text:
    Lenorris PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1939.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Lenorris Parker, raises several issues on direct appeal. Only one issue merits discussion. Mr. Parker contends that the trial court erred in sentencing him as a prison releasee reoffender because the State adduced only hearsay to prove the date of his release from prison. The State did not offer a witness to establish appellant’s release date. At the original sentencing hearing, the State relied on inadmissible hearsay to establish appellant’s release date, similar to evidence that the Court ruled insufficient in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), review denied 920 So.2d 628 (Fla.2005). Relying on Gray, appellant filed a 3.800(b) motion to correct sentencing error. At the resentencing hearing, the State relied on a “Certification of Records.” The document introduced by the State during the resentencing hearing provided:

I, Ramona Cox-Pye, hereby certify that I am a custodian of records of the Florida Department of Corrections.... I hereby certify the following:
a) that as part of my regular duties I maintain custody and control of the official records of the Florida Department of Corrections,
b) that the attached DC14 computer data record of Lenorris Q. Parker, DC No. N01172 consisting of 7 pages reflects entries of information that were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters,
c) that it is the regular practice of the Florida Department of Corrections to make, keep, and maintain the attached computer data during the course of regularly conducted business,
d) and that the attached computer data record is a true and correct copy of the original record contained in the official records of the Florida Department of Corrections maintained pursuant to Section 945.25.

Computer printouts detailing his intake, assignments, disciplinary records, and 7/20/02 release date were attached.

In Gray, the document the State offered to establish the date Mr. Gray had been released from prison purported to be a Department of Corrections employee’s declaration or affirmation certifying that the seal in the letterhead was official, and that Mr. Gray was released on a certain date. As the panel on appeal noted,

Ms. Smith’s statement constituted hearsay, and the State proved no proper predicate for its admission under any exception to the rule excluding hearsay. The document fails to identify the official records on which it relied, if any, does not state that it is a true and correct representation of any record, and does not say where or in whose custody any original official or business records are kept. As Ms. Smith’s statement is essentially a (defective) affidavit devoid of any reference to records the DOC maintains, see Belvin v. State, 30 Fla. L. Weekly D1421, D1422, 2005 WL 1336497 (Fla. 4th DCA June 8, 2005) (disapproving resort to “affidavits ... prepared for use at a criminal prosecution”), it is less deserving of consideration than the probation officer’s testimony we held should have been excluded in the King case.

Gray, 910 So.2d at 869-870. The document introduced by the State at resentenc-ing in the present case, however, does not suffer from the deficiencies noted with regard to the document at issue in Gray.

Section 90.902(11), Florida Statutes, provides:

90.902 Self-authentication. — Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for:
(11) An original or a duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record:
(a) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;
(b) Was kept in the course of the regularly conducted activity; and
(c) Was made as a regular practice in the course of the regularly conducted activity, provided that falsely making such a certification or declaration would subject the maker to criminal penalty under the laws of the foreign or domestic location in which the certification or declaration was signed.

The affidavit attached to the records in the present case satisfied the requirements of section 90.902(11), Florida Statutes. We reject Mr. Parker’s argument that application of this provision, which became effective after the date of the commission of his offenses, is unconstitutional in violation of the ex post facto provision. Mr. Parker erroneously asserts that prior to enactment of section 90.902(11), the State would have been required to present a witness with personal knowledge of his release date from prison. Instead, the State would have been required to present the live testimony of a records custodian. Section 90.902(11), in the present context, does not result in a conviction based on less evidence than the law required at the time the offense was committed. We also reject Mr. Parker’s argument that the evidence presented to establish his alleged release date from prison violated his right of confrontation set forth in the Sixth Amendment to the United States Constitution. See Peterson v. State, 911 So.2d 184 (Fla. 1st DCA 2005) (Department of Corrections records were not testimonial, and thus admission of those records to determine defendant’s status as a prison re-leasee reoffender (PRR) for sentencing purposes did not violate his rights under Confrontation), review denied 920 So.2d 628 (Fla.2005).

AFFIRMED.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    Cynthia Lee Baxley OWENS, Appellant, v. John Stanley OWENS, Appellee.
    No. 1D06-5676.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Scott A. Snavely of Scott A. Snavely, P.A., Tallahassee, for Appellant.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   WOLF, J.

The former wife, appellant, challenges a final judgment of dissolution of marriage. Appellant raises five issues on appeal; we affirm as to all issues, but briefly discuss one.

Appellant asserts that the final judgment lacks sufficient findings of fact to allow meaningful appellate review. Appellant, however, never challenged the adequacy of the findings in a motion for rehearing or by any other means available in the trial court. We, therefore, determine that this issue was not properly preserved for appellate review. See Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004), review denied, 909 So.2d 862 (Fla. 2005) (treating lack of adequate findings as unpreserved error unless previously brought to the trial court’s attention); see also Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001) (holding a party cannot appeal inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing).

ALLEN and PADOVANO, JJ., concur.


author: PER CURIAM.

text:
    K.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5915.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Bill McCollum, Attorney General; Thomas Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The State concedes that the trial court erred by disregarding the recommendation of the Department of Juvenile Justice that Appellant remain on probation. Instead, the trial court adjudicated Appellant delinquent and committed him to a moderate risk facility, and failed to state its reasons on the record for deviating from the Department’s recommendation. See § 985.23(3)(c), Fla. Stat. (2006). Additionally, it failed to reference the characteristics of a moderate risk placement vis-a-vis Appellant’s needs. Failure to do so constitutes reversible error. See C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002) (explaining “[t]he trial court must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.”). Accordingly, we reverse the disposition order and remand for a new disposition hearing. C.M.K. v. State, 855 So.2d 1234 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

BENTON, HAWKES and THOMAS, JJ., concur.


text:
    Theodore A. AVELLONE, Appellant, v. Susan E. AVELLONE n/k/a Susan E. Rice, Appellee.
    No. 1D06-5219.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Rehearing Denied Nov. 20, 2007.
    Theodore A. Avellone, pro se, Appellant.
    Joshua D. Zelman, Patricia M. Durst, and Susan Harnden of Durst, Harnden & Zelman, PL, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.400(c), we review the trial court’s Order on Clarification of Attorney’s Fees. In Avellone v. Avellone, 951 So.2d 80 (Fla. 1st DCA 2007), we affirmed the trial court’s order denying the motion for contempt and to enforce the Marital Settlement Agreement filed by the former husband and granted the former wife’s motion for appellate attorney’s fees. The trial court found that fifty hours was a reasonable amount of time to spend representing the former wife on appeal and that $200 per hour was a reasonable hourly fee, for a total reasonable fee of $10,000. The trial court then subtracted the $4,000 retainer paid by the former wife from the $10,000 and ordered that the former husband pay the sum of $6,000 to the former wife’s attorney. The former wife sought review of the order. Because we were unable to discern from the face of the trial court’s order why it deducted the $4,000 retainer, we reversed the order and remanded for further proceedings. See Avellane v. Avellone, 960 So.2d 910 (Fla. 1st DCA 2007). On remand, the trial court found that the former wife had the ability to pay the $4,000 retainer, notwithstanding the fact that she was the prevailing party. The former wife has now sought review of this order.

The parties’ Marital Settlement Agreement provides in part, “In the event either party to this agreement incurs attorney’s fees and costs, in the enforcement of obligations created by this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.” Notwithstanding the fact that the trial court found $10,000 to be a reasonable fee for the services of the former wife’s counsel on appeal, it determined that the former wife was entitled to only $6,000 based on her ability to pay the $4,000 retainer. This was error. Although section 61.16(1), Florida Statutes (2006), provides that a court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees to the other party in dissolution of marriage, support, and custody cases, this statute and its focus on the parties’ financial resources is irrelevant in this case given the parties’ agreement. See Ulbrich v. Coolidge, 935 So.2d 607, 608 (Fla. 4th DCA 2006) (“[I]n cases involving a marital settlement agreement with a prevailing party provision, section 61.16 ... cannot be used as a basis for an award of attorney’s fees.”); Dean v. Dean, 655 So.2d 243, 244 (Fla. 3d DCA 1995) (“We agree with the husband that the right to attorney’s fees is governed only by the contract and that section 61.16 ... and the conditions to an award under that statute are therefore irrelevant.”); see also Mott v. Mott, 800 So.2d 331, 334 (Fla. 2d DCA 2001) (“To the extent that on remand the trial court determines that certain fees and costs are not recoverable by Ms. Mott under the prevailing party provision of the marital settlement agreement, the trial court must then consider whether those fees and costs would be recoverable ... under the other terms of the agreement or under section 61.16....”).

Accordingly, we reverse the trial court’s Order on Clarification of Attorney’s Fees and remand with instructions to award the former wife $10,000 in appellate attorney’s fees pursuant to the Marital Settlement Agreement. We deny the former wife’s request for attorney’s fees for litigating the amount of fees.

REVERSED and REMANDED with instructions.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Samuel Clark BUTLER, Appellant, Gabe Kaimowitz, Cross Appellant-Proposed Intervenor, v. The NEW YORK TIMES COMPANY, NYT Management Services, Inc., d/b/a The Gainesville Sun, Janine Young Sikes, and Cindy Swirko, Appellees.
    No. 1D07-3366.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 4, 2007.

      Manuel Sodas of Gary, Williams, Paren-ti, Finney, Lewis, McManus, Watson & Sperando, P. I., Orlando; Willie Gary, Maria Sperando, Trida Hoffler, and Debra Nolan, of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P. L., Stuart, for Appellant Samuel Clark Butler. Gabe Kaimowitz, pro se, Cross Appellant-Proposed Intervenor.
    Larry G. Turner of Turner and Jones, Gainesville; Gregg D. Thomas, James J. McGuire and Rachel Fugate of Thomas and Locicero, PL, Tampa, for Appellees.
   PER CURIAM.

Upon consideration of the appellee’s Motion to Dismiss Cross-Appellant/Proposed Intervenor’s Appeal, as well as the cross-appellant’s response thereto, the Court has determined that the cross-appeal should be dismissed. The appellant’s cross-appeal is an untimely attempt to invoke the Court’s jurisdiction to review the lower tribunal’s October 24, 2005, Order Striking Motion for Intervention. Accordingly, the motion is granted and the cross-appeal is hereby dismissed.

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    William Alex WELLS, Petitioner, v. James MURRAY, John A. Molchan, and the State of Florida, Respondents.
    No. 1D07-4254.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    William Alex Wells, pro se, Petitioner. No appearance for Respondents.
   PER CURIAM.

DENIED. Moore v. Corr. Med. Serv., 817 So.2d 963 (Fla. 1st DCA 2002).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    Thomas TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6130.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 4, 2008.
    Thomas Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER and THOMAS, JJ., Concur; BENTON, J., Dissents.


text:
    Steven GIBSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5923.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 4, 2008.
    Steven Gibson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, BENTON, and THOMAS, JJ., concur.


text:
    Richard Lee HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1637.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Rehearing Denied Feb. 14, 2008.

      Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant, Richard Lee Hunter, challenges his conviction for first-degree murder and his sentence of life imprisonment. Appellant raises several claims of trial court error and argues that both individually and cumulatively these errors deprived him of a fair trial. Because we agree that three of Appellant’s claims have merit and that the trial court’s errors cannot be deemed harmless, we reverse. We affirm all other issues raised by Appellant without further discussion.

Appellant first argues that the trial court erred by denying his motion to suppress a taped statement he made to the police the day after his arrest. The evidence adduced at the suppression hearing, when viewed in a light most favorable to the State, revealed that Appellant informed law enforcement upon his arrest that he wanted an attorney. However, while Appellant was waiting to be arraigned, several correctional officers asked him to speak to the investigators in his case. Appellant repeatedly refused this request. At 4:30 a.m. the following day, another correctional officer asked him to speak to the investigators about his case, and he decided to speak to Officer Orr. Officer Orr’s testimony established that he received a call from a correctional officer around 5:00 a.m. that morning informing him that Appellant wanted to speak to him. Officer Orr confirmed that it was Appellant’s decision to speak with him before he started the interrogation. In his motion to suppress, Appellant argued that his statement should be suppressed because the evidence showed that he did not initiate contact with Officer Orr. The State argued that the court had to make a credibility determination between Appellant and Officer Orr. The trial court erroneously denied this motion.

Because Appellant invoked his right to counsel upon being arrested, the State had to establish that Appellant was the person that initiated contact with Officer Orr in order for his statement to be admissible at trial. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). The waiver of the right to counsel cannot be established by showing that Appellant responded to police-initiated contact. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In this case, the State never rebutted Appellant’s testimony that he decided to speak to Officer Orr after being contacted by a correctional officer. Moreover, Officer Orr merely testified that he confirmed that it was Appellant’s decision to speak to him. This testimony does not address the issue of who initiated the contact that led Appellant to decide to speak to the officer. Thus, the trial court erred in denying Appellant’s motion to suppress.

Next, Appellant argues that the trial court erred in denying his motion for mistrial after an officer commented on his right to remain silent. During direct examination, Officer Orr testified that Appellant wanted an attorney after he was arrested. This comment is fairly susceptible of being interpreted by the jury as a comment on Appellant’s right to remain silent. State v. DiGuilio, 491 So.2d 1129, 1131 (Fla.1986). Comments on a defendant’s right to remain silent are high-risk errors because there is a substantial likelihood that they will vitiate the defendant’s right to a fair trial. Grier v. State, 934 So.2d 653, 655 (Fla. 4th DCA 2006). The State argued that this comment was harmless error in light of Appellant’s statements that were admitted at trial, including Appellant’s own testimony. However, a defendant’s decision to testify at trial is separate from his decision to remain silent at the time of arrest, and a decision to testify at trial does not waive a defendant’s right to remain silent at the time of arrest. Robbins v. State, 891 So.2d 1102, 1106 (Fla. 5th DCA 2004); Sharp v. State, 605 So.2d 146, 148 (Fla. 1st DCA 1992). Thus, the trial court erred by denying Appellant’s motion for mistrial.

Finally, Appellant argues that the trial court erred in denying his motion for mistrial after the prosecutor questioned him about testimony he gave in a previous murder trial. In this ease, Appellant was being tried for first-degree murder where the victim’s body was never recovered and decided to testify on his own behalf. During cross-examination, the prosecutor asked Appellant if he had previously testified in a trial twenty years ago where a man was charged with killing someone whose body was never found. The trial court sustained defense counsel’s objection to this question, denied Appellant’s motion for mistrial, and directed the jury to disregard the question. This question reflected poorly on Appellant’s character because it implied that he was directly involved in a similar crime. Appellant’s character and credibility were the main focus of this trial; thus, the trial court should have granted the motion for mistrial.

In light of the cumulative effect of these errors, we cannot say that they were harmless. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So.2d at 1135. “Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1138. In this case, the body of the victim was never located, and there was no physical evidence that a crime occurred. The case centered on the credibility of the trial witnesses, including Appellant. It is possible that all of the above errors had a negative effect on Appellant’s credibility with the jury. Because it cannot be said beyond a reasonable doubt that the combined effect of the above errors did not contribute to the jury’s verdict, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

ALLEN, KAHN, and DAVIS, JJ., concur.


author: TUTER, JACK, Associate Judge.

text:
    Richard Keith ALAN II, Appellant, v. PALM BEACH NEWSPAPERS, INC., d/b/a The Palm Beach Post, Appellee.
    No. 4D06-4617.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      .Richard Keith Alan II, West Palm Beach, pro se.
    L. Martin Reeder, Jr., and C. Bryce Albu of Reeder & Reeder P.A., Jupiter, for appellee.
   TUTER, JACK, Associate Judge.

Richard Keith Alan, II, appeals the trial court’s final order of summary judgment in favor of Appellant, Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post.

Alan, a practicing attorney, was arrested in 2004 and charged with accessory after the fact to murder, threats or extortion, tampering with a witness, and solicitation to commit perjury. After his acquittal in June 2005 he filed a complaint for libel and defamation against The Palm Beach Post. He alleged the Post published certain defamatory statements in articles relating to his arrest and prosecution.

The facts of the case deserve recitation. According to a probable cause affidavit, Alan was representing Sherly Petib-Frere who was charged with murder. During trial preparation, Alan visited an alleged eyewitness to the murder, Kenneth Taylor. The visit took place while the witness was incarcerated. During the visit Alan allegedly informed the witness that if he kept his mouth shut about Alan’s client’s involvement in the murder, his client in turn would not implicate the witness’s cousin, Rodney Taylor, in the murder. The witness informed his attorney about Alan’s visit and the attorney informed the prosecutor in Petit-Frere’s case. The prosecutor arranged for detectives to record conversations between the witness and Alan. After a subsequent recorded conversation between the witness and Alan, Alan was arrested and charged with accessory after the fact to murder, threats or extortion, tampering with a witness, and solicitation to commit perjury.

Prior to trial, the State dropped two of the charges and the jury acquitted Alan of the remaining two charges. The Post published several articles about Alan’s arrest and trial. As a result of the articles Alan sued the Post for defamation and in his complaint alleged twenty-one published statements were false and defamatory.

The Post derived the information it published from three different sources. The Post’s first source of information came from the arrest warrant and probable cause affidavit disclosed at Alan’s first court appearance. Alan claims the following published statements from this source were defamatory:

Richard Keith Alan II, 31, was arrested Friday evening for his involvement in the murder case of Simon Sands.
A circuit judge set Alan’s bond at $100,000 and ordered house arrest if he is released from jail.
Law enforcement officials got a warrant last week to tape conversations between Alan and the State’s witness in Petitfrere’s case who was an inmate at the county jail.
Alan told the witness that if he wouldn’t implicate Petitfrere then Pet-itfrere won’t implicate the witnesses’ cousin in the murder.
Alan is considered an accessory to murder after the fact because the tape shows that not only was Alan suborning perjury from the cooperating witness, but that Alan knew his client and others had committed the murder.

As to the second source of information, the Post relied again on the probable cause affidavit, which contained excerpts from Alan’s taped conversation with the witness. Alan claims the following published statements from this source were defamatory:

Alan was arrested this year on charges that he tried to talk a witness out of testifying in a murder case against Alan’s client.
Alan’s charges stem from the March 2003 murder of Simon Sands, 33, outside the Stonybrook Apartment Complex outside of Riviera Beach.
Two men were suspects in the shooting — Shirley Petitfrere and Rodney Taylor, a first cousin of Kenneth Taylor.
As his client Petitfrere’s trial was looming, Alan paid several visits to Kenneth Taylor, who said he was six feet away from the shooting as a curious onlooker.
Kenneth Taylor told his attorney that Alan had been visiting him, and his attorney contacted prosecutors about a possible breach of ethics or the law.
Prosecutor Jim Martz met with Kenneth Taylor, and detectives later wired him to record a conversation with Alan.
Kenneth Taylor agreed, admittedly in an effort to gain leniency in his own legal problems.
And during that conversation, which is expected to be played in court today, Alan tells Taylor not to talk about what he saw.
He said ‘if you keep your cousin quiet, I’ll keep (Petitfrere) quiet, so that they won’t have a case against any of them.’

As to the third source of information the Post relied on evidence and testimony presented during Alan’s trial. Alan claims the following published statements from this source were defamatory:

Alan was the victim of an overzealous prosecutor intent on bringing him down.
Alan’s case rose out of the complicated murder investigation of Simon Sands who was gunned down in March 2003 outside the Stonybrook Apartment Complex in Riviera Beach.
Two men were suspects in the murder — Shirley Petitfrere and Rodney Taylor.
Alan was appointed to defend Petitfr-ere.
Kenneth Taylor told his attorney that Alan had been visiting him, and the attorney contacted prosecutors.
He said ‘If you keep your cousin quiet, I’ll keep Petitfrere quiet so that they won’t have a case against any of them.’
Instead Alan argued that he was targeted by Martz after their relationship went sour soon after their first meeting.

Alan argues the above statements were made without reasonable care and did not constitute fair and accurate reporting of the official proceedings. As a result, Alan alleges he suffered damage “to his office, occupation, business and or employment as a trial attorney and solo practitioner.”

The Post filed an answer and affirmative defenses asserting it did not cause any damages to Alan by publishing the statements listed above and asserting that all of the publications were true, “privileged under Florida common law as fair and accurate reports of a judicial proceeding ... contents of public records ... [and] statements of public officials, including law enforcement officials.” Moreover, the Post alleged the publications “are privileged under the First Amendment of the United States Constitution and Article I, Section 4 of the Florida Constitution because [Alan] is a public figure and the publications concerned [Alan’s] involvement in a public controversy.”

In granting the Post’s motion for final summary judgment the trial court determined there were no genuine issues of material fact as to the statements and that none of the statements were actionable as a matter of law. The trial court determined all the statements regarding Alan were accurate, fair and impartial reports of court records or court proceedings. Alan argues the trial court applied an incorrect legal standard in deciding the disputed issues. We disagree with Alan and hold the trial court applied the correct legal standard by considering whether the published statements were “accurate, fair and impartial” reports of court records and court proceedings.

The trial court determined there were no genuine issues of material fact as to whether a qualified privilege existed. A newspaper “has a qualified privilege to report accurately on information received from government officials. The privilege extends to the publication of the contents of official documents, as long as the account is reasonably accurate and fair.” Rasmussen v. Collier County Pub. Co., 946 So.2d 567, 570-71 (Fla. 2d DCA 2006). “This statement merely means that the report of judicial proceedings must be correct.” Walsh v. Miami Herald Pub. Co., 80 So.2d 669, 671 (Fla.1955).

It is not improper for a trial court to determine whether allegedly defamatory statements are fair, accurate and impartial. See Carson v. News-Journal Corp., 790 So.2d 1120, 1122 (Fla. 5th DCA 2001). In this case, the trial court determined, and the record supports, the published statements were fair, accurate and impartial. The Post obtained the information for the published statements from court documents and court proceedings surrounding Alan’s arrest and trial. Some of the published information may have been phrased to catch the Post’s readership’s attention. With the exception of the statement that the police had obtained a warrant to tape Alan and Taylor’s conversation, we find the trial court correctly determined the published statements were “fair, accurate and impartial.”

While some of the statements in the Post’s articles may be viewed as painting Alan in a negative light, this alone does not rise to actionable defamation. We affirm the trial court’s entry of summary judgment.

The Post claims Alan’s complaint and appeal is completely frivolous and subject to an award of attorney fees pursuant to section 57.105, Florida Statutes. We disagree and deny the Post’s claims for attorney fees.

Affirmed.

STONE and MAY, JJ., concur.


author: MONACO, J.

text:
    Dale F. WILLIAMS and Julie Williams, Appellant, v. LOWE’S HOME CENTERS, INC., Appellee.
    No. 5D06-2067.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    Rehearing Denied Feb. 11, 2008.

      Eric H. Faddis of Faddis & Warner, P.A., Casselberry, and Sharon H. Proctor, Lake Saint Louis, MO, for Appellant.
    Jamie Billotte Moses and Jonathan C. Hollingshead, of Fisher, Rushmer, Wer-renrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   MONACO, J.

This is a disturbing case. It is disturbing because the trial lawyers who were involved know better, or at least should have known better. Although we have concluded that we should affirm the final judgment because the errors complained of were not preserved and were not fundamental in nature, we do so with serious misgivings.

The appellants, Dale and Julie Williams, brought suit against the-appellee, Lowe’s Home Centers, Inc., as a result of an injury to a pinky finger that Mr. Williams incurred while he was using a circular saw that he had purchased at Lowe’s. Although he had a number of liability theories, they basically boiled down to the assertion by Mr. Williams that the saw was sold in a defective condition.

Prior to trial, Mr. Williams made an ore tenus motion in limine to preclude testimony regarding a personal injury action that he brought as the result of an automobile accident that he was involved in several years before. Counsel for Lowe’s, Mr. Hollingshead, argued in opposition to the motion that there were aspects of the prior accident and trial that were relevant to the present case. He suggested further:

And I think I should be allowed to inquire on that. If there is some particular question at some point in time, I think we can address it then. I don’t think it’s a subject for a motion in li-mine.

The court agreed and denied the motion to exclude “all references” to the prior suit, but said in addition: “However, I don’t want us to go too far down that road.” The court explained that some references to the suit might be relevant, depending on the context, but that he wanted to address it question by question as it arose during Mr. Williams’ testimony. At that point Mr. Faddis, the attorney for Mr. and Mrs. Williams, said:

So would that be without prejudice for the plaintiff to again raise an objection? To which the trial court responded:

If there’s a particular question asked and you think there’s an objection to be made at that time, go ahead and make it and I’ll make a ruling at that time.

During the course of the ensuing jury trial, Mr. Williams testified with respect to how the injury was incurred, as well as to the damages he had suffered. While testifying on direct, his own attorney asked him about his 1995 accident, the injuries he suffered there, and the prescription pain medication that was prescribed for him.

On cross-examination, the attorney for Lowe’s attacked various aspects of the plaintiffs’ case on liability, and then moved to the matter of damages. In this connection the attorney for Lowe’s delved into the earlier accident in which Mr. Williams had herniated two discs, and inquired further about the pain killers that Mr. Williams had been prescribed as part of his treatment regimen. He then asked Mr. Williams whether he had been able to pay Dr. Bosshardt, a physician who had been treating him for his current injury:

Q. You testified that you couldn’t pay Dr. Bosshardt because you didn’t have any health insurance, right?
A. I personally do not. Yes, sir.
Q. And you just couldn’t afford to pay him anything?
A. I could actually afford to pay him a little bit. Yes, I could afford to pay him some. Yes, I could.
Q. In fact, when your previous case went to trial in June of 97, you received from that jury $148,000 for future medical expenses and future lost wages, none of which that you experienced since then. Is that true?
A. No, sir. It’s not.
Q. And why is that?
A. I received $29,000 is what I got.
Q. Do you recall them paying for satisfaction of judgment?
A. I don’t know what that is.
Q. $166,000?
A. No, sir. I do not. I don’t know where $166,000 ever comes in.
Q. Well, let me show you a certified copy of your final judgment.
A. Sure.
Q. “What’s the figure of your final judgment?
A. It says $166,260 but I’d sure like to see it.
Q. Don’t you think Dr. Bosshardt would like to see it too?
A. I would love for Dr. Bosshardt to see it. I would love to have seen it myself.

Mr. Williams then explained that Dr. Bos-shardt knew he had a lawsuit that was progressing, and was nice enough to help him out by continuing to treat him without immediate payment. There was no objection to any of this testimony, even though in this case there was absolutely no relevance to the amount of money received by Mr. Williams in his earlier lawsuit.

Mr. Williams also testified on cross-examination that he was seeing a second doctor on a monthly basis, and that he was paying approximately $300 a month for his office visits and for oxycontin and other prescription medications. Counsel for Lowe’s then pointed out that as a result of his earlier automobile accident, Mr. Williams had sought counseling from a mental health counselor and had told her that when he was younger he had difficulty with drug addiction. The records that counsel for Lowe’s was reading from stated that at age fourteen — many, many years before — Mr. Williams was addicted to crack cocaine. Mr. Williams was asked whether he shared the fact that as a fourteen year old he was drug addicted with any of his current prescribing doctors.

No. I did not. That’s a life that I have left behind over eleven or twelve years ago or more. Actually fourteen. That’s a life I’ve left behind over-I can’t even say how long it’s been.

There was once again no objection to any of this testimony. After redirect, Mr. Williams rested.

Lowe’s unsuccessfully moved for directed verdicts on various counts, and eventually rested. After the charge conference counsel for Mr. and Mrs. Williams moved for a mistrial, asserting that he felt awkward finding out about his client’s juvenile cocaine addiction during the cross-examination of Mr. Williams. He argued:

It just struck like a ton of bricks. In reality I was torn between making an objection and moving for a mistrial at that point in time which would have highlighted the fact to the jury on matters that were completely and extremely prejudicial to this case. I attempted to originally move that any and all reference to the personal injury claim that he made in 1995 be precluded from being in front of the jury. Not only do we now have the fact that he made a personal injury claim, but we have evidence of a judgment in the amount of $166,000. I’m not sure how I would explain that sufficiently to remove the taint. We have the jury knowing that my client is a crack cocaine addict, which the probative value of that is none as far as I’m concerned and the prejudicial effect is going to be so great that the taint could not even be removed by a curative instruction.
And so at this point in time reluctantly I have to move for a mistrial. I don’t want to do it. I know we’ve spent a lot of time and resources. I don’t believe a curative instruction would work. I think that it would highlight again something that should never have been introduced before the jury. And reluctantly I’m moving for a mistrial.

Counsel for Lowe’s claimed that his cross-examination was a result of matters that were brought out on direct, specifically, the oxycontin use and the fact that he couldn’t pay his doctors because he did not have sufficient funds. Lowe’s counsel felt the crack cocaine addiction was pertinent because Mr. Williams admitted that his doctor questioned him on numerous occasions about the addictive properties of oxy-contin and the dangers of addiction to that drug. Counsel for Lowe’s argued that Mr. Williams never volunteered to his doctor that he had any prior addiction issues that the doctor needed to address.

And Dr. Bosshardt yesterday testified that that would be the type of information that he would want to be considered if he was prescribing oxycontin and that he would inquire about that. The plaintiff admitted that Dr. Khodor inquired about that.

The court denied the motion for mistrial but noted that the crack cocaine testimony bothered him more than the other matters raised because it was so remote in time to anything that occurred in this case, even though there might have been some tenuous relevance with respect to his treatment by his present physician. The court then said:

I believe what I’ll do is give the jurors a curative instruction as to the crack cocaine addiction that they are to disregard that and not make that part of any of the consideration they give in this case. I will give that curative instruction only as to the crack cocaine addiction.

When the jury returned it was instructed to disregard any evidence of the plaintiffs addiction to crack cocaine in that it was not to be considered in any part of their deliberations nor as part of their verdict.

In just under an hour the jury came back with a verdict. The jury found that Lowe’s was not negligent and that it’s actions were not a legal cause of injury to Mr. Williams. In addition, the jury either found that the circular saw was not defective, or if it was, it was not a legal cause of damage to Mr. Williams. Finally, the jury answered “no” to the following special verdict question.

Was the circular saw when sold to plaintiff Dale F. Williams in a defective condition reasonably dangerous without substantial change and, if so, was such defective condition a legal cause of damage to plaintiff Dale F. Williams?

Mr. Williams moved post trial for a new trial, and renewed his motion for a mistrial. According to Mr. Williams, the jury’s verdict was rendered upon inadmissible and highly prejudicial evidence attacking his character in a case that involved his character as the primary focus of defense counsel’s efforts. Lowe’s response was that all aspects of the medical evidence was disputed by the defendant, including the propriety of prescribing oxycontin at all, the medical information that would be important to know before prescribing oxy-contin, and whether the oxycontin was reasonably related to this accident and injury or instead was related to prior accidents and injuries. The trial court denied the motion for new trial and the renewed motion for mistrial, and entered a final judgment in favor of Lowe’s. This appeal followed.

Mr. and Mrs. Williams initially argue that the trial court erred in admitting the evidence of the law suit Mr. Williams had successfully brought as a result of his earlier automobile accident, including evidence of the amount of the judgment that was obtained. The appellants first contend that the trial court erred in denying his motion in limine to exclude any mention of the prior suit because that information was irrelevant. Mr. and Mrs. Williams are essentially forced into this position because they introduced evidence of the earlier suit during the direct testimony of Mr. Williams, and they did not object during the cross examination of Mr. Williams when the law suit, including the amount of the recovery, were explored by counsel for Lowe’s.

While the earlier injuries suffered by Mr. Williams may have had some measure of relevancy in the present case, the amount recovered in the prior lawsuit was simply not germane and should not have been elicited by Lowe’s. See Leslie v. Higgason, 779 So.2d 470 (Fla. 2d DCA 2000). In fact, the vast majority of courts of the United States that have considered the issue have determined that such questions are improper. See Alonzo v. With, 214 Cal.App.2d 753, 29 Cal.Rptr. 710 (1963); Ferriola v. Burdick, 146 Conn. 574, 153 A.2d 319 (1959); Nepple v. Weifenbach, 274 N.W.2d 728 (Iowa 1979); Boyd v. Smith, 390 So.2d 994 (Miss.1980); Larsen v. Johnson, 958 P.2d 953 (Utah Ct. App.1998). But see Kelsey v. Chicago, R.I. & P.R. Co., 264 Minn. 49, 117 N.W.2d 559 (1962). Even if such information had any scant relevance, however, its prejudicial effect would clearly have outweighed its probative value. See § 90.403, Fla. Stat. (2006). There was, however, no objection. The focus of our attention is thus turned to the matter of preservation of error.

Historically, courts have held that in order to preserve an error for appellate review an objection must be made at the time the error occurs. See F.B. v. State, 852 So.2d 226 (Fla.2003). The rationale of the contemporaneous objection rule is to offer the trial court the opportunity to correct any mistake and to prevent a litigant from allowing an error to go unchallenged so it may later be used for a tactical advantage. Mr. and Mrs. Williams contend, however, that they preserved this error because they sought a ruling on the inadmissibility of the prior law suit by a motion in limine. We do not agree.

Section 90.104(1), Florida Statutes (2006), discusses rulings on evidence. It indicates that error may be predicated on the basis of admitted or excluded evidence when a substantial right of a party is adversely affected, and:

(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked. If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve the claim of error for appeal.
(Emphasis supplied).

The problem with the argument put forth by Mr. and Mrs. Williams based on the motion in limine is that there was no definitive ruling obtained from the trial court. The judge simply said that he was not willing to rule on this question out of context, and instructed Mr. and Mrs. Williams to renew their objections at the time that questions concerning the prior lawsuit were asked. Because the trial court decided to allow testimony concerning prior injuries that Mr. Williams may have suffered, it did not make an unequivocal ruling on the motion in limine regarding other matters related to the earlier accident and subsequent litigation. This being the case, it was incumbent upon Mr. and Mrs. Williams to object on a question-by-question basis in order to preserve the matter for appellate review.

This case is similar in some respects to our decision in Tolbert v. State, 922 So.2d 1013, 1016 (Fla. 5th DCA), review denied, 934 So.2d 451 (Fla.2006). There, a criminal defendant asserted that the trial court erred in allowing testimony of his drug sales to be presented to the jury. Although he filed a motion in limine prior to trial to prohibit introduction of this evidence, the trial court reserved ruling on the motion. A final ruling was never made by the trial court, and there was nothing in the record to suggest that the defendant subsequently either pressed for a ruling or objected when the testimony was introduced. Based on section 90.104(1), we held that since the trial court did not either at trial or prior to trial make a definitive ruling on the record admitting or excluding the evidence, the defendant was required to make a contemporaneous objection to the evidence in order to preserve the claim of error for appeal.

In the present case, as in Tolbert, no definitive ruling was obtained from the trial court on the motion in limine. We conclude, therefore, that the error in allowing testimony concerning the amount of recovery from the prior law suit was not preserved, and was, therefore, waived.

Mr. and Mrs. Williams next assert that the trial court abused its discretion in denying their motion for mistrial and their subsequent motion for a new trial based on the questioning of Mr. Williams by defense counsel concerning the purported crack cocaine addiction of Mr. Williams fourteen years prior to the trial. We once again conclude, however, that this error was not preserved for appeal.

There was no objection made when on cross-examination defense counsel inexplicably began questioning Mr. Williams about a cocaine habit that he suffered from 14 years prior to the trial. We suppose that the idea was that the damages suffered by Mr. Williams were not as severe as they appeared because he only prolonged treatment so that he could obtain oxycontin and other pain killers to feed a drug habit. It seems clear, nevertheless, that the questioning amounted to little more than an improper attack on Mr. Williams’ character. See, e.g., Shaw v. Jain, 914 So.2d 458 (Fla. 1st DCA 2005); Sterling Casino Lines, L.P. v. Plowman-Render, 902 So.2d 938 (Fla. 5th DCA 2005); Edwards v. Orkin Exterminating Co., Inc., 718 So.2d 881 (Fla. 3d DCA 1998). We can only attribute the defense lawyer’s inappropriate questioning of the plaintiff in this respect to what was euphemistically described during the oral argument of this case as “overzealous advocacy.” We view it as less than professional. Unfortunately, however, the first time that Mr. and Mrs. Williams brought their concerns about this testimony to the attention of the trial judge was by a motion for mistrial that was made after the conclusion of the testimony, after the disposition of various motions for directed verdict, after the defense rested and after the charge conference.

As we noted previously, at that time plaintiffs counsel brought his concerns about the temporally remote addiction testimony to the attention of the trial court he concluded his comments by saying:

We have the jury knowing that my client is a crack cocaine addict, which the probative value of that is none as far as I’m concerned and the prejudicial effect is going to be so great that the taint could not even be removed by a curative instruction.
And so at this point in time reluctantly I have to move for a mistrial. I don’t want to do it. I know we’ve spent a lot of time and resources. I don’t believe a curative instruction would work. I think that it would highlight again something that should never have been introduced before the jury. And reluctantly I’m moving for a mistrial.

The trial court responded that he would give the jurors a curative instruction on the purported cocaine addiction to the effect that they were to disregard the testimony. In due course when the jury returned to the courtroom, it was instructed to disregard any evidence of the plaintiffs addiction to crack cocaine and to exclude that information from any part of their deliberations. There was no objection to the specific language of the curative instruction.

Generally, unless there is fundamental error, a motion for mistrial must be made at the time the improper comment was made. See Millar Elevator Serv. Co. v. McGowan, 819 So.2d 145, 153 (Fla. 2d DCA), review denied, 835 So.2d 267 (Fla. 2002) (plaintiffs had not timely moved for mistrial because they failed to make a contemporaneous objection to testimony during the defense’s case in chief; rather, they moved for mistrial on the day after the objectionable comments were made); see also Ed Riche & Sons, Inc. v. Green By and Through Swan, 468 So.2d 908, 910 (Fla.1985) (motion for mistrial must be made at the time the improper comment was made); Dorsey v. Reddy, 931 So.2d 259 (Fla. 5th DCA 2006). Fundamental error is error that goes to the foundation of a case or goes to the merits of the cause of action. See Sanford v. Rubin, 237 So.2d 134 (Fla.1970). It is error that “deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate ánd calm consideration of the evidence and merits by the jury.” Cordoba v. Rodriguez, 939 So.2d 319, 322 (Fla. 4th DCA 2006).

Here, when the trial court was presented with the motion for mistrial, it recognized that the testimony was problematic because of its lack of relevance and its remoteness in time, and gave a curative instruction. It had to wrestle with a similar issue when it decided to deny the motion for new trial made by Mr. and Mrs. Williams. Ordinarily, the decision either to grant a mistrial or to give a curative instruction, or to grant a new trial rests within the sound discretion of the trial judge. See Hite v. State, 718 So.2d 270, 271 (Fla. 5th DCA 1998). In order to decide whether the trial court abused its discretion, we must first determine whether the improper remarks were so prejudicial as to deny defendant a fair trial. See Goodwin v. State, 751 So.2d 537, 547 (Fla. 1999). Although the granting of a mistrial or the giving of a curative instruction is generally within the trial court’s discretion, a mistrial should not be granted unless an absolute legal necessity to do so exists. See Gonzalez v. Largen, 790 So.2d 497, 500 (Fla. 5th DCA 2001), review denied, 817 So.2d 847 (Fla.2002).

Here, there were no contemporaneous objections made by Mr. and Mrs. Williams to the suspect testimony. Thus, unless the admission of this testimony constituted fundamental error, we must affirm. In viewing the record as a whole, as well as the evidence adduced on the issues of liability, we are simply unable to conclude that the errors committed were fundamental. Counsel for Mr. and Mrs. Williams specifically related that when he heard the testimony about his client’s past drug addiction, “I was torn between making an objection and moving for a mistrial at that point in time which would have highlighted the fact to the jury on matters that were completely and extremely prejudicial to this case.” Counsel thus made a strategic decision not to object, and not to seek a mistrial at the time the offensive testimony was received. As our sister court in the fourth district has said in a similar context, ‘We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going.” Haist v. Scarp, 351 So.2d 1120 (Fla. 4th DCA 1977), approved, 366 So.2d 402 (Fla.1978).

In addition, we note that the jury found no liability in this case, and specifically found in response to a jury interrogatory that the saw in question was not in a defective condition when sold to Mr. Williams. The fact that the offending testimony primarily impacted damages, and that the issue of liability was quite seriously contested, gives some validation to our conclusion that the errors were not fundamental.

Accordingly, we affirm. We do so with some reluctance because we are offended by the tactics used by the defense. To reverse, however, we would have to inflict serious damage on important legal concepts involving the preservation of error. This we are not willing to do.

AFFIRMED.

PALMER, C.J., concurs.

SAWAYA, J., dissents without opinion.


text:
    William H. VANCE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2308.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Rehearing Denied Feb. 13, 2008.
    David W. Collins of Law Offices of David W. Collins, Monticello, for Petitioner.
    Sean T. Garner, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The appeal in this case is converted to a petition for writ of certiorari. The petition for writ of certiorari is denied on the merits.

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


author: ALTENBERND, Judge. CANADY, Judge,

text:
    Dharmi P. SHAH and Space Coast Petroleum Distributors, Inc., Appellants, v. Dennis BLAND and Nancy Bland, Appellees.
    No. 2D06-2457.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 2008.

      Samuel R. Mandelbaum of Mandelbaum, Fitzsimmons & Hewitt, P.A., Tampa, for Appellants.
    Gene Odom of Guarnieri, Martinez & Odom, P.A., Brandon; and Michael S. Finch, Gulfport, for Appellees.
   ALTENBERND, Judge.

Dharmi P. Shah and Space Coast Petroleum Distributors, Inc., the Defendants, appeal a final judgment in favor of Dennis and Nancy Bland, who are husband and wife. The judgment awarded Mrs. Bland monetary damages for her bodily injuries sustained in an automobile accident. The Defendants argue that they are entitled to a reduction in the damages awarded to Mrs. Bland because, as the owner of the vehicle that her husband was driving, she is vicariously liable for his comparative negligence. The trial court refused to so reduce the judgment. We affirm because this issue was not pleaded or otherwise raised as an issue in this case until after the jury had returned its verdict. As a result of this ruling, we decline to decide whether a reduction in the damages is appropriate under such circumstances.

On November 22, 2001, Mrs. Bland was riding as a passenger in a car driven by her husband. They collided with a car owned by Space Coast Petroleum, which was driven by Dharmi P. Shah. In the accident, Mr. Bland was not seriously injured but Mrs. Bland sustained serious injuries. As a result, they filed a lawsuit against the Defendants.

In the Blands’ complaint, Mrs. Bland is described as a passenger in a car driven by her husband, but there is no allegation that the car is owned by Mrs. Bland. The Defendants answered both the initial complaint and the amended complaint. At no time did the Defendants allege that Mrs. Bland owned the vehicle in which she was a passenger. In the final answer filed by the Defendants, they alleged a seatbelt defense and that the damages were “caused in whole or in part by the negligent acts of third parties.” The answer failed to identify those third parties or to suggest that Mr. Bland, who already was a party to the action, was a third party. Finally, the answer alleged comparative negligence stating, “Any injuries that may have been sustained by the Plaintiff were caused in whole or in part by the negligent acts of the Plaintiff.” Nothing in the answer suggested that one plaintiff could or should be liable for the negligence of the other plaintiff. Most important, there was no suggestion that Mrs. Bland could be vicariously liable for the negligence of her husband under any legal theory.

This case was tried twice before a jury reached a verdict. Although the record does not contain a full transcript of the first trial, nothing in the record indicates that the issue of Mrs. Bland’s vicarious liability was ever discussed during the first trial. Between the first and second trial, the supreme court issued its decision in American Home Assurance Co. v. National Railroad Passenger Corp., 908 So.2d 459 (Fla.2005). As discussed later in this opinion, the American Home case held that when a plaintiff engages an independent contractor for an inherently dangerous activity, the negligence of the independent contractor can be applied to reduce a judgment in favor of the plaintiff because the plaintiff is vicariously liable for the contractor performing the inherently dangerous activity. Although not directly controlling, this is the precedent upon which the Defendants now primarily rely. At no time prior to the second trial did the Defendants attempt to amend their answer or otherwise alter their approach to this case as a result of this new precedent.

During the second trial, Mrs. Bland testified that she owned the vehicle her husband was driving. This information seems to have been provided in the context of establishing facts related to the seatbelt defense. At the conclusion of the evidence, the issue of vicarious liability was not discussed during motions for directed verdict or during the jury instruction conference. It was not mentioned by the lawyers during closing arguments, and there were no jury instructions relating to this theory.

The jury returned its verdict on an interrogatory verdict form. The jury determined that Dharmi P. Shah was seventy percent at fault in the accident and that Mr. Bland was thirty percent at fault. As to Mr. Bland, the jury determined that he had no permanent injuries resulting from this accident and awarded him no damages. However, the jury determined that the negligence of both Mr. Bland and the Defendants was the legal cause of the injuries to Mrs. Bland. They awarded Mrs. Bland total damages of $290,000. Although there were thirteen questions on the verdict form, the jury was not asked to determine whether Mrs. Bland owned the vehicle her husband was driving.

Following the verdict, the Defendants filed a motion to reduce the award to Mrs. Bland on the theory that she was legally responsible for the comparative negligence of Mr. Bland under section 768.81, Florida Statutes (2001). The Defendants relied on American Home and National Railroad Passenger Corp. v. Rountree Transport & Rigging, Inc., 422 F.3d 1275, 1280 (11th Cir.2005). Neither of these cases involves vicarious liability under the dangerous instrumentality doctrine for bodily injuries in an automobile accident.

In American Home, the supreme court answered a question certified to it by the Eleventh Circuit Court of Appeals as a matter of first impression. That case involved an eighty-two-ton combustion turbine engine that was damaged while it was being transported by a hauler, who was an independent contractor. The hauler was transporting the large engine on a hauler rig pulled by a road tractor. The hauler rig was hit by a train while it was stopped on the tracks at a railroad crossing. American Home insured the owner of the turbine engine, who had hired the hauler. The supreme court held that the activity of transporting this large engine was inherently dangerous and that the fault of the hauler under section 768.81 could be attributed vicariously to the owner, who had hired the hauler as an independent contractor. Rountree Transport is the same case on remand to the federal court.

We are not aware of any case that has extended the holding in American Home to apply section 768.81 to allow a reduction in a plaintiffs damages for the plaintiffs vicarious liability as the owner of a dangerous instrumentality. Although we cannot deny the logic in the argument presented by the Defendants, we have some doubt that the legislature intended section 768.81 to work in conjunction with the dangerous instrumentality doctrine so as to cause an owner of a family automobile to have his or her damages reduced by the negligence of anyone who is driving the vehicle while the owner is a passenger. Section 768.81(2) does not reference vicarious liability under the dangerous instrumentality doctrine and only reduces damages for the proportion of “fault” that is “chargeable to the claimant.”

In this case, however, we merely conclude that the Defendants never pleaded or otherwise raised this issue in a manner that would allow the trial court to address the issue for the first time at the end of the case while it was entering its final judgment. This type of issue needs to be raised in a manner that gives the plaintiff an opportunity to consider its impact prior to the entry of judgment. Generally, such an issue needs to be identified in the answer as a defense. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1265 (Fla.1996) (stating defendant waives the defense that a nonparty’s negligence contributed to the plaintiffs injuries when it is not included as an affirmative defense in the answer or raised during pretrial conference). A party cannot wait until posttrial motions to raise such an issue. See Republic Nat’l Bank v. Araujo, 697 So.2d 164, 166 (Fla. 3d DCA 1997). This situation is not comparable to a setoff for a prior settlement that can be resolved by the judge as a matter of law, but it is more similar to the type of setoff that must be pleaded as an affirmative defense. Cf. Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004) (comparing contract actions that require setoffs to be pleaded as affirmative defenses to tort actions in which a prior settlement does not need special pleading because it does not affect preparation of plaintiffs case or trial court’s rulings).

The Defendants waited until after the jury verdict to raise the issue of Mrs. Bland’s vicarious liability. Because this issue was neither pleaded nor preserved, we affirm the trial court’s entry of a final judgment awarding Mrs. Bland $290,000 in damages without any reduction for her vicarious liability.

Affirmed.

DAVIS, J., Concurs.

CANADY, J., Concurs specially with opinion.

CANADY, Judge,

Specially concurring.

I concur in the majority’s conclusion that the final judgment should be affirmed because the issue of Mrs. Bland’s vicarious liability as the owner of the vehicle driven by her husband was not properly pleaded or preserved by the defendants.

      . It is noteworthy that Mrs. Bland could have named Mr. Bland as a codefendant, alleging a negligence claim that would not have been barred by any doctrine of interspousal immunity. See Waite v. Waite, 618 So.2d 1360 (Fla. 1993). Likewise, the Defendants could have counterclaimed against Mr. Bland seeking contribution toward the judgment entered against them in favor of his wife. See § 768.31, Fla. Stat. (2001). Although it is unlikely that any insurance coverage would have been available for such a claim against Mr. Bland, a counterclaim might have resulted in an offset from a judgment in favor of Mr. Bland if the jury had awarded him damages.

      . If this is the law, a parent is probably ill-advised to teach a teenager to drive in the family vehicle.


author: WALLACE, Judge.

text:
    James Earl JOHNSON, a/k/a James Earl Johnson II, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4324.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Land O’Lakes, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

The trial court imposed two life sentences on James Earl Johnson. In Mr. Johnson’s written sentencing documents, the trial court designated the sentences to run consecutively. Mr. Johnson argues that the trial court should have designated the sentences to run concurrently. For the reasons that we explain below, we agree. Although we affirm Mr. Johnson’s judgments and sentences, we remand this case to the trial court for the correction of the written sentences to reflect that Mr. Johnson’s two life sentences are to run concurrently rather than consecutively.

The Oral Pronouncement at Sentencing

Mr. Johnson was charged by one information with committing two first-degree felony offenses: robbery with a firearm (Count One) and burglary of a conveyance with an assault or battery while armed with a firearm (Count Two). The date of the alleged offenses was July 5, 2004. A jury found Mr. Johnson guilty as charged of both offenses. Both the robbery offense and the burglary offense are punishable by a sentence of life imprisonment. §§ 810.02(2), 812.13(2)(a), Fla. Stat. (2004). At Mr. Johnson’s sentencing hearing, the trial court pronounced a life sentence for each offense as follows:

THE COURT: Okay. Mr. Johnson, ... [bjased on the Jury’s finding, I will adjudicate you guilty as to Counts One and Two, as to Count One, I will sentence you to life imprisonment with a minimum mandatory 10 calendar years — Count Two sentence you to life imprisonment with a minimum mandatory of 10 years — calendar years in State Prison.

(Emphasis added.) The trial court continued by addressing court costs and the payment of restitution. The trial court also advised Mr. Johnson of his right to appeal. The trial court did not say anything further about Mr. Johnson’s sentences before the sentencing hearing concluded. Thus the trial court’s oral pronouncement of Mr. Johnson’s sentences did not include a direction that the sentences were to be served consecutively.

Although the trial court’s oral pronouncement of sentence was silent on the issue of consecutive or concurrent life terms, all of the documents associated with the sentencing hearing indicate that Mr. Johnson was sentenced to two consecutive life terms. The Criminal Punishment Code Scoresheet reflects that the total sentence imposed on Mr. Johnson was “Life (each ct consecutive).” The Memo of Sentence/Order of the Court prepared by the deputy clerk states: “Ct 2 consec to Ct 1.” Finally, the judgment and sentence imposed on Count Two states that it “shall run ... consecutive to” the sentence imposed on Count One.

Mr. Johnson’s 3.800(b)(2) Motion to Correct Sentencing Error

While this appeal was pending, Mr. Johnson filed a motion to correct sentencing error in accordance with rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. He argued that his consecutive sentences did not comply with the oral pronouncement and that under section 921.16(1), Florida Statutes (2004), his sentences should have been designated to run concurrently. Because the trial court did not enter a signed, written order disposing of the motion within sixty days, the motion is considered denied under rule 3.800(b)(2).

Discussion

Section 921.16(1) provides, in pertinent part:

A defendant convicted of two or more offenses charged in the same ... information ... shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.

(Emphasis added.) Here, Mr. Johnson was convicted of two offenses charged in the same information, and the trial court did not direct that the sentences were to run consecutively. Therefore, in accordance with the statute, the sentences were to run concurrently. Although the trial court may have intended that Mr. Johnson’s sentences should run consecutively, such an intention became irrelevant once the sentencing hearing was concluded. Comtois v. State, 891 So.2d 1130, 1131 (Fla. 5th DCA 2005) (“The ‘pronouncement’ becomes final when the sentencing hearing ends.” (citing Farber v. State, 409 So.2d 71, 73 (Fla. 3d DCA 1982))). Section 921.16 places the burden on the trial court “to sentence with certainty” in the oral pronouncement. Colon v. State, 905 So.2d 1000, 1002 (Fla. 5th DCA 2005); see also Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003) (“[A] court’s oral pronouncement of sentence controls over the written document.”).

The oral pronouncement of Mr. Johnson’s sentences was neither ambiguous nor unclear. Because the trial court did not direct otherwise, section 921.16(1) requires that Mr. Johnson’s life sentences are to be served concurrently rather than consecutively. See Campbell v. State, 884 So.2d 190 (Fla. 2d DCA 2004). The State does not argue to the contrary, and we commend the State for its candor.

Conclusion

For these reasons, we affirm Mr. Johnson’s judgments and each separate life sentence. We remand this case to the trial court with directions to correct Mr. Johnson’s written sentences to conform to the oral pronouncement so that they run concurrently rather than consecutively. Mr. Johnson need not be present for this sentencing correction.

Affirmed; remanded with directions.

FULMER and CASANUEVA, JJ., Concur.


text:
    George Harlan JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5789.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    M.D. Purcell, Jr., Lutz, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John W. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

George Harlan James appeals his judgment and life sentence for capital sexual battery. He raises two issues, neither of which was properly raised in the trial court. Accordingly, we affirm.

In December 2003, James was charged by amended information with two counts of capital sexual battery upon two child victims. Count I alleged that between January 1, 1975, and December 31, 1979, James digitally penetrated the vagina of his former neighbor, “a child 11 years of age or younger.” Count II alleged that between October 1, 1972, and January 1, 1973, James had sexual intercourse with his stepdaughter, a child under the age of eleven. James went to trial on count II and was acquitted of the charges involving his stepdaughter.

James then went to trial on the charge involving his former neighbor. During this trial, the victim, a woman now in her thirties, testified that James abused her on two separate occasions. During her direct examination she first testified that James had massaged her vaginal area and had her hold his penis while she was sitting on the toilet in the bathroom of James’s home. She stated that she could have been as young as four or as old as six years of age when this occurred. She then testified about a second incident that occurred in James’s kitchen. She testified that during that incident James inserted two fingers into her vagina as she sat on his lap. When questioned regarding her age at the time of this incident, the victim stated she could have been as young as four, but she could have been as old as eleven. James objected to the testimony regarding the incident in the kitchen stating:

Mr. James is charged with one count, one crime. If you allow them to go into a second offense, this jury is not going to know which digital vaginal penetration they’re being asked to convict the defendant of. We just can’t have lots of digital penetrations and tell the jury to pick one.

The trial court overruled the objection stating, “[M]y ruling is January of whatever year to January of whatever year there is a thousand acts of digital penetration, they need only talk about one and they can still talk about á thousand, or they can charge a thousand and the jury gets to pick whatever it is they believe.”

James first argues that the trial court erred in permitting the victim to testify about the kitchen incident because the State had only charged him with a single count of sexual battery involving a single incident of digital penetration as opposed to a charge alleging the conduct as part of a pattern of behavior that occurred on one or more occasions. See, e.g., State v. Generazio, 691 So.2d 609, 611 (Fla. 4th DCA 1997) (noting that in cases involving ongoing child abuse, where the victim is too young at the time of the alleged abuse to testify to the specific dates the abusive acts occurred, it is not improper for the information to allege that the abuse occurred on one or more occasions within a specific time period); compare State v. Dell’Orfano, 651 So.2d 1213, 1216 (Fla. 4th DCA 1995) (stating that when it is reasonable and possible to distinguish between specific incidents or occurrences of abuse, each incident should be contained in a separate count of the charging document to avoid the potential of a non-unanimous jury verdict). James contends that allowing the jury to hear testimony regarding two distinct incidents of penetration that occurred at different times and places jeopardized its ability to render a unanimous verdict.

We agree that it would have been error had the trial court allowed evidence of two distinct incidents of penetration and told the jury it could convict James for either. See Perley v. State, 947 So.2d 672, 674 (Fla. 4th DCA 2007). In such a scenario, some jurors might accept that one incident of penetration was proved, while others might determine that the other was proved, thus leading to a conviction even though the jury did not reach a unanimous decision on either incident. Nevertheless, we must reject James’s argument because at the point in the trial where he objected to what he characterized as a second incident involving penetration, the victim had yet to testify that the first incident involved penetration. Rather, she had testified only that James massaged her vaginal area. We therefore conclude James’s objection was premature, and the trial court properly overruled it, albeit for the wrong reason.

James next argues that the trial court erred in admitting, over defense objection, testimony that he had sexually abused his stepdaughter for many years. James contends that this testimony should have been excluded under section 90.403, Florida Statutes (2004), because its prejudicial impact outweighed its probative value. Although he objected to his stepdaughter’s testimony, James did not argue that its probative value was substantially outweighed by the danger that it would unfairly prejudice the jury. For an issue to be preserved for appeal, the specific legal argument or ground to be argued on appeal must have been presented to the trial court. Perez v. State, 919 So.2d 347, 359 (Fla.2005). Because the error raised on appeal was not preserved, it cannot provide a basis for reversal. Accordingly, James’s conviction is affirmed.

Affirmed.

NORTHCUTT, C.J., and KELLY and WALLACE, JJ., Concur.

      . It is evident that both defense counsel and the State anticipated the victim would testify that the bathroom incident involved penetration. It was defense counsel who eventually elicited that testimony from the victim on cross-examination, apparently not realizing that she had not testified as anticipated.

      . The court excluded testimony regarding the charge for which James had been acquitted: sexual intercourse with his stepdaughter that allegedly occurred after she turned nine but before her tenth birthday. The court allowed testimony regarding acts, including sexual intercourse, that took place outside that time frame.

      . James filed a motion in limine seeking, among other things, to exclude testimony regarding uncharged crimes and crimes for which he had been acquitted. The motion argues that testimony regarding uncharged conduct is not relevant or probative; however, it does not argue that if the testimony was admitted it would be unfairly prejudicial. Further, it appears that James either failed to obtain a ruling on his motion or, if he did obtain a ruling, failed to include it in the record on appeal. Thus, even if we could conclude that the motion fairly raised the issue argued on appeal, James’s failure to obtain a ruling waived it. See Tolbert v. State, 922 So.2d 1013, 1017 (Fla. 5th DCA 2006) (holding that the failure to obtain a ruling on a pretrial motion in limine waived the objections raised in the motion unless those objections were made and ruled upon at trial when the evidence was offered).


text:
    Reginald L. SWIFT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-103.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.

      Guillermo E. Gomez, Jr., of Gomez & Touger, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Reginald L. Swift challenges his conviction for aggravated assault on a law enforcement officer. The State’s theory of the ease was that Mr. Swift committed the offense by backing his automobile in the direction of a police officer who had run behind Mr. Swift’s vehicle only seconds before Mr. Swift began backing out of a driveway at night. Because the State failed to prove that Mr. Swift had the requisite intent to threaten the officer, we reverse the judgment and sentence for aggravated assault.

The Facts

The State’s evidence at trial tended to prove the following version of events. At approximately 6 p.m. on May 21, 2005, Officer Kevin Sweat of the Haines City Police Department received a tip from a confidential informant that a suspect named in a felony arrest warrant was a passenger in a gold sports utility vehicle (SUV) that Mr. Swift was driving around Haines City. Accordingly, Officer Sweat began looking for Mr. Swift’s vehicle. At approximately 8:80 that evening, Officer Sweat spotted the SUV at a convenience store. The SUV was illegally parked, and Officer Sweat activated the overhead lights on his police cruiser. Mr. Swift — who was still in the vehicle — left the convenience store and parked in the driveway of a nearby residence.

Officer Sweat approached Mr. Swift, informed him that he had been illegally parked, and asked for his driver’s license. Mr. Swift produced the requested license, and Officer Sweat returned to his police cruiser. The officer did not inform Mr. Swift that he was looking for the suspect named in the arrest warrant. Officer Sweat testified at trial that when he had spoken with Mr. Swift through the SUV’s open driver’s window, he saw another man sitting in the back seat on the passenger side of the vehicle. According to Officer Sweat, the passenger in the back seat fit the description of the suspect named in the arrest warrant. Because Officer Sweat anticipated an arrest of the passenger, he called for assistance.

Sergeant Michael Green responded to Officer Sweat’s call for assistance. When Sergeant Green arrived, Officer Sweat briefed his sergeant on the situation. Then both officers approached the SUV’s passenger side. Sergeant Green stationed himself at the vehicle’s front door; Officer Sweat took a position to Sergeant Green’s left at the rear door. The front door’s window was partially open so that Sergeant Green could see Mr. Swift, but the rear door’s window was closed. The SUV’s windows were tinted, and neither Officer Green nor Officer Sweat could see the passenger. Notably, the SUV’s engine was still running.

As soon as the two officers had taken their positions on the passenger side of the vehicle, Officer Sweat tried to open the rear door to apprehend the passenger seated in the back. This attempt failed because the door was locked. Next, the officers began to shout commands. They ordered Mr. Swift to turn off the vehicle’s engine. They yelled for the passenger to open the rear door. The men in the SUV did not comply with either of these commands. Instead, Mr. Swift backed out of the driveway and left the scene. A chase involving Officer Sweat, Sergeant Green, and other police officers ensued. When Mr. Swift was ultimately apprehended at the conclusion of the chase, the passenger was not in the SUV.

The circumstances surrounding Mr. Swift’s departure from the driveway require closer examination because they form the basis for the aggravated assault charge. Officer Sweat had parked his police cruiser on the driver’s side of the SUV and slightly to its rear. Sergeant Green had parked on the SUV’s passenger side. Thus the SUV was partially blocked in the driveway. When the officers approached the vehicle’s passenger side and began to shout commands, Mr. Swift initially backed up and then pulled forward. This maneuver was apparently necessary for Mr. Swift to position the SUV so that he could back it out of the driveway without striking Officer Sweat’s police cruiser.

After the SUV began to move, both officers drew their handguns. At this point, Officer Sweat was still standing at the rear door on the vehicle’s passenger side. When Mr. Swift pulled forward after initially backing up, Officer Sweat ran behind the SUV. Then, as Mr. Swift began backing up again, Officer Sweat had to step out of the way of the oncoming vehicle to avoid being hit. While Officer Sweat was getting out of the way, Mr. Swift successfully cleared the officer’s police cruiser and backed into the street. At this point, Mr. Swift drove away from the scene.

Officer Sweat and Sergeant Green were the only State witnesses to testify concerning the events that formed the basis for the aggravated assault charge against Mr. Swift. Sergeant Green candidly admitted that when he and Officer Sweat approached the SUV’s passenger side, the entire encounter with Mr. Swift lasted less than thirty seconds. During most of this brief encounter, Officer Sweat had been standing at the SUV’s rear door. After Officer Sweat left his position of relative safety to run behind the SUV when it pulled forward, he could not have been behind the vehicle for more than a few seconds before he was forced to step out of the SUV’s path as it backed up a second time. Under these circumstances, it is not surprising that neither officer could establish that Mr. Swift knew that Officer Sweat had left his position at the SUV’s side and run to its rear.

The Proceedings in the Circuit Court

The State filed a three-count information against Mr. Swift. The charges were aggravated assault on a law enforcement officer with a deadly weapon, a second-degree felony, sections 775.0823, 784.021, and 784.07, Florida Statutes (2004); resisting law enforcement officers without violence, a first-degree misdemeanor, section 843.02, Florida Statutes (2004); and fleeing or attempting to elude a law enforcement officer in a marked patrol vehicle with siren and lights activated, a third-degree felony, section 316.1935, Florida Statutes (2004). At trial, defense counsel timely moved for a judgment of acquittal on the aggravated assault charge, arguing that there was “no evidence that [Mr. Swift] intentionally or knowingly threatened Officer Sweat.” The able trial judge characterized the State’s proof as “not the strongest case that I have ever seen of aggravated assault,” but he denied the defense motion. The jury returned a verdict finding Mr. Swift to be guilty as charged of all three offenses.

After the jury returned its verdict, the trial court dismissed the charge of resisting without violence on the theory that it was subsumed within the other two charges. The trial court adjudged Mr. Swift to be guilty on the remaining charges and sentenced him to a term of seven and one-half years in prison on the aggravated assault charge and five years on the fleeing charge. The two sentences were designated to run concurrently.

Discussion

On appeal, the only issue Mr. Swift raises is the sufficiency of the evidence to support his conviction on the aggravated assault charge. Mr. Swift argues that the State failed to establish the elements of an assault. We agree.

Section 784.011, Florida Statutes (2004), defines an assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1). “The statute requires proof of three elements: (1) an intentional, unlawful threat; (2) an apparent ability to carry it out; and (3) creation of a well-founded fear that the violence is imminent.” Benitez v. State, 901 So.2d 935, 937 (Fla. 4th DCA 2005) (citing Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997)). In order to establish an aggravated assault, the State must prove that the defendant had a specific intent to do violence to the person of another. See State v. Shorette, 404 So.2d 816, 817 (Fla. 2d DCA 1981); Lavin v. State, 754 So.2d 784, 787 (Fla. 3d DCA 2000).

Here, the evidence was sufficient to establish that Officer Sweat was in fear of imminent violence when Mr. Swift backed the SUV directly at him. However, “[t]he ‘threat’ element addresses the defendant’s intent, not the reaction of the person perceiving the word or act.” Benitez, 901 So.2d at 937. Thus Officer Sweat’s reaction was insufficient to establish that Mr. Swift intended to threaten him. The State was unable to establish that Mr. Swift knew that Officer Sweat had run behind the SUV during the minimal amount of time that elapsed after Mr. Swift pulled forward and before he began to back up a second time. Without question, the State established that Mr. Swift disregarded the officers’ lawful commands to turn off the SUV’s engine, but this did not tend to establish that Mr. Swift had a specific intent to threaten Officer Sweat. Absent such evidence, the trial court erred in denying the defense motion for a judgment of acquittal on the aggravated assault charge. See Beard v. State, 842 So.2d 174, 176-77 (Fla. 2d DCA 2003); Munday v. State, 254 So.2d 33, 34 (Fla. 3d DCA 1971).

Conclusion

For the foregoing reasons, we reverse Mr. Swift’s judgment and sentence for aggravated assault on a law enforcement officer. We affirm his judgment and sentence for fleeing and attempting to elude a marked patrol vehicle with siren and lights activated.

Affirmed in part; reversed in part.

FULMER and DAVIS, JJ„ Concur.

      . The defense's version of what happened varied substantially from the State's proof in various particulars. However, in reviewing the sufficiency of the State's evidence to survive a defense motion for judgment of acquittal, we apply a de novo standard of review and view the evidence in the light most favorable to the State. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Upon such review, if “a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.


author: NORTHCUTT, Chief Judge.

text:
    Hubert Bradford LEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3332.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

Hubert Bradford Leeks was sentenced to a term of imprisonment followed by probation for a crime committed in February 1998. In 2006 Leeks admitted violating his probation and was sentenced to 166 months in prison. The State acknowledges that this was an upward departure from the sentencing guidelines applicable to Leeks’s 1998 crime and that it must be reversed because the court failed to file written reasons for the departure. The only disputed issue on appeal concerns the sentence that Leeks may be given on remand. Whereas the State seeks an additional opportunity to prove grounds for an upward departure sentence, Leeks maintains that the circuit court must impose a guidelines sentence. As will be seen, Leeks is correct.

When a departure sentence is reversed because the reasons tendered for the departure are invalid or unsupported, on remand the court must impose a guidelines sentence. State v. Betancourt, 552 So.2d 1107 (Fla.1989); Shull v. Dugger, 515 So.2d 748 (Fla.1987). But, generally, when a sentence is reversed for the sentencing court’s failure to give departure reasons, and it appears that the court did not realize that it was imposing a departure sentence, on remand the court may again consider departing from the guidelines. The rationale is that, because the sentencing court failed in the first instance to appreciate that it was imposing a departure sentence, it had no opportunity to determine whether there were valid reasons for a departure. Betancourt, 552 So.2d at 1108; Roberts v. State, 547 So.2d 129 (Fla.1989); see also Waldron v. State, 529 So.2d 772 (Fla. 2d DCA 1988) (en banc).

At Leeks’s sentencing hearing the prosecutor advised the circuit court incorrectly that the 166-month sentence was within a twenty-five percent increase permitted by the guidelines, § 921.0016(l)(b), Fla. Stat. (1995). Therefore, it is clear that when sentencing Leeks the court was unaware that it was imposing a departure sentence. If that were the end of it, the State’s position that the court must have another opportunity to consider imposing a departure sentence would prevail.

But Leeks’s sentencing hearing was not the end of it. After this appeal was filed, Leeks timely moved to have his sentence corrected pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Richardson v. State, 915 So.2d 766 (Fla. 2d DCA 2005) (noting that defendant preserved objection to upward departure sentence by filing 3.800(b)(2) motion); Doyle v. State, 788 So.2d 368 (Fla. 2d DCA 2001); see also Beck v. State, 817 So.2d 858 (Fla. 5th DCA 2002). Leeks’s motion complained that the circuit court had imposed an upward departure sentence without giving written reasons. After reviewing the motion, the circuit court issued an order acknowledging that Leeks had made a facially sufficient claim for relief that was not conclusively refuted by the record and directing the State to show cause why Leeks was not entitled to relief.

In response, the State agreed that Leeks’s sentence was an improper departure without written reasons. Still, it posited that the court had “manifested its intent to exceed guidelines during the sentencing hearing” but that the court “apparently chose the advocated 166 month sentence to avoid the necessity of filing written departure reasons.” The State suggested that the court should resolve the matter simply by filing written reasons for the departure in response to Leeks’s motion. In support of this suggestion it cited to Beck, 817 So.2d 858, which affirmed an upward departure sentence after the trial court filed written reasons for the departure in response to the defendant’s 3.800(b)(2) motion to correct sentencing error. Notably, the State’s response to Leeks’s motion did not articulate any valid reasons the court might have had for departing from the sentencing guidelines. Nor did the State request an evidentiary hearing in which to prove grounds for a departure, although eviden-tiary hearings are expressly contemplated by rule 3.800(b)(1)(B). See Fla. R.Crim. P. 3.800(b)(2)(B) (requiring application of procedures in 3.800(b)(1)(B) to resolve (b)(2) motions). Notwithstanding the State’s concession that Leeks’s motion was well taken, the circuit court took no further action. Thus, sixty days after Leeks filed his motion, it was deemed denied by operation of rule 3.800(b)(1)(B). See Fla. R.Crim. P. 3.800(b)(2)(B) (requiring application of procedures in 3.800(b)(1)(B) to resolve (b)(2) motions).

It can be seen, then, that Leeks’s case is before us in a far different posture than the situation addressed in Betancourt, Roberts, and Waldron. Although the circuit court below did not initially appreciate that it was imposing a departure sentence, thereafter it was alerted to that fact in a proceeding intended to permit it to correct its error. Thus, unlike the situations in the cases just mentioned, we review this case after the circuit court has had ample opportunity to determine whether there were valid reasons for departing from the sentencing guidelines and to record those reasons in writing but has failed to do so.

Neither is this case akin to Beck, as suggested by the State when responding to Leeks’s motion in the circuit court. In Beck, the Fifth District upheld the defendant’s upward departure sentence against his claim that he was entitled to a guidelines sentence solely because the written reasons for the departure were not timely filed. In that case, the judge announced departure reasons at the sentencing hearing but did not reduce them to writing until the defendant filed a 3.800(b)(2) motion during his appeal. The Fifth District held that the defendant suffered no prejudice by the late submission alone and, noting that the defendant did not challenge the validity of the trial judge’s departure reasons, upheld the departure sentence. The Beck court cited to the Florida Supreme Court’s decision in Mandri v. State, 813 So.2d 65 (Fla.2002), wherein the court held that the late filing of written departure reasons in response to the defendant’s rule 3.800(b)(2) motion did not entitle the defendant to a reversal and remand for sentencing within the guidelines.

This case is distinguishable from Man-dri and Beck because the circuit court below has never filed written reasons to justify Leeks’s departure sentence, whether in response to his 3.800(b)(2) motion or otherwise. The importance of this distinction was underscored in Maddox v. State, 760 So.2d 89 (Fla.2000). In that case the supreme court concluded that the failure to file written departure reasons is an important omission that “affects the integrity of the sentencing process concerning the critical question of the length of the sentence.” Id. at 107. The court held that, even after enactment of legislation eliminating appellate review of unpre-served non-fundamental errors in criminal cases, the policy reasons for correcting a departure sentence when the trial court failed to file written reasons in support of it continued to apply. Id. On the other hand, the court observed, merely filing the reasons late did not necessarily have the same “qualitative effect on the integrity of the sentencing process.” The court held that the late filing of written departure reasons does not constitute a fundamental sentencing error — “if the defendant was not hindered in his or her efforts to challenge the grounds for imposing the departure sentence on direct appeal.” Id. at 108.

Mandri, 813 So.2d at 65, and Beck, 817 So.2d at 862, recognized that the late filing of written departure reasons in response to a motion under rule 3.800(b)(2) does not hinder the defendant’s ability to challenge the departure reasons in his direct appeal because motions under that rule must be filed and decided prior to the filing of the defendant’s first brief on appeal. See Fla. R.Crim. P. 3.800(b)(2). Here, in contrast, Leeks’s ability to challenge the reasons for his departure sentence in this direct appeal has been completely hindered because no reasons have ever been tendered.

Under materially identical circumstances, the First District felt compelled to reverse and remand for the imposition of a guidelines sentence. Pressley v. State, 921 So.2d 736 (Fla. 1st DCA 2006). We do, as well. At this point, the State has forgone two chances to argue and prove grounds for a departure sentence. The circuit court, apprised of the sentencing impropriety and given an opportunity to correct it, has faded to do so. Certainly, in the words of the Maddox court, these failures have compromised the “integrity of the sentencing process concerning the critical question of the length of the sentence.”

We reverse Leeks’s sentence and remand for resentencing within the sentencing guidelines.

SALCINES, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Ironically, had the circuit court accepted the State's suggestion that it resolve Leeks's rule 3.800(b)(2) motion simply by filing written departure reasons based on the arguments at his original sentencing hearing, we would have been required to reverse for resentenc-ing within the guidelines. Contrary to the State's assertion when responding to Leeks’s motion, the circuit court has never manifested a desire to sentence Leek outside the guidelines. No such intention appears in the transcript of Leeks’s sentencing hearing. Rather, the transcript reflects that the court merely acceded to the prosecutor's request that it sentence Leeks to the longest prison term permitted under the guidelines. The factors asserted by the prosecutor in support of that request would not have been valid grounds for a departure sentence, for all of them either were inherent in Leeks's crime or were already factored into the guidelines sentence. See Scurry v. State, 489 So.2d 25 (Fla. 1986). If in response to Leeks's rule 3.800(b)(2) motion the circuit court had filed invalid written departure reasons based on those arguments, the correct remedy would have been to remand for resentencing within the guidelines. Betancourt, 552 So.2d 1107; Shull, 515 So.2d 748.