author: McMILLAN, Presiding Judge. SHAW, Judge, BASCHAB, Judge,

text:
    Terrence TURNER v. STATE.
    CR-03-1158.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Nov. 18, 2005.

      William Terry Bullard, Dothan, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Terrence Turner, appeals from his conviction for unlawful possession of a controlled substance (cocaine), a violation of § 13A-12-212, Ala.Code 1975. He was sentenced as a habitual offender to 17 years’ imprisonment. He was also ordered to pay a $2,500 fine, $1,000 to the victims compensation fund, $2,000 pursuant to the Drug Demand Reduction Assessment Act, $100 to the Alabama Department of Forensic Sciences Trust Fund, and court costs.

Turner contends that the trial court committed reversible error by denying his motion in limine and allowing the State, over objections at trial, to present evidence of a prior conviction for possession of cocaine. Specifically, he contends that admission of the evidence violated Rule 404(b), Ala. R. Evid.

The record indicates that Turner was charged with one count of possession of a controlled substance, i.e., cocaine. The State’s case was based on proving constructive possession by Turner, who while driving his vehicle pulled over to a street curb so that the passenger could retrieve crack cocaine that had earlier been thrown from the car while he and the passenger were being pursued by police officers. Unbeknownst to Turner, the officers had received a tip from a confidential informant that, as they were pursuing the vehicle, an object had been thrown from it. The police returned to the location where the informant said the object had been thrown from the car, set up surveillance, and waited for Turner to return. Approximately 45 minutes later, Turner and his passenger returned to the place where the cocaine had been thrown. After the police saw the passenger pick something up from the side of the road, they approached the vehicle and found a rock of crack cocaine in the vehicle on the passenger’s side. Turner denied any knowledge of the cocaine. At trial, the passenger in Turner’s vehicle claimed that the cocaine belonged to him.

The State, pursuant to Rule 404(b), Ala. R. Evid., sought to have Turner’s five pri- or convictions for possession of a controlled substance admitted into evidence. The trial court conducted a pretrial hearing on Turner’s motion. At that hearing, trial counsel argued that Turner’s defense would be that he did not know of the presence of the cocaine in his car. The State argued that its purpose for offering evidence of the prior convictions was to show Turner’s knowledge and intent to possess the cocaine, in order to prove the elements of constructive possession.

The trial court ruled that, based on the remoteness of the convictions, the State would not be allowed to admit any of the prior convictions except the most recent one, which had occurred in 1997. The trial court stated that it would allow the most recent conviction to show knowledge and intent. The trial court also stated that it would give the jury a limiting instruction on the purpose for which the evidence could be used.

At trial, the State presented evidence of Turner’s prior conviction through the testimony of Officer Anthony Lee Nelms, a City of Dothan police officer, who testified that he had arrested Turner on September 3, 1997, after he found him sitting on the ground complaining of medical problems. Turner told Officer Nelms that he had swallowed $200 worth of crack cocaine because he had seen a police car drive by and had become nervous that he might be caught with the cocaine. Officer Nelms testified that he took Turner to the hospital where his stomach was pumped, and it was determined that he had ingested a large quantity of cocaine. The trial court instructed the jury that evidence of Turner’s prior conviction was offered by the State, along with other evidence, in an attempt to prove Turner’s knowledge of the cocaine, as well as his intent to exert control over the cocaine.

In its limiting instruction to the jury, the trial court stated:

“Now, in this case, the State has put on evidence of a prior possession of cocaine back several years before in order to prove knowledge and intent. That’s not the only way they say they are satisfying that knowledge element, but it is one of the ways they say they are satisfying it. And you cannot use that information or that evidence to say that, well, just because he did it last time, he must have done it this time. But you can consider it when you consider all of the surrounding circumstances as to whether he did have knowledge of the cocaine.”

The exclusionary rule, Rule 404(b), Ala. R. Evid., provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”
The Alabama Supreme Court has stated:
“ ‘[Bjefore the reviewing court can affirm a judgment based upon the “harmless error” rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.’ Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993) (emphasis omitted). ‘ “The basis for the [exclusionary rule] lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of jurors.” ’ Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983), quoting C. Gamble, McElroy’s Alabama Evidence, § 69.01(1)(3d ed.1977), also quoted in Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App.1995).”

Ex parte Casey, 889 So.2d 615, 621-22 (Ala.2004).

“The State has no absolute right to use evidence of prior acts to prove the elements of an offense or to buttress inferences created by other evidence. Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue. Therefore, the admission of such evidence constitutes reversible error.”

Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983) (citations omitted).

In Ex parte Casey, supra, the Alabama Supreme Court stated that the adoption of Rule 404(b) did not abrogate our prior caselaw on the exclusionary rule. See also Hunter v. State, 802 So.2d 265 (Ala.Crim.App.2000).

Our caselaw explains the purpose of the exclusionary rule:

“ ‘The general rule is that in criminal prosecutions, evidence of prior criminal acts is not admissible since the only facts to be laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and which alone the defendant is called on to answer.
“‘This rule, however, is subject to some well recognized exceptions. Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused ... The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged.
‘Stated another way, the State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged.’

Ex parte Casey, 889 So.2d at 618 (quoting Garner v. State, 269 Ala. 531, 533^34, 114 So.2d 385, 386-87 (1959)).

In Ex parte Casey, supra, the appellant was found guilty of first- and second-degree receiving stolen property. During the trial that resulted in those convictions, the trial court allowed the State to present evidence of Casey’s 1995 conviction for theft of property and unauthorized use of a credit card. The trial court admitted this evidence for the purpose of proving identity and criminal intent and knowledge. Even though the trial court gave a “limiting” instruction, instructing the jurors not to consider the previous crimes as evidence that Casey committed the charged crimes, the Alabama Supreme Court found that this evidence violated the general exclusionary rule of Rule 404(b), Ala. R. Evid. The Alabama Supreme Court reasoned:

“The record, which contains none of the factual specifics of the defendant’s prior convictions, discloses no logical connection between his prior theft or his prior unauthorized use of a credit card and his knowledge of the presence, ownership, or stolen character of any of the items he was being tried for receiving in the ease now before us. That is, the defendant’s mere knowledge that the property he previously had been convicted of stealing or the credit card he had previously been convicted of using without authority belonged to some other persons would not, in the absence of some evidence of connecting facts, supply the defendant with knowledge of the presence, ownership, or stolen character of items found five years later in his girlfriend’s apartment and car and would not enable him to differentiate between items there which were stolen and items there which were not stolen. In other words, the record reveals no identity or connection between what the defendant knew or learned in his prior crimes and what he knew or learned about the items in his girlfriend’s apartment or car.”

Ex parte Casey, 889 So.2d at 621.

The Alabama Supreme Court concluded that “[t]he only tendency of the defendant’s prior convictions was the purpose prohibited by Rule 404(b), ‘to show action in conformity therewith’ — that is, to show that, since the defendant dishonestly acquired property in 1995, he dishonestly acquired other property in 2000.” Ex parte Casey, 889 So.2d at 622. See also Osborn v. State, 910 So.2d 811 (Ala.Crim.App.2005); McAdory v. State, 895 So.2d 1029 (Ala.Crim.App.2004).

In this case, the admission of evidence of Turner’s 1997 conviction violated the general exclusionary rule of Rule 404(b). The record discloses no logical connection between Turner’s prior conviction and the present charge. That is, the defendant’s prior conviction for possession of cocaine would not, in the absence of some connecting facts, supply the defendant with the knowledge of the presence of cocaine in his vehicle, the subject of the instant offense. Except for the tendency, condemned by Rule 404(b), “to show action in conformity therewith,” the record before us discloses no logical connection between the defendant’s obvious knowledge of cocaine generally, as evidenced by his prior conviction, and his knowledge of the presence of cocaine in his vehicle, or his intent to possess that cocaine, which were the primary issues in the present case.

Further, the error in the admission of Turner’s prior conviction could not be considered harmless, because its admission into evidence substantially increased the likelihood that Turner would be convicted on the instant charge, as he was. Moreover, the limiting instruction given by the trial court to the jury did not negate the prejudicial effect of the erroneous admission. In fact, the instruction contradicted itself and exacerbated the prejudice because the trial court told the jury that it could not consider the prior conviction as evidence that Turner committed the charged crime. However, the court charged the jury that the prior conviction could be considered as evidence that Turner had the knowledge and intent to possess the cocaine' in the instant case. As in Ex parte Casey, supra, the jury’s consideration of the prior conviction as evidence of the elements of knowledge and intent in the charged crime is the same as considering the prior conviction as evidence that Turner committed the charged offense.

Because evidence of Turner’s prior conviction was inadmissible and prejudicial, his conviction must be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

COBB, J., concurs.

SHAW, J., concurs specially, with opinion.

BASCHAB, J., dissents, with opinion.

WISE, J., joins in dissent.

SHAW, Judge,

concurring specially.

I agree that the fact that a defendant had previously possessed 'cocaine would not, in the absence of some connecting facts, supply the defendant with the knowledge of the presence of the cocaine in a vehicle he was driving, and that -the record in this case discloses no logical connection between the defendant’s knowledge of cocaine generally, as evidenced by his prior possession, and his knowledge of the presence of the cocaine in his vehicle or his intent to possess that cocaine, which were the primary issues in this case. Therefore, I agree that admission of evidence of Turner’s prior possession of cocaine was error.

I likewise agree that the error in this case was not harmless. As noted in the main opinion, Turner denied any knowledge of the presence of the cocaine, and the passenger in Turner’s vehicle claimed that the cocaine belonged to him. The passenger testified that, contrary to the tip received from the confidential informant, when he and Turner were first stopped, he did not throw the cocaine out the car window, but hid it in his mouth; that he and Turner did not go back to the area of the first traffic stop to retrieve any cocaine but to meet someone; and that, contrary to the arresting officer’s testimony that the cocaine was found in the vehicle, he threw the cocaine on the ground during the second traffic stop and the officer found it on the ground near the vehicle, not in the vehicle. As noted in the main opinion, evidence of prior crimes “ ‘has almost an irreversible impact upon the minds of the jurors.’ ” Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3d ed.1977). In this case, the conflicting evidence as to Turner’s knowledge and possession of the cocaine was a question for the jury to resolve, and I cannot say that the evidence of Turner’s prior possession of cocaine did not influence the jury to resolve that conflict in the evidence adversely to Turner.

BASCHAB, Judge,

dissenting.

In Casey, the Alabama Supreme Court held that the trial court erroneously admitted into evidence Casey’s 1995 convictions for theft and fraudulent use of a credit card to show his knowledge and intent with regard to receiving stolen property charges from 2000. In that case, the supreme court held:

“The record, which contains none of the factual specifics of the defendant’s prior convictions, discloses no logical connection between his prior theft or his prior unauthorized use of a credit card and his knowledge of the presence, ownership, or stolen character of any items he was being tried for the case now before us. That is, the defendant’s mere knowledge that the property he previously had been convicted of stealing or the credit card he had previously been convicted of using without authority belonged to some other persons would not, in the absence of some evidence of connecting facts, supply the defendant with knowledge of the presence, ownership, or stolen character of items found five years later in his girlfriend’s apartment and car and would not enable him to differentiate between items there which were stolen and items there which were not stolen. In other words, the record reveals no identity or connection between what the defendant knew or learned in his prior crimes and what he knew or learned about the items in his girlfriend’s apartment or car.”

889 So.2d at 621.

In this case, the majority concludes that the trial court erroneously admitted evidence about the appellant’s “1997 conviction” and that the record disclosed “no logical connection between [the appellant’s] prior conviction and the present charge.” 929 So.2d at 1045. Initially, I note that the State did not introduce evidence that the appellant had previously been convicted of possession of a controlled substance. Rather, it only introduced evidence that, in 1997, Officer Anthony Nelms came into contact with the appellant; that the appellant told Nelms that he had swallowed $200 worth of cocaine because he had seen a patrol vehicle drive by and had gotten nervous; that the appellant was transported to the hospital; that the appellant’s stomach was pumped; and that his stomach contents contained cocaine. Therefore, in this case, unlike Casey, the State did not introduce the mere fact of the appellant’s previous conviction.

This case is also distinguishable from Casey because the State presented facts about the 1997 incident that connected it with the facts in the current case.

“Trial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion. Lambert v. Beverly Enterprises, Inc., 695 So.2d 44 (Ala.Civ.App.1997); see also C. Gamble, Gamble’s Alabama Rules of Evidence § 401(b). Alabama recognizes a liberal test of relevancy, which states that evidence is admissible ‘if it has any tendency to lead in logic to make the existence of the fact for which it is offered more or less probable than it would be without the evidence.’ C. Gamble, Gamble’s Alabama Evidence, § 401(b)(emphasis original).”

Hayes v. State, 717 So.2d 30, 36 (Ala.Crim.App.1997).

During the 1997 incident, the appellant admitted that he had swallowed cocaine because he had seen law enforcement officers drive past him. In this case, the State presented evidence that Parrish and Elkins were in an unmarked vehicle; that, after the appellant passed their vehicle, he sped up and turned onto Whiddon Street; that Parrish and Elkins followed the appellant and stopped him; that, although Parrish’s vehicle was not marked, it was well known; that Parrish believed that, based on the appellant’s conduct after he passed them, the appellant had recognized them and knew they were behind him; that, during that stop, the officers searched the appellant’s vehicle, but did not find any drugs; that, after the officers released the appellant and Goods, a confidential informant contacted Parrish and told him that, before the stop, he had seen the occupants of the vehicle throw out drugs while on Whiddon Street; that, pursuant to that information, Parrish and Elkins went to Whiddon Street and set up surveillance with their lights off; that, between thirty-five and forty-five minutes later, the appellant turned onto the 500 block of Whiddon Street, pulled toward the curb, and turned off the vehicle’s lights; that the passenger side door opened and an arm reached out of the door and toward the ground at the curb area; that, when Parrish and Elkins turned on their lights, the appellant started to drive away, and Parrish blocked the appellant’s vehicle; and that they subsequently found several pieces of what appeared to be crack cocaine on the street where the appellant had been parked and another piece in the passenger’s side floorboard of the appellant’s vehicle.

The evidence about the 1997 incident, when coupled with the fact that the appellant sped up and turned onto another street after he passed the officers’ vehicle and the fact that a confidential informant had seen the occupants of the appellant’s vehicle throw drugs out of the vehicle before the stop, had a tendency to show that the appellant had knowledge of the presence of the drugs in his vehicle and his intent to dispose of the drugs before the stop. Also, the evidence had a tendency to show that the appellant returned to Whid-don Street with the intent to retrieve the substance that had previously been thrown out of the vehicle and that he intended to possess the controlled substance. Therefore, evidence about the 1997 incident was relevant to show the appellant’s pattern of elusive tactics of disposing of illegal substances at the approach of law enforcement officers, his knowledge of the presence of the controlled substance, and his intent to possess the controlled substance. Also, the evidence about the 1997 incident showed the sophistication in the appellant’s knowledge of the wrongfulness of having the cocaine in his possession. Although Goods presented conflicting testimony regarding the events on the night in question, the jury was not required to accept his version of events. “The weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), affd, 698 So.2d 219 (Ala.1997). Because the evidence about the 1997 incident was relevant, the trial court properly admitted evidence about that incident. Further, the trial court thoroughly instructed the jury that evidence about the 1997 incident was to be used to show the appellant’s knowledge and intent and that it could not use the fact that he had previously possessed cocaine to show that he possessed cocaine in this case.

Finally, for the reasons I stated in my special concurrence in Osborn v. State, 910 So.2d 811 (Ala.Crim.App.2005), I urge the Alabama Supreme Court to revisit and to overrule or, alternatively, limit the application of Casey.

For these reasons, I respectfully dissent.

      . Although, at one point during the trial, defense counsel referred to this as a 1997 conviction, the record indicates that the incident in question occurred in 1997 and that the appellant was actually convicted in 1998.

      . In fact, defense counsel injected the issue of the prior conviction when he asked Nelms during cross-examination, "Did you know that, since this 1997 conviction, he has been absolutely clean?” (R. 89.)


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    David WARD v. STATE of Alabama.
    CR-04-1320.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Sept. 16, 2005.
    Certiorari Denied Nov. 10, 2005 Alabama Supreme Court 1041976.

      David Ward, pro se.
    Andrew W. Redd and Kim T. Thomas, asst. gen. counsel, Department of Corrections, for appellee.
   WISE, Judge.

On November 30, 2004, David Ward, an inmate at the Hamilton Work Release Center, was assigned to work at a facility operated by Gold Kist, Inc. A report was received at the Hamilton Work Release Center, advising the Department of Corrections (“DOC”) that Ward had been fired from his job at Gold Kist because he had tested positive for alcohol while on the job. Later, Gold Kist personnel learned that while he was employed there, Ward had taken a vehicle from company property. In response to the report, Lt. Harold Boy-ett, a DOC officer, was dispatched to the Gold Kist facility, where he picked Ward up at approximately 8:18 a.m. Ward was charged with three major rules violations — Rule 86, under Annex A to Admin. Reg. No. 113 (Ala. Dept, of Corr.), being fired from a job; Rule 90, consumption or use of alcohol or being under the influence of alcohol; and Rule 47, escape (without force).

Ward was served with notice of the disciplinary charges. Ward pleaded guilty to violating Rule 86 and Rule 90, but he maintained his innocence regarding the escape charge, which was based on his leaving Gold Kist’s property in a vehicle. At a disciplinary hearing held on December 8, 2004, the hearing officer found Ward not guilty of escape but recommended that he be charged with the lesser offense of being in an unauthorized area. Upon review by DOC, Ward was charged with the recommended lesser offense. On December 10, 2004, Ward was found guilty of being in an unauthorized area. The hearing officer recommended that Ward be referred to classification for a possible increase in custody status and that he lose all privileges for 15 days. That recommendation was approved by the DOC, and a copy of the completed disciplinary action was served on Ward on December 20, 2004. Subsequently, on March 10, 2005, a classification team met and concluded that Ward’s custody status should be increased to medium on the basis of the disciplinaries he had received.

Ward filed a petition for a writ of habeas corpus. In his petition, Ward claims (1) that he was . denied due process in his disciplinary proceedings because, he says, his violations were based on hearsay; (2) that his due-process rights were violated when the disciplinary proceedings were reinstated on December 10, 2004, and the charge against him was altered; (3) that he was denied due process because the revieydng officer in the proceedings was also one of the officers involved in the investigation of the charges against him; and (4) that his due-process rights were violated when he did not receive a hearing before his removal from full work-release status. On appeal, he also contends that the trial court erroneously dismissed his petition without first conducting a hearing.

The dismissal of a petition for a writ of habeas corpus is reviewed under an abuse-of-discretion standard. Miller v. State, 668 So.2d 912 (Ala.Crim.App.1995). A circuit court may summarily deny a habeas petition without holding an eviden-tiary hearing if the pleadings are sufficient to show that there is no merit to the petition. D.L.S. v. State, 675 So.2d 1363 (Ala.Crim.App.1995).

Initially, we note that the circuit court correctly determined that Ward had suffered no loss of a liberty interest. Only when there is loss of a protected liberty interest will the due-process protections of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), be implicated. “‘[BJecause no liberty interest was involved in the deprivations suffered by the appellant, the protections described in Wolff [v. McDonnell, 418 U.S. 539] were not triggered.’ ” Washington v. State, 690 So.2d 539, 540 (Ala.Crim.App.1997)(quoting Dumas v. State, 675 So.2d 87, 89 (Ala.Crim.App.1995)).

In Ex parte Berry, 794 So.2d 307, 308 (Ala.2000), the Alabama Supreme Court held:

“The language in the Classification Manual prevents the Department of Corrections from arbitrarily removing an inmate from the work-release program, and, by doing so, creates a liberty interest in an inmate’s continued participation in the work-release program. Therefore, the circuit court erred in summarily dismissing Berry’s petition for the writ of habeas corpus. Berry’s petition creates a genuine issue of material fact as to the applicability of the regulation to his work-release status.”

However, subsequent to the Supreme Court’s decision in Ex parte Berry, the DOC changed the language in its Classification Manual. On July 9, 2003, the Classification Manual was amended to delete the requirement that a due-process hearing be held before an inmate is removed from full work-release status. The pertinent language now reads: “[A] reclassification process is not required in order to remove an inmate from work release.” This language does not prevent the arbitrary removal of an inmate from the work-release program; therefore this language does not create a liberty interest in remaining in the work-release program, like the language in the Classification Manual as the time Ex parte Berry was decided did.

Ward’s disciplinary infractions occurred in November 2004 — over one year after the amended Classification Manual was in force. Because no liberty interest was at stake, Ward was not entitled to the due-process protections of Wolff v. McDonnell, supra. Thus, Ward’s claim that he was entitled to due process before being removed from the work-release program, on whatever grounds he asserts, is without merit.

Because Ward’s claims in his petition were facially without merit, the circuit court’s summary disposition of the petition was appropriate.

Accordingly, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

McMILLAN, PM., and COBB, BASCHAB, and SHAW, JJ., concur.


author: ROTHENBERG, Judge.

text:
    GOODYEAR TIRE & RUBBER COMPANY, Appellant, v. Ronnie JONES and Sylvia Jones, Appellees.
    No. 3D04-3256.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2005.
    Rehearing and Rehearing En Banc Denied March 28, 2006.

      Thornton, Davis & Fein, Kathleen M. O’Connor and Frederick J. Fein, Miami, for appellant.
    Lauri Waldman Ross; Gonzalez & Walsh and Lisa Walsh, Miami, for appel-lees.
    Before LEVY, GERSTEN, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Goodyear Tire & Rubber Company (Goodyear) appeals an order vacating a confidentiality order, and the denial of its motion requesting an in-camera inspection of documents previously covered by the confidentiality order. Additionally, Goodyear asks this court to declare the Sunshine in Litigation Act (“Act” or “Sunshine in Litigation Act”) unconstitutional. We affirm.

The case arose out of an explosion of a Goodyear Unisteel tire, which injured the plaintiff, Ronnie Jones. During the course of litigation, Goodyear objected to production requests made by the plaintiffs, arguing that the requests were overbroad, burdensome and vague, and not limited in scope to tires substantially similar to the one involved in the lawsuit. A special master was appointed to decide the issue. The special master conducted three hearings and ultimately determined that Goodyear should be required to produce the requested documents.

After being required to produce the documents, Goodyear sought to have a confidentiality order entered to prohibit the plaintiffs from disclosing to others the documents obtained during discovery. Goodyear asserted that the documents were trade secrets. The parties’ attorneys communicated through a number of letters concerning the propriety of a confidentiality order and its potential content. On September 7, 1999, the plaintiffs’ attorney sent a letter to Goodyear’s attorney stating that he was not convinced that the documents in question were in fact trade secrets, and suggested that Goodyear file the documents with the special master for a determination of whether they were entitled to trade secret protection. Goodyear did not do so. Thereafter, the plaintiffs objected to Goodyear’s motion for a confidentiality order, arguing that the documents were not trade secrets and not subject to a confidentiality order as the documents concerned a public hazard (Goodyear Unisteel tires), thereby prohibiting concealment by court order under the Sunshine in Litigation Act.

The trial court, however, held that a determination that the tires constituted a public hazard was premature; indicated that if the plaintiffs prevailed in the action, the court would permit the documents to be made public under the Sunshine in Litigation Act; and granted the confidentiality order, prohibiting disclosure of the documents in question to anyone not involved in the litigation.

The case was ultimately tried, resulting in a jury verdict in favor of the plaintiffs. The trial court, however, entered a directed verdict and granted a new trial. On appeal, the plaintiffs argued that the trial court erred in directing the verdict and requested this court to reinstate the jury’s verdict and to vacate the confidentiality order issued by the trial court. This court agreed with the plaintiffs and ordered that the jury’s verdict be reinstated and that the confidentiality order be vacated pursuant to the Sunshine in Litigation Act. Jones v. Goodyear Tire & Rubber Co., 871 So.2d 899, 906 (Fla. 3d DCA 2003). Specifically, we stated “we remand with the additional instruction that the pre-trial confidentiality order be vacated.” Id.

On remand, Goodyear sought a hearing and an in-camera inspection of the documents covered by the confidentiality order. Goodyear asserted that the Sunshine in Litigation Act does not require the documents to be made public as (1) the documents are trade secrets; and (2) they do not pertain to the make and model of tire at issue in the Jones’s suit and, therefore, disclosure is not required under the Sunshine in Litigation Act. Alternatively, Goodyear sought a hearing on the constitutionality of the Sunshine in Litigation Act, arguing that application of the Act to require disclosure of confidential trade secret documents without an in-camera hearing would violate its due process rights.

The trial court found that it lacked jurisdiction to conduct an in-camera inspection or to set a hearing on whether the Act is constitutional. Therefore, it denied the defendant’s motion to conduct an in-camera inspection or to hold a hearing on the constitutionality of the Act, vacated the confidentiality order, and stayed the vacation of the order pending appellate review. This appeal follows.

Subsection (3) of The Sunshine in Litigation Act provides:

Except pursuant to this section, no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.’

§ 69.081(3), Fla. Stat. (2004).

Subsection (5) of the Act provides:
Trade secrets as defined in s. 688.002 which are not pertinent to public hazards shall be protected pursuant to chapter 688.

§ 69.081(5), Fla. Stat. (2004).

Subsection (7) provides:
Upon motion and good cause shown by a party attempting to prevent disclosure of information or materials which have not previously been disclosed, including but not limited to alleged trade secrets, the court shall examine the disputed information or materials in camera. If the court finds that the information or materials or portions thereof consist of information concerning a public hazard or information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard, the court shall allow disclosure of the information or materials. If allowing disclosure, the court shall allow disclosure of only that portion of the information or materials necessary or useful to the public regarding the public hazard.

§ 69.081(7), Fla. Stat. (2004).

Goodyear argues that it was denied due process because a hearing and an in-camera inspection were never conducted pursuant to subsections (5) and (7) of the Act to determine whether the documents covered by the protective order contain trade secrets not pertinent to the tire deemed to be a public hazard, or whether disclosure of the documents is necessary or useful to the public. The plaintiffs, however, argue that if the absence of a hearing and an in-camera inspection was error, it was caused by Goodyear who obtained the benefit of a confidentiality order without a hearing. The plaintiffs also argue that, in vacating the confidentiality order, the trial court was performing a purely ministerial function over which it had no discretion, and that it was required to comply with this court’s mandate instructing it to vacate. We agree with the plaintiffs and conclude that Goodyear waived its right to the hearing it now requests.

The Sunshine in Litigation Act prohibits a court from entering an order which conceals a public hazard. § 69.081(3), Fla. Stat. (2004). When Goodyear moved for a confidentiality order, the plaintiffs responded that the Goodyear Unisteel tires constituted a public hazard under the Sunshine in Litigation Act, thereby precluding a confidentiality order restricting the information. Rather than determining whether the tires were a public hazard under the Sunshine in Litigation Act, and then determining whether any exception to the Act applied, the trial court entered the blanket confidentiality order sought by Goodyear, making all of the documents in question confidential until the jury made a determination regarding the tires in question.

We conclude that the trial court erred by issuing the order sought by Goodyear without first holding a hearing to determine which documents related to the claimed public hazard and if any of the documents related to a trade secret. The Act prohibits any court from entering an order that has the effect of concealing a public hazard. Thus, the trial court should have determined whether its order would have had such an effect prior to entering the order, rather than deferring until after trial. We also conclude that because Goodyear invited the error, and enjoyed the benefits of the invited error for the past five years, it may not now seek to remedy the error on appeal. See Gupton v. Vill. Key & Saw Shop, 656 So.2d 475, 478 (Fla.1995)(explaining that “a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make”); Zanoletti v. Norle Props., Corp., 688 So.2d 952, 953 (Fla. 3d DCA 1997)(stating that “[ijnvited error occurs when the appellant somehow induced the specific ruling by her affirmative action or inactivity”); Sierra v. Pub. Health Trust of Dade County, 661 So.2d 1296, 1298 (Fla. 3d DCA 1995)(finding that a party “may not avail himself of the benefits of an order and subsequently assign such order as error”). Goodyear led the trial court to error and thereby obtained a confidentiality order without a determination of whether its tires constituted a public hazard under the Sunshine in Litigation Act, or whether any exception to the Act applied. Goodyear took no action to preserve the issues of whether its documents contain trade secrets; whether any of the documents should be protected because they are not related to the hazardous tire; or whether disclosure of the documents was necessary or could be useful to the public. Thus, Goodyear has waived its right to a hearing on those issues.

Our position is unaltered by the arguments and case law provided by Goodyear in its “Appellant’s Notice of Supplemental Authorities and Supplemental Record Citations,” filed after oral argument. In this “Notice,” Goodyear claims that the trial court’s initial entry of the blanket confidentiality order, without making a determination of whether the documents in question contained trade secrets, was not error. Goodyear argues that it is a common and expeditious practice to enter such an order which the opposing party may challenge, by specifying which documents it believes are not entitled to protection. In support of its position, Goodyear cites to Chicago Tribune Co. v. Bridgestone/Firestone, 263 F.3d 1304, 1307 (11th Cir.2001), Rice v. U.S., 39 Fed.Cl. 747, 750 (1997), and Manual for Complex Litigation § 11.432 (4th ed.2004). Here, the plaintiffs sought disclosure of these documents pursuant to the Florida Sunshine in Litigation Act, which required the trial court to determine of whether the tires in question were a hazardous product under the Sunshine in Litigation Act, and whether any exception to the Act applied. As the trial court’s failure to do so was based upon invited error by Goodyear to which it has enjoyed the benefit for the last five years, we conclude that Goodyear waived the in-camera review it now seeks.

Goodyear also argues that the Sunshine in Litigation Act is unconstitutional both as applied and on its face. It argues that the Act is unconstitutional as applied because vacating the confidentiality order without a hearing and an in-camera inspection deprived Goodyear of its due process rights. However, this issue has already been resolved contrary to Goodyear’s position. In the original appeal of this case, Goodyear argued in its answer brief that vacating the confidentiality order without holding an evidentiary hearing would violate its due process rights. By finding that the tire was a public hazard and instructing that the confidentiality order be vacated, this court in a previous appeal, rejected this argument. In its motion for rehearing and rehearing en banc, and its motion for certification of questions, Goodyear continued to argue that vacating the order without a hearing deprived it of its due process rights to notice and a hearing. Because Goodyear’s argument, that vacating the confidentiality order without a hearing and in-camera inspection violated its due process rights, thereby rendering the Act unconstitutional as applied to Goodyear, was rejected by a previous review by this court, this argument is barred in this subsequent appeal by the law of the case doctrine. Swain v. State, 911 So.2d 140 (Fla. 3d DCA 2005)(stating that, under the law of the case doctrine, questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings); Bisson v. de Arellano, 909 So.2d 917 (Fla. 3d DCA 2005)(finding that, because the appellants litigated an issue on a previous appeal of the case, they could not raise the issue again on appeal). However, if we were to reach this issue on the merits, we would find that Goodyear’s due process rights were not violated because, as discussed previously, Goodyear waived its right to a hearing.

Goodyear additionally asserts that the Sunshine in Litigation Act is unconstitutional on its face because it is a procedural rule enacted by the legislature, and because it is arbitrary, unreasonable, and not rationally related to a reasonable government objective, therefore denying substantive due process. Goodyear did not, however, challenge the facial constitutionality of the Act below, and “[a] facial challenge to a statute’s constitutional validity may be raised for the first time on appeal only if the error is fundamental.” State v. Johnson, 616 So.2d 1, 3 (Fla.1993). The Florida Supreme Court has explained that “for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Id. Under this standard, Goodyear’s argument that the Act is a procedural rule improperly enacted by the legislature, even if correct, would not constitute fundamental error, and thus is not subject to appellate review.

Goodyear’s argument that the Act is arbitrary, unreasonable, and not rationally related to a reasonable government objective, if correct, would constitute fundamental error, as denial of substantive due process may constitute fundamental error and the application of the Act in this case was basic to the decision under review to vacate the confidentiality order. A statute is constitutional if it bears a reasonable relationship to a legitimate public purpose and is not discriminatory, arbitrary, or oppressive. See Haire v. Florida Dep’t of Agric. & Consumer Servs., 870 So.2d 774, 782 (Fla.2004). Goodyear recognizes that the legitimate purpose of the Act is to protect the public from hazards that would be concealed by court orders. However, it argues that this purpose is not served by requiring disclosure of confidential materials after a case proceeds to trial with a subsequent verdict and judgment against the manufacturer, because in such a situation, the hazard is a matter of public record. We disagree that the legitimate purpose of protecting the public from a hazard is met by applying such a narrow interpretation. In order to protect the public from hazardous products, the Act not only prohibits a court from concealing a public hazard, but also from concealing “any information concerning a public hazard.” See § 69.081(3), Fla. Stat. (2004). Prohibiting the concealment of information concerning a public hazard is rationally related to the goal of protecting the public from the hazard. Although a judgment represents a finding that a particular product or design constitutes a public hazard, and may reveal some information regarding the hazard, when a blanket confidentiality order is entered protecting a quantity of documents related to the hazard, such as the one entered in this case, information which could protect the public from the hazard would still remain concealed from the public the Act seeks to protect. Thus, the goal of protecting the public from hazards can only be accomplished by disallowing confidentiality orders which protect information related to the hazard after a verdict and judgment have been entered against the manufacturer of a hazardous product. We, therefore, find that the Act is not arbitrary or unreasonable, and that it is rationally related to a reasonable government objective, and thus constitutional on its face.

Affirmed.

      . The confidentiality order was entered on September 6, 2000.


author: PER CURIAM.

text:
    Christopher STEVENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5647.
    District Court of Appeal of Florida, First District.
    April 4, 2006.
    Rehearing Denied May 30, 2006.
    Christopher Stevens, 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.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    John HUNDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-982.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    John Hundley, Florida City, pro se.
    No appearance, required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a motion in the circuit court that includes the oath required by Florida Rule of Criminal Procedure 3.850(c) no later than thirty (30) days from the date of this opinion.

POLEN, FARMER and KLEIN, JJ., concur.


text:
    Reginald CATLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-750.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Reginald Catlin, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of Appellant’s rule 3.800(a) motion to correct illegal sentence is affirmed, without prejudice to raise the claim of a violation of the plea agreement in a legally sufficient motion under Florida Rule of Criminal Procedure 3.850. See Cowart v. State, 749 So.2d 506 (Fla. 2d DCA 1999); Lee v. State, 637 So.2d 391 (Fla. 4th DCA 1994).

STEVENSON, C.J., STONE and TAYLOR, JJ., concur.


text:
    Eugene HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-387.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Eugene Hope, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

As it appears appellant did not receive the order on appeal until after the time to appeal had expired and the order itself reflects it was not served on appellant by mail until twenty-six days after its rendition, we grant appellant a belated appeal and affirm.

STEVENSON, C.J., WARNER and MAY, JJ., concur. ■


text:
    Leslie M. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1426.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Leslie M. Brooks, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s first exhausting his administrative remedies with the Department of Corrections.

WARNER, POLEN and GROSS, JJ., concur.


author: GROSS, J.

text:
    Dana FORMAN, d/b/a Judgment Resolution as Assignee of James B. Shields, Appellant, v. GREAT AMERICAN RESORTS OF FLORIDA, Great American Resorts of Florida, Inc., Gold Coast Security Trust Properties, Inc., Great American Hotels & Resorts, Inc., and Great American Financial Network, Inc., Appellees.
    No. 4D05-1669.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Jeffrey M. Kirsch, Stuart, for appellant.
    Charles A. Sullivan, Jr. of Sullivan & Sullivan, Vero Beach, for appellee.
   GROSS, J.

A judgment creditor appeals a post-judgment order that limited the scope of questioning of a third party whom the creditor attempted to implead in proceedings supplementary. We dismiss the appeal, because the order is not appealable.

Dana Forman is the assignee of a judgment obtained by James Shields against four corporations. Edward Bates was a director, shareholder, and officer of the corporations. Forman moved for proceedings supplementary pursuant to section 56.29, Florida Statutes (2004). Forman did not attach an impleader complaint to the motion. In response to the motion, the circuit court ordered Bates to appear before the court “to be examined concerning his property, both real and personal, and income.”

Bates objected to the order requiring him to appear. The court sustained his objection in part, indicating that Forman could “take the deposition” of Bates, but that it could not “conduct discovery” with regard to Bates’s “personal assets unless such assets are derived from the corporate defendants.” Forman moved for rehearing, stating, inter alia, that Bates had “been properly impleaded.” Attached to the motion for rehearing was a restitution order entered in favor of Shields in a criminal case against Bates. The trial court denied the motion. Forman filed this appeal of the order limiting the scope of his questioning of Bates.

Section 56.29(4) gave Forman the ability to question Bates as an officer of the defendant corporations and as a fact witness. However, Forman did not take the procedural steps necessary to implead Bates so that he was a party to the action. See Exceletech, Inc. v. Williams, 597 So.2d 275 (Fla.1992); see also Ryan’s Furniture Exch. v. McNair, 120 Fla. 109, 162 So. 483 (1935); Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989). Forman did not file an impleader complaint and serve it on Bates. Fla. R. Civ. P. 1.180. The trial court did not order Bates to respond to any impleader complaint.

The order under appeal limited the scope of the examination of Bates as a witness in post judgment proceedings; it was therefore akin to a post-judgment discovery order that circumscribed the questioning of a witness. In Gaché v. First Union National Bank of Florida, 625 So.2d 86, 87 (Fla. 4th DCA 1993), we wrote that Florida Rule of Appellate Procedure 9.130(a)(4) should not be read “to allow an appeal from a discovery order entered post-judgment, when the same discovery order entered prior to judgment would not be appealable.” A protective order limiting the scope of discovery before final judgment is not an appealable non-final order. See Von Mitschke-Collande v. Kramer, 869 So.2d 1246, 1251 n. 4 (Fla. 3d DCA 2004); Fla. R.App. P. 9.130(a)(3). Gaché was based “upon the proposition that the proceeding in aid of collection would culminate in an order either granting or denying the relief requested by the judgment creditor, at which point appellants would have the right to appeal that final order and any interlocutory orders with which they might be unhappy.” Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611, 612 (Fla. 1st DCA 1995).

The order in this case was interim and provisional. It was subject to change if Forman demonstrated that Bates possessed property that should be “applied toward the satisfaction of the judgment debt.” § 56.29(5), Fla. Stat. (2004). In the appeal of any order granting or denying relief against Bates in the proceedings supplementary, Forman will have the ability to challenge the order constraining his questioning of Bates. For these reasons, the appeal is dismissed for lack of jurisdiction.

WARNER and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Thomas MURRAY, Steven Wiley and Dominick Gucciardo, Appellants, v. Carl Stephen ROSATI and Peter Roussonicolos, Appellees.
    Nos. 4D04-3426, 4D04-3429.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.

      Bruce W. Jolly and Summer M. Barran-co of Purdy, Jolly, Giuffreda & Barranco, P.A., Fort Lauderdale, for appellants Steven Wiley and Dominick Gucciardo.
    Stuart R. Michelson and James J. Birch of Law Office of Stuart Michelson, Fort Lauderdale, for appellant Thomas Murray.
    Douglas L. Bates of Law Offices of Koppel and Bates, Plantation, for appellee Peter Roussonicolos.
    John F. Cicilline of Cicilline Law Offices, Providence, Rhode Island, for appellee Carl Stephen Rosati.
   WARNER, J.

Appellants seek to appeal an order denying their renewed motions for directed verdict, made after two mistrials were declared. They claim that the trial court determined as a matter of law that they are not entitled to absolute or qualified immunity on the claims against them, and thus Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vii) permits a non-final appeal of that order. However, the trial court’s order made no such determination, but instead merely denied the motions. We dismiss for lack of jurisdiction.

The appellees sued the appellants for violation of their civil rights pursuant to 42 U.S.C. § 1983. The appellees claimed that their arrests, detainment, and prosecution for murder were unlawful because they were not the result of probable cause but of the appellant officers’ wrongdoing during the course of the murder investigation. They asserted that the officers suborned perjury, procured false identifications of appellees as suspects through coercion, and withheld exculpatory information and evidence. Appellants filed answers and moved for summary judgment claiming absolute and qualified immunity. The trial court denied the motion, and appellants appealed to this court. In Wiley v. Rosati, 804 So.2d 410 (Fla. 4th DCA 2001), this court per curiam affirmed the denial of the motion without opinion.

The case then went to trial twice, with both trials ending in mistrials. After the second mistrial, appellants moved for judgment in accordance with their motions for directed verdict. The trial court denied these motions. Appellants now appeal that ruling.

The general rule is that state actors are not subject to suit if they establish that they are entitled to absolute or qualified immunity. However, where there are material issues of fact regarding the asserted immunity, they are not entitled to appeal a trial court’s decision on a motion for summary judgment. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Though Johnson arose in the context of a denial of a motion for summary judgment, its reasoning would appear to apply with equal force to a motion for directed verdict.

It is well settled in Florida that in the absence of specific language in an order denying a motion for summary judgment that an appellant is not entitled to immunity as a matter of law, an appellate court does not have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130. Butler v. Dowling, 750 So.2d 674 (Fla. 4th DCA 1999) (finding no jurisdiction under rule 9.130 where trial court’s order denying officer’s motion for summary judgment on the issue of qualified immunity in plaintiffs civil rights action provided no detail or explanation of the reasons behind the ruling); see also Vermette v. Ludwig, 707 So.2d 742 (Fla. 2d DCA 1997) (holding that the court did not have jurisdiction under rule 9.130 to review non-final order denying motion for summary judgment where trial court did not state that it found that as a matter of law the appellants were not entitled to absolute or qualified immunity).

Here, at both the summary judgment and directed verdict stages, the trial court did not decide the issue as a matter of law, and the orders contained no specific language determining as a matter of law that appellants were not entitled to immunity. Therefore, there is no appellate jurisdiction under rule 9.130.

Appellants also argue that if there is no appellate jurisdiction, we should treat this as a petition for certiorari and exercise our discretionary jurisdiction to decide the immunity issue. We decline to do so, finding that the factual disputes, as well as the unsettled issues of law, militate against discretionary review. This, of course, is without prejudice to the parties re-addressing this issue upon final appeal.

GROSS and HAZOURI, JJ., concur.


author: SHAHOOD, J.

text:
    Marcia SORIN, Appellant, v. Suzanne C. COLE, Appellee.
    No. 4D05-1838.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.

      Julie D. Leckart of Law Office of Andrew F. Rier, P.A., Miami, for appellant.
    No appearance for appellee.
   SHAHOOD, J.

Appellant, Marcia Sorin (Sorin), seeks review of a Final Judgment of Injunction for Protection Against Repeat Violence entered against her. We reverse.

The issue in this case is whether the trial court erred in issuing a final judgment for protection against repeat violence, pursuant to section 784.046(l)(a) & (b), Florida Statutes (2004), when the petition failed to allege violence and no testimony or evidence of violence or “repeat violence” was presented.

Suzanne Cole (Cole) filed a Petition for Injunction for Protection Against Repeat Violence. In the petition, she asserted that she and her neighbor, Sorin, had had a falling out and that Sorin cursed at Cole and told her that she “would be back for more” and “was not finished” with Cole and her husband. As a result, Cole claimed that Sorin “has mental problems” and that Cole, who has multiple sclerosis, and her husband, who has had a stroke, “are afraid of bodily harm.” A temporary injunction was issued and a hearing scheduled.

Following a hearing, which was attended by Cole and her attorney, but not Sorin and her attorney, the court entered the final judgment of injunction which is the subject of this appeal. The court granted the petition for an injunction against repeat violence for a period of one year. In addition to prohibiting any contact between the parties, the injunction also prohibited the following types of violence by Sorin or any other person on her behalf:

[A]ny acts of violence against Petitioner, including assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death. Respondent shall not commit any other violation of the injunction through an intentional unlawful threat, word or act to do violence to the Petitioner.

Sorin argues that the petition for an injunction was erroneously granted without an evidentiary hearing. Even though she failed to attend the hearing, our review of the record shows there was one. Thus, there is no merit to this argument. She also argues that the petition was deficient pursuant to section 784.046, Florida Statutes, because it did not allege two incidents of violence. This argument has merit.

Section 784.046 creates a cause of action for an injunction for protection against repeat violence. See § 784.046(2), Fla. Stat. (2004). “Violence” and “repeat violence” are defined in the statute as follows:

(a) ‘Violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.
(b) “Repeat violence” means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.

§ 784.046(l)(a) & (b), Fla. Stat. (2004). To support an injunction against repeat violence, each incident of violence must be proven by competent, substantial evidence. See Santiago v. Towle, 917 So.2d 909 (Fla. 5th DCA 2005).

Mere shouting and obscene hand gestures, without ah overt act that places the victim in fear, does not constitute the type of violence required for an injunction. Id. at 910-11. Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent. Id. at 911.

In this case, Cole alleged that Sorin said “f — you and your mother for having you.” This is not an assault or any other form of violence contemplated in the statute. The second allegation, that Sorin said, “I am not finished with you and will be back for more,” is also not sufficient. While it may have placed Cole and her husband in fear, there was no overt act, ability to carry out the threat, or justifiable threat of imminent harm. See Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (holding that one man’s threat to “f” up another man and kill him was insufficient to support an injunction because a mere threat to commit an assault is not enough).

The law requires two acts of violence to justify an injunction against repeat violence. See Delopa v. Cohen, 873 So.2d 530 (Fla. 4th DCA 2004). Because Cole did not allege even one act of violence, as it is defined in the statute, it was error to grant the petition for an injunction.

Reversed.

POLEN and KLEIN, JJ., concur.


text:
    Matthew M. MAHON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-407.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    William P. Cagney, III, of William P. Cagney, III, P.A., Delray Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s filing a timely motion for relief pursuant to Florida Rule of Criminal Procedure 3.850.

STONE, POLEN and FARMER, JJ., concur.


text:
    STATE of Florida, Appellant, v. W.K., a child, Appellee.
    No. 4D05-3216.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
    • Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. The state failed to preserve its claim that the disposition was illegal by a proper objection at sentencing or by a

motion filed pursuant to Florida Rule of Juvenile Procedure 8.135.

WARNER, GROSS and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Theodore BRAMWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4497.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Maury Halperin, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for first degree felony murder and aggravated child abuse of his daughter. He raises numerous issues. We affirm on all issues, but write to address the defendant’s claim of ineffective assistance of counsel for his attorney’s failure to file a motion to suppress his confession based upon deficient Miranda warnings.

In his second issue, the defendant claims that he was not advised of his right to counsel “during” questioning. Relying upon this court’s opinion in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), he argues his attorney rendered ineffective assistance of counsel when he failed to challenge those warnings in a motion to suppress. He suggests this failure warrants a reversal. We disagree.

In this case, the rights read to the defendant from the preprinted card did fail to advise the defendant of his right to counsel “during” questioning. However, the defendant also signed a waiver of rights form prior to being questioned. That form included the following language:

If you decide to answer questions now, without an attorney present, you will still have the right to stop answering my questions at any time until you talk to an attorney. Do you understand?

In Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006), this court found virtually identical language sufficient to advise the defendant of his right to counsel “during” questioning. For this reason, we dispose of the defendant’s contention that his counsel rendered ineffective assistance of counsel on this basis and affirm on this issue.

Affirmed.

STONE and SHAHOOD, JJ., concur.

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

      . The defendant also raised a claim of ineffective assistance of counsel concerning statements made by his attorney during voir dire. We decline to address this issue on direct appeal and affirm without prejudice to the defendant’s right to pursue this claim pursuant to Florida Rule of Criminal Procedure 3.850.


author: STONE, J.

text:
    Scott C. BURGESS and Aviation Legal Group, P.A., Petitioners, v. David M. LIPPMAN, Respondent.
    No. 4D05-4177.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    James O. Murphy, Jr. of Byrd and Murphy, Fort Lauderdale, for petitioners.

      William R. Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauder-dale, for respondent.
   STONE, J.

We grant this petition for writ of certio-rari and quash a trial court order which denied a motion to abate this action for legal malpractice.

Respondent, David Lippman, is the plaintiff in a lawsuit against his attorney, Scott Burgess, and his law firm (Burgess). The complaint alleges that counsel owed him a duty to advise of his relationship with a third party (Asper), who was retained as a consultant in an underlying transaction arising out of sale of a charter airline, and owed him a duty to advise of what he knew about Asper’s trust accounts and business practices. It is alleged that Asper converted Lippman’s funds that were deposited in a trust account. In the same lawsuit, Lippman included claims against Asper and a corporation alleged to be his alter-ego (Aviation Professionals).

Burgess filed a motion to dismiss or, in the alternative, to abate the legal malpractice action until the underlying claims against Asper were concluded. The trial court denied the motion.

The proper remedy for premature litigation “is an abatement or stay of the claim for the period necessary for its maturation under the law.” Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989). Abatement is proper upon a showing by the movant that a related or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged negligence/malpractice. Perez-Abreu, Zamora & De La Fe, PA. v. Taracido, 790 So.2d 1051 (Fla.2001); Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994).

In Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061, 1065 (Fla.2001)(footnote omitted), the supreme court said:

Consistent with Peat, Marwick, [Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990) ], we hold that, in the circumstances presented here, a negligence/malpractice cause of action accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings or, ... when the client’s right to sue in the related or underlying proceeding expires. If a negligence/malpractice action is filed pri- or to the time that a client’s right to sue in the related or underlying judicial proceeding has expired, or if a negligence/malpractice action is filed during the time that a related or underlying judicial proceeding is ongoing, then the defense can move for an abatement or stay of the claim on the ground that the negligence/malpractice action has not yet accrued.

See also Glucksman v. Persol N. Am., Inc., 813 So.2d 122 (Fla. 4th DCA 2002).

Bierman is instructive. In that case, the plaintiff sued a law firm for legal malpractice, claiming the firm was negligent in its drafting of an agreement and failing to protect the plaintiffs interests. 639 So.2d at 628. The legal malpractice action was filed while a suit was pending in federal court regarding the plaintiffs liability under the agreement. Id. at 627-28. In abating the malpractice action, the court found the action had not yet accrued because a redressable harm had not been established. Id. at 628. “Until the validity of the agreement is decided in federal court, there can be no determination in a malpractice action as to whether Bierman was negligent in negotiating and drafting that agreement.” Id. .

Here, as in Bierman, Lippman has not yet incurred any legally recoverable damages as a result of the alleged malpractice because the underlying claims against Asper are not resolved. Resolution of those claims will determine whether the damages claimed by Lippman are causally related to the malpractice claims against Burgess. This is necessarily so because if Asper did not convert Lipp-man’s funds, then there would be no damages suffered by Lippman caused by the alleged failure to warn by Burgess. Thus, the legal malpractice claim is premature and should be abated.

We have considered the authorities relied on by Lippman and deem them inap-posite.

We, therefore, grant the petition, quash the order, and remand for stay or abatement.

SHAHOOD and HAZOURI, JJ., concur.


text:
    CITY OF BOYNTON BEACH, Appellant, v. Frank JANOTS, Theodore Ryan, Gerhart Degen, Robert P. Brown, Jr., Charles Felman, Sylvia Felman, State of Florida, and United States of America, Appellees.
    No. 4D05-2521.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Kerry L. Ezrol and Michael D. Cirullo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellant.
    Erskine C. Rogers, III of Rutherford Mulhall, P.A., Palm Beach Gardens, for Appellees Theodore Ryan and Gerhart De-gen.
   STONE, J.

In this eminent domain action, we reverse an order awarding attorney’s fees under section 73.092, Florida Statutes. The issue is which of two letters from the city attorney of Boynton Beach (City) to property owners constituted an “offer” to the owners for the purpose of determining the date from which to compute entitlement to attorney’s fees. We find the nature of the first letter to be dispositive.

City filed a petition in eminent domain in October 2003. One of the attachments to the petition was the taking resolution adopted August 5, 2003, which declared the public necessity for acquiring the parcels in question for construction of a drainage/retention pond. The city commission further authorized the city attorney to acquire the parcels.

Section 73.015, Florida Statutes, provides, in relevant part:

... before an eminent domain proceeding is brought under this chapter or chapter 74, the condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired, must provide the fee owner with a written offer and, if requested, a copy of the appraisal upon which the offer is based, and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.

After consent final judgments were entered, the court held a hearing on Appel-lees’ motion for fees and costs. At issue were the two letters that were sent to Appellees regarding purchase of their property.

The first letter, dated July 7, 2003, sent to each appellee, provided:

Please be advised that our law firm acts as the City Attorney for the City of Boynton Beach.
On behalf of the City, I am authorized to offer to purchase your property for $62,000.00. This offer is contingent upon the execution of an agreement for purchase and sale and is further subject to the approval of the Boynton Beach City Commission.
This offer will remain available for acceptance by you until July 31, 2003 at 5:00 p.m. In the event that you do not accept the offer in writing by then, the offer shall be automatically revoked.

The second letter, more lengthy and detailed, dated August 7, 2003, provides, in relevant part,

Please be advised that our law firm acts as the City Attorney for the City of Boynton Beach. On August 5, 2003, the City Commission authorized the acquisition of the subject property by negotiation or condemnation, if negotiation is unsuccessful.
⅝ * *
Additionally, before an eminent domain proceeding is brought, the City must attempt to negotiate in good faith with the owner of the property to be acquired and must provide the owner with a written offer. This shall further serve as the City’s written offer pursuant to Section 73.015, Florida Statutes. The City hereby offers to acquire the property for $77,500.00.

By the consent judgments, each appellee was awarded $99,000. The difference in the final judgment or settlement award and the amount offered is determinative in calculating attorney’s fees. The trial court measured the award from the first letter containing the lower “offer.” We agree with City that the second letter was the offer applicable to computing the benefit to Appellees under the statutory scheme.

Section 73.092, Florida Statutes, provides, in part:

(1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client.
(a) As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

In City of Jacksonville v. Tresca, 692 So.2d 991 (Fla. 1st DCA 1997), which we deem instructive, the city negotiated an option to purchase to the landowner’s property within 180 days for $107,000; the court held that this did not constitute an offer under section 73.092. Id. at 992. In so holding, the First District reasoned that:

an offer under the statute must be one whereby if it is accepted will constitute a legal obligation by the condemning authority to purchase the property for the amount stated in its offer. In the instant case ... acceptance of the city’s offer would not have guaranteed that appellants would receive $107,000 for their property. The option merely gave the city the right to purchase the property for six months if it unilaterally chose to do so.

Id. at 993.

Appellees rely on Department of Transportation v. Lakepointe Associates, 745 So.2d 364 (Fla. 1st DCA 1999). In that case, the issue was whether the department’s unsigned letter to the landowner constituted an “offer” within the meaning of section 73.092. Id. at 366. In the letter, the department stated that the owner’s land was needed for a right of way for a state construction project, and it offered just compensation for the property. Id. at 365.

The court, in holding that the department had made a valid offer under the statute, distinguished the offer in Tresca. Id. at 367. The court stated, “The offer in the present case was unconditional, and in that respect it is very different from the promise the condemning authority made to the landowner in [Tresca].” Id. “In contrast, the letter in the present case created an obligation on the part of the Department to purchase the property for the amount stated in the offer.” Id. at 367-68.

Furthermore, it is clear that the Department intended to prepare a formal written contract for the purchase of property if Lakepointe had accepted its offer. The contract could not have been formalized by Lakepointe’s acceptance alone, because the Department was required by law to wait at least thirty days from the date of acceptance. See § 119.07(3)(n), Fla. Stat. (1997)(stating that an agency shall not formalize a .contract to purchase property acquired by eminent domain for a period of thirty days, “to allow public review of the transaction”). Hence, it would be unreasonable to interpret the offer requirement of 73.092 to mean that the condemning authority must submit a self-executing offer that becomes a binding contract immediately upon acceptance. The Department could not lawfully meet such a requirement in any case.

Id. at 368.

We deem Lakepointe distinguishable, as the letter from the department in that case was, in fact, the offer by the state subject only to drawing the contract and the passage of time required by law. It did not, as here, contemplate the need for any further discretionary review. Here, unlike Lake-pointe, the government entity would not be bound by an acceptance. In order to conclude that Lakepointe is applicable, we would have to treat the resolution of the city commission as a ministerial act.

The requirement for approval by the city commission is not simply ministerial, and nothing in the letter indicates that this is the case. Clearly, if the offer had been accepted by Appellees and submitted for the first time to the commission, rejection by the commission was an optional exercise of discretion. Acceptance of the “offer” would not have bound City.

We, therefore, conclude that the first letter did not constitute an offer. Even if the first offer had been accepted, it would not have guaranteed the Appellees’ receipt of the $62,000 for their parcels, nor bound the city unless and until the contingencies set forth in the letters were satisfied. There is also nothing in the first letter amounting to a threat of a taking or indicating that it was incident to a proceeding under section 73.015. There is no indication in the July 7, 2003 letter that it was anything other than an effort by the city administration to obtain the property by a Standard real estate transaction.

In Tresca, the court stated “We determine that an offer under the statute must be one whereby if it is accepted will constitute a legal obligation by the condemning authority to purchase the property for the amount stated in its offer.” 692 So.2d at 993. It is the August 7, 2003 letters in the instant case that meet the Tresca requirements; those letters contain no contingencies and meet the statutory requirement that an offer first be advanced by the condemning authority.

It is not unusual for a municipality to seek to acquire property without having first determined the property would be obtained through eminent domain. Such a transaction is at arm’s length and the negotiating process need not differ in a material way from any other transaction that employs offers and counter-offers. There is nothing in such a negotiation process that pressures the property owner to obtain litigation counsel prematurely. Ultimately, should the municipality elect to pursue eminent domain upon failure to acquire the property through negotiation, it is required by law to make the pre-suit offer pursuant to section 73.015. The purpose of this statute is obviously not to incur unnecessary attorney’s fees in litigation.

Therefore, the order is reversed, and we remand for modification of the amount of attorney’s fees.

GROSS and MAY, JJ., concur.


author: KAHN, C.J.

text:
    Brian A. STRAWDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2569.
    District Court of Appeal of Florida, First District.
    May 4, 2006.

      Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, for Appellee.
   KAHN, C.J.

Appellant appeals his convictions of first-degree murder and robbery. A-though we agree with Appellant that the trial court erred in admitting evidence of a prior threat, we find the error harmless. Accordingly, we affirm.

Six months before the murder, Appellant, angered because he was denied free alcohol while attending a party, made a vague and undirected threat against “[people] around here.” The victim was not present at the party. The trial court, over the objection of defense counsel, allowed a witness to testify about the threat made by Appellant. The trial court admitted the testimony on the theory that Appellant directed the threat against a class of people. The trial court erred by allowing the testimony.

A defendant’s threats against a third-party are admissible when relevant to prove a material issue, as long as the probative value outweighs any undue prejudice. See Muhammad v. State, 782 So.2d 343, 358 (Fla.2001). Similar fact evidence, including a threat against a third person, will be admissible to prove motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident. See § 90.404(2)(a), Fla. Stat. (2004); see also Robertson v. State, 829 So.2d 901, 907 (Fla.2002) (requiring the circumstances surrounding the similar fact evidence to be “strikingly similar” to the charged offense). Threats against a class of people may be admissible under section 90.404(2)(a) if they prove one of its categories. See, e.g., Guyton v. State, 80 Fla. 621, 86 So. 618 (1920) (allowing evidence of prior threat against black individuals in the prosecution of the killing of a black individual); Dixon v. State, 13 Fla. 636 (1870) (permitting introduction of prior threat against police officers in the prosecution of the killing of a police officer). Under the Williams rule, however, evidence of other wrongs is inadmissible when it is relevant solely to prove the bad character or the propensity of violence of the defendant. See Williams v. State, 110 So.2d 654, 663 (Fla.1959).

In this case, “[people] around here” does not constitute a class of people, especially when the victim was not among the group of people present. Accordingly, the admitted threat did not serve the purpose of proving motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident. Instead, the threat simply served the purpose of painting Appellant as an individual of bad character with a propensity for violence.

Although the trial- court erroneously admitted the evidence of the prior threat, we find the error harmless. The State did not go out of its way to build a case portraying Appellant as simply a violent man prepared to threaten, and even kill, anyone who crossed him. Rather, the prior threat was offered as an isolated incident. The State, through its other evidence, satisfied the rule of State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, 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.”).

We note the following matters proven at trial: 1) Appellant was the last person seen with the victim; 2) Appellant armed himself with a shotgun before driving off with the victim; 3) the victim died of gunshot wounds made by a shotgun, matching the one possessed by Appellant, from a distance of six to twelve inches; 4) after the murder, a witness observed Appellant, alone, driving the victim’s car; 5) after the murder, Appellant gave the shotgun to a friend and stated, “I got to go, I got to get rid of that;” 6) Appellant’s clothing tested positive for the presence of gasoline, tying Appellant to the act of arson on the victim’s car. The admittance of the prior threat, although error, had no perceptible effect on the jury’s deliberations, given the circumstances of the actual crime. Accordingly, we AFFIRM the judgment and sentence.

PADOVANO and THOMAS, JJ., concur.


text:
    Susan P. CALLAHAN, et al., Appellants, v. Janice E. SPENCER, Appellee.
    No. 5D05-2410.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2006.
    Rehearing Denied June 2, 2006.
    Non Final Appeal from the Circuit Court for Volusia County, Edwin P.B. Sanders, Judge.

      Mark 0. Cooper of O’Neil, Liebman & Cooper, P.A., Orlando, for Appellants.
    Martin A. Pedata of Martin Pedata, P.A., and Thomas W. Collier, Jr., DeLand, for Appellee.
   PER CURIAM.

AFFIRMED. See Spaulding v. Estate of Frey, 666 So.2d 935 (Fla. 5th DCA 1995).

PLEUS, C.J., MONACO and TORPY, JJ., concur.


author: HAZOURI, J.

text:
    Vondyleyn M. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-527.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied June 19, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Vondyleyn M. Sutton, appeals his convictions and sentences for second degree murder and attempted second degree murder, both committed while he was in actual possession of a firearm. We affirm the convictions but remand for resentencing.

In seeking a reversal of the convictions, Sutton raises four points on appeal, none of which warrant a reversal. However, we address Sutton’s assertion that the trial court committed fundamental error when it instructed the jury upon the justifiable use of deadly force in a manner that negated Sutton’s claim of self-defense.

The trial court read the following instruction without objection:

An issue in this case as to counts one and two is whether the Defendant acted in self-defense. It is a defense to the offense with which Vondyleyn Sutton charged [sic] if the death of Jawon Matthews or the attempted injuries of Ther-rell Gosier resulted from the justifiable use of force likely to cause death or great bodily harm.
A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
Vondyleyn Sutton was attempting to commit, committing, or escaping after the commission of an unlawful murder or an attempted murder.

The instruction is misleading because the trial court instructed the jury that Sutton’s forcible felonies were first degree murder and attempted first degree murder which were the very acts Sutton was seeking to justify by use of deadly force. As read to the jury, this instruction would negate Sutton’s theory of self-defense. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). This error has been found to be fundamental. Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). See also Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Williams v. State, 901 So.2d 899 (Fla. 4th DCA 2005); Hardy v. State, 901 So.2d 985 (Fla. 4th DCA 2005); Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004). However, the jury instruction that was given does not constitute fundamental error if the evidence adduced at trial does not support a self-defense instruction. See Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005); Hickson v. State, 917 So.2d 939 (Fla. 4th DCA 2005); Berrios v. State, 781 So.2d 455 (Fla. 4th DCA 2001).

The evidence introduced at trial established that Sutton and two companions went to a house in Pompano Beach to confront a person known as “Loclock.” One of Sutton’s companions allegedly was in an altercation with Loclock the previous evening and had sustained injuries. At the time Sutton arrived at the house in search of Loclock, there were several people in the front yard of the home including Jawon Matthews, a twelve-year-old boy. Sutton exited his vehicle brandishing a handgun and demanding that the individual known as Loclock identify himself. The people in the front yard of the home began to flee.

Sutton’s statement to the police was introduced at trial. In his statement, Sutton said that he thought that one of the individuals, who he believed to be Loclock, was running toward the house and that this individual might be going to retrieve a weapon. At that time Sutton fired a warning shot which struck either a window or a glass table. Thereafter, he “lost control” of the trigger of the handgun and fired a second time. As he turned to return to his vehicle, he stumbled on some stones in the front yard which caused him to discharge the weapon two more times. There were numerous eyewitnesses who testified. Their testimony contradicted Sutton’s version of events. They testified that Sutton actually placed the barrel of the handgun within inches of Jawon Matthews, shooting him and causing his death.

Before a defendant is entitled to “the defense of self-defense, he must establish his life was in imminent danger and he could not safely retreat.” Hunter v. State, 687 So.2d 277, 278 (Fla. 5th DCA 1997). “A defendant seeking refuge in a claim of self-defense ‘must have used all reasonable means in his power, consistent with his own safety, to avoid the danger and to avert the necessity of taking human life.’ ” Thomas, 918 So.2d at 330 (quoting Brown v. State, 454 So.2d 596, 599 (Fla. 5th DCA 1984)). “A trial court errs by giving the self-defense instruction where the facts indicate that, as a matter of law, it was unreasonable for a defendant to resort to deadly force.” Thomas, 918 So.2d at 330. In this case, there was no evidence adduced to indicate that Loclock was in possession of a weapon, that Lo-clock was going to retrieve a weapon inside the house or that Sutton was in imminent danger. The first time he fired the handgun was as a warning shot which struck either a glass table or window. In addition to it being a mere supposition by Sutton that Loclock was going into the house to retrieve a weapon, his own statement reflects that each time he fired the handgun after the warning shot it was not in self-defense but due either to his inability to control the trigger or his stumbling over stones in the front yard. Accordingly, Sutton was not entitled to an instruction on the use of deadly force in self-defense.

We now turn our attention to Sutton’s assertion that the trial court erred in sentencing him as a prison releasee reof-fender on his conviction for second degree murder with a firearm and as a habitual felony offender on his conviction for attempted second degree murder with a firearm. At sentencing the state, seeking imposition of sentences as a prison releasee reoffender and a habitual felony offender, introduced, over Sutton’s hearsay and confrontation clause objection, a letter from the Department of Corrections stating when Sutton was last released from prison. In order to have Sutton sentenced as a prison reoffender for second degree murder, the state was required to prove that he committed the offense within three years of a release from a state correctional facility. See § 776.082(9)(a)l, Fla. Stat. (2001). In order to have Sutton sentenced as a habitual felony offender for the attempted second degree murder, the state was required to prove that Sutton was previously convicted of two or more felonies and that the attempted second degree murder was committed within five years of his release from a prison sentence that was imposed as a result of a prior conviction for a felony. See § 775.084(l)(a), Fla. Stat. (2002). The letter from the Department of Corrections which was introduced was signed by Michael E. Deason, as Correctional Services Assistant Administrator, and read:

I, MICHAEL E. DEASON, CORRECTIONAL SERVICES ASSISTANT ADMINISTRATOR, CENTRAL RECORDS, STATE OF FLORIDA DEPARTMENT OF CORRECTIONS, DO HEREBY CERTIFY THAT THIS SEAL IS THE OFFICIAL SEAL OF THE DEPARTMENT OF CORRECTIONS. I ALSO CERTIFY THAT THE LAST RELEASE DATE FOR INMATE VON SUTTON, DC# 186513, B/M, DOB: 7/17/72, IVAN OCTOBER 1, 2000, FOR CASES #92-11822, #94-234, #95-1894, BROWARD COUNTY, FLORIDA.

We find that it was error to admit this letter as a basis for enhancing Sutton’s sentence as a prison releasee reoffender and a habitual felony offender because the letter was clearly hearsay and therefore inadmissible.

“Where nothing more than inadmissible hearsay received over specific objection is adduced in order to prove a prison release date necessary for sentence enhancement, the enhanced sentence cannot withstand attack on direct appeal.” Gray v. State, 910 So.2d 867, 870 (Fla. 1st DCA 2005). Mr. Deason’s written statement concerning Sutton’s release date constituted hearsay and the state did not establish the predicate for admission of the statement as a business record as an exception to the hearsay rule. Because the release letter was the sole evidence relied upon to establish that Sutton qualified as a prison releasee reoffender and habitual felony offender, we reverse and remand for resentencing. The state shall have the opportunity to present and substantiate Sutton’s prison release date, and if it does so, the trial court may again sentence Sutton as a prison releasee reoffender and a habitual felony offender. See Boyd v. State, 776 So.2d 317 (Fla. 4th DCA 2001).

Affirmed in Part; Reversed in Part and Remanded.

WARNER and GROSS, JJ„ concur.


text:
    ZEUS, L.L.C., Petitioner, v. The CADLE COMPANY, Respondent.
    No. 4D05-2306.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied June 21, 2006.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Leif J. Grazi of the Law Offices of Grazi & Gianino, Stuart, for petitioner.
    Marcos R. Marchena and Keith A. Graham of Marchena & Graham, Orlando, for respondent The Cadle Company.
   PER CURIAM.

Zeus, L.L.C. seeks review of a discovery order. We note that a portion of the petition is moot in light of this court’s recent decision in Cadle Company v. Pegasus Ranch, Inc., 920 So.2d 1276 (Fla. 4th DCA 2006). Having reviewed the remaining points, we grant relief in part. Our review of the record reveals that respondent did not demonstrate that Jacqueline Teske is an officer, director, or managing agent of the corporation such that she could simply be noticed for deposition. Triple Fish America, Inc. v. Triple Fish Intern., L.C., 839 So.2d 913 (Fla. 5th DCA 2003); North Ridge Medical Plaza, Inc. v. Tenet Healthcare Corp., 719 So.2d 1014 (Fla. 4th DCA 1998) (citing Plantation-Simon, Inc. v. Al Bahloul, 596 So.2d 1159, 1162 (Fla. 4th DCA 1992)). Relief is denied in all other respects.

Granted in part and Denied in part.

KLEIN, SHAHOOD and MAY, JJ„ concur.


text:
    R.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3097.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    James S. Purdy, Public Defender; and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Wright v. State, 681 So.2d 852 (Fla. 5th DCA 1996); State v. Davis, 652 So.2d 942 (Fla. 5th DCA 1995).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Richard BROKENBOROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-300.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wilson v. State, 622 So.2d 31 (Fla. 1st DCA 1993).

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Harry R. DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1130.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nesbitt v. State, 889 So.2d 801 (Fla.2004).

PLEUS, C.J., MONACO and TORPY, JJ., concur.


text:
    Ronald Douglas GEDDA, Appellant, v. Patsy Anne MILLER, Appellee.
    No. 5D05-1356.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    David W. Glasser, of Glasser and Handel, Daytona Beach, for Appellant.
    Sean K Ahmed, of Nichols & Ahmed, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ospina-Baraya v. Heiligers, 909 So.2d 465 (Fla. 4th DCA 2005); Christians v. Christians, 732 So.2d 47 (Fla. 4th DCA 1999).

PLEUS, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Lester Ray ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1569.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Law, 559 So.2d 187,189 (Fla.1989).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Kenneth SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1682.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock Mcguigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sullivan v. State, 801 So.2d 185 (Fla. 5th DCA 2001); Trotter v. State, 774 So.2d 924 (Fla. 5th DCA 2001), approved, 825 So.2d 362 (Fla.2002).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Rafael DISLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1768.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    Lawrence E. Besser of Samek and Bes-ser, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 844 So.2d 745 (Fla. 5th DCA 2003).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Kenneth D. MADDEN, Appellant, v. CACV, INC., Appellee.
    No. 5D05-2397.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    Kenneth D. Madden, Pensacola, in proper person.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Rule 9.315, Fla. R.App. P.

PLEUS, C.J., MONACO and TORPY, JJ., concur.