author: ROTHENBERG, Judge. RAMIREZ, J.

text:
    In re: ASBESTOS LITIGATION. Mobil Corporation, et al., Petitioners, v. Joseph Mallia, et al., Respondents.
    No. 3D05-2194.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Ruden, McClosky, Smith, Schuster, & Russell, and John H. Pelzer, Fort Lauder-dale, and Susan Cole and Stephen Smith, for petitioners.
    David M. Lipman, Miami, and Jonathan Ruckdeschel, for respondents.

      Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioners, defendants in asbestos cases pending in Miami-Dade Circuit Court, seek certiorari review and quashal of an order by the circuit court exempting nonmalignant asbestos litigants who had received trial dates prior to July 1, 2005, from the requirements of the newly enacted “Asbestos and Silica Compensation Fairness Act” (“ASCFA” or “Act”).

Section 774.204(2) of ASCFA provides, in part, that:

A person may not file or maintain a civil action alleging a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor.

§ 774.204(2), Fla. Stat. (2005)(emphasis added). In addition, section 774.205(2), Florida Statutes (2005), provides, in part, that:

A plaintiff in a civil action alleging an asbestos or silica claim must include with the complaint or other initial pleading a written report and supporting test results constituting prima facie evidence of the exposed person’s asbestos-related or silica-related physical impairment. ... For any asbestos or silica claim pending on the effective date of this act, the plaintiff must file the report and supporting test results at least 30 days before setting a date for trial.

The circuit court was asked to address the applicability of ASCFA to those eases which had already been set for trial when ASCFA became effective on July 1, 2005. After allowing the parties to brief the issue and conducting a hearing, the trial court issued an order, finding that “those plaintiffs whose cases were filed prior to July 1, 2005, and who also had trial dates set as of July 1, 2005, are not required to file written reports and supporting test results constituting prima facie evidence of asbestos-related or silica-related impairment.”

In their petition, the nonmalignant asbestos defendants argue that the statutory requirement of making a “prima facie showing of physical impairment” is clear, direct, and unambiguous. They, therefore, assert that the trial court’s order, which dispenses with this statutory requirement for those plaintiffs who had already received trial dates prior to July 1, 2005, will result in material injury to the defendants, which cannot be remedied on plenary appeal, because it interferes with their “substantive right under the Act not to be subject to trial” unless and until the plaintiffs comply with this statutory requirement. In response, the plaintiffs argue that ASCFA is ambiguous; the trial court correctly interpreted the conflicting provisions of ASCFA; and the trial court did not depart from the essential requirements of the law because it did not violate a clearly established principle of law.

Certiorari is limited to those instances where the court did not afford procedural due process or departed from the essential requirements of the law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). In the instant case, the defendants have not alleged that the trial court failed to afford them procedural due process. Therefore, the issue we are asked to address is whether the trial court departed from the essential requirements of the law.

The Florida Supreme Court has explained that:

[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Kaklamanos, 843 So.2d at 889. Moreover, the Florida Supreme Court specified that “ ‘clearly established lav/ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Id. at 890 (emphasis added).

Certiorari review is proper when it is alleged that the circuit court’s interpretation of a statute violates clearly established law or when it fails to follow the dictates of a statute, and the error is sufficiently egregious as to result in a miscarriage of justice. In Kaklamanos, the Florida Supreme Court found that certiorari review was proper based upon its conclusion that the trial court had failed to apply the dictates of the personal injury protection statute and that this error constituted a violation of the clearly established law contained in the statute. Id. at 891; see also State v. Farino, 915 So.2d 685 (Fla. 2d DCA 2005)(granting certiorari review, determining that the circuit court had departed from the essential requirements of the law by failing to apply a statutory definition to a criminal act, thereby exempting from prosecution conduct clearly proscribed by the statute); State, Dep’t of Children & Families v. Everette, 911 So.2d 119 (Fla. 3d DCA 2004)(granting certiorari review and finding that the trial court departed from the essential requirements of the law by requiring the Department of Children and Families to transport a defendant in its custody, where a statute placed that responsibility with the sheriff); Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004)(certiorari granted, determining that the trial court had departed from the essential requirements of the law when it applied a statutory standard of care in a lawsuit, despite the plain reading of the statute indicating that the standard of care did not apply); State, Dep’t of Highway Safety & Motor Vehicles v. Possati, 866 So.2d 737 (Fla. 3d DCA 2004)(eertiorari granted, concluding that the trial court departed from the essential requirements of the law by not following the clearly established dictates of a statute regarding the appropriateness of an alcohol breath test).

A finding that the trial court departed from a clearly established requirement of the law, by itself, is, however, insufficient to warrant certiorari review. The error must be sufficiently egregious or fundamental, resulting in a miscarriage of justice. See Kaklamanos, 843 So.2d at 890-91 (upholding the district court’s granting of certiorari review of a circuit court’s decision based upon its conclusion that the legal error was sufficiently egregious or fundamental to fall within the scope of its certiorari jurisdiction); Ivey, 774 So.2d at 682 (explaining that district courts should examine the seriousness of the trial court’s error and only grant cer-tiorari when the violation of the clearly established principle of law results in a miscarriage of justice); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 531 (Fla.1995)(explaining that the court’s discretion in exercising its certiorari jurisdiction should depend on the court’s assessment of the gravity of the error, and that a court should only grant certiorari when it determines that the errors are sufficiently egregious or fundamental to merit the extra review and safeguard provided by cer-tiorari).

In the instant case, we conclude that the trial court’s ruling violates the clearly established law set forth in ASCFA. Section 774.204(2) of ASCFA provides that a person may not file or maintain a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment. As the trial court’s ruling is directed to those litigants who had already filed their lawsuits prior to the effective date of ASCFA, it is the “maintain” language in the statute which is relevant to the determination as to whether those litigants must satisfy the prima facie evidence requirement. As the language of section 774.204(2) is clear and unambiguous, that a person may not maintain a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment, we conclude that the trial court departed from the essential requirements of the law in failing to apply the requirement of the statute to those plaintiffs who had already received trial dates when the statute became effective.

Section 774.205(2) provides that plaintiffs filing new complaints must include the required prima facie evidence with their complaint, while plaintiffs who already have claims pending as of the effective date of ASCFA must file the evidence at least thirty days before setting a trial date. While the statute does not specify when the plaintiffs, who already had trial dates when ASCFA became effective, must file their prima facie evidence of physical impairment, the statute does not exempt these plaintiffs from making the prima fa-cie showing required pursuant to the statute. Thus, section 774.204(2)’s prima facie requirement applies to these plaintiffs as well. As the statute does not specify a time frame for plaintiffs, who already had their cases set for trial, to comply with the requirement, the trial court may exercise its discretion in deciding when those plaintiffs must make their prima facie showing. The trial court, however, lacks the authority to waive the statutory requirement altogether.

Our conclusion is supported by section 774.202, which clearly states the purpose of ASCFA:

It is the purpose of this act to:
(1) Give priority to true victims of asbestos and silica, claimants who can demonstrate actual physical impairment caused by exposure to asbestos or silica;
(2) Fully preserve the rights of claimants who were exposed to asbestos or silica to pursue compensation if they become impaired in the future as a result of the exposure;
(3) Enhance the ability of the judicial system to supervise and control asbestos and silica litigation; and
(4) Conserve the scarce resources of the defendants to allow compensation to cancer victims and others who are physically impaired by exposure to asbestos or silica while securing the right to similar compensation for those who may suffer physical impairment in the future.

As one of the methods of accomplishing these purposes, the legislature chose to require plaintiffs to make the prima facie showing set forth in section 774.204(2). This requirement clearly serves the purpose of providing priority to plaintiffs who can demonstrate physical impairment caused by exposure to asbestos. Exempting those plaintiffs who have already had their cases set for trial from satisfying the requirements of the statute would, on the other hand, do violence to the statute’s stated purpose. The trial court indicated in its order that there are currently 460 cases set for trial. Thus, under the trial court’s order there are 460 plaintiffs who would be allowed to proceed without having to make a prima facie showing of physical impairment. Under the existing court order, plaintiffs who cannot make the necessary prima facie showing would be permitted to proceed to trial, “clog up” the court’s busy trial docket, limit the access of current and future plaintiffs who make the requisite prima facie showing, and deny those plaintiffs who do make the requisite showing priority in obtaining a trial setting. To allow such a large number of cases to proceed without complying with the prima facie requirement would, therefore, violate the clear purpose of the statute, which is to give priority to plaintiffs who can demonstrate actual physical impairment.

Our conclusion is also supported by the “whereas” clauses in the preamble of the bill that enacted ASCFA:

WHEREAS, exposure to asbestos has created a flood of litigation in state and federal courts ...,
asbestos personal injury litigation can be unfair and inefficient, imposing a severe burden on litigants and taxpayers alike
the inefficiencies and societal costs of asbestos litigation have been well documented ...,
the extraordinary volume of nonmalignant asbestos cases continues to strain state courts ...,
the cost of compensating exposed individuals who are not sick jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the future ...,
estimates show that between 60,000 and 128,000 American workers already have lost their jobs as a result of asbestos-related bankruptcies and that the total number of jobs that will be lost due to asbestos-related bankruptcies will eventually reach 432,000 ...,
asbestos litigation is estimated to have cost over $54 billion, with well over half of this expense going to attorney’s fees and other litigation costs ..., concerns about statutes of limitations may prompt claimants who have been exposed to asbestos or silica but who do not have any current injury to bring premature lawsuits in order to protect against losing their rights to future compensation should they become impaired
punitive damage awards unfairly divert the resources of defendants from compensating genuinely impaired claimants
the Legislature finds that there is an overpowering public necessity to defer the claims of exposed individuals who are not sick in order to preserve, now and for the future, defendants’ ability to compensate people who develop cancer and other serious asbestos-related and silica-related injuries and to safeguard the jobs, benefits, and savings of workers in this state and the well-being of the economy of this state....

H.R. 1019, 2005 Leg. (Fla.2005).

The Amendment Notes also reflect that the Act is to apply to all civil claims in which trial has not commenced:

This act shall take effect July 1, 2005. Because the act expressly preserves the right of all injured persons to recover full compensatory damages for their loss, it does not impair vested rights. In addition, because it enhances the ability of the most seriously ill to receive a prompt recovery, it is remedial in nature. Therefore, the act shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act

(emphasis added).

To require all plaintiffs to comply with the prima facie evidence requirement serves the intent of the statute by preserving the ability of defendants to compensate people who have serious asbestos-related injuries, and deferring the claims of those who are not currently sick.

Thus, we conclude that the plain language of sections 774.204(2) and 774.205(2), the stated purposes of ASCFA, and the Legislature’s intent in enacting ASCFA, mandate a finding that plaintiffs who already have trial dates set, must also comply with the requirement of making a pri-ma facie showing of physical impairment before they may proceed to trial, and thus the trial court deviated from the essential requirements of the law by ruling otherwise.

The dissent argues (1) that the petition for certiorari is premature; (2) that there is no case in controversy as the petition was not brought by an individual defendant; (3) that by requiring the 460 plaintiffs who had their cases set for trial prior to July 1, 2005, to comply with the clear dictates of the statute, would create confusion as to the status of those cases; and (4) that because the trial judge has “been effectively managing that division for years,” this court should not interfere. In order to respond to these arguments, a brief explanation of just how these cases are handled in this jurisdiction, according to the lawyers who argued the petition before this court, is required.

Due to the large volume of asbestos personal injury cases in Miami-Dade County, a system was devised whereby these cases would be managed pursuant to omnibus orders. The omnibus order currently in effect is ■ the Fourth Amended Omnibus Order On Trial Setting, Discovery And Product Identification In Personal Injury Asbestos Litigation (Revised November 2004)(“0mnibus Order”). This Omnibus Order provides in part that:

It is the express intention and purpose of the Order that it manage and govern the timing and progress of the trial dockets ... in asbestos personal injury litigation.
The Court will file in the In Re: Asbestos Litigation file all General or Omnibus Orders which rulings have application to more than one case pending before this Court. The rulings contained within these General or Omnibus Orders shall be applicable to all asbestos personal injury cases assigned to this Court unless otherwise specified in the Order.

Omnibus Order at 2-3 (emphasis added).

When the issue of how to proceed on the cases which had trial dates set before July 1, 2005, was raised, the trial court invited the parties to brief the issue and set the issue for a hearing. Numerous defendants filed notices of joinder and several defendants filed a memorandum of law to be considered by the trial court.

The dissent argues that the asbestos defendants lack standing and that the Omnibus Order is merely an advisory “order” because the order is a general order styled “In Re Asbestos.” We disagree. The orders entered in the “In Re Asbestos” format are filed that way pursuant to the Omnibus Order, and are meant to be applicable to all asbestos cases and are binding rulings. See Gallagher v. Fibreboard Corp., 641 So.2d 953, 954 (Fla. 3d DCA 1994)(noting that the omnibus orders were established as a result of the large number of asbestos cases filed in Miami-Dade County and thus, by administrative order of the chief judge, Judges Richard Fuller and Harold Vann “coordinated litigation and case management procedures, created a Master Docket, and issued various omnibus orders to govern litigation applicable to all asbestos cases”). Thus, in Gallagher, this court held that because the “plaintiffs counsel was on notice that he was bound and governed by the Omnibus Order,” failure to comply with the procedure provided was no different than failing to follow a regular rule of civil procedure. Id. at 955. We, therefore, conclude that the Omnibus Order entered by the trial court was and is binding upon the 460 similarly situated plaintiffs and defendants who collectively have standing to seek review by this court.

The dissent suggests that our ruling will create confusion and fails to give deference to the ruling of the trial judge who has aptly presided over and managed these cases for several years. Quite frankly, our ruling is based upon a clear reading and intent of the law, which is to require a prima facie showing of physical impairment as a result of exposure to asbestos if a litigant wishes to maintain a civil action in a nonmalignant asbestos claim. See 774.204(2), Fla. Stat. (2005).

DOES THE ERROR MERIT CERTIORARI REVIEW?

In determining whether the trial court’s error is sufficiently egregious or fundamental to merit certiorari review, we find the Florida Supreme Court’s decision in Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995), instructive. In Globe, the Florida Supreme Court found that it was proper for the district courts to grant cer-tiorari review based upon a claim that the trial court departed from the essential requirements of the law by failing to conduct a hearing before allowing a plaintiff to seek punitive damages. Globe Newspaper, 658 So.2d at 520. Section 768.72 provides that, before a plaintiff may seek punitive damages, he or she must demonstrate by record evidence that there is a reasonable basis for the recovery of such damages. Id. at 519. The Florida Supreme Court concluded that, because the statute created a substantive legal right not to be subject to a punitive damages claim until the trial court makes a determination that there is an evidentiary basis for recovery of such a claim, certiorari review was appropriate to determine whether the trial court conducted the requisite inquiry. Id. at 520.

Similarly, in the instant case, we find that ASCFA creates a substantive legal right not to be subject to a trial until the required prima facie showing of physical impairment is made. Because the trial court’s error interferes with this right by allowing plaintiffs to maintain their nonmalignant asbestos actions without making the statutorily required prima facie showing, it is sufficiently egregious and fundamental to result in a miscarriage of justice because it interferes with the defendants’ rights not to be subject to a trial unless a prima facie showing can be made. Additionally, since there are 460 plaintiffs and numerous defendants affected by the trial court’s ruling, and because of the effect the ruling may have on other plaintiffs and defendants, the error is sufficiently egregious to merit certiorari review.

We, therefore, grant the defendant’s petition for writ of certiorari and quash the circuit court’s order which found that plaintiffs who have trial dates set as of July 1, 2005, need not make the prima facie showing required by section 774.204(2).

Petition granted; order quashed.

CORTIÑAS, J., concurs.

RAMIREZ, J.

(dissenting).

I respectfully dissent because I do not agree that the trial court’s order departed from the essential requirements of law.

Simply stated, section 774.205(2), Florida Statutes (2005), specifically provides that for any pending claims, “the plaintiff must file the report and supporting test results at least 30 days before setting a date for trial.” (emphasis added). The majority would apply the statute to include cases whose trials have already been set. If that were the case, the statute should read “at least 30 days before trial.”

When considering such an extraordinary remedy as a writ of certiorari, the standard is not de novo review, or abuse of discretion, but a “departure from the essential requirements of law.” As the Florida Supreme Court stated in Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla.1995):

The required “departure from the essential requirements of law” means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.

In the case before us, not only there has been no departure from the essential requirements of law, there is not even a real case and controversy for us to decide.

The applicability of the statute came up pursuant to a Memorandum filed by General Electric. The trial court then invited the parties to brief the issue. The litigants did not file or serve any motion. The petition before us mentions no petitioner or respondent. As of the date of oral argument, it had yet to be applied to any particular case or litigant. Chief Judge Farina’s order was, at best, an advisory opinion. I fail to see how such an advisory opinion can be a departure from the essential requirements of law.

We do not recognize the appealability of an order on attorney’s fees in the absence of an actual award of fees, see Ocean Club Cmty. Ass’n, Inc. v. Curtis, 934 So.2d 522, 2005 WL 2993845 (Fla. 3d DCA Nov. 9, 2005)(“the matter is not ripe for consideration”), yet we are today granting the extraordinary remedy of certiorari in the absence of an actual case, a litigant, a factual scenario, or any other indicia of a case or controversy. See Merkle v. Guardianship of Jacoby, 912 So.2d 595, 599 (Fla. 2d DCA 2005)(“Florida’s appellate courts reserve the exercise of judicial power for cases involving actual controversies. With limited exceptions not material here, Florida’s appellate courts are not authorized to issue advisory opinions.”) (citation omitted).

In Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005), the court concluded that a petition for certio-rari is premature where a party has simply been ordered to produce allegedly privileged documents for an in camera inspection by stating: “[o]ne essential characteristic of an effective application for relief by way of certiorari is that the threatened harm cannot be undone.” Id. at 340. The threatened harm complained of here — subjecting a defendant to trial without first making a prima facie showing — as allegedly threatened in the interlocutory, advisory order under appeal, may likewise be undone by the trial court when a specific litigant with a specific case comes before the court for trial.

Because we do not have any litigants before us, we cannot determine what has traditionally been considered a threshold issue: standing. See United Auto. Ins. Co. v. Diagnostics of South Florida, Inc., 921 So.2d 23, 25 (Fla. 3d DCA 2006). “To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant.” Id. (citing Godwin v. State, 593 So.2d 211 (Fla.1992)). See also Montgomery v. Department of Health and Rehab. Servs., 468 So.2d 1014 (Fla. 1st DCA 1985).

The majority attempts to justify the lack of a litigant, or the lack of a case or controversy, by quoting from the Fourth Amended Omnibus Order On Trial Setting, Discovery and Product Identification in Personal Injury Asbestos Litigation (“Omnibus Order”). That Order specifically states: “[e]ach Defendant may file Master Answers, Affirmative Defenses, and Motions to Dismiss directed to the Plaintiffs’ Master Complaint(s).” I find nothing in the Omnibus Order dispensing with the requirement for motions as a procedure for resolving issues that may come before the court. Likewise, there is nothing in Gallagher v. Fibreboard Corp., 641 So.2d 953 (Fla. 3d DCA 1994), that endorses advisory opinions in the absence of a motion.

Furthermore, I do not believe the trial court’s order does violence to the language of the statute. The majority reasons that, because the statute does not specifically exempt those plaintiffs who already have trial dates, they are therefore included in the application of the statute. Neither the statute nor the majority opinion gives any guidance as to how the trial court should handle the 460 cases that have already been set for trial. Are they automatically off the trial docket, or do they conditionally keep their status, but are prevented from starting the trial until they make their prima facie showing? I assume these cases are not subject to dismissal because the statute addresses those cases that had been filed prior to the effective date of the statute. These litigants are only required to make their showing “at least 30 days before setting a date for trial.” See § 774.205(2), Fla. Stat. (2005). But as the majority has decided to interpret the statute with its advisory opinion, it may want to give further guidance. When should these litigants make their prima facie showing?

Despite the trial court’s finding that the defendant’s interpretation of the statute would cause a judicial log jam, the majority opinion finds, with no record support, that the trial court’s order would “ ‘clog up’ the court’s busy trial docket, limit the access of current and future plaintiffs who make the requisite prima facie showing, and deny those plaintiffs who do make the requisite showing, priority in obtaining a trial setting.” Thus, the majority opinion purports to know what’s best for the trial court as to how to run the asbestos division, despite the fact that Chief Judge Farina has been effectively managing that division for years. In any event, the argument that more resources will be exhausted has never been recognized as a proper basis for the extraordinary remedy of cer-tiorari jurisdiction. See Miami Physical Therapy Assocs., Inc. v. Savage, 632 So.2d 114, 115 (Fla. 3d DCA 1994)(stating that “the mere expense and inconvenience of litigation does not constitute harm sufficient to permit certiorari review, even if the order departs from the essential requirements of the law”).

Appellate courts generally defer case management issues to trial judges. I suspect that it is our court that is going to “clog up” the asbestos division by indicating what is a more effective case management interpretation of the statute.

Furthermore, as the trial court’s order succinctly indicates, the defendants’ interpretation was explicitly rejected by legislature when it discarded an earlier draft that required a prima facie showing “at least 30 days before trial.” Thus, I find the majority’s reliance on legislative intent unpersuasive.

I disagree with the majority that Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995), lends any support for our advisory opinion. Section 768.72, Florida Statutes (1993), did not attempt to make its application retroactive and there was no ambiguity. The Florida Supreme Court held that section 768.72 created “a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper, 658 So.2d at 519 (emphasis added). In my view, it is clear that it is this discovery— the “cat out of the bag” injury recognized in Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995)—that provides the basis for allowing certiorari review. The expense or inconvenience of going to trial, on the other hand, has never been so recognized. See Miami Physical Therapy, 632 So.2d at 115.

I would therefore deny the writ of cer-tiorari.

      . In addition to deferring the claims of persons who are not sick, the legislature also addressed the concern on the opposite hand that such persons' claims might be barred by the statute of limitations if they later become sick. It dealt with this concern by enacting section 774.206(1), which provides in part that the limitations period on an asbestos claim does not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he or she is physically impaired by an asbestos-related condition.

      . This interference with the defendants' rights not to be subject to a trial until the prima facie showing is made also satisfies the jurisdictional requirement that the error must result in material injury that cannot be corrected on post-judgment appeal. See Fassy, 884 So.2d at 363 (determining that circuit court's error, in not requiring a plaintiff to comply with medical malpractice pre-suit notice requirements, would result in material injury to the defendants that could not be corrected on post-judgment appeal, because a post-judgment appeal would be inadequate to correct the error of subjecting the defendants to a trial that the pre-suit procedures were intended to prevent).


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Frances KIRSCH, Appellant, v. Brian KIRSCH, Appellee.
    No. 4D05-4170.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Rehearing Denied Aug. 8, 2006.

      Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    Jonathan S. Root of Graner, Root & Heimovies, P.A., Boca Raton, for appellee.
   TAYLOR, J.

Frances Kirsch (“the mother”) appeals the trial court’s order granting the motion of Brian Kirsch (“the father”) to select a mental health professional for services pursuant to the parties’ mediated time-sharing agreement. We conclude that the trial court erred in determining that the mediation agreement unambiguously allows for the substitution of an alternate mental health professional by the court, absent the parties’ mutual approval.

Pursuant to the final judgment of dissolution of marriage, the mother was awarded sole parental responsibility of the couple’s two minor children. Thereafter, the father sought to modify the judgment, asserting that it was in the best interest of the children to create a timesharing agreement between the parties. The parties reached a mediated agreement regarding timesharing.

The agreement expressly provided that the parties would “stipulate to the recommendations of Canoy Roberson,” the children’s therapist, regarding reunification of the father with the children. The agreement further provided that the mother would retain sole parental responsibility “until such time as Canoy Roberson recommends in writing that it is in the minor children’s best interest for the parties to exercise shared parental responsibility.” The only therapist referenced by name in the agreement was Canoy Roberson; however, the agreement did provide that the mother could take the children to an “additional therapist to address concerns other than those being addressed by Canoy Roberson” and that the father would be responsible for half of the uninsured costs of therapy “between the children and Canoy Roberson or any mutually acceptable therapist.” The court ratified and incorporated the mediation agreement in its order modifying the final judgment of dissolution.

Sometime after the agreement was made, Canoy Roberson resigned. The husband filed a motion for contempt enforcement and to implement standard visitation schedule, and a motion to select a mental health professional. In his motion for contempt, the father alleged that the mother interfered with Roberson’s treatment of the children, thus precipitating her resignation. The court granted in part and denied in part the husband’s motion and directed the parties to attempt to select a mutually acceptable therapist. The court provided that if the parties could not select a mutually acceptable therapist, the court would determine whether the mediation agreement allowed it to substitute an alternate therapist. In a subsequent motion to select a mental health professional, the father asserted that the parties were unable to reach an agreement and asked the court to appoint a substitute counselor.

In granting the father’s motion, the court stated that it disagreed with the mother’s assertion that the mediation agreement “was designed solely to facilitate the exclusive services of Canoy Roberson, as the therapist therein.” Instead, the court found, the mediation agreement “has one goal, that of attempting to set forth with substantial direction and specific terms, the re-establishment of a relationship between the Former Husband and the parties’ Children, in as safe and appropriate environment as possible, and with the assistance of a trained expert.”

The court continued, “Nowhere amongst the very detailed language of the mediation agreement does it expressly state that the involvement of Canoy Roberson is the therapist on which the entirety of the plan hinges.” The court found support for this proposition in the portion of the agreement that provided that the father would pay for half of the uninsured cost of the children’s therapy with Roberson “or any mutually acceptable therapist.” The court further noted that the mother sent the father a letter, following Roberson’s resignation, seeking his input for Roberson’s “replacement.” The court wrote: “Nowhere in that letter which was written the same day that Canoy Roberson fired the parties and declined to provide future services does she say that the parties are no longer able to effectuate the intent of the mediation agreement because the sole therapist they contemplated would no longer help implement the terms thereof.”

We review mediation agreements de novo. Rose v. Ditto, 804 So.2d 351, 353 (Fla. 4th DCA 2001). The interpretation of such agreements is subject to contract law principles. See Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996). When the court interprets agreements made in the context of divorce proceedings,

[I]t is fundamental that the court may not remake an agreement between the parties, and if there is any ambiguity, the agreement will be interpreted in accordance with the best interest of the child concerned. In construing a contract, the court should place itself as nearly as possible in the position of the parties when the contract was executed, and should consider the object sought to be accomplished by the agreement.

Id. at 958-59 (quoting Bingemann v. Bingemann, 551 So.2d 1228, 1233 (Fla. 1st DCA 1989) (citations omitted)).

Here, the trial court concluded that
this simple, although detailed agreement has one goal, that of attempting to set forth with substantial direction and specific terms, the re-establishment of a relationship between the Former Husband and the parties’ Children, in as safe and appropriate environment as possible, and with the assistance of a trained expert. Indeed, there is no ambiguity in the agreement.

We do not find that the agreement was unambiguous. Instead, we find that the agreement contains a latent ambiguity because it does not address the eventuality of Roberson’s unavailability. “ ‘A latent ambiguity is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings.’ ” Albertson v. Albertson, 566 So.2d 606, 608 (Fla. 4th DCA 1990) (quoting Forest Hills Utils., Inc. v. Pasco County, 536 So.2d 1117, 1119 (Fla. 2d DCA 1988)).

Where there is a latent ambiguity, the court may consider parol evidence, including “evidence as to the interpretation which the parties may appear to have placed thereon by their actions and the manner of their dealings thereunder.” Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547-48 (Fla. 1st DCA 1973). In this case, even though the court found the agreement to be unambiguous, it considered parol evidence in the form of a letter sent from the mother to the father on the date of Roberson’s resignation to be evidence of the parties’ intent that the agreement would continue if Roberson was unavailable. The letter stated:

Effective 4/23/05 the Children’s Counsel- or has resigned from the responsibility of providing services for the Children. Before making a decision on a replacement, I would appreciate input and for suggestions.
Please advise at your earliest convenience.

Given this extrinsic evidence, we would uphold the trial court’s interpretation of the contract if it were supported by competent substantial evidence. Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468, 471 (Fla. 4th DCA 2000). But we cannot find that the mother’s letter provides competent substantial evidence that the agreement was to continue without Roberson. The letter does not specify which services the mother sought to replace — therapy alone or both therapy and recommendations. The Ballantyne court cautioned that if an agreement is ambiguous, then it must be “interpreted in accordance with the best interest of the child concerned.” Ballantyne, 666 So.2d at 958-59 (quoting Bingemann, 551 So.2d at 1233).

Arguably, here, the best interest of the children would be better served by re-designating to the court the power to make binding recommendations regarding reunification. We therefore reverse the order entered below and reassign to the trial court the power to make recommendations and decisions regarding reunification.

Reversed.

GUNTHER and KLEIN, JJ., concur.


author: PER CURIAM.

text:
    Darryl McCORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-426.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Darryl McCord, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006).

POLEN, KLEIN and TAYLOR, JJ., concur.


text:
    Douglas GASPAROVIC, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-196.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Douglas Gasparovic, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s habe-as corpus petition, which the trial court considered alternatively as one seeking rule 3.800(a) relief. This court’s affir-mance is without prejudice to appellant seeking mandamus relief in the trial court if he has exhausted administrative remedies. See Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003).

FARMER, GROSS and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    Daniel APONTE, Jr., Appellant, v. Judy M. TOLENTINO-APONTE, Appellee.
    No. 5D05-2215.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Daniel Aponte, Jr., Oakland Park, pro se.
    Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein, of Assistant Attorney General, Tallahassee, for Appellee.
   GRIFFIN, J.

Daniel Aponte, Jr. [“Mr. Aponte”] appeals a judgment entered on the petition of the Florida Department of Revenue to adopt or enforce the judgment of a foreign jurisdiction and confirming child support arrearages owed as of March 29, 2004. We affirm.

Mr. Aponte has one daughter, born on June 4, 1994. In 1998, he had been ordered by a Rhode Island court to pay child support to his former wife, Judy M. Tolen-tino-Aponte [former wife], in the amount of $87 per week. Some time following their divorce, all the parties moved to Florida and Mr. Aponte accrued significant child support arrearages.

On June 23, 2004, the Florida Department of Revenue [“the Department”] filed a petition to adopt the Rhode Island judgment and to establish arrearages of $15,976.23 as of March 29, 2004. Thereafter, Mr. Aponte and former wife reached an agreement on the arrearages, which was reduced to writing and executed on October 8, 2004. Mr. Aponte agreed to pay former wife a total of $4,000 — one thousand dollars upon court approval of the settlement and $500 per month for six months beginning October 1, 2004, in settlement of all pending child support claims. In exchange for this, former wife agreed to “waive any and all clams [sic] she and/or the State of Rhode Island may have for past child support from Daniel Aponte, Jr.” That same day, the parties appeared at a hearing in family court in Rhode Island, during which the State of Rhode Island agreed to accept $500 in settlement of its claims against Mr. Aponte. The Rhode Island court incorporated these settlements into an order issued on October 20, 2004.

On November 1, 2004, Mr. Aponte moved to dismiss the Department’s petition, arguing that the issues raised by the petition were moot because of the settlement. Attached to the petition were copies of the parties’ settlement agreement and a copy of the Rhode Island judgment accepting the settlement. On December 27, 2004, Mr. Aponte filed a copy of the transcript of the October 8, 2004, hearing.

On February 4, 2005, the lower court denied Mr. Aponte’s motion to dismiss and ordered payment of temporary child support in the amount of $69.23 per week, beginning on February 11. The case was continued to June 1, 2005.

On March 15, 2005, Mr. Aponte filed a motion to modify the February 4, 2005, order and for other relief, asserting that he had paid former wife $4,200 between October 2004 and February 1, 2005, and that, in addition, he had paid her $800 on February 1, 2005, which represented $300 per month in child support and $500 towards an unspecified arrearage.

On June 1, 2005, a hearing officer from the Department conducted a hearing to consider child support arrearages owed by Mr. Aponte and future child support payable by him. Mr. Aponte did not personally appear at the hearing, but his counsel did. Counsel asked the court to consider his March 15, 2005, motion, which sought credit for certain payments made towards his arrearages. The following exchange occurred:

THE COURT: —me say this: I just looked at the motion, and it appears that this motion is directed primarily at ultimately what Mr. Aponte’s child support arrearage obligation may be.
[HUSBAND’S COUNSEL]: Yeah.
THE COURT: And that’s before the court today. This motion, you know, makes it more clearly what Mr. Aponte’s position is, but I think it’s a little bit redundant to the fact that we’re going to be dealing with child support arrearages today, anyway, if we have time.
Part of the problem, however, is that if your motion is — primary thrust is as to child support arrearages credit prior to 03/29/01, this Court probably doesn’t have authority to deal with that—
[THE DEPARTMENT’S ATTORNEY]: Right. Yes, sir.
THE COURT: —because that is part of the motion to adopt and enforce out of Rhode Island. If it is dealing with monies that were sent since that date, then that’s another matter.

Counsel for the Department argued that since Mr. Aponte was not present at the hearing and because there was no competent proof of payments made since March 29, 2004, those amounts could not be adjudicated. The hearing officer agreed that Mr. Aponte had the burden to show what payments he had made. Mr. Aponte’s counsel asked the court to “bifurcate” the issues. The trial court agreed:

THE COURT: But I’m going to go ahead and bifurcate this. Mr. Rice, I’m going to give you one more bite of the apple. But I’m not in any way pleased by the fact that Mr. Aponte is not here. COUNSEL: I appreciate your mercy, and understand your position 200 percent. You know me, I always do my best to do things correctly.
THE COURT: What I’m going to do is I’m going to make the finding as to what the arrearages are as of 03-29-04, reserve on any arrearages since then. And what I would like the attorneys to do is before this — that aspect of the case is reset for hearing is see if they can get together. You need to submit Mr. Castro’s office copies of these checks and any other receipts that you have and see if you all can work it out before I have to deal with it. And, again, let’s see if there’s — I can tell you this—
COUNSEL: Yes.
THE COURT: That since the order was issued in February, he is in arrearage already $261.53. In fact, he’s only made two payments of child support since that order was issued; the last one, 03-17-05. So the next step is going to be your motion to hold him in contempt of court.

The trial court subsequently adopted the hearing officer’s recommendations, noting in the judgment that although the arrear-age as of March 29, 2004, was established to be $15,976.23, the court reserved ruling on arrears from “3/29/04 to date.” There plainly was no error on the part of the trial court in fashioning the order it issued. The amount identified on March 29, 2004, was correct. Given the lack of evidence at the June 1 hearing, the court cannot be faulted for failing to adjudicate the legal effect of events subsequently occurring.

AFFIRMED.

SHARP, W., and PALMER, JJ., concur.


text:
    Harry Michael WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1937.
    District Court of Appeal of Florida, First District.
    June 30, 2006.
    Harry Michael Wright, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Smith v. State, 444 So.2d 542, 547 (Fla. 1st DCA 1984); Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980).

WOLF, PADOYANO, and POLSTON, JJ., concur.


text:
    Obidiah McCASKILL, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D05-4771.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Obidiah McCaskill, pro se, Petitioner.
    Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. However, because the petition for writ of mandamus filed below constituted a collateral criminal proceeding, we remand with directions that the trial court remove the lien from the appellant’s account or direct the reimbursement of any funds that have been withdrawn to satisfy the lien. See Cox v. Crosby, — So.2d-, 2006 WL 176681 (Fla. 1st DCA 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006) (unpublished table opinion).

WOLF, PADOVANO and POLSTON, JJ., concur.


text:
    Antonio JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2517.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Antonio Johnson, pro se, Appellant.
    Charlie Crist, Attorney General, and Paulette R. Taylor, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because appellant’s petition for writ of habeas corpus was not filed in the sentencing court, the trial court lacked jurisdiction to address it. See e.g., Crockett v. Singletary, 723 So.2d 911 (Fla. 1st DCA 1999). We affirm the trial court’s denial of the petition on that basis, without prejudice to appellant’s right to file a proper post-eon-viction motion in the appropriate court.

AFFIRMED.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    Alphonso HAYWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-1917.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Alphonso Haywood, pro se, Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On the court’s own motion, the opinion of May 5, 2005, is withdrawn and the following is substituted therefor.

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla.2006).

ALLEN, DAVIS, and PADOVANO, JJ., concur.


author: RAMIREZ, J.

text:
    Vicki Gutierrez FUENTE, Appellant, v. SOUTHERN OCEAN TRANSPORT, INC., et al., Appellees.
    Nos. 3D04-3284, 3D04-2611.
    District Court of Appeal of Florida, Third District.
    July 5, 2006.

      Rolando Gomez; Shelley Senecal, Miami, for appellant.

      Gordon Hargrove & James, Fort Laud-erdale, and John R. Hargrove, and W. Kent Brown, for appellees.
    Before LEVY, RAMIREZ, and SUAREZ, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, J.

We deny appellees’ motion for rehearing and instead withdraw our opinion filed on February 22, 2006, and substitute the following opinion in its place.

Vicki Gutierrez Fuente appeals the trial court’s order granting summary judgment in favor of the appellees, as well as the order denying her leave to file a counterclaim. The orders were filed in two separate cases; however, the cases have been consolidated for appeal. We reverse the denial of leave to file a counterclaim because the trial court’s rulings left Fuente without remedy, either by a counterclaim or an independent action.

I. Facts and Procedural Background

On November 7, 2003, Fuente was driving a vehicle which was carrying a passenger, Shauna Pender. Fuente’s vehicle collided with a tractor-trailer owned by appellee Southern Ocean Transport, Inc. The tractor-trailer was driven by appellee Reinaldo Rios and had been loaded by appellee Maersk. Pender settled her claims against Fuente and executed a general release barring all claims against Fuente. Pender then sued appellees for her injuries (the Pender case).

In the Pender case, Southern Ocean and Rios filed a third-party complaint against Fuente for contribution. Fuente promptly filed a motion for summary judgment on the third-party claim because Pender had already settled with her and released her from liability. Prior to the hearing on the summary judgment motion, Fuente filed a motion for leave to file a counterclaim against appellees for negligence to recover for her injuries in the accident. She did not attach a copy of the proposed counterclaim. At the hearing, the trial court deferred ruling on the motion for leave to file counterclaim, stating that he would not hear the motion until a copy of the counterclaim was attached. Six days after the court granted summary judgment, Fuente refiled the motion for leave to file counterclaim, now attaching the counterclaim. At the hearing on the motion, the court denied the motion without explanation. The next day, Fuente filed her own separate lawsuit against appellees (the Fuente case).

Simultaneously, Fuente filed a motion for rehearing or clarification of the order denying the counterclaim. At the hearing on that motion, the trial court indicated that Fuente had the right to file her own action. The court denied the motion for rehearing/clarification and would not make a determination regarding whether the claim was compulsory or permissive, despite Fuente’s request for such clarification. The trial judge stated that it would address the legal issues once the Fuente case was transferred to the judge’s division. Fuente appealed the order denying leave to file the counterclaim.

In the Fuente case, Southern Ocean and Rios moved for summary judgment against Fuente, alleging that the negligence action was a compulsory counterclaim that should have been asserted in the Pender ease. Fuente filed a response to the motion asserting that the claim was not compulsory and that she was not required to file it in the third-party case — a case to which she should have never been a party because of the previously executed release.

At the summary judgment motion hearing, the trial court ruled that the claim was, in fact, compulsory and granted the appellees’ motion. Fuente appealed this order as well. The net effect is that, despite every effort by Fuente, she has been foreclosed from presenting her claim in either the Pender or Fuente case.

On appeal, Fuente contends that summary judgment was improper in the Fuente case because her claim was permissive and not required to be filed in the Pender case. She further alleges that if her negligence claim is found to be compulsory, the trial court abused its discretion in denying her leave to file the compulsory counterclaim in the Pender action.

II. The Pender Case

The trial court denied Fuente leave to file a counterclaim because, after granting her motion for summary judgment, she was no longer a party to the Pender matter. The trial court stated that Fuente could file her own action. Fuente went ahead and filed her own action, only to have a summary judgment entered against her. We find that the trial court abused its discretion in denying her leave to file a counterclaim. Bratcher v. Wronkowski, 417 So.2d 1132 (Fla. 5th DCA 1982).

Leave to amend to add a counterclaim should be liberally granted. Branscomb v. Ploof Truck Lines, Inc., 454 So.2d 59, 60 (Fla. 1st DCA 1984). Absent excessive delay, the standard applied is whether the opposing party will be otherwise demonstrably prejudiced. Id. The trial court’s refusal to grant leave to assert a counterclaim would be an abuse of discretion if the counterclaim were compulsory and therefore barred in a subsequent action. Bratcher, 417 So.2d at 1133. As such, here, if the trial court believed Fuente’s claim was a compulsory counterclaim, then it abused its discretion in barring Fuente from filing her counterclaim within the third-party action. Fuente moved for leave to file her counterclaim prior to the summary judgment motion being heard. However, because the proposed counterclaim was not attached, the trial court deferred ruling until the proposed counterclaim was attached. Fuente then filed an amendment to the original motion and attached the proposed counterclaim. The trial court did not hear and rule on the amended motion until after summary judgment was granted in Fuente’s favor. Under Florida Rule of Civil Procedure 1.190(c), the amendment would have related back to the date of the original pleading, which was presented before summary judgment was granted.

We further disagree with the ap-pellees’ contention that the appeal in the Pender case must be dismissed because this Court lacks jurisdiction. Every indication is that the trial court’s order denying leave to amend was final. It would have been absurd for Fuente to appeal the order granting her motion for summary judgment when she only wanted to reverse the denial of leave to amend. However, even if the order was nonfinal, we would find it proper to invoke this Court’s certio-rari jurisdiction because Fuente would be deprived of an adequate remedy on plenary appeal. Branscomb v. Ploof Truck Lines, Inc., 454 So.2d 59 (Fla. 1st DCA 1984). Here, the trial court’s failure to rule on Fuente’s motion to amend and then subsequent denial departed from the essential requirements of law for which, if we accept appellees’ argument, Fuente would have no remedy on appeal. She would be irreparably harmed because her personal injury claim would be forever barred. She also would have no remedy in the Fuente case because, as appellees argue, her negligence action should have been asserted as a compulsory counterclaim in the Pen-der action.

III. The Fuente Case

As the eases have been consolidated and we are reversing on the Pender case, we need not reach the merits of the Fuente case.

IV. Conclusion

In sum, we reverse the order denying Fuente’s motion for leave to file a counterclaim, and the cause is remanded to the trial court.

Reversed and remanded.

      . We emphasize that Fuente refiled the amended motion with the counterclaim attached within the rehearing time. We believe this fact distinguishes Fuentes' case from Royal Bahamian Ass'n, Inc. v. Morgan, 338 So.2d 876 (Fla. 3d DCA 1976), upon which the appellees rely. In Royal Bahamian, this Court held, "Once the judge dismissed the complaint, he had no further jurisdiction to grant relief to either party and, more particularly, he had no jurisdiction to grant relief to a defendant who had not made a plea for affirmative relief.” Id. at 878 (citation omitted). Such is not the case here.


text:
    R.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4689.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maddox v. State, 760 So.2d 89 (Fla.2000).

STEVENSON, C.J., POLEN and HAZOURI, JJ., concur.


text:
    Dwayne Demont HAGANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2308.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Dwayne Demont Hagans, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Kenneth BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-1389.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Kenneth Boyd, pro se, Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On the court’s own motion, the opinion of May 12, 2005, is withdrawn and the following is substituted therefor.

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla. 2006).

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


text:
    George GIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3980.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    George Girley, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. See Thurston v. State, 812 So.2d 516 (Fla. 4th DCA 2002) (holding that an order denying a motion for appointment of counsel is not an appealable order under rule 9.140).

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


text:
    Cliff BLUNTSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D05-5898.
    District Court of Appeal of Florida, First District.
    July 6, 2006.

      Cliff Bluntson, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Respondent’s motion to dismiss is granted. The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    James ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0127.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    James Adams, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as moot. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Angel MULGADO, Appellant, v. Deisy RODRIGUEZ, Appellee.
    No. 1D06-0813.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Angel Mulgado, pro se, Appellant.
    No appearance for Appellee.
    Philip C. Claypool, General Counsel, and Julia Cobb Costas, Staff Counsel, for Florida Commission on Ethics, Tallahassee.
   PER CURIAM.

The Commission on Ethics’ motion to dismiss is granted. This appeal is hereby dismissed. Appellant as complainant was not a party to the proceeding below before the Commission on Ethics, and, therefore, is not a proper party to proceed in this appeal. See § 112.3241, Fla. Stat. (2005); Fla. Admin. Code Rule 34-5.011 (providing that the respondent is the only party to an action before the Commission on Ethics),

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


text:
    Angel MULGADO, Appellant, v. Reemberto DIAZ, Appellee.
    No. 1D06-0815.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Angel Mulgado, pro se, Appellant.
    No appearance for Appellee.
    Philip C. Claypool, General Counsel, and Julia Cobb Costas, Staff Counsel, for Florida Commission on Ethics, Tallahassee.
   PER CURIAM.

The Commission on Ethics’ motion to dismiss is granted. This appeal is hereby dismissed. Appellant as complainant was not a party to the proceeding below before the Commission on Ethics, and, therefore, is not a proper party to proceed in this appeal. See § 112.3241, Fla. Stat. (2005); Fla. Admin. Code Rule 34-5.011 (providing that the respondent is the only party to an action before the Commission on Ethics).

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


text:
    Gary C. QUILLING, Appellant, v. James R. McDONOUGH, State of Florida, Appellee.
    No. 1D06-1695.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Gary C. Quilling, pro se, Appellant.
    Louis A. Vargas, General Counsel, and Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 10, 2006, the Court has determined that the appeal should be dismissed for lack of jurisdiction. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

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

      . If the appellant wishes to seek review of the order determining him to be indigent and directing the Department of Corrections to impose a lien on his inmate trust account, his remedy is to move to amend the petition for writ of certiorari filed in case number 1D06-1593. Statton v. Crosby, 912 So.2d 669 (Fla. 1st DCA 2005).


text:
    Leon Andrew SIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2543.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Leon Andrew Sims, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(B).

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


author: GREEN, J.

text:
    Arturo VIDAL and Hoida Vidal, his wife, Appellant, v. Delores MACKSOUD, M.D. and Delores Macksoud, M.D., P.A., et al., Appellee.
    No. 3D05-1522.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.

      Hommer Bonner and Douglas F. Eaton, Miami, for appellant.
    Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A. and Shelley H. Leinicke, Ft. Lauderdale, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, 33.

   GREEN, J.

Arturo Vidal, and his wife, Hoida, sued Delores Macksoud, M.D., and Delores Macksoud, M.D., P.A. (collectively “Dr. Macksoud”) for medical malpractice. A jury returned a verdict in their favor for $124,800 but assessed fifty percent (50%) comparative negligence to Arturo Vidal. The trial court entered a final judgment in accordance with the jury’s findings, which prompted this appeal. The Vidals solely assert that the comparative negligence cannot stand and that their motion and renewed motion for directed verdict should have been granted where the defense failed to sustain its burden of proof on this issue. Based upon our careful review of the record evidence, we agree and reverse.

In October 1996, Arturo Vidal went to his primary treating physician, Dr. Sobre-villa, and complained of the recent onset of weakness in his right leg. Dr. Sobrevilla referred him to Dr. Macksoud, a neurologist, for a neurological examination. Dr. Macksoud ordered an MRI of the lumbar spine, and EMG studies for Vidal’s arms. Dr. Macksoud’s diagnosis was that of stroke, lumbar disc disease and carpal tunnel syndrome. Based upon this diagnosis, Dr. Macksoud referred Arturo to physical therapy for treatment. Arturo initially attended therapy regularly, but discontinued it when he did not notice any improvement. Mrs. Vidal encouraged Arturo to resume physical therapy, which he did. He, however, experienced little improvement.

In August 1997, Arturo returned to Dr. Macksoud and complained that his symptoms had worsened. During this visit, Dr. Macksoud observed and noted some objective neurological findings that led her to order a second round of imaging studies, including MRIs of the brain, cervical spine and lumbar spine. These studies revealed severe cord compression in the cervical spine and no lesions on the brain. Based upon these findings, Dr. Macksoud immediately referred Arturo to a neurosurgeon who performed emergency surgery on Arturo in October 1997, for spinal cord compression, an ongoing disease process. After this surgery, Arturo had some immediate improvement, but was left with some permanent damage as a result of the delay in the surgery.

Arturo filed the instant malpractice action against Dr. Macksoud. His claim was that Dr. Macksoud had negligently failed to properly and timely diagnose his cervical myelopathy or spinal cord compression prior to September 1997. He further claimed that as a result of her misdiagnosis, his delayed treatment caused him to sustain permanent damages.

Dr. Macksoud countered that her initial diagnosis of stroke, lumbar disc disease and carpal tunnel syndrome was correct and that there was no objective evidence that Arturo was suffering from cervical myelopathy prior to September 1997. Essentially, she maintained that she appropriately treated Arturo for the recovery of a stroke from September 1996 until April 1997 by performing thorough and comprehensive neurological examinations at all visits, properly prescribing appropriate medications and ordering all appropriate tests. She contended that Arturo did not manifest any objective neurological symptoms of spinal cord compression until approximately one year after his initial visit with her. She also raised the issue of comparative negligence in her pleadings.

The ease proceeded to jury trial. The crux of the liability issue was essentially whether Arturo was suffering from cervical myelopathy which went undiagnosed by Dr. Macksoud prior to September 1997, or whether Arturo’s injuries prior to that time were properly attributable to a stroke as diagnosed by Dr. Macksoud. Not surprisingly all of the plaintiffs’ experts opined that Dr. Macksoud misdiagnosed Arturo’s complaints in September 1997 and all of the defense experts opined that Dr. Macksoud’s initial diagnosis of stroke was correct.

At the close of the defendant’s case, the plaintiffs moved for a directed verdict on the issue of comparative negligence on the grounds that Dr. Macksoud had not come forth with any proof of this defense. The trial court reserved ruling on this motion and allowed the issue to go to the jury. The jury returned its verdict in the plaintiffs’ favor, which means that the jury found that Vidal’s injuries were the result of undiagnosed cervical myelopathy rather than a stroke. The jury, however, attributed fifty percent (50%) comparative negligence to Arturo Vidal. Thereafter, the plaintiffs filed a renewed motion for directed verdict on the affirmative defense of comparative negligence. The trial court denied this motion and entered judgment accordingly.

The plaintiffs’ sole argument on appeal is that the issue of comparative negligence should never have been placed before the jury where the defense did not meet its burden of proof on this issue. We agree.

In order to prove the affirmative defense of comparative negligence in a medical malpractice action, a defendant must prove by competent evidence that: 1) the plaintiff-patient owed a duty of care to himself; 2) the patient breached that duty; and 3) the breach was the proximate cause of the damages the patient sustained. See Borenstein v. Raskin, 401 So.2d 884 (Fla. 3d DCA 1981); Riegel v. Beilan, 788 So.2d 990 (Fla. 2d DCA 2000). The defense on this appeal argues that it met its burden of proof on comparative negligence by introducing evidence that Arturo Vidal: 1) was a smoker and obese; 2) failed to comply with Dr. Macksoud’s recommendations for physical therapy following his stroke; 3) failed to appear for a scheduled visit with Dr. Macksoud; and 4) failed to provide Dr. Macksoud with his complete medical history, which included diabetes, a heart attack, triple bypass surgery, implantation of a pace maker, prostate cancer, two hernia operations, and peritonitis. The record evidence reveals that the defense is simply wrong.

First of all, although Vidal’s history of smoking and obesity are certainly risk factors for a stroke, there is absolutely no record evidence before us that they are also risk factors for cervical myelopathy or cervical cord compression. Given the fact that the jury ultimately accepted the plaintiffs theory that Vidal’s injuries were the result of undiagnosed cervical myelopathy rather than a stroke, evidence of his smoking history and obesity would be insufficient to establish comparative negligence.

Next, any evidence of Vidal’s failure to attend any of his physical therapy sessions would similarly be insufficient to support a finding of comparative negligence. Although the evidence established that physical therapy would be beneficial

to a stroke victim, the uncontroverted expert evidence at trial revealed that physical therapy would not benefit a patient suffering from cervical myelopathy. [4] As to the contention by the defense that Vidal’s failure to attend a scheduled visit with Dr. Macksoud constituted evidence of his comparative negligence, the appellants correctly point out that this was merely raised during closing argument by defense counsel. Even assuming, arguen-do, that such evidence had been adduced at trial, there was no evidence of a causal link between any missed appointment and Vidal’s resulting injuries. Finally, Dr. Macksoud contends that Vidal’s failure to provide her with a complete medical history was sufficient evidence of his comparative negligence to sustain the jury’s assessment. The problem with this argument, however, is that there is absolutely no record evidence that Vidal either negligently or intentionally withheld any solicited information about his medical history from Dr. Macksoud. More importantly, however, both Dr. Macksoud and the defense experts testified that even armed with knowledge about Vidal’s complete medical past, Dr. Macksoud’s initial diagnosis of stroke would nevertheless have been correct. Thus, there still

would have been no causal link between Vidal’s failure to give a complete medical history and his resulting injuries.

Thus, given the jury’s findings that Vidal’s damages were the result of undiagnosed cervical myelopathy rather than stroke as opined by Dr. Macksoud, it is clear that the comparative negligence claim was unsubstantiated by the record evidence and cannot stand. We therefore reverse the order denying the plaintiffs renewed motion for directed verdict on the comparative negligence claim and remand with instructions that final judgment be entered in accordance with this opinion.

Reversed and remanded with instructions.

      . Interestingly, defense counsel conceded as much in closing argument when he stated:
      “What we also have is, if, in fact, there is a cord compression going on and it is somehow only affecting his right leg, everybody agrees, you wouldn’t see improvement [from therapy].”

      . Additionally, we know of no legal duty imposed upon a patient to independently disclose a history of all medical ailments, absent solicitation by the treating physician and the appellees have cited to none.

      . In this regard, Dr. Macksoud testified as follows during direct examination by her counsel:
      Q. Now, even if he told you that I have neck pain so you could make a better diagnosis, would that change your diagnosis on this date that he was suffering from a basal ganglia infarct [stroke]?
      A. Not on this date.
      Q. And that’s because of what he was complaining of then?
      A. Right.
      Q. If you had seen the note with Mr. Serrano’s belief that he had found right leg weakness and you or yourself, patient didn't have right leg weakness, would that have changed your impression in any way?
      A. It would have not changed it because I did not find the patient had weakness.

        The defense neurology expert, Dr. Edward Feldman, similarly opined as follows:
      Q. In reviewing the records I provided you, did you see reference to back in the 70s and 80s, some complaints of neck pain?
      A. Yes.
      Q. Radiating pain?
      A. Yes.
      Q. Does that change the diagnosis of what was going on October 8, 1996, that past history?
      A. No. You have to interpret on how he’s presenting at that time.
      Q. Does that change how a neurologist should approach his visit?
      A. Not in any way, no.
      Q. Is this visit of October 8, 1996, less likely to be a stroke and more likely to be a cervical cord?
      A. No. You'll have to go on history and the lab tests.
      Q. In a case like this where a patient comes in with this history and complaints, is there any reason that a neurologist should go back and look at twenty or thirty years of medical records?
      A. First of all, you almost never have them. You never have them. And if you went back and looked, you will say Mr. Vidal had one of the most common things all people have, arthritis in the neck. That doesn't impact this diagnosis of stroke in any way.
      Q. So if Dr. Macksoud didn’t go back and look at prior records, that's not a deviation from the standard of care?
      A. Not at all.
      Q. Even if that information is available to a neurologist given this, would it change the approach in this case?
      A. It would not have changed my approach at all, no.
      Q. Would you have reached the same diagnosis?
      A. Yes.
      Q. Would your plan have been the same?
      A. Yes.


text:
    Ronald STUM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2400.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Ronald Stum, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Grant v. State, 770 So.2d 655 (Fla.2000).

WARNER, GROSS and MAY, JJ., concur.


text:
    Damon LENNON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1568.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Danion Lennon, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to the state’s concession of error, we reverse the summary denial of appellant’s Florida Rule of Criminal Procedure 3.850 motion and remand for the court to determine whether petitioner had the requisite prior convictions to support his habitual felony offender designation.

STONE, WARNER and KLEIN, JJ., concur.


text:
    Scott A. ROGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-336.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Scott A. Rogers, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant the January 23, 2006 petition for belated appeal of his amended sentence entered May 4, 2005. Although petitioner was sentenced in 2001, an amended sentence was entered in 2005. The trial court amended petitioner’s sentence on Count II to run consecutively to Count I when it previously ran concurrently with Count I. Based on the petition and Commissioner’s Report, we find that the record shows petitioner was not notified of this amendment, which was more than ministerial, in time to appeal it. Cf. Davis v. State, 800 So.2d 336 (Fla. 4th DCA 2001); Dougherty v. State, 785 So.2d 1221 (Fla. 4th DCA 2001).

Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who is directed to treat it as a notice of appeal of the amended sentence on Count II. Fla. R.App. P. 9.141(c)(5)(D). If the petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him.

WARNER, SHAHOOD and MAY, JJ., concur.


text:
    Willie PRIESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4577.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Willie Priester, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order denying appellant’s motion to correct illegal sentence is affirmed, without prejudice to appellant’s right to seek clarification of his sentence in the trial court in accordance with the state’s acknowledgement that, by scrivener’s error, the phrase “consecutively with each other” was not deleted from the commitment form.

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


text:
    Timothy R. WILLIAMSON, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D05-6061.
    District Court of Appeal of Florida, First District.
    July 13, 2006.

      David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Judson M. Chapman, General Counsel, and Michael J. Alderman, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Timothy R. Williamson seeks certiorari review of a circuit court order denying his petition for writ of certiorari challenging the decision of the Department of Highway Safety and Motor Vehicles which approved the suspension of his driver’s license for refusing to take a breath test. He contends that his arrest for driving under the influence of alcohol (DUI) was unlawful, because there was no probable cause to stop him for failing to maintain a single lane as required by section 316.089(1), Florida Statutes (2005). We deny the petition.

On July 18, 2005, Officer Darren Crews of the Jacksonville Sheriffs Department was driving behind Williamson’s mini-van in the center lane of a three-lane highway when Williamson caused the van to cross over the left lane line and then the right, and nearly collide with another vehicle. Crews pulled Williamson over for failing to remain driving in one lane in violation of section 316.089(1), which provides: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Upon observing that Williamson’s speech was slurred and that he smelled strongly of alcohol, Officer Crews called for backup, and one of the officers who came to the scene investigated and arrested Williamson for DUI. Williamson’s driver’s license was suspended when he refused the officer’s request to take a breath test.

At a hearing conducted pursuant to section 322.2615, Florida Statutes (2005), the department made the requisite findings and concluded that the evidence supported the suspension. See Dep’t of Highway Safety & Motor Vehicles v. Currier, 824 So.2d 966, 968 (Fla. 1st DCA 2002). Williamson filed a petition for writ of certiora-ri in circuit court, claiming the initial stop was unlawful, because the violation for which he was stopped requires proof that other traffic was affected by Williamson’s lane changes, and there was no evidence below that the driver in the adjoining lane took evasive action or was even aware that Williamson had almost struck his or her vehicle. The circuit court denied the petition, citing Eversole v. Department of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 932 (Fla. 13th Cir.Ct. July 8, 2005).

This court reviews the proceedings below to determine whether the circuit court provided procedural due process and applied the correct law. See Currier, 824 So.2d at 968. Williamson contends the lower court’s citation of Eversole reveals that the court incorrectly applied the law, because the officer’s observation in Ever-sole that the driver was “drifting from side to side crossing the lane markers” provided a founded suspicion of DUI to justify a stop, whereas Williamson was not pulled over for DUI but only for failure to maintain the vehicle’s operation in a single lane.

We see no advantage in attempting to discern the lower court’s reason for citing Eversole, and instead deny the petition because the evidence supported the stop for a violation of section 316.089(1), and thus the circuit court properly denied Williamson’s petition for writ of certiorari.

Williamson’s claim that the evidence must disclose that the imperiled operator took evasive action or was aware of his or her danger finds no support in section 316.089(1) or pertinent case law. In the cases Williamson relies upon, Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), and Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002), the courts held that while the drivers had veered into adjacent lanes, the evidence showed such acts had not placed any other vehicles in danger; hence, no violations occurred. In contrast, the record at bar clearly establishes that Williamson put the vehicle in the right lane in danger, whether or not the driver knew it.

In the circuit court cases Williamson relies on in his petition, in which the courts reiterate that another vehicle must be “affected” by the defendants’ lane changing or “take evasive action” in order for there to be a violation of section 316.089(1), the courts were adhering to the language therein permitting lane changes if “the driver has first ascertained that such movement can be made with safety.” Because the evidence in those cases showed that the defendants who were changing lanes or crossing over lane lines did not endanger other vehicles, the state failed to establish that the drivers had not first determined they could safely make such movements, unlike the facts at bar.

The petition for writ of certiorari is DENIED.

ERVIN, BENTON, and BROWNING, JJ., concur.

      . See, e.g., State v. Garman, 7 Fla. L. Weekly Supp. 45b (Fla. 7th Cir.Ct. Sept. 3, 1999); State v. Wainberg, 4 Fla. L. Weekly Supp. 660a (Fla. 11th Cir.Ct. Jan. 24, 1997); State v. Myer, 2 Fla. L. Weekly Supp. 484a (Fla. 17th Cir.Ct. Sept. 29, 1994).


author: PADOVANO, J.

text:
    Jeffrey Timothy HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3657.
    District Court of Appeal of Florida, First District.
    July 13, 2006.

      Nancy A. Daniels, Public Defender, Kathleen A. Stover, Assistant Public Defender, and Jamie N. Spivey, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

The defendant, Jeffrey Hill, appeals his conviction for armed robbery. He seeks reversal on the ground that the trial court erred in allowing the state to present evidence that he had confessed to several unrelated robberies. Because the record does not support the trial court’s conclusion that the defendant opened the door to the presentation of this evidence, and because it was not otherwise relevant to any issue in this case, we reverse.

The defendant was tried and convicted of the robbery of a Pensacola taxi cab driver. A police detective testified in the state’s case in chief that the defendant had confessed to the crime. This evidence was disputed. The defendant took the witness stand in his own defense and testified that he did not rob the cab driver and that he did not tell the detectives that he had.

In the course of the defendant’s direct examination, defense counsel asked how long the police interview lasted. The defendant answered, “I would say anywhere from 45 minutes to an hour.” At this point, the prosecutor asked to approach the bench. He argued that the defendant had opened the door to evidence that he had confessed to three other robberies in the course of the interview. His theory was that the state should be able to show that there was an innocent explanation for the fact that the interview lasted so long, to refute the defendant’s implied claim that the officers were coercing him.

Initially, the trial judge ruled that the evidence of the confessions to unrelated crimes was inadmissible. The judge agreed that the defendant had invited additional information about the interview, but he reasoned that the presentation of evidence that he had confessed to three other robberies was too prejudicial and that it would become the centerpiece of the case.

The prosecutor pressed forward with an alternative argument that the confessions to the other robberies should be admitted because they refuted the defendant’s implied claim that the confession in this case was fabricated. The trial judge eventually agreed. Following a formal proffer, the trial court ruled that the prosecutor could present evidence of the defendant’s other confessions.

When the jury returned, defense counsel continued his examination by asking the defendant if the detectives had questioned him about other robberies during the interview. The defendant said that they had, but that he did not confess to any of them. He conceded, however, that he had been charged with some of the robberies that were the subject of the questioning.

The detective testified on rebuttal that the defendant not only confessed to the robbery in this case but that in the course of the interview, he also confessed to “other robberies.” He added that the defendant denied one particular accusation relating to a robbery at an ATM machine, and that the officers had not arrested him for that crime.

The jury found the defendant guilty of armed robbery with a weapon, and the trial judge sentenced him to nine years in prison, to be followed by three years’ probation. Following the conviction and sentence, the defendant filed a timely appeal to this court.

We begin by observing that the use of collateral crime evidence in a criminal trial is the exception, not the rule. Evidence of an unrelated crime is not admissible to prove that the defendant had a general propensity to commit the crime charged. See Williams v. State, 110 So.2d 654 (Fla.1959). It may be relevant to prove one of the specific issues listed in section 90.404(2) of the Florida Evidence Code, but the state does not argue that the evidence in question here was relevant in its own right to prove any issue in the case. The sole justification for the admission of collateral crime evidence in this case was that it was necessary to disprove a misleading statement made by the defendant.

A criminal defendant may open the door to the presentation of collateral crime evidence that would otherwise be inadmissible if he gives misleading testimony or makes a specific factual assertion that is not correct. See McCrae v. State, 395 So.2d 1145 (Fla.1980). This rule is based on principles of fairness. See Ramirez v. State, 739 So.2d 568 (Fla.1999); Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997). If the defense creates a false impression by telling only part of the story, the state may be entitled to correct this impression by using collateral crime evidence that would not be admissible in its own right.

However, the state is not entitled to present evidence that a defendant has committed an unrelated crime merely because the defendant’s testimony can be characterized as false or misleading. There must be some need to resort to this kind of evidence in order to correct the false impression. A suggestion or insinuation made in the defense case cannot be used as a pretext to inform the jury that he has been convicted of a crime before. Many false impressions could be cleared up with far less.

In the present case, the defendant did not open the door to the presentation of collateral crime evidence merely by stating that the police interview lasted forty-five minutes to an hour. The length of the interview does not in itself suggest that the detectives were using improper interrogation techniques. They could easily have spent forty-five minutes to an hour speaking with the defendant even if they had only been discussing the robbery of the taxi driver. A juror would have no reason to think that this was an unusually long interview unless someone suggested as much, and no one did.

The state contends that the question regarding the length of the interview was designed to set up a claim that the detectives coerced the defendant into making a confession. This argument is purely speculative. Defense counsel did not suggest at any point during the trial that the detectives coerced the defendant. He merely asked the defendant how long the interview lasted.

Perhaps it could be said in the most technical sense that the defendant misled the jury by stating that the questioning “in this case” lasted forty-five minutes to an hour. But even if that is so, it was hardly the kind of misrepresentation that would justify the presentation of evidence that the defendant confessed to three other robberies. The misstatement could have been corrected simply by pointing out that the defendant and the detectives did not spend the entire time talking about this case.

We are also unable to justify the admission of this evidence on the alternative theory that it refutes an implied claim that the detectives fabricated the defendant’s confession in this case. The defendant did not suggest that the detectives were fabricating their testimony. He gave a different account of the interview, but that is an unremarkable event that occurs every day in court. A criminal defendant does not open the door to evidence that he confessed to other crimes merely by recounting a version of a police interview that is different from that given by the officers.

The prosecutor argued that the defendant’s denial of the confession in this case was undercut by the fact that he confessed to three other robberies in the course of the same interview. This argument assumes that the defendant confessed to the other robberies, but that was a fact in dispute. The defendant said that he did not confess to any of them. His testimony on this point is not impeached by the inconsistent statements of the detectives.

Perhaps the most significant error in the prosecutor’s argument is that there was no logical connection between the alleged confession in this case and the alleged confessions in the other cases. Even if it had been an admitted fact that the defendant had confessed to several other robberies, that would not make it more or less likely that he was telling the truth when he said that he did not confess to this one.

Finally, the state does not contend that the defendant’s conviction should be affirmed on the ground that the error was harmless, nor could we come to that conclusion on our own. The improper admission of collateral crime evidence is presumed to be harmful, see Goodwin v. State, 751 So.2d 537 (Fla.1999); Czubak v. State, 570 So.2d 925 (Fla.1990), and there is nothing in the record to rebut this presumption. The evidence that the defendant had confessed to other robberies was not relevant to any issue in this case; it served only to impugn the defendant’s character. Moreover, the prosecutor exacerbated the harm by highlighting the evidence in his closing argument.

For these reasons we conclude that the trial court erred in allowing the state to present evidence that the defendant had confessed to several other robberies. Because the error was not harmless beyond a reasonable doubt, the defendant is entitled to a new trial.

Reversed.

WOLF and POLSTON, JJ., concur.


text:
    Cynthia G. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1851.
    District Court of Appeal of Florida, First District.
    July 13, 2006.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Cynthia G. Williams appeals her convictions for the offenses of battery on a police officer and resisting arrest with violence, claiming that the lower court erred in denying her motion for new trial. In her motion for new trial, appellant alleged juror misconduct predicated on the juror’s failure to disclose a relationship with the chief prosecuting witness. Although we agree with appellant that the trial court erroneously determined that no misconduct occurred because the concealment was not intentional, we nonetheless affirm the denial of the motion for new trial.

Our standard of review of a trial court’s order granting or denying a motion for new trial on the ground of juror misconduct is that of abuse of discretion. See State v. Hamilton, 574 So.2d 124, 126 (Fla. 1991). The rule applied by Hamilton in gauging whether a new trial should be granted for such reason is that the moving party must first establish actual juror misconduct, and, if such showing is accomplished, the movant is then entitled to a new trial unless the opposing party can demonstrate there is no reasonable possibility that the misconduct affected the verdict. Id. at 129. This test is similar to that for the grant of a juror interview, asking whether “the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings.” Power v. State, 886 So.2d 952, 957 (Fla.2004) (quoting Johnson v. State, 804 So.2d 1218, 1224 (Fla.2001)).

In our judgment, the lower court did not abuse its discretion in denying the motion for new trial because, assuming without deciding that misconduct occurred, there is no reasonable possibility that it was prejudicial to the defendant. Among other things, of the seven members of the venire who said they knew the prosecuting witness whom the juror in question incorrectly denied knowing, appellant, using all six of her peremptory challenges, peremptorily struck two of the seven, while the state, using five of its challenges, struck two. Thus, three jurors who answered truthfully that they knew the witness were selected to serve, including the alternate. Additionally, evidence of the actual commission of the offenses was overwhelming; the crimes were witnessed by a number of law-enforcement and correctional officers at the scene, and their commission was denied only by the testimony of the defendant.

AFFIRMED.

ERVIN, PADOVANO, and HAWKES, JJ., concur.

      . See Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 343 (Fla.2002) (“[A] juror’s nondisclosure need not be intentional to constitute concealment.”).