Judge Alley’s recusal, Zabawa filed two additional motions asking the court to rule on his previous motion to vacate Judge Alley’s ruling insofar as it pertained to Della Penna and Siler. After a hearing on the motion on March 11, 2005, Judge Jacobus vacated the earlier ruling made by Judge Alley and confirmed the award in its entirety. In rejecting the procedural objections of Siler and Della Penna to confirmation, the court first observed that the motion was “timely,” simply noting that such motions must be filed “within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.” On the merits, the court rejected the argument that parties added after selection of a panel of arbitrators had the right to begin the selection process anew. The court explained:

f. On re-consideration pursuant to rule 2.160(h), the Court finds that the motion to vacate the arbitration award is without merit. Defendant Siler signed a Uniform Submission Agreement and Defendant Della Penna agreed to be bound by the arbitration procedure by signing his security dealer form and by participating in the arbitration proceeding.
g. Rule 10308, NASD Code of Arbitration Procedures, provides for the selection of arbitrators. It also addresses additional parties. If a party is added before the Director has consolidated the other parties’ ranking (i.e. before the arbitrators are selected), then the added party can participate in the process. Della Penna, Siler and Detweiler were added after the arbitrators were selected. They objected and were overruled by the Arbitrators. Arbitration Rule 10324 provides that the arbitrators shall be empowered to interpret and determine the applicability of the Code.
The Defendant argues [sic] that they were denied due process by not being able to participate in the selection process of the arbitrators. They argue that the rules are silent as to the parties added after the arbitrators are selected. Their argument is without merit. First, if parties could not be added after the arbitrators were selected, there would be no need for Rule 10308(c)(6) since every party would have the right to the selection process before the arbitrators are selected. Therefore, the complement to the Rule is that if a party is added after the selection process is complete, that party is bound by the Panel selected. Second, due process requires reasonable notice of hearing and a fair hearing. State ex rel. Inv. Corp. of South Florida v. Board of Business Regulation, 227 So.2d 674, 677 (Fla.1969). The Defendants had notice of the hearing and actively participated in the proceeding. Third, the Arbitrators interpreted the Rules, heard the Defendants’ arguments, and ruled against them. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 [123 S.Ct. 588, 154 L.Ed.2d 491] (2002).

Judgment was entered in favor of Zabawa against all defendants, including Della Penna, jointly and severally, in the amount of $125,000, together with interest at the statutory rate from the date of the initial arbitration award.

Della Penna has appealed the confirmation of the award. The threshold issue raised on appeal is whether Zabawa’s petition to vacate Judge Alley’s ruling was timely under Florida Rule of Judicial Administration 2.160(h):

(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.

Della Penna argues that the motion was untimely, as it was not filed until November 15, 2004, some five months after entry of the order of recusal and nearly two years after the order under attack was originally entered. However, three motions for reconsideration of Judge Alley’s ruling were filed by Zabawa. The first of these motions was filed on June 17, 2004, just three days after the filing of the motion to recuse Judge Alley. The motion, which was ostensibly directed at the “Chief Judge” of the Eighteenth Judicial Circuit, argued that Judge Alley’s order should be reversed and the arbitration award should be confirmed under the applicable law and Supreme Court precedent. Given the purpose and operation of the rule, this motion should be treated as timely under the rule. Also, we note that Rule 1.260(h) requires only that the motion be filed “within 20 days of the order of disqualification.” The rule does not specifically require the motion to be filed after the order of disqualification is entered. Cf. Lyn v. Lyn, 884 So.2d 181 (Fla. 2d DCA 2004).

The main issue for our consideration is whether Judge Jacobus properly vacated Judge Alley’s earlier ruling as to Della Penna and confirmed the prior award to Zabawa. The Federal Arbitration Act identifies four grounds upon which to vacate an award. 9 U.S.C.A. § 10(a)(1)-(4). Section 682.13, Florida Statutes, recognizes essentially the same grounds for vacating an award. Unless one of the statutory grounds has been proved, an arbitration award may not be vacated. LeNeve v. Via South Florida, L.L.C., 908 So.2d 530 (Fla. 4th DCA 2005). “Appellate review of orders granting or denying a motion to vacate an arbitration award are governed by ‘the same standards as in any ordinary case, whereby findings of fact are reviewed under a competent and substantial evidence standard and legal questions are reviewed de novo.’ ” Id. at 534, quoting Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997).

The primary basis offered by Della Penna for vacating the award is that the arbitrators “exceeded their powers” by proceeding to arbitration. This is grounds to vacate the award under both the Federal Arbitration Act and Florida law. See 9 U.S.C.A. § 10(a)(4) (award may be vacated “where the arbitrators exceeded their powers ”); § 682.13(l)(e) (court shall vacate an award upon application of a party when “[t]he arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.”). Della Penna apparently theorizes that he had a “due process” right to participate in the selection of the arbitrators and that since he was denied that right his case was arbitrated by a panel which “exceeded their powers.” He insists that NASD’s policies cannot be used to supply procedures where none exist, and that NASD’s rules either permit his participation or are silent on the procedures to be used in seating an arbitration panel where there are after-added parties. He also argues that the court is the proper forum to resolve whether the panel was properly seated under the contract to arbitrate, relying on the principle that an arbitrator has no power to determine his own jurisdiction. See AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986).

Zabawa responds that Della Penna was a member of NASD and was clearly bound by NASD’s arbitration rules. Della Penna agreed to arbitrate the dispute in this case, by signing a Form U-4 on behalf of FAS Wealth in which he agreed to arbitrate any dispute that arose with a customer. He argues that the question whether the panel was properly seated is a procedural issue which was properly addressed by the arbitrators under Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), and because the arbitrators did not act outside their jurisdiction, there was no basis for vacating the award under section 682.13(l)(c), Florida Statutes. He also notes that, although Siler objected to the panel selection, Della Penna appeared at the proceeding and, through counsel, stated, “Yes, we accept the Panel.” In addition, at the conclusion of the hearing, both Della Penna and FAS Wealth acknowledged that they had had a full and fair opportunity to be heard. Za-bawa says this conduct operated as a waiver of this issue by Della Penna.

Della Penna’s argument that the arbitrators exceeded their authority relies heavily on Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223 (4th Cir.1994), which was also relied on by Judge Alley. Cargill has been cited for the proposition that an award entered by arbitrators who were selected by a method that did not conform to the method provided in the arbitration contract must be vacated. See, e.g., Hugs & Kisses, Inc. v. Aguirre, 220 F.3d 890, 893 (8th Cir.2000); Bowater Inc. v. Zager, 901 So.2d 658 (Ala.2004); see also Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830 (11th Cir.1991). The Cargill court found partial authorization for its actions in section 5 of the Federal Arbitration Act (“FAA”), which provides:

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

9 U.S.C. § 5 (emphasis added).

For the sake of argument, we accept the proposition that arbitrators appointed outside the method outlined in the parties’ contract exceed their authority by deciding issues which the parties have agreed to arbitrate. See R.J. O’Brien & Assoc., Inc. v. Pipkin, 64 F.3d 257 (7th Cir.1995). Nonetheless, we do not find Cargill controlling in this case. Cargill involved an unambiguous contract which provided a method for selection of the arbitrators which plainly was not followed. The trial court was not required to interpret the parties’ contract before determining whether the method chosen by the parties had been followed, as the contract permitted only one interpretation.

This case, by contrast, requires an interpretation of NASD’s rules before it can be determined whether the method set forth for selection of the arbitrators was followed, since the rules are effectively silent on the issue of the rights of the parties to participate in selection of the arbitrator when they are added, as here, after consolidation. NASD’s rules give parties the right to participate in the selection of arbitrators by ranking and striking the arbitrators only if the parties are added to the proceeding prior to the Director’s consolidation of the parties’ lists. Regarding “additional parties,” the rule states:

(6) Additional Parties
If a party is added to an arbitration proceeding before the Director has con solidated the other parties’ rankings, the Director shall send to that party the list or lists of arbitrators and permit the party to strike and rank the arbitrators. The party must return to the Director the list or lists with numerical rankings not later than 20 days after the Director sent the lists to the party. The Director shall then consolidate the rankings as specified in this paragraph (c).

NASD Rule 10308(c)(6) (emphasis added). The rules also contain the following provisions allowing removal of arbitrators for a conflict of interest or bias:

(d) Disqualification and Removal of Arbitrator Due to Conflict of Interest or Bias
(1) Disqualification By Director
After the appointment of an arbitrator and prior to the commencement of the earlier of (A) the first pre-hearing conference or (B) the first hearing, if the Director or a party objects to the continued service of the arbitrator, the Director shall determine if the arbitrator should be disqualified. If the Director sends a notice to the parties that the arbitrator shall be disqualified, the arbitrator will be disqualified unless the parties unanimously agree otherwise in writing and notify the Director not later than 15 days after the Director sent the notice.
(2) Removal by Director
After the commencement of the earlier of (A) the first pre-hearing conference or (B) the first hearing, the Director may remove an arbitrator from an arbitration panel based on information that is required to be disclosed pursuant to Rule 10312 and that was not previously disclosed.
(3) Standards for Deciding Challenges for Cause
The Director will grant a party’s request to disqualify an arbitrator if it is reasonable to infer, based on information known at the time of the request, that the arbitrator is biased, lacks impartiality, or has an interest in the outcome of the arbitration. The interest or bias must be direct, definite, and capable of reasonable demonstration, rather than remote or speculative.

NASD has interpreted these rules:

to mean that parties added to a cause after arbitrators have been appointed do not have the right to participate in the arbitrator selection process. The reason for this interpretation is that a case would be significantly disrupted if the arbitrator selection process had to start anew whenever a new party was added to a case. Cases would be delayed, pri- or decisions of arbitrators could be subject to challenge, and parties dissatisfied with the arbitrators in a case could obtain a new panel simply by adding a party to the case.

In her letter to Judge Alley, Rose Schindler, Southeast Regional Director of NASD Dispute Resolution, explained that once the panel had been selected, NASD’s rules gave after-added parties only the right to challenge an arbitrator for cause (i.e. for conflicts of interest, bias and similar disqualifications). This interpretation of the rules is consistent with that now urged by the Securities and Exchange Commission, which filed an amicus curiae brief in this appeal.

Della Penna asserts that this Court should interpret the rules to permit a right to participate in the selection of arbitrators even after consolidation. However, this appears to be an issue for the arbitrator and not the court under Howsam, 537 U.S. 79, 123 S.Ct. 588, and Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003). In Howsam, which was relied on by Judge Jacobus in confirming the award, the Court considered whether the trial court or the arbitrator was entitled to interpret and apply a NASD rule which essentially contained a statute of limitation. The Supreme Court held that the arbitrators should interpret and apply NASD’s rule. While acknowledging that the question of arbitrability is generally an issue for the courts, the Court emphasized that true questions of arbitrability are limited in nature. The Court explained that the phrase is only “applicable in the kind of narrow circumstances where contracting parties would likely have expected a court to have decided the gateway matter....” 537 U.S. at 83, 123 S.Ct. 588. Among the “gateway” disputes to be decided by the courts are whether the parties are bound by a given arbitration clause and whether an arbitration clause in a concededly binding contract applies to a particular dispute. By contrast, the Court said that “ ‘procedural’ questions that grow out of the dispute and bear on its final disposition” are presumptively for the arbitrator to decide. Id. at 84, 123 S.Ct. 588, quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Similarly, “the presumption is that the arbitrator should decide ‘allegation[s] of waiver, delay, or a like defense to arbi-trability.’ ” Howsam, 537 U.S. at 84, 123 S.Ct. 588, quoting Moses H. Cone Memorial Hosp. v. Mercury Constr., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

In Green Tree, which was decided after Howsam and was not cited by either party, a lender had been subjected to arbitration of two class actions brought against it concerning essentially the same loan practice. The contracts in question contained a broad arbitration clause pursuant to which the parties agreed to submit to the arbitrator “[a]ll disputes, claims or controversies arising from or relating to this contract or the relationships which result from this contract.” The contracts also provided that disputes “shall be resolved ... by' one arbitrator selected by us [Green Tree] with consent of you [Green Tree’s customer].” 539 U.S. at 451, 123 S.Ct. 2402. Despite the reference to an arbitrator chosen with the consent of a single named customer (e.g. “you”), the lower courts held that class arbitration was permissible and confirmed the awards. On appeal, the South Carolina Supreme Court consolidated the two actions and held that the contracts were silent on the issue of class arbitration and, consequently, authorized class arbitration. A plurality of. the United States Supreme Court vacated the decision of the South Carolina Supreme Court, holding that the contracts were ambiguous as to whether they permitted class arbitration and the issue was presumptively for the arbitrator. Because there was nothing in the contracts to contradict the presumption (indeed, it contained a broad arbitration provision), the court held that the issue had to be decided by the arbitrator. Id. at 452, 123 S.Ct. 2402.

Howsam and Green Tree were recently cited by the Fourth Circuit Court of Appeals as authority for holding that the proper number of arbitrators is a “procedural” issue not for judicial resolution. See Dockser v. Schwartzberg, 433 F.3d 421 (4th Cir.2006). The court determined that the issue was one which had to be resolved by the arbitrators or the AAA, explaining in relevant part:

The presumption of arbitration applies in this case, because whether one arbitrator or three ought to hear the parties’ dispute is not a “question of arbitrability,” but instead a procedural one. It is not an issue that parties would have expected a court rather than an arbitrator to decide, see Howsam, 537 U.S. at 83, 123 S.Ct. 588, because the AAA rules, which the parties contractually agreed to employ, provide specific nonjudicial procedures for its resolution. Moreover, judicial decision is not necessary to “avoid[ ] the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate,” id. at 83-84, 123 S.Ct. 588, because the parties do not dispute that their arbitration clause is binding.

Id. at 425.

The present case, like Howsam, involves an interpretation of NASD’s rules, a “procedural” question which grows out of the dispute, rather than a gateway question of arbitrability. Because the interpretation of NASD’s rules was properly left to the arbitrator, Della Penna is unable to establish in this case that the arbitrators exceeded their powers by interpreting the rules and resolving this dispute.

Finally, Della Penna waived the selection issue by failing to object to the panel’s exercise of jurisdiction. An arbitrator’s jurisdiction derives from the parties’ agreement and can broaden during the course of arbitration “by waiver, failure to object and consent.” LeNeve, 908 So.2d at 534-535 (quoting City of West Palm Beach v. Palm Beach County Police Benev. Ass’n, 387 So.2d 533, 534 (Fla. 4th DCA 1980)). Here, consistent with his obligations under the U-4 registration form, Della Penna appeared at the proceeding and, through counsel, stated, “Yes, we accept the Panel.” See Brook v. Peak Internat'l Ltd., 294 F.3d 668 (5th Cir. 2002).

AFFIRMED.

THOMPSON, J., concurs.

ORFINGER, J., concurs specially, with opinion.

ORFINGER, J.,

concurring specially.

I agree with the majority opinion regarding the timeliness of Zabawa's petition to vacate Judge Alley’s ruling and its conclusion that Della Penna waived the selection issue by failing to object to the panel’s exercise of jurisdiction. Consequently, I think it is unnecessary for us to address the broader issues contained in the majority opinion.

      . Zabawa may also have signed an agreement with FAS Wealth to arbitrate any dispute arising out of these transactions. Typically, these agreements provide for arbitration before any self-regulatory organization ("SRO”) or exchange of which the broker is a member. If such an agreement existed in this case, we have been unable to locate it in the record on appeal.

      . Zabawa says that he filed these additional motions out of an abundance of caution each time his case was reassigned. The final motion was filed on November 15, 2004.

      . As this court explained in Qubty v. Nagda, 817 So.2d 952 (Fla. 5th DCA 2002), the Federal Arbitration Act applies by its terms to an arbitration clause in a contract involving interstate commence. Id. at 955. "With respect to these contracts, federal law supersedes the Florida Arbitration Code, and the Florida Arbitration Code is applied in such cases only to the extent it is not inconsistent with federal law.” Id. at 955-956. Qubty also stated that "[bjrokerage contracts concerning the sale of securities have been consistently treated as contracts involving interstate commerce.” Id. at 956.

      . In his final arguments, Della Penna has included in his appeal a number of factual and legal issues which he says improperly resulted in an award in favor of Zabawa, but these are not the type of errors which can be corrected on a motion to vacate. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989).


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Christian Hunter CINO, Respondent.
    No. 5D05-4413.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Rehearing Denied June 9, 2006.

      Norman R. Wolfinger, State Attorney, and Mary Ann Klein, Assistant State Attorney, Sanford, for Petitioner.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Respondent.
   LAWSON, J.

The State of Florida seeks certiorari review of a circuit court decision rendered in its appellate capacity. The circuit decision affirmed a county court order suppressing post-Miranda statements made by respondent Christian Hunter Cino, (“Cino”), and dismissing an information charging Cino with driving under the influence, (“DUI”), causing damage or injury. We find that the circuit court’s decision departed from the essential requirements of the law in two respects, and grant the writ.

On December 1, 2002, Sergeant Phillip Buster of the Casselberry Police Department responded to the site of a reported traffic accident. During his traffic investigation, Sergeant Buster learned from both Cino and the driver of the other involved vehicle that Cino had been driving one of the two wrecked vehicles. He also observed that Cino had the “strong ... odor of alcohol impurities' upon his breath,” and “very slurred speech.”

Sergeant Buster reported his observations to Officer Scott Munn, who then initiated a DUI investigation. Before eliciting any statements from Cino, Officer Munn informed Cino that the traffic investigation was concluded; that he was now beginning a criminal DUI investigation; and, that he would need to first review Cino’s rights with him. Officer Munn proceeded to read Cino his Miranda rights. Afterwards, Cino elected to waive those rights and answer Officer Munn’s questions. During the interview, Cino admitted to driving the vehicle, and admitted that he had just left a bar at which he had consumed four or five beers.

Cino moved to suppress these post-Miranda statements on the legal theory that the accident report privilege set forth in section 316.066(4), Florida Statutes (2002), prohibited Sergeant Buster from legally sharing any information derived during his traffic investigation with Officer Munn. The trial court accepted this argument, ruling: “I’m going to suppress everything, observations, statements, confessions, anything that was derived — everything that flowed from ... Sergeant Buster, in effect, illegally telling Officer Munn everything he knew as a result of his accident investigation.” The county judge then dismissed the information.

On appeal, the circuit court upheld the trial judge’s ruling, holding inter alia, that section 316.066(4) barred the State (including any investigating officer) from relying upon Sergeant Buster’s observation that Cino exhibited slurred speech and smelled of alcohol, or upon the other driver’s statements to Sergeant Buster placing Cino behind the wheel of a vehicle.

Contrary to the circuit court’s decision, section 316.066(4) only prohibits the State from using as evidence at trial either the crash report or statements made to law enforcement during a traffic investigation by persons involved in the crash. The statute in no way prohibits the State from using Sergeant Buster’s observations of Cino’s physical appearance, general demeanor, slurred speech or breath scent. Furthermore, even though Cino was required by law to cooperate in the traffic investigation, the State’s use of Sergeant Buster’s observations regarding Ciiio’s physical traits or demeanor did not violate Cino’s privilege against self-incrimination. See Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). As explained in Muniz, the privilege against self-incrimination only protects an accused from “being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Id. at 588, 110 S.Ct. 2638 (quoting Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). In Muniz, the Court held that the “physical inability to articulate words in a clear manner,” or “slurred speech,” is not itself testimonial in nature. Id. at 590-591, 110 S.Ct. 2638. Therefore, an observation of a defendant’s speech patterns does not implicate the defendant’s Fifth Amendment privilege, nor does an observation as to any other physical trait of the accident scene or person. Id.

The second mistake of law made by the circuit court was in holding that section 316.066(4) barred the State from using statements made to law enforcement during the traffic investigation by persons other than Cino in its prosecution of Cino. In 1991, the Legislature added the following language to section 316.066(4): “However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.” Chapter 91-255, § 14, Laws of Florida. This addition to the statute effectively nullified prior cases interpreting an older version of the statute which allowed anyone to object to the state’s attempt to use at trial any person’s statements to an officer investigating a traffic accident. Under the newer version of the statute, a law enforcement officer is not barred by section 316.066(4) from testifying at a criminal trial regarding statements made to him during his traffic investigation by anyone other than the defendant on trial (because doing so would in no way violate the non-defendant declarant’s privilege against self-incrimination).

The State also argues that the circuit court erred in holding that section 316.066(4) bars the State from using Cino’s compelled statements against him during its investigation, or at any pre-trial proceeding. This point merits additional discussion. The State is correct that the statute only expressly bars the State from using Cino’s compelled statements “at trial.” However, the Constitution prohibits the State from making any use of Cino’s compelled statements against him, either directly or derivatively. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The purpose of the section 316.066(4) accident report privilege is to ensure that the state does not violate an individual’s constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident. See Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984). Consequently, our Supreme Court has held that the statute “clothe[s] with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).” Id. Similarly, we believe it is obvious that the protection provided by section 316.006(4) must be read as co-extensive with the constitutional privilege against self-incrimination. In other words, when the driver, owner or occupant of a vehicle is compelled to make statements in order to comply with his or her statutory duty, the immunity provided by section 316.006(4) is equivalent to that required by the Fifth Amendment. See Tyne v. Time Warner Entm’t Co., 901 So.2d 802, 810 (Fla.2005) (noting that courts have “an obligation to give a statute a constitutional construction where such a construction is possible”). For this reason, we believe that the accident report privilege must be read as having barred law enforcement from making any use of statements compelled from Ciño, as part of its accident investigation, that would violate Cino’s privilege against self-incrimination. Therefore, we agree with the circuit court that Officer Munn could not have legally relied upon Cino’s compelled statements to Sergeant Buster as part of his probable cause determination. In this case, however, there was ample evidence that Sergeant Buster gleaned from his accident investigation that Officer Munn could rely upon without violating Cino’s privilege against self-incrimination. The observation of Cino’s physical appearance alone would have justified detaining Cino for a DUI investigation.

In summary, we conclude that the circuit court departed from the essential requirements of the law by reading the accident report privilege significantly more broadly than permitted by the express language. of the statute or by clear legal precedent interpreting the statute. For this reason, we grant the writ of certiorari and quash the circuit court’s decision.

WRIT GRANTED; DECISION QUASHED.

GRIFFIN and PALMER, JJ„ concur.

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

      . §§ 316.193(1), 316.193(3)(a)(b)(c)l, Fla. Stat. (2002).

      . U.S. Const., Amend. 5.

      . Of course, there may still be other evidentia-ry or constitutional bars to this type of testimony. See, e.g., Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . We recognize that in State v. Johnson, 695 So.2d 771, 774 (Fla. 5th DCA), rev. denied, 705 So.2d 9 (Fla.1997), a panel of this court ''questioned] whether the accident privilege or immunity for statements applies to probable cause hearings as opposed to criminal trials, since it appears to be limited solely to trials by the statute’s express language.” We have now addressed the issue, and find that the privilege does extend to probable cause hearings and other phases of prosecution.

      . Cino was also injured in the accident. It was apparent to Sergeant Buster, therefore, that Cino had been an occupant in one of the wrecked vehicles. The fact that Cino was in one of the vehicles, coupled with obvious signs of his intoxication, would have given law enforcement reasonable suspicion to investigate further in order to determine whether Cino had been driving under the influence.


author: PER CURIAM.

text:
    Edward James WEBBER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-1677.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Rehearing Denied June 21, 2006.
    Edward James Webber, Jr., Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The defendant, Edward James Webber, Jr., seeks certiorari review of an order denying and dismissing his petition for writ of mandamus in the trial court. We treat the petition as an appeal pursuant to Bostic v. State, 875 So.2d 785 (Fla. 2d DCA 2004). Having carefully reviewed the record before us, as well as the provisions of section 28.213, Florida Statutes (2005), we conclude that the trial court was correct in its ruling and affirm.

. AFFIRMED.

PALMER, ORFINQER, and MONACO, JJ., concur.


author: PLEUS, C.J.

text:
    Elias MORALES and Dahlia Morales, Appellants, v. Leticia J. MARQUES, Appellee.
    No. 5D05-4295.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Rehearing Denied June 13, 2006.

      Elias Morales and Dahlia Morales, Win-dermere, pro se.
    William J. McClellan, of Law Office of William J. McClellan, P.A., Orlando, for Appellee.
   PLEUS, C.J.

Elias and Dahlia Morales appeal a final order dismissing their complaint for legal malpractice against attorney Leticia Marques. We affirm.

Mr. and Mrs. Morales filed an administrative complaint against Denny’s Restaurant for alleged racial discrimination. They received a reply from the Florida Commission on Human Relations apprising them that they were free to file a civil action against Denny’s and that the statute of limitations would run four years from the date of harm, or on December 27, 2006. On June 26, 2003, Mr. and Mrs. Morales retained attorney Leticia Marques to represent them in their suit against Denny’s. Apparently dissatisfied with her, Mr. and Mrs. Morales filed a legal malpractice complaint against Marques in May 2005. Marques filed a motion to dismiss on the ground that Mr. and Mrs. Morales could not prove damages because the statute of limitations on their underlying claim had not yet run. The trial court agreed and dismissed the claim.

It is well established that an action for legal malpractice does not accrue until the underlying action is concluded with an adverse outcome to the client. Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998). Until that time, a legal malpractice claim is hypothetical and damages are speculative. Id. at 1175; Hold v. Manzini, 736 So.2d 138 (Fla. 3d DCA 1999). Accordingly, the trial court correctly dismissed the complaint because the statute of limitations on their underlying claim had not yet run.

Additionally, Marques has filed a motion for appellate attorney’s fees pursuant to section 57.105, Florida Statutes, arguing that the appeal is frivolous. We agree. Mr. and Mrs. Morales raised three issues on appeal, none of which had merit or addressed the trial court’s reason for dismissing their complaint. We find that Mr. and Mrs. Morales knew or should have known that their claims on appeal, when presented to this Court, were not supported by the material facts necessary to establish error below, nor were they supported by the application of existing law to those material facts.

We note that Mr. and Mrs. Morales have been determined to be indigent and also litigated this appeal pro se. We further note that one of our sister courts has questioned its ability to assess attorney’s fees against indigent and/or pro se litigants in light of their right of access to courts. See Biermann v. Cook, 619 So.2d 1029, 1031 (Fla. 2d DCA 1993). However, Mr. and Mrs. Morales seem to have little difficulty finding their way into court. This is not the first malpractice action they have filed pro se. Moreover, they forced attorney Marques to defend this suit below and on appeal when they could have simply hired another attorney to pursue their claim against Denny’s. Accordingly, we remand this issue to the trial court to assess reasonable attorney’s fees incurred by Marques as a result of defending this appeal. See Crosspointe, Inc. v. Johnson, 899 So.2d 1145 (Fla. 1st DCA 2005).

AFFIRMED; REMANDED FOR DETERMINATION OF FEES.

PALMER and TORPY, JJ., concur.


text:
    Kevin Travis PEACOCK, Petitioner, v. STATE of Florida. Respondent.
    No. 1D06-1908.
    District Court of Appeal of Florida, First District.
    May 16, 2006.
    Rehearing Denied June 20, 2006.
    Kevin Travis Peacock, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and HAWKES, JJ., concur.


text:
    Jesse RUTLEDGE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-3702.
    District Court of Appeal of Florida, First District.
    May 18, 2006.
    Rehearing Denied June 22, 2006.

      Jesse Rutledge, pro se, Petitioner.
    Philip A. Fowler, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner’s argument that the trial court departed from the essential requirements of law by denying his petition for writ of mandamus is without merit and is rejected. But because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, the trial court improperly imposed two liens upon the petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681(Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, No. SC06-301, 924 So.2d 809, 2006 WL 1047612 (Fla. Mar. 14, 2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash the two lien orders. The trial court should direct the reimbursement of any funds that have been withdrawn from the petitioner’s account to satisfy the improper lien orders.

The petition is DENIED as to the challenge to the order by which the trial court denied mandamus, but it is GRANTED as to the challenge to the lien orders and those orders are hereby QUASHED.

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


author: ORFINGER, J.

text:
    William A. MILLER and Linda K. Miller, Petitioner, v. HERNANDO COUNTY, etc., Respondent.
    No. 5D05-4131.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    Rehearing Denied June 22, 2006.

      Joseph M. Mason, Jr., and Carole Joy Barice, of McGee & Mason, P.A., Brooks-ville, for Petitioner.
    Garth Coller, County Attorney, and Jon A. Jouben, Assistant County Attorney, Brooksville, for Respondent.
   ORFINGER, J.

In this second-tier certiorari proceeding, William A. Miller and Linda K. Miller seek review of an order of the circuit court entered in its appellate capacity, denying their petition for writ of certiorari filed after the Hernando County Board of Commissioners denied the Millers’ rezoning request.

Second-tier certiorari review is not a matter of right and is similar in scope to common law certiorari review. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003). The scope of the district court’s review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. Id. However, this Court may not review the record to determine whether the underlying decision is supported by competent, substantial evidence. Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092-93 (Fla.2000). Second-tier certiorari review is not a second appeal.

Having carefully reviewed the record, we conclude that the circuit court afforded the Millers procedural due process and applied the correct law. Accordingly, we must deny the Millers’ petition. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995).

PETITION DENIED.

MONACO and TORPY, JJ., concur.


author: PALMER, J.

text:
    Anselm Lamonte WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4480.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    Rehearing Denied June 19, 2006.

      See also 814 So.2d 443.
    Anselm L. Wallace, Jasper, pro se.
    No appearance by Appellee.
   PALMER, J.

Anselm Wallace (defendant) is appealing the trial court’s order denying his latest postconviction motion as well as the denial of a subsequently filed amended postcon-viction motion. We affirm.

Thirteen years ago, in exchange for receiving reduced charges, the defendant pled nolo contendere in Case Number 93-31110 to committing the crimes of attempted second-degree murder, armed robbery with a firearm, and possession of a firearm by a convicted felon. He also pled nolo contendere to violating his community control in Case Number 90-3410. As part of the plea arrangement, the defendant agreed to be sentenced as a habitual offender.

The defendant filed two pro se motions in the trial court seeking postconviction relief. The trial court denied both motions. We affirm, holding that the defendant’s claims are procedurally barred because some of them were unsuccessfully raised eight or twelve years ago, and the rest are either untimely rule 3.850 claims or without merit. See Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000); Fla. R.Crim. P. 3.850.

We further conclude that the instant motions are frivolous and an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (explaining: “Enough is enough.”); see also Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (explaining that frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (noting that for many years, defendant has made this claim “and he is wrong. This court is not going to listen to this argument any longer.”); Freeman v. State, 885 So.2d 477, 478 (Fla. 5th DCA 2004)(holding that there is a need to limit successive claims to give due weight to the finality and presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice).

Accordingly, in order to conserve judicial resources, we prohibit the defendant from filing with this Court any further pro se pleadings concerning Volusia County, Seventh Judicial Circuit Court Case Number 90-3410 and Case Number 93-31110. The Clerk of this Court is directed not to accept any further pro se filings concerning these cases from the defendant. Any more pleadings regarding these cases will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

SHARP, W., and GRIFFIN, JJ., concur.


text:
    Timothy THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1588.
    District Court of Appeal of Florida, First District.
    May 23, 2006.
    Rehearing Denied June 19, 2006.
    Timothy Thomas, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Earl Dexter HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1651.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Earl Dexter Howard, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed without prejudice. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Clifford Leon NICHOLSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1965.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Clifford Leon Nicholson, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Betty P. HOWELL and Earl A. Howell, Jr., Appellants, v. Thomas M. JOHNSON, Jr., as Personal Representative of the Estate of Pamela L. Winkle, Appellee.
    No. 1D05-2864.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Stephen E. Day and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellants.
    James H. Daniel and Charles A. Soren-son of Coker, Myers, Schickel, Sorenson & Green, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999).

WOLF, WEBSTER, and BROWNING, JJ., concur.


text:
    Michael HOUSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2339.
    District Court of Appeal of Florida, First District.
    June 5, 2006.
    Michael Houston, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, C.J., ERVIN, and VAN NORTWICK, JJ., Concur.


text:
    Justin D. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1983.
    District Court of Appeal of Florida, First District.
    June 6, 2006.
    Justin D. Jackson, pro se, Appellant.
    Charlie Crist,' Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of May 3, 2006, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

BARFIELD, DAVIS, and PADOVANO, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Darryl MOODY, Petitioner, v. STATE of Florida, Respondent.
    No. 2D05-5360.
    District Court of Appeal of Florida, Second District.
    June 7, 2006.

      Robert A. Norgard, Bartow, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

A jury acquitted Darryl Moody on several counts of an indictment and convicted him of a lesser-included offense on another count. When Moody moved for a new trial as to the conviction, the trial court set aside all the verdicts and then announced that it would permit the State to retry Mm on all the original charges. Moody has petitioned for a writ of prohibition barring his retrial. He contends that a retrial would violate his double jeopardy rights as to the charges of which he was acquitted. Moody further maintains that, because one of the acquittals absolved him of a necessary element of the charge of which he was convicted, he may not be retried on that charge, either. We agree with both assertions, and we grant the petition.

Background

Moody was charged with first-degree murder, burglary, grand theft, shooting at an occupied vehicle, and dealing in stolen property. In his first trial he was convicted as charged and was sentenced to death on the first-degree murder conviction. The supreme court reversed Moody’s convictions and remanded for a new trial after determining that the trial court had erred by denying Moody’s motion to suppress a number of items that were later introduced as evidence against him. See Moody v. State, 842 So.2d 754, 760 (Fla. 2003). Moody was retried on the original charges, with the same trial judge presiding. The second jury found him not guilty of all charges except the homicide, for which Moody was found guilty of third-degree murder as a lesser-included offense of first-degree murder.

Thereafter, Moody filed a motion to dismiss or for arrest of judgment seeking to set aside the third-degree murder' conviction because the jury had acquitted him of the grand theft that was the underlying felony for the third-degree murder offense. On the same day, Moody filed a timely motion for new trial on the ground that a juror or jurors had received evidence out of court; that a juror or jurors had failed to disclose that they had knowledge of the prior trial and of evidence that the supreme court ruled was to be excluded from the retrial; and that a juror or jurors had engaged in misconduct by discussing the case prior to deliberations.

The latter motion eventually led to interviews of the jurors by the trial judge. The judge determined that, as alleged in Moody’s motion for new trial, a juror or jurors had obtained information about the case from outside the courtroom. Over the State’s objection, the judge granted Moody a new trial for that reason — and for another reason that has become the focus of the proceedings thereafter: when questioned at the juror interviews, several jurors revealed that during their deliberations another juror had repeatedly accused them of being racially prejudiced. Thus, as an additional basis for ordering a new trial, the judge found that “the Defendant’s right to a fair and impartial jury was impacted by a racially charged atmosphere that didn’t allow for meaningful jury deliberations to take place.” Having granted Moody a new trial, the judge denied his motion to dismiss or for arrest of judgment as moot.

Subsequently, the State moved the trial court to specify which offenses were subject to being retried. The motion asserted that Moody could be retried on all the original charges. “The Court has determined that meaningful jury deliberations were not able to be conducted because of the racial tension created in the jury room by a single juror,” the State wrote. “Because the Court has determined that the verdicts were the result of this undue tension the verdicts should be treated as a nullity.” The trial court orally denied that motion. Moody then filed a motion to dismiss in which he asked the trial court to restrict the retrial to the third-degree murder charge. Moody argued that a second retrial on the other charges would violate his double jeopardy rights because he had been acquitted of them at the first retrial.

The trial court denied Moody’s motion in an order stating that Moody’s second retrial on all the original charges would not constitute double jeopardy because “the verdicts were a nullity.” The court posited that “the matter [is] analogous to a situation where a mistrial has occurred. After the mistrial, the case stands as if it had never been tried and the defendant is subject to being tried again on the same charges.” Further, the court wrote that “[t]he Court is also mindful that the new trial granted to the Defendant was not based on prosecutorial misconduct or trial court error. Defendant sought a new trial based on juror misconduct and the State opposed that Motion. Fairness would indicate that the Defendant is subject to being tried again on the same charges.”

Moody then filed the instant petition. We issued an order directing the State to show cause why the petition should not be granted, thus staying the proceeding below until further order of this court. See Fla. R.App. P. 9.100(h).

Discussion

A petition for writ of prohibition is the proper vehicle by which to challenge a ruling that permits the prosecution of a defendant in violation of his federal and Florida constitutional protections against double jeopardy. See Rohr v. State, 916 So.2d 1002 (Fla. 2d DCA 2006); Murray v. Chavies, 671 So.2d 183, 184 (Fla. 3d DCA 1996); Beebe v. Foster, 661 So.2d 401, 402 (Fla. 1st DCA 1995).

As is well known, the double jeopardy protections prohibit retrying a defendant after a jury has acquitted him of the charge. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). This principle is embodied in the procedural rules that govern criminal prosecutions in Florida’s courts. For example, Florida Rule of Criminal Procedure 3.580 permits a court to order a new trial only “[w]hen a verdict has been rendered against the defendant or the defendant has been found guilty by the eourt[.]” (Emphases supplied.) Rule 3.640(a) provides that when a new trial is granted, it is to proceed as if no former trial had occurred “except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, the defendant cannot thereafter be prosecuted for a higher degree of the same offense or for a higher degree than that of which the defendant was convicted.”

Thus, Moody’s motion for new trial put at issue only his conviction for third-degree murder. The trial court’s attempt to order a new trial on charges for which verdicts were rendered in Moody’s favor was not authorized by rule 3.580, was expressly forbidden by rule 3.640, and was in violation of Moody’s constitutional right to be free of double jeopardy. The court’s departure from these important strictures cannot be justified by any of the rationales it advanced.

The trial court’s assertion that juror misconduct nullified the verdicts of acquittal is unsupported in Florida law. Indeed, this proposition is so novel that we have discovered no Florida case that addresses it one way or the other. But the notion is clearly at odds with rule 3.600, which sets forth the grounds upon which a new trial may be granted. Subsection (b)(4) of the rule provides that the court shall grant a new trial if it is established that any juror was guilty of misconduct, “providing substantial rights of the defendant were prejudiced thereby.” Obviously, this proviso is inconsistent with the trial court’s theory that a verdict finding the defendant not guilty is nullified by juror misconduct.

In response to our order to show cause why Moody’s petition should not be granted, the State has submitted several Louisiana cases for the proposition that “where a non-curable structural defect occurs during a trial, the verdict is a nullity and Double Jeopardy does not bar retrial.” It is telling that none of those decisions were predicated on juror misconduct. See State v. Goodley, 423 So.2d 648 (La.1983) (holding that double jeopardy principles did not preclude retrial for first-degree murder when first jury had purported to convict the defendant of lesser-included offense of manslaughter by less than unanimous vote); State v. Langley, 896 So.2d 200 (La.App.2004) (holding that judge’s absences during critical aspects of trial nullified the proceedings and the resulting verdict); State v. Norman, 799 So.2d 619 (La.App.2001) (holding that verdict convicting defendant of both theft and illegal possession of stolen items was an illegal verdict in violation of double jeopardy); State v. Self, 772 So.2d 337 (La.App.2000) (holding that double jeopardy did not bar defendant’s prosecution after his first conviction was overturned on appeal because the jury had found him guilty by a less than unanimous verdict).

Even so, the State urges us to apply the Louisiana courts’ nullification theory to instances of juror misconduct consisting of open expressions of racial bias during jury deliberations. The State argues that the Florida Supreme Court has “established a bright line with regard to the open interjection of racial bias into jury deliberations.” Indeed, the supreme court has held that it is an overt act of misconduct for jurors to openly appeal to racial biases during deliberations. See Marshall v. State, 854 So.2d 1235, 1241 (Fla.2003); see also State v. Davis, 872 So.2d 250 (Fla.2004); Powell v. Allstate Ins. Co., 652 So.2d 354 (Fla.1995). But in the context of a defendant’s double jeopardy protections, an acquittal establishes an even brighter line: “[Tjhere is no exception [to the prohibition against trying the person again for the same offense] permitting retrial once the defendant has been acquitted, no matter how ‘egregiously erroneous,’ ” the acquittal may have been. Sanabria, 437 U.S. at 75, 98 S.Ct. 2170 (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)).

Moreover, in this case there is no evidence that any juror appealed to racial biases during the deliberations. To the contrary, the only evidence on this point suggested that one juror objected when she perceived racial prejudice on the parts of some of the others. If this was “misconduct,” it could only have been to Moody’s benefit, and therefore was not a proper ground for granting a new trial. See Fla. R.Crim. P. 3.600(b)(4).

The trial court’s alternative suggestion that Moody’s situation is analogous to cases involving mistrials is likewise unavailing. Moody’s trial was not terminated by a declaration of a mistrial. It ended with a verdict convicting him of one lesser-included offense and acquitting him of all other charges. The significance of this difference was evident in all of the authorities cited by the trial court on this point. In two of the cases, Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), and Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980), mistrials were declared after the juries could not reach verdicts on some counts in the infor-mations. The courts held that in that circumstance a retrial on those counts was not barred on double jeopardy grounds. The Richardson Court “reaffirmfed] the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which the petitioner was subjected.” 468 U.S. at 326, 104 S.Ct. 3081. On the other hand, the Court wrote, it recognized that “the protection of the Double Jeopardy Clause by its terms applies [where] there has been some event, such as an acquittal, which terminates the original jeopardy.” Id. at 325, 104 S.Ct. 3081. Here, the jury’s verdict acquitting Moody terminated the original jeopardy, and as to those charges he may not again be placed in jeopardy.

The trial court also posited that two other federal decisions, United States v. Kanahele, 951 F.Supp. 928 (D.Haw.1996), and United States v. Keating, 147 F.3d 895 (9th Cir.1998), stand for the proposition that a defendant’s double jeopardy protection is' not violated when a new trial is ordered based on juror misconduct. But in neither case did the court suggest that a defendant may be retried after the original jeopardy has been terminated by an acquittal. Kanahele involved the aspect of double jeopardy that recognizes the defendant’s right to have his guilt or innocence determined by a particular tribunal. See Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). No verdicts were reached in Kanahele; over the defendants’ objections the district court declared a mistrial during jury deliberations. The defendants then moved to dismiss based on double jeopardy. The district court denied the motion in a published opinion. It concluded that juror misconduct had created a manifest necessity for the mistrial and that, therefore, the defendants’ retrial on the charges would not violate double jeopardy. See Washington, 434 U.S. at 505, 98 S.Ct. 824. The Kanahele court did not hold that a defendant may be retried on a charge of which he has been acquitted.

Keating, too, is inapposite. In that case, the Ninth Circuit affirmed the trial court’s order granting Keating a new trial on charges of which the jury had found him guilty based on the court’s determination that the jurors had received extrinsic evidence. When affirming the new trial order, the majority of the Ninth Circuit panel declined to address Keating’s claim that the evidence had been insufficient to convict him. In a footnote, the court stated that “[w]hen Keating is retried his double jeopardy rights will not be implicated regardless of the sufficiency of the evidence at the first trial.” 147 F.3d at 904 n. 6. This was because a guilty verdict that is set aside on a motion by the defendant does not terminate jeopardy. Id. (citing United States v. Gutierrez-Zamarano, 23 F.3d 235, 238 (9th Cir.1994), and United States v. Wood, 958 F.2d 963, 970 (10th Cir.1992)). As in the case of Kanahele, the Keating court did not hold that a defendant may be retried on a charge of which he has been acquitted.

Finally, the trial court’s individual notion of fairness is simply irrelevant in the face of Moody’s constitutional right not to be subjected to double jeopardy. See Sanabria, 437 U.S. at 75, 98 S.Ct. 2170. In any event, the court’s concept of fairness is certainly debatable. Neither the Double Jeopardy Clause nor the procedural rules described above contemplate that a defendant with meritorious grounds for seeking a new trial following his conviction on one charge could be penalized by the judge’s individual feeling that it would be only fair to also set aside his acquittals on other charges.

In sum, none of the theories espoused by the trial court or the State constitute valid exceptions to the constitutional prohibition against putting Moody in jeopardy again after the jury acquitted him of the charges. The same holds for the first-degree murder charge that the jury rejected in favor of the lesser-included offense of third-degree murder. See Chapman v. State, 442 So.2d 1024, 1025-26 (Fla. 5th DCA 1983) (holding that double jeopardy protections precluded defendant’s retrial on original charge after the prior jury convicted him of the lesser-included offense and the trial court granted defendant’s motion for new trial). Thus, the only offense for which Moody possibly could be retried is third-degree murder.

This brings us to the other issue posed in Moody’s petition for writ of prohibition, that being his assertion that a retrial on the offense of third-degree murder is prohibited by double jeopardy considerations. The parties have posed this issue in terms of whether the jury’s verdict convicting Moody of third-degree murder was inconsistent with its acquittal of him on the grand theft charge. The State argues that inconsistent verdicts are permissible. See State v. Powell, 674 So.2d 731, 732 (Fla.1996). But Moody points out that, while factually inconsistent verdicts may stand, legally inconsistent verdicts may not. Id. at 732. Verdicts are legally inconsistent when the charges against the defendant are legally interlocking and the verdicts are “truly inconsistent.” Id.; see also Mahaun v. State, 377 So.2d 1158, 1160 (Fla. 1979); Cuevas v. State, 741 So.2d 1234 (Fla. 5th DCA 1999). “True inconsistency” occurs when “‘an acquittal on one count negates a necessary element for conviction on another count.’ ” Powell, 674 So.2d at 733 (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983)). Verdicts that are inconsistent in this way “require acquittal.” State v. Connelly, 748 So.2d 248, 252 (Fla.1999) (emphasis supplied).

There can be no doubt that the verdict finding Moody guilty of third-degree murder was truly, legally, inconsistent with the verdict finding him not guilty of the grand theft charge. Under the version of the third-degree murder statute with which Moody was charged, the State had to prove that the homicide was committed while Moody was engaged in the perpetration of an appropriate underlying felony. § 782.04(4), Fla. Stat. (1993). The underlying felony that the State sought to establish was grand theft. The State’s theory was that Moody and an accomplice were stripping down a stolen car in an orange grove when Moody shot and killed the grove manager, who had happened upon them. Count two of the indictment charged Moody with theft of the car and its contents, and count five charged him with first-degree murder of the grove manager. The jury acquitted Moody of count two and, on count five, found him guilty of the lesser-included offense of third-degree murder. However, because the verdict on count two acquitted Moody of an essential element of third-degree murder, his conviction on count five could not stand. See Mahaun, 377 So.2d at 1161 (holding that defendant’s conviction of third-degree murder would not stand in light of defendant’s acquittal of underlying aggravated child abuse offense).

For that reason, Moody’s motion for dismissal or arrest of judgment as to the third-degree murder conviction was well-taken. But, because the trial court set aside the guilty verdict (while erroneously attempting to set aside the acquittals as well) and ordered a new trial, Moody does not now stand convicted of third-degree murder. As things stand, there are no inconsistent verdicts in this case. Rather, Moody has been acquitted of four counts and he has been absolved of the fifth count with the exception of the lesser-included offense of third-degree murder, which ostensibly remains unresolved. The question, then, is whether the State may proceed to retry Moody for that offense. We conclude that it may not.

To convict Moody of third-degree murder, the State would have to prove beyond a reasonable doubt that he killed the victim while engaged in the perpetration of the grand theft. But the State cannot proceed before a different jury in an attempt to prove the underlying felony of grand theft, a necessary element of the third-degree murder charge, when a jury has already found him not guilty of the grand theft. This would violate Moody’s constitutional protections against double jeopardy. Thus, for example, in Perkins v. Williams, 424 So.2d 990 (Fla. 5th DCA 1983), the Fifth District issued a writ prohibiting the defendant’s retrial on a charge of robbery after the first jury could not reach a verdict on that count but acquitted him of a separately charged lesser-included offense of grand theft arising from the same incident. The court concluded that a retrial of the defendant for the greater offense after his acquittal of one of its constituent elements would violate his double jeopardy rights. The same is true in Moody’s case.

The petition for writ of prohibition is granted. Moody shall not be retried in Tenth Circuit case number 94-3545 on burglary, grand theft, shooting at an occupied vehicle, first-degree murder, dealing in stolen property, or any lesser-included offenses of those greater offenses.

WHATLEY and CASANUEVA, JJ„ Concur.

      . The indictment also charged Moody with possession of a firearm by a convicted felon, but Moody, in his petition, states: "The three counts of possession by [a] convicted felon are no longer at issue and are not a subject of this writ.”

      . Section 782.04(4), Florida Statutes (1993), set forth a list of specific felonies that did not qualify.


author: THOMPSON, J.

text:
    Eddie Levoid FENCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1463.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

The appellant, Eddie Fencher (“Fencher”), challenges his convictions for sexual battery with a deadly weapon or physical force, burglary of a dwelling with an assault or battery with a firearm, and kidnapping with intent to commit a felony. He was sentenced to life on each count, concurrently. The court also imposed concurrent ten-year mandatory minimum sentences for use of a firearm in two of the charges. Fencher contends the trial court erred when it allowed the admission of a rape kit into evidence without the testimony of the nurse who collected the samples and by limiting his counsel’s closing argument. Fencher’s attorney attempted to argue that a State’s witness had been convicted of a crime, which affected his testimony concerning the chain of evidence. We find no merit to his arguments and therefore affirm his convictions and sentences.

At trial, the 49-year-old victim testified she lived in River Walk Apartments in Orange County. She said she was on her back porch, bringing in a chair, and smoking a cigarette when she was approached by a black male, about 5'7" to 5'9" tall and 150 pounds with a handgun, who backed her into her apartment. Although she gave him money, he tied her hands behind her back, duct-taped her mouth, tied her ankles and sexually assaulted her. The victim was taken to Orlando Regional Medical Center by Detective Mann. At ORMC, Nurse Diane Dickman took rape kit samples from the victim’s vaginal area. The samples were then sealed, signed, and given to Detective Mann, who testified he took them to the Orlando Police Department for testing by the Florida Department of Law Enforcement laboratory.

Fencher argues that the court erred in admitting the rape kit into evidence without the testimony of Nurse Terri Dickman, who obtained the samples, but was unavailable to testify at trial. He contends that the rape kit was testimonial evidence, and its admission without the nurse’s testimony violated his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree.

Though Nurse Dickman did not testify at trial, Nurse Barbara Hanson, a certified nurse midwife and advanced registered nurse practitioner at the Sexual Assault Treatment Center, did testify. She testified that she had been at the center for three years and described the consent forms the patient/victims must sign, the collections procedure, and the protocol for collecting and preserving samples. Hanson, who routinely took such samples and had testified on many occasions as to the center’s records, testified that the- records from the rape kit examinations are routinely generated and that she had seen hundreds of reports generated by Dick-man. She knew Dickman and recognized her handwriting on the rape kit. Hanson stated that Nurse Dickman previously worked at Seminole Hospital, but could not be found. She identified the rape kit and testified that it did not appear to have been tampered with.

Detective Mann testified that he took the victim to the hospital and gathered the rape kit from Dickman to deliver to the police department for evidence storage and FDLE for testing. Pertinent to the second issue we will discuss, Mann admitted that he had been convicted of a felony and that he asked the prosecutor to help him out on his own criminal case. Detective Haas testified that he took a saliva sample from Fencher and explained the department protocol concerning taking, sealing, and delivering the sample to FDLE for later testing.

The FDLE forensic scientist expert who performed the serological exams and DNA analysis on the subject rape kit identified the State’s exhibit and satisfied chain of custody concerns. He testified that the package was sealed and had not been tampered with when he received it. He testified at length concerning the tests he performed on both the rape kit and the saliva sample from Fencher and opined that he could not exclude Fencher as a contributor to the DNA found on the victim’s vaginal swabs. Based upon his report, the frequency of occurrence for the observed match was one in 580 quadrillion African-Americans. The defense voire dired the witness before he was accepted as an expert and had ample opportunity to cross-examine him.

We conclude there is no merit to Feneher’s arguments. For the record to be admissible under the business record exception to the hearsay rule, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. § 90.803(6)(a); Brooks v. State, 918 So.2d 181, 193 (Fla.2005). Either the affidavit of the technician who actually performed the tests or the affidavit of the custodian of the blood test report is required to establish a foundation for admission of the report as a hearsay exception under section 90.803(6), Florida Statutes (2000). Dutilly v. Dep’t of Health & Rehabilitative Servs., 450 So.2d 1195, 1196-97 (Fla. 5th DCA 1984). In this case, Nurse Hanson testified to meet this requirement.

Fencher argues that the rape kit was testimonial evidence subject to the Confrontation Clause even when admitted under the business record exception to the hearsay rule. See, e.g., Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005) (holding that admission of FDLE lab test introduced through supervisor of unavailable individual who actually performed lab tests was testimonial hearsay even if admitted as a business record and violated defendant’s right of confrontation), rev. granted, 924 So.2d 810 (Fla.2006); Belvin v. State, 922 So.2d 1046, 1054 (Fla. 4th DCA 2006) (holding that, in DUI proceeding, portions of breath test affidavit pertaining to technician’s procedures and observations in administering the breath test constituted testimonial evidence, and admission violated defendant’s right of confrontation under Crawford). Those cases are inapposite to the proceedings in this case.

Here, the FDLE forensic scientist who actually performed the tests testified at length and was subject to cross-examination about his qualifications, chain of custody, procedures, serological results, and statistical analysis of the DNA samples. Not only did Fencher’s attorney cross-examine the witness, he moved to have one of the slides used during the witness’ testimony removed because he argued the slide was prejudicial to his client because it impliedly shifted the burden of proof from the State to the defense. The trial court granted the motion. Thus, through cross-examination of the scientist who performed the DNA analysis, Fencher’s right of confrontation was fully satisfied. Nurse Hanson and the other witnesses completely satisfied all of the other requirements and chain of custody concerns relative to the rape kit. Because Dickman merely procured the samples and did not test the DNA material, her unavailability need not be scrutinized under Crawford.

Before closing argument, the State moved in limine to prohibit defense counsel from implying that Detective Mann’s convictions have any significance with respect to evidence tampering. The State argued and the trial court agreed that his sexual battery convictions had nothing to do with evidence tampering. Though he handled the rape kit as part of the chain of custody, there was no suggestion that he had tampered with the evidence, nor was there any evidence that the rape kit had been tampered with. The court granted the motion in limine, pointing out that it had permitted the earlier questioning for the purpose of impeachment, but that it would be misleading to the jury to suggest that a witness’s felony conviction related to evidence tampering.

Courts allow attorneys wide latitude to argue to the jury during closing argument. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. Thomas v. State, 748 So.2d 970, 984 (Fla.1999). Controlling comments to the jury, however, rests within the trial court’s discretion, and a reviewing court may not interfere unless an abuse of discretion is shown. Franqui v. State, 804 So.2d 1185, 1195 (Fla.2001). Fencher has not shown any abuse of discretion.

Accordingly, we AFFIRM Fencher’s convictions and sentences,

GRIFFIN and MONACO, JJ., concur.

      . § 794.011(4), Fla. Stat. (2004).

      . § 810.02(2)(a), Fla. Stat. (2004).

      . § 787.01(l)(a)(2), Fla. Stat. (2004).