author: LAWSON, J.

text:
    Timothy Joseph ALESSI, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2995.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.

      William J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas & Kacher-gus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Timothy Alessi appeals from an order denying his motion for postconviction relief, which alleged multiple claims of ineffective assistance of counsel during the criminal proceeding resulting in his conviction for first degree murder, for killing his wife, and related convictions for armed burglary and for the attempted murder of Mrs. Alessi’s brother, Kevin Herron. With respect to all claims analyzed pursuant to the two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm the trial court’s order based upon our conclusion that these claims were either facially insufficient, or, where sufficient, that Mr. Alessi failed to demonstrate any prejudice resulting from his trial counsel’s alleged deficient performance.

However, Mr. Alessi’s postconviction motion raised two additional claims charging that trial counsel’s performance was adversely affected by an actual conflict of interest. Unlike most ineffective assistance of counsel claims, prejudice is presumed when a defendant establishes ineffective assistance based upon a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). These claims require an examination of two threshold issues. The first is whether Sullivan should be applied in cases involving the types of conflicts alleged here. Although the scope of Sullivan’s application is an open question at the federal level, we conclude that because the Florida Supreme Court continues to apply Sullivan to all types of conflict cases, we must do so as well. The second threshold issue involves an inconsistency between two panel decisions from this court, Burnside v. State, 656 So.2d 241 (Fla. 5th DCA 1995) and Cole v. State, 700 So.2d 33 (Fla. 5th DCA 1997), which use different tests to apply Sullivan. We conclude that Cole was decided correctly, and that the test recited in Burnside, if applied literally, does not accurately reflect the law. Applying the correct standard, we find that Mr. Alessi is entitled to relief with respect to one of his Sullivan claims. Therefore, we reverse as to that issue and remand with directions for a new trial.

Facts Relevant To All Claims

Mr. Alessi was an experienced police officer and expert marksman who was estranged from his wife at the time of her killing. The couple was getting a divorce, and Mrs. Alessi was living with her brother, Mr. Herron, and his wife. Prior to the killing, Mr. Alessi had repeatedly made statements evidencing an intent to kill his wife and her brother, stating that someone should “take them out,” and that he should “go over there and blow them all away.” He had also told others that he would be better off if Polly Alessi were dead.

On the day of the killing, Alessi went to Herron’s house with a loaded handgun, and shot his wife twice from a distance of one to three feet, killing her. He also shot Mr. Herron three times, although Herron’s injuries were not fatal. According to witnesses, Mr. Alessi then calmly left the home and walked to his truck to depart. Shortly afterward, Mr. Alessi called his sister and left a message on her recorder stating that he had shot and killed his wife and her brother and was “on the run.” When Mr. Alessi saw his sister later that same day he told her that he “did something; it’s very bad, it’s very bad.”

At trial, Mr. Alessi claimed self defense, and testified that Mr. Herron had first pulled a gun on him. According to Mr. Alessi’s trial testimony, he was simply trying to defend himself against the armed attack by Mr. Herron when he accidentally shot his wife. The only other living eyewitnesses to the shooting, Mr. and Mrs. Herron, testified that Mr. Herron was unarmed at the time of the shooting, which occurred in the kitchen of their home, and that Mr. Herron retreated to the bedroom after being shot, where he retrieved a gun. Both Mr. and Mrs. Herron testified that Mr. Alessi left the house before Mr. Her-ron secured his gun. And, it is undisputed that Mr. Herron never fired a weapon.

Strickland Claims

We find it unnecessary to detail Mr. Alessi’s numerous claims of deficient performance unrelated to conflicts of interest. Some were properly found to be facially insufficient. With others, to the extent that Mr. Alessi could have established deficient performance, he could not have established prejudice. See Strickland, 466 U.S. at 669 & 694, 104 S.Ct. 2052 (To prevail on an ineffective assistance claim, the defendant must prove both that his counsel’s actions amounted to deficient performance, i.e., “fell below an objective standard of reasonableness” and that the deficient performance prejudiced his defense, i.e., “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”). We have carefully considered each claim, and conclude that none of the deficiencies alleged, if corrected, could have led the jury to believe that Mr. Alessi, an experienced police officer and expert marksman, accidentally shot his wife at a range of one to three feet, especially given his prior threats to kill her and his subsequent statements evidencing consciousness of guilt.

Therefore, we conclude that all of Mr. Alessi’s Strickland claims were properly denied.

Additional Facts Relevant To Sullivan Claims

1. Delayed Disclosure Of The Murder Weapon.

Shortly after the shootings, Mr. Alessi’s family hired attorney Huntley Johnson to represent Mr. Alessi at trial. In an early telephone conversation between Mr. Johnson and Mr. Alessi, Alessi informed Johnson that he was contemplating suicide. In response, Mr. Johnson told Mr. Alessi to “get rid of the gun” — the weapon Mr. Al-essi had used in the shooting — which was obviously evidence in the murder case. Mr. Alessi followed his lawyer’s advice and tossed or hid the gun in a storm drain. A week later, the two discussed the fact that Mr. Johnson would need to turn the gun over to the State. Mr. Alessi immediately agreed, and told Mr. Johnson where the gun was hidden. However, Johnson delayed his disclosure to the State for approximately four months.

At trial, the State argued that hiding the gun and delaying the disclosure of its location evidenced Mr. Alessi’s consciousness of guilt. In response to the State’s questions, Mr. Alessi attempted to explain that he was acting on the advice of counsel, but Mr. Johnson objected to the line of inquiry. At a bench conference, Mr. Johnson expressed his outrage that the State was pursuing this line of questioning, and the associated argument, when the prosecutor knew that Mr. Alessi had been acting on his advice and that he — not Mr. Alessi— was responsible for the long delay.

It is clear from Mr. Johnson’s argument during the bench conference that he understood the conflict of interest that this issue presented, since he was a material witness to the facts being argued by the State as evidence of Mr. Alessi’s guilt. Who better than Mr. Johnson to explain to the jury, under oath, that Mr. Alessi hid the gun at his direction and immediately disclosed the location so that Mr. Johnson could turn the gun over to police the first time that Johnson raised the issue with him?

Because of Mr. Johnson’s objections, however, Mr. Alessi was not even able to fully explain the delay to the jury. Mr. Johnson’s strategic decision — to object and attempt to keep the State from making this argument so that he could avoid the need to testify himself — simply did not work. The jury heard that Mr. Alessi hid the gun and that its location was not disclosed for four months. They heard, from Mr. Alessi, that his attorney told him to get rid of the gun because he was contemplating suicide. But, when the prosecutor asked Mr. Alessi to explain “why the decision was made to not disclose the location of the weapon that killed Polly for four months?,” Mr. Johnson objected. The objection was sustained, and the jury never heard that it was Mr. Johnson who delayed the disclosure, not Mr. Alessi.

Then, in its closing argument, the State argued, without objection, that Mr. Alessi’s decision to hide the gun, and his delay in disclosing its location, further evidenced his consciousness of guilt.

2. Fee Arrangement And Decision To Forego Expert Witnesses.

The retainer agreement between the Al-essi family and Mr. Johnson established a fee of $135,000, which included “any services of investigators, or experts employed by undersigned attorney.” Mr. Alessi’s family testified at the evidentiary hearing that Mr. Johnson told them that he would seek “police experts” to go through the case and offer re-enactments and testimony regarding bullet projectories [sic], and that he would “have all kinds of experts on this case.”

Additionally, Mr. Johnson’s own investigator, Kirby Jordan, testified that early on in his involvement in the case, he recommended to Mr. Johnson that they secure expert testimony to support the defense theory that it was a reactionary shooting upon seeing Mr. Herron’s gun. Mr. Jordan offered to locate an expert but Mr. Johnson said he would take care of it. About a month before trial, Mr. Jordan again asked about expert testimony. Mr. Johnson told Mr. Jordan that he would not be hiring experts because the Alessi family could not afford them. Mr. Jordan assumed that Johnson would ask the family for more money because “we all agreed that it was going to be a critical part of the case.” Later, Mr. Johnson’s explanation for not using experts shifted from lack of money to the fact that Mr. Johnson felt he had prepared the ease without them, and did not think he needed one.

In his testimony at the evidentiary hearing, Mr. Johnson acknowledged the retainer agreement and that any money he would have spent on experts would have come from his fee. Mr. Johnson testified that he considered using experts, but explained that his decision not to hire an expert was strictly strategic, and had nothing to do with the fee arrangement. According to Mr. Johnson, his primary concern was that the State would hire an expert in response. Mr. Johnson testified that:

[Biased on the reports that we had and the fact that the State did not have [an expert], we felt like we could make the argument sufficiently with the photographs and with the reports [and] that [our defense] could not be contradicted unless they had an expert. And we didn’t want to get into doing experts when we thought we could make the argument ... without an expert.

Mr. Johnson testified that he explained his reasoning to Mr. Alessi, who agreed with the decision. Testimony from Mr. Johnson’s law partner also supported Mr. Johnson’s position that Mr. Johnson did not pursue an expert witness for reasons unrelated to the cost.

Also at the evidentiary hearing, in support of Mr. Alessi’s claim, postconviction counsel called an expert in “officer-involved shootings, homicide investigation protocols, the dynamics of violent encounters and the use of deadly force,” to demonstrate the kind of testimony that could have been developed to support Mr. Ales-si’s theory of self-defense.

After considering all of the evidence, the trial court recognized the “compelling argument” that Mr. Johnson decided to fore-go experts because of the financial conflict of interest, but ultimately believed Mr. Johnson and found that his financial self-interest did not affect his decision to fore-go an expert. The court stated:

[F]rom testimony presented at the evi-dentiary hearing, there is nothing to show that Trial Counsel believed his representation would be adversely affected by the fee agreement. Trial Counsel testified at the November 21, 2005 evidentiary hearing herein that the defense team considered an expert ... but based on the reports that they had, and the fact that the State did not have an expert, they felt as if they could make an argument sufficiently with photographs and reports. They felt these arguments could not be contradicted unless the State had an expert. They felt if they hired an expert, the State would likely hire one as well. Trial Counsel testified further that he had consulted with some others he felt had expertise in the field, and decided after all not to call an expert at trial. Trial Counsel’s partner and Co-Counsel testified in the same hearing that there were discussions among herself, Trial Counsel and the Defendant resulting in the joint decision that they would not seek expert assistance because the evidence that they had, including the Medical Examiner’s report, was sufficient to support the Defendant’s theory of his defense.

Sullivan Claims

Claims of ineffective assistance based on conflict of interest have generally been analyzed under an exception to the standard two-pronged Strickland test. Prejudice is presumed “if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Sullivan, 446 U.S. at 350, 100 S.Ct. 1708). This exception is commonly referred to as the Sullivan exception to Strickland.

Our analysis is complicated by the fact that this case presents a threshold issue unresolved in the federal courts’ application of Sullivan, which has never been expressly acknowledged or addressed by the Florida Supreme Court. That is, does Sullivan even apply to conflict of interest claims not involving an attorney representing multiple clients with competing interests in a criminal case? We will address this issue first. Next, we will address a conflict in two of our prior cases, Burnside and Cole regarding the standard for application of Sullivan.

1. Sullivan and Conflict Cases Not Involving Joint Representation.

Although not discussed in the briefs, a threshold question for analysis is whether the Sullivan exception or the Strickland test applies when the conflict of interest alleged is a financial one, or involves a lawyer as a witness. Sullivan involved a conflict of interest based upon an attorney’s representation of multiple defendants with conflicting interests. In Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the Supreme Court stated in dictum that since Sullivan, the federal circuit courts had “unblinkingly” applied the Sullivan exception to “all kinds of alleged attorney ethical conflicts” beyond the multiple representation scenario in Sullivan. Id. (quoting Beets v. Scott, 65 F.3d 1258, 1266 (5th Cir.1995) (en banc)). These included cases of successive representation conflicts as well as personal and financial conflicts of interest (such as one of the conflicts in the instant case). Id. They also included conflicts involving a lawyer as a witness, see, e.g., Mannhalt v. Reed, 847 F.2d 576, 581 (9th Cir.1988), the other conflict involved in this case.

The Supreme Court cautioned, however, that “the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application.” Id. at 175, 122 S.Ct. 1237. The Court noted that the presumed prejudice exception was needed in multiple representation cases because of the “high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice” but stressed that “[n]ot all attorney conflicts present comparable difficulties.” Id. The Court was careful to say that it was not suggesting that one ethical duty was more important than another, but that the Sullivan prophylaxis was only necessary in situations in which the Strickland analysis was “inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel.” Id. at 176, 122 S.Ct. 1237. The Court concluded that the question of whether Sullivan applied to conflicts involving successive representation remained an “open question.” Id.

Since Mickens, the federal circuit courts, including the Eleventh Circuit, have acknowledged that the Sullivan exception to Strickland is limited to joint representation and that extension of Sullivan to other conflicts of interest remains an open question. See, e.g., Schwab v. Crosby, 451 F.3d 1308, 1324-28 (11th Cir. 2006).

Despite this apparent pullback in the federal courts, the Florida Supreme Court has continued to apply the Sullivan exception beyond joint representation conflicts to successive representation and financial conflicts of interest. See Sliney v. State, 944 So.2d 270, 279 (Fla.2006) (successive representation); Mungin v. State, 932 So.2d 986, 1001 (Fla.2006) (successive representation); Brown v. State, 894 So.2d 137, 157 (Fla.2004) (financial conflict). In Brown, for example, the defendant alleged ineffective assistance based on his trial counsel’s improper efforts to obtain the rights to the defendant’s life story, poems and other works. The Supreme Court applied the Sullivan exception, deferring to the postconviction court’s finding that because such attempts were made after the defendant’s trial and sentencing, no actual conflict of interest adversely affected counsel’s representation. Broum, 894 So.2d at 158.

Recently, the supreme court reiterated the rules of law it applies when considering an ineffective assistance of counsel claim based upon an alleged conflict of interest.

Initially, we acknowledge that the right to effective assistance of counsel encompasses the right to representation free from actual conflict. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, in order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; see also Quince v. State, 732 So.2d 1059, 1065 (Fla.1999). A lawyer suffers from an actual conflict of interest when he or she “actively represents] conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. See Herring v. State, 730 So.2d 1264, 1267 (Fla.1998). A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. If a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer’s representation. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Cuyler, 446 U.S. at 350, 100 S.Ct. 1708.

The question of whether a defendant’s counsel labored under an actual conflict of interest that adversely affected counsel’s performance is a mixed question of law and fact. See Cuyler, 446 U.S. at 342, 100 S.Ct. 1708; Quince, 732 So.2d at 1064. Once a defendant satisfies both prongs of the Cuyler test, prejudice is presumed and the defendant is entitled to relief. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708.

Bell v. State, 965 So.2d 48, 77-78 (Fla. 2007) (quoting Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002)).

Interestingly, none of these post-2002 Florida Supreme Court cases have even acknowledged Mickens. The Florida Supreme Court has stated that when an ineffective assistance of counsel claim is based on the Sixth Amendment, it is not at liberty to disregard the United States Supreme Court’s decision in Strickland. Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This language suggests that perhaps the Florida Supreme Court has either overlooked Mickens or simply elected not to address the case until the United States Supreme Court itself gives additional guidance. On the other hand, ineffective assistance claims, such as the ones in this case, may also be based on Article I, Section 16 of the Florida Constitution. See, e.g., McKinney v. State, 579 So.2d 80 (Fla. 1991). Thus, it is possible that the Florida Supreme Court’s broad application of the Sullivan exception could be based upon the state constitutional right to effective assistance of counsel, although it has not expressly said so.

Whatever the basis for our supreme court’s failure to address Mickens, because we are bound by its decisions, and because it continues to apply Sullivan to all types of conflict cases, we believe that we must address Mr. Alessi’s conflict claims under the Sullivan exception.

2. The Burnside and Cole Tests For Applying Sullivan.

Mr. Alessi urges us to apply Sullivan using a two-part “viable alternative” test recited in Burnside, which we borrowed from a federal First Circuit case, United States v. Fahey, 769 F.2d 829 (1st Cir. 1985). Under this test, to prevail on an ineffective assistance of counsel (conflict of interest) claim, a defendant must first show that “some plausible alternative defense strategy or tactic might have been pursued.” Burnside, 656 So.2d at 244 (quoting Fahey, 769 F.2d at 835). Second, the defendant must “establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.’ ” Id. (emphasis added). With respect to the first part of this test, the defendant “need not show that [he] would necessarily have been successful if [the alternative strategy] had been used, but that it possessed sufficient substance to be a viable alternative.” Id. With respect to the second part of the test, the conjunctive “or” appears to relieve the defendant of any burden to demonstrate that the conflict actually affected counsel’s representation.

Applying this test to Mr. Alessi’s financial conflict claim, for example, Mr. Alessi clearly demonstrated a viable alternative defense strategy (use of an expert to address areas of weakness in his defense). And, the trial court’s finding that Mr. Johnson’s decision to forego an expert was not affected by this financial conflict would be irrelevant under the express language of the two-part viable alternative test because Mr. Alessi would only have to demonstrate that the strategy of hiring an expert was inherently in conflict with Mr. Johnson’s “other loyalties,” i.e., his financial self-interest. That conclusion is obvious. Therefore, Mr. Alessi would be entitled to relief on his financial conflict claim under a literal reading of the two-part viable alternative test recited in Burnside. However, because the trial court’s finding on this issue (that counsel’s decision to forego an expert was unaffected by the fee arrangement) is supported by competent and substantial evidence, Mr. Alessi would not be entitled to relief under a test requiring him to show a causal link between the conflict and counsel’s performance.

A literal application of the test from Burnside clearly conflicts with this court’s decision in Cole. In Cole, we affirmed the denial of a motion for postconviction relief alleging a financial conflict between the interests of a defendant and his lawyer. The attorney in Cole had entered a retainer agreement providing that all deposition costs would come from his fee, and then deposed no witnesses. Based upon the trial court’s finding that the attorneys’ decision to forego depositions was unaffected by the fee arrangement, our court affirmed the denial order. Of course, in that case, the defendant had established a viable alternative defense strategy (deposing witnesses in preparation for trial), that was inherently in conflict with counsel’s financial self-interest. Therefore, if this court had applied the two-part viable alternative test recited in Burnside, ad litteram (i.e., to the letter, or precisely), it would have reversed the denial order, and required a new trial in Cole.

Although the parties failed to fully brief this issue as well, our own research has revealed no Florida state court opinion other than Burnside that has ever even referred to the “viable alternative” test when applying the Sullivan exception. Additionally, our research has revealed that although the two-part viable alternative test appears to be used in the federal First, Second, Third and Ninth Circuits, See, e.g., Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir.2006); United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir.1994); Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.1993); United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir.1988), it has been rejected by the Fourth, Eighth and Eleventh circuits courts in favor of a three-part test that expressly requires a defendant to demonstrate “a link between the actual conflict and the decision to forgo the alternative strategy of defense.” Pegg v. U.S., 253 F.3d 1274, 1278 (11th Cir.2001). See also Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir.2006); Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir.2001) (en banc), aff'd, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). The Fifth Circuit’s formulation is even more succinct, requiring proof that “some plausible alternative defense strategy or tactic could have been pursued, but it was not because of the actual conflict.” U.S. v. Infante, 404 F.3d 376, 393 (5th Cir.2005) (emphasis added).

In expressly rejecting the argument that a defendant need not prove a causal link between the conflict and counsel’s performance, the Fourth Circuit in Mickens cogently pointed out that any standard which relieves a defendant of establishing this causal connection would be patently inconsistent with the United States Supreme Court’s analysis in Sullivan itself:

Mickens challenges this standard, arguing that neither this circuit nor the Supreme Court has required a petitioner to establish a link between an adverse effect and an actual conflict. Such a link is implicit, however, in the Supreme Court’s requirement that a petitioner show that “his counsel actively represented conflicting interests” and “that a conflict of interest actually affected the adequacy of his representation.” Sullivan, 446 U.S. at 350, 349, 100 S.Ct. 1708.

Mickens, 240 F.3d at 361. We agree with the Fourth Circuit’s analysis. More importantly, in affirming the Fourth Circuit in Mickens, the United States Supreme Court made clear that “the Sullivan standard ... requires proof of effect upon representation” and that only “once such effect is shown” is prejudice presumed. 535 U.S at 173, 122 S.Ct. 1237.

The United States Supreme Court’s affirmance in Mickens leaves no room for debate on this issue. In light of the clear requirement that defendant show both that his or her counsel; (1) actively represented conflicting interests; and (2) that this adversely affected counsel’s performance, we conclude that the two-part viable alternative test, literally read, simply misstates the law.

Finally, we note that Burnside appears to conflict with Florida Supreme Court precedent. Although our supreme court has never expressly discussed the patently different tests used by varying federal circuits on this issue, it has affirmed lower court decisions denying postconviction relief based upon a finding of no causal link between the conflict and the attorney’s conduct. See, e.g., Brown v. State, 894 So.2d 137 (Fla.2005); Wright v. State, 857 So.2d 861 (Fla.2003). And, our supreme court has consistently stated that relief in conflict cases is only warranted when defendant establishes that “counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Wright, 857 So.2d at 871-72 (emphasis added).

For these reasons, we believe Bum-side’s reliance on the two-part viable alternative test to be an aberration in Florida law, and we reject Mr. Alessi’s invitation to apply the test here. Cole properly applied Sullivan.

3. Applying Sullivan To Mr. Alessi’s Claims.

As already noted, the trial court’s finding that Mr. Johnson’s financial conflict did not adversely affect his performance is supported by competent and substantial evidence. This finding precludes relief on Mr. Alessi’s financial conflict claim. Mickens, 535 U.S at 173, 122 S.Ct. 1237.

With respect to the other Sullivan claim, we find that Mr. Aiessi is entitled to relief. The record is clear that Mr. Johnson made himself a potential witness in the case through his advice and actions regarding the murder weapon. This potential conflict fully matured into an active conflict when the State began questioning Mr. Alessi regarding his concealment and delay in disclosing the murder weapon at trial. This active conflict adversely affected Mr. Johnson’s performance when he prevented Mr. Alessi from fully explaining Mr. Johnson’s advice and actions to the jury, in an attempt to protect his role as counsel by precluding inquiry into an area that would highlight his conflicting role as a witness. Because Mr. Alessi has established that his attorney was laboring under an active conflict of interest that adversely affected his performance at trial, we find that relief should have been granted as to this claim.

Finally, we have not overlooked the State’s argument that Mr. Alessi waived any potential conflict at trial. We understand that criminal defendants are entitled to waive their right to conflict-free counsel. See Larzelere v. State, 676 So.2d 394, 403 (Fla.1996). Generally, a waiver of this right must be shown by “clear, unequivocal, and unambiguous language.” United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993), cert. denied, 510 U.S. 901, 114 S.Ct. 275, 126 L.Ed.2d 226 (1993); see also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Additionally, “[f]or a waiver to be valid, the record must show that the defendant was aware of the conflict of interest, that the defendant realized the conflict could affect the defense, and that the defendant knew of the right to obtain other counsel.” Larzelere, 676 So.2d at 403. The trial judge, however, did not find that Mr. Ales-si waived his right to conflict-free counsel as to this issue. Aso, contrary to the State’s argument, the record does not show that Mr. Aessi made a valid waiver by clear, unequivocal, and unambiguous language.

Conclusion

For the reasons explained in this opinion, we reverse the trial court’s denial of Mr. Alessi’s postconviction motion as to Mr. Alessi’s conflict claim regarding his lawyer as a witness, only, and remand with instructions that Mr. Alessi be granted a new trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL.

PLEUS, J., and REINMAN, M„ Associate Judge, concur.

      . According to Johnson's testimony at the evi-dentiary hearing on Mr. Alessi’s postconviction motion, his co-counsel wanted to get an opinion from the Florida Bar before turning over the gun. After they had an opinion saying it was okay to turn over the gun, they did so. Mr. Johnson also explained that the State was not in any particular hurry to get the gun. Mr. Johnson said that he told the lead prosecutor that the gun would be turned over, and that neither he nor the prosecutor had any sense of urgency because neither saw the gun as that important in light of the fact that Mr. Alessi had conclusively been identified as the shooter by multiple eyewitnesses and his own confession.

      . We note that determining whether a subject is appropriate for opinion testimony is a matter left to the trial judge's discretion. See, e.g., Simmons v. State, 934 So.2d 1100, 1117 (Fla.2006). Here, the trial court made no findings on the extent to which this expert's wide-ranging testimony at the evidentiary hearing would have been admitted at trial.

      . However, some courts discuss Sullivan by reference to the other party's last name, Cuyler.

      . As we did in Cole, however, we once again note that attorneys have an ethical obligation under Rule 4-1.7 of the Rules of Professional Conduct to avoid representing any client under circumstances that would compromise the lawyer's exercise of independent professional judgment. That rule expressly provides that a lawyer “shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s ... own interest,” without client consent after consultation. The types of fee arrangements employed in this case, and in Cole, are so susceptible to claims of conflict and questions regarding the ethics of the attorney’s strategic decisions at odds with his or her own financial interests that an attorney should probably expect an ethics inquiry by the Florida Bar with respect to any case for which this type of fee arrangement is used. In fact, this type of fee arrangement is so obviously prone to allegations of ethical lapse that the supreme court may want to consider barring it altogether in criminal cases.

      . The State concedes in its brief that Mr. Johnson’s objections at trial were prompted because inquiry into the topic "was causing him [Johnson] to become a witness,” and because Johnson was "outraged the prosecutor was implying he had hid the gun when he had previously informed them within 3-4 weeks that they had it.” As Mr. Johnson explained to the trial court, he felt that if the State intended to pursue an issue that would thrust him into the role of witness, thereby creating a conflict between him and his client, it should have notified him of that intent months before trial. This was part of Mr. Johnson’s argument, at trial, in support of his position that Mr. Alessi should not be allowed to answer the question that would further reveal Mr. Johnson’s responsibility for the delayed disclosure. We agree with Mr. Johnson that, at least as a matter of courtesy, the State should have notified Mr. Johnson of its intent to pursue this inquiry prior to trial. By failing to do so, and then pursuing the matter at trial even when the prosecutor knew such inquiry would implicate Johnson as a witness on this issue, the State itself unwittingly created the active conflict of interest that, ironically, will entitle Mr. Alessi to a new trial.


source: Caselaw Access Project

author: PLEUS, J. LAWSON, J.,

license: Public Domain

text:
    Sadie BAKER, Appellant, v. George HICKMAN, Barbara Hickman, et al., Appellees.
    No. 5D06-2902.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellant.

      Gregory P. Durham, Sr., of Reinman Matheson Vaughan Durham & Sack, P.A., Melbourne, for Appellees George Hickman, Barbara Hickman and Wayne D. Cattell.
    Donna M. Krusbe of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for Appellee Edith E. Berard.
    Douglas T. Noah, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, Amicus Curiae for City of Melbourne.
   PLEUS, J.

Sadie Baker, plaintiff below, appeals from adverse summary final judgments on her claims that neighboring landowners (defendants) were responsible for flooding on her property. Because we conclude issues of fact exist as to the abatability of the flooding during the four years prior to filing suit, we reverse and remand.

Baker owns a house in West Melbourne. The defendants are adjacent homeowners. Baker sued the defendants in March 2003, claiming the adjacent landowners’ homes were constructed in such a way as to cause serious flooding on her property. Baker claimed she first noticed “pooling” on her land in 1989 and despite replacement of a culvert and the use of fill dirt, the problem periodically continued, resulting in damage to her home and personal property, particularly during major rain events, such as Hurricane Erin in 1995. West Melbourne was also joined in the lawsuit.

The defendants moved for summary judgment asserting that Baker’s nuisance and trespass claims were barred by the four-year statute of limitations. The trial court agreed and entered summary final judgments for the defendants.

Baker argues that a genuine issue of material fact exists as to whether the injury to her property is permanent or whether it is re-occurring and temporary so that each successive flooding would give rise to new causes of action. She further maintains that the continuing torts doctrine provides an exception to the four-year statute of limitations for nuisance and trespass.

Subsections 95.11(3)(g) and 95.11(3)(p), Florida Statutes, provide that actions for trespass on real property and nuisance must be brought within four years. The trial court ruled that the undisputed evidence established that Baker failed to bring her claims within this four-year limitations period.

Baker contends that summary judgment was improvidently entered because genuine issues of material fact exist as to whether the flooding on her property is permanent in nature or rather what she labels “reoccurring, abatable> periodical and temporary” (emphasis added). Baker argues she presented evidence that over time, with each flood, new damage occurs to the property. She conceded below that she is not seeking to recover damages occurring prior to March, 1999 — four years prior to the filing of her initial complaint in March, 2003.

The defendants counter that at least since Hurricane Erin struck Brevard County in 1995, Baker “had irrefutable confirmation that the flooding was severe” and that development of the defendants’ property had caused or contributed to the flooding and ensuing damage to her property. It is the defendants’ position, accepted by the trial court, that Baker’s failure to bring her nuisance and trespass actions against the defendants within four years of the summer of 1995 renders such causes of action time-barred.

Baker averred in her amended affidavit that “flooding which damaged the garage and one bedroom cottage addition to the house, as well as the contents of both, began in 1995 and has continued despite our continuous digging of drainage ditches .... ” However, the flooding is not constant and during drier weather periods, no flooding occurs.

As a general proposition, statute of limitations periods begin to run with the discovery by the plaintiff of an act constituting an invasion of the plaintiffs legal rights. Wagner, Nugent, Johnson, etc. v. Flanagan, 629 So.2d 113 (Fla.1993). See also Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990).

In the context of a physical invasion of real property such as a flooding claim, when the statute of limitations begins to run on such claim, whether denominated as a nuisance or trespass action, turns upon whether the action is construable as a suit for permanent or temporary damages. Kulpinski v. City of Tarpon Springs, 473 So.2d 813 (Fla. 2d DCA 1985). See also Petroleum Prods. Corp. v. Clark, 248 So.2d 196 (Fla. 4th DCA 1971) (oil stored in reservoir percolating underground onto neighboring property). In Town of Miami Springs v. Lawrence, 102 So.2d 143, 146 (Fla.1958), the Florida Supreme Court quoted with approval the following passage from 56 Am.Jur. Waters, § 443, at 858-59:

The rule prevailing in most jurisdictions is that if the injury is permanent, or if the causative structure or condition is of such a character that injury will inevitably result and the amount of the damages can be determined or estimated, a single action may and should be brought for the entire damages, both past and prospective. But if the overflow is merely temporary, occasional or recurrent, causing no permanent injury to the land, or if the situation involves other elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative conditions, or uncertainty in regard to the future use or improvement of the land, so as to prevent a reasonably accurate estimate of future damages, it is generally held that each repetition of the overflow gives rise to a new cause of action for which successive actions may be brought.

See also, 78 Am.Jur.2d Waters, § 388, at 687-88 (2002).

In Town of Miami Springs, the court was confronted with a one-year statute of limitations for actions against a municipality for damage to real property. The plaintiffs sued the town for damages caused by the “overflow onto and impounding of surface waters on plaintiffs’ land.” The plaintiffs showed at trial that the town had raised the elevation of the street adjoining their property in the summer of 1952, and that in January 1953, one of the plaintiffs first noticed in his home some of the conditions allegedly resulting from the impounding of water on his property. While a complaint was made to the town, suit was not filed until June of 1954. The town urged that the claim was time-barred, while the plaintiffs countered that their suit was not for a single wrong, but for a series of separate wrongs occurring many times each year during periods of rain. In siding with the plaintiffs, the Florida Supreme Court explained:

Here the cause of action stated and proved by plaintiffs against the Town was that the Town raised the level of the street and failed to provide for drainage, thereby gathering up the waters that collected on the paved surface after a rainfall and diverting them over onto and impounding them on plaintiffs’ property. It was alleged that these acts “constitute a continuing wrong against the plaintiffs.” The damages alleged and proved were consistent with the theory of a suit for temporary damages for past injuries, see McHenry v. Parkersburg, 66 W.Va. 533, 66 S.E. 750; Texas & N.O.R. Co. v. Barnhouse, Tex.Civ. App.1956, 293 S.W.2d 261; Nimmons v. City of LaGrange, 1956, 94 Ga.App. 511, 95 S.E.2d 314, rather than a suit for permanent damages-past, present and prospective-based on the difference in the value of the property with and without the flowage. See 56 AmJur., Waters, s 441, p. 856; Texas & N.O.R. Co. v. Barnhouse, supra, 293 S.W.2d 261. It was shown that during the summer of 1954 the plaintiff husband built a dike on two sides of the property and, sometime thereafter, the Town constructed two dry wells in the intersection adjacent to plaintiffs’ property; and that the plaintiffs’ property is no longer subjected to overflow condition allegedly causing the damages previously incurred and sought to be recovered in the instant suit. The plaintiff husband testified that the dike built by him stopped the overflow; one of the Town’s witnesses said that the dry wells had been so recently constructed that it was impossible to tell whether they would carry off the surface water in the area after a rainfall.
It affirmatively appears, then, that the overflow condition was abatable and has, in fact, been abated — although its abatement could be attributed to plaintiffs efforts alone. It does not appear that the permanent value of the plaintiffs’ property was affected by the recurrent overflow, now abated. It should also be remembered that the burden is on the pleader to prove the defense of the statute of limitations. In all the circumstances here, we think that the evidence failed to show, as a matter of law, that the flooding of the plaintiffs’ land had the characteristics of permanency sufficient to require the bringing of a single action for the entire damages, both past and prospective. This being so, the trial judge did not err in declining to direct a verdict in favor of the defendant on the ground that the suit was barred by s. 95.24, supra, since damages would be recoverable for each repetition of the overflow occurring within one year of the time that suit was filed, under the general rule stated above.

102 So.2d at 146 (emphasis added).

In Kulpinski, the appellate court reversed the dismissal of a flooding claim on statute of limitations grounds. The plaintiff had alleged that she purchased a home from the defendant-builder in March 1976, and that beginning in June of that year, her property flooded every time it rained, preventing her from using large portions of her property for extended periods of time each year. The plaintiff alleged the flooding constituted a continuous invasion causing recurrent damages during periods of rain. She further alleged the flooding was abatable.

In reversing, the appellate court noted that the plaintiff “has alleged a recurrent flooding which is abatable,” and thus her complaint was consistent with the theory of a suit for temporary damages. 473 So.2d at 814. The court held the plaintiff was entitled to maintain an action for damages caused by each repetition of the flooding occurring within the limitations period immediately preceding the filing of the complaint. Id. The court noted that the appeal was being considered on a motion to dismiss and that the city “may ultimately succeed in proving that the damage suffered was permanent and that the suit is barred by the statute of limitations.” Id.

Unlike Kulpinski, the present case was decided in a summary judgment context, with the parties having the opportunity to present evidence as to the nature and extent of the invasion and resultant damages. The narrow question is whether the defendants have carried their burden of demonstrating that the undisputed evidence reflects that the flooding was permanent in nature as of 1995 so that the present action is time-barred. Under the operative case law, we answer this question in the negative.

In Carlton v. Germany Hammock Groves, 803 So.2d 852 (Fla. 4th DCA 2002), the Fourth District reversed a summary judgment which had ruled a flooding claim was barred by the statute of limitations. In that case, Carlton’s land was subject to flooding after a culvert on the defendant landowner’s property, which allowed for drainage of Carlton’s property, was crushed by the defendant in 1989. Suit was not brought until 1998, and Carlton sought to avoid the four-year statute of limitations by claiming the flooding of his land was a recurring injury that resulted in recurring damages during each wet season. He argued that under the continuing torts doctrine, each successive flooding since 1989 gave rise to new causes of action under nuisance and trespass theories, against which the statute of limitations began to run from the time of each successive injury. The defendant countered that the flooding was a permanent injury which occurred four years before suit was filed, thus barring the action.

The Fourth District framed the appellate issue as:

[wjhether the limitations period started running in 1989 when the culvert was crushed for a single cause of action comprising permanent damages (past, present and prospective) so that the cause of action was barred in 1993; or whether each successive flooding after 1989 gave rise to a new cause of action against which the statute of limitations started to run from the time of each successive injury so that Carlton can recover for the damages resulting from the flood-ings that occurred in the four years prior to filing suit.

803 So.2d at 854.

The court discussed Town of Miami Springs and ultimately concluded that the defendant had failed to establish that “there were no issues of material fact concerning whether a permanent injury occurred four years before suit was filed so as to bar the action.” Id. The court explained:

Carlton alleged sufficient facts with regards [sic] to the flooding and resulting damages occurring in the four years preceding the date suit was filed so as to urge application of the continuing torts doctrine and preclude summary judgment. See Pearson v. Ford Motor Co., 694 So.2d 61, 68-69 (Fla. 1st DCA 1997) (“Whether the continuing torts doctrine applies to the facts of a case is for a trier of fact to decide.”). As Carlton urges, he has alleged an injury similar to that in Lawrence. As in Lawrence, damage to the property was caused by intermittent flooding occurring during rainfall, and the flooding was abatable. In Lawrence, the flooding was abated by a dike. In this case, the flooding did not occur before the culvert was crushed; and thus, a culvert would abate the flooding. Because the injury is allegedly reoccurring and abatable, it is arguably not a permanent injury to the land, but rather a reoccurring injury to the land.

Id. at 856.

In Carlton, as in Town of Miami Springs and Kulpinski, the flooding was found to be abatable because flooding could be avoided by maintenance of a culvert. While evidence was presented in this case that efforts to abate the flooding by digging drainage ditches and adding fill dirt were unsuccessful, Baker presented evidence that the flooding of her property was abatable upon the construction of a retaining wall and water diversion system along the southern portion of her property. A licensed professional engineer recounted in an affidavit as to the cost associated with remedying the flooding by constructing a retaining wall and water diversion system. A general contractor additionally averred in an affidavit filed below as to the cost of construction of a retaining wall. This evidence was sufficient to create an issue of fact as to abatability of the flooding during the four-year period prior to suit being filed sufficient to preclude entry of summary judgment.

REVERSED AND REMANDED.

MONACO, J., concurs.

LAWSON, J., concurs specially, with opinion.

LAWSON, J.,

concurring specially.

The majority opinion applies the law in this area as well as any jurist could. I write separately to point out what is probably already obvious — that the “standard” set forth by our Supreme Court to judge how the statute of limitations applies to a flooding claim is far too vague, amorphous and unworkable, and leads to absurd results.

In this case, the non-governmental Defendants own homes adjacent to Plaintiffs property, in a subdivision that was constructed sometime prior to 1995. The City approved plans for development of the subdivision in which the non-governmental Defendants now live, again prior to 1995. The City also owns and maintains the surface street adjacent to Plaintiffs property. All changes to this land which Plaintiff alleges to be the cause of flooding on her property are permanent, and were made prior to 1995.

It is also undisputed that since at least 1995, Plaintiffs property has flooded with virtually every rainfall. This is a condition which has caused repeated, severe damage to Plaintiffs real property, as well as to structures, fixtures and personal property located on the land, and about which Plaintiff has been complaining since well before 1995. Given these facts, it seems to me that the statute of limitations should have started running by at least 1995, under any reasonable test. Under our current test, however, the injury to Plaintiffs land is not considered to be “permanent,” mainly because the flooding is potentially “abatable.” In my view, adding abatability to the test for permanency renders the statute of limitations completely illusory in all recurrent flooding cases — because an engineering fix can probably be designed to correct any recurring flooding problem.

As a start, therefore, I believe that the standard for determining when the statute of limitations begins to run in a flooding case should be stripped of any consideration of whether the flooding is “abatable.” Instead, “abatability” should be considered only in connection with damages. For example, if recurring flooding decreases the value of a plaintiffs property by $200,000, but the flooding could be completely abated with an engineering fix costing $100,000, then the abatement cost would be the appropriate measure of damages. Alternatively, a defendant might claim failure to mitigate damages as an affirmative defense. If it turns out that a plaintiff could have abated the flooding problem for only $10,000, he or she should not be able to sit back and allow the flooding to repeatedly damage structures on the property, and then claim $200,000 for repair costs that could have been avoided by spending $10,000 to abate the problem. Obviously, it makes sense to consider abatement and abatement costs in these contexts, when considering damages.

But, again, a rule under which no flooding condition is “permanent” for statute of limitations purposes if it can be “abated” unfairly allows the plaintiff to rest on his or her rights for years, as Plaintiff has done in this case, and then seek redress when damages are presumably much greater than they would have been had the problem been timely corrected. This defies common sense.

      . This analysis comports with general nuisance law which is to the effect that accrual of a nuisance claim depends on whether the nuisance alleged is "permanent” or "temporary.” A permanent nuisance claim accrues when injury first occurs or is discovered, while a temporary nuisance claim accrues anew upon each injury. See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tx. Sup.Ct.2004).

      . None of the non-governmental Defendants owned their property when it was first developed. At that time, it is alleged, the developer and/or prior owner(s) brought in fill to raise the elevation of the property in connection with development of the subdivision. The non-governmental Defendants purchased their homes later, after the permanent changes were made to the land which Plaintiff now alleges to be the cause of flooding on her property.


author: HAZOURI, J.

text:
    BROWARD COUNTY SHERIFF’S OFFICE, a governmental entity, Appellant, v. Charles BRODY and Sharon Brody, individually and as Natural Parents of Eric Brody, and as Co-Guardians for the Guardianship of Eric Brody, Appellees.
    Nos. 4D06-1149, 4D06-1240.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Rehearing Denied Dec. 20, 2007.
    Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire <& Klein, P.A., Fort Lauderdale, for appellant.
    Philip M. Burlington and Bard Rocken-bach of Burlington & Rockenbach, P.A., West Palm Beach, and Lance J. Block of Searcy Denney Scarola Barnhart & Ship-ley, P.A., Tallahassee, for appellees.
   HAZOURI, J.

Broward County Sheriffs Office (BSO) appeals a jury verdict and amended final judgment of $30,690,298.00 entered in favor of Charles Brody and Sharon Brody, individually and as the Natural Parents of Eric Brody, as Co-Guardians for the Guardianship of Eric Brody. BSO raises four points on appeal with various sub-parts. We affirm in all respects and write only to discuss BSO’s argument that the trial court abused its discretion in admitting into evidence handwritten summaries prepared during the testimony of certain witnesses called by Brody and permitting those handwritten summaries to be taken back with the jury during its deliberations.

This case arises out of a tragic motor vehicle accident which occurred on March 13, 1998, at the intersection of Oakland Park Boulevard and 117th Lane in Bro-ward County, Florida. At that time Eric Brody was making a left-hand turn into a subdivision on 117th Lane when Deputy Sheriff Christopher Thieman, operating a BSO cruiser, proceeding westbound on Oakland Park Boulevard, collided with the vehicle operated by Eric, causing Eric to sustain catastrophic injuries.

Eric was transported from the scene by helicopter to Broward General Hospital, where he was diagnosed with broken ribs, a skull fracture, blood clots in his brain, and a large accumulation of blood on the right side of his head. He underwent an emergency craniotomy to reduce the brain swelling. The surgery was successful; however, Eric remained in a coma.

Eric remained in the intensive care unit at Broward General Hospital for four weeks, and then was transferred to Health South Rehabilitation Facility, where there is a coma stimulation program. Thereafter, Eric was transferred to a nursing home where he remained in a coma for approximately six months. After regaining consciousness, Eric remains confined to a wheelchair, unable to speak, and with severe incapacitating brain damage.

During the course of this trial, which was somewhat truncated by the effects of hurricane Wilma, numerous medical witnesses and accident reconstruction experts were called on behalf of Brody and, in the course of their testimony, either Plaintiffs counsel or the expert witness highlighted some of their testimony by either drawing diagrams or listing certain events concerning Eric’s treatment on 32 inch by 26 inch poster boards. There were a total of 17 poster boards which were introduced into evidence, several of which were admitted without objection. The poster boards that BSO did object to were based on the assertion that they were cumulative of the witnesses’ testimony. Prior to the conclusion of the testimony and submission to the jury, BSO argued that the summaries which had originally been objected to on the basis of being cumulative should be excluded based on this court’s decision in Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47 (Fla. 4th DCA 1994).

In Gold, this court reviewed a judgment in a medical malpractice action, and after affirming a directed verdict on a contribution claim, found error in the admission of a “Mary Carter” settlement agreement. We stated, “[t]he agreement as presented subjected the nonparticipating parties to extreme prejudice which mandates reversal of the jury’s verdict and a new trial.” Id. at 55. Thereafter, this court stated that “[f]or the benefit of the trial court on retrial we will briefly discuss the following issues.” Id. The court then addressed four issues, the fourth being the admission into evidence of certain summaries and charts of plaintiffs economic expert, Dr. Goffman. The court noted that those charts “became the basis of the exact amounts ordered by the jury,” concluded “that it was error to admit th[o]se charts into evidence” and stated, “[w]e therefore reverse as to this issue as well.” Id. at 57.

Although this court concluded that the admission of the summaries constituted reversible error, there is no discussion of the rationale as to why this constituted reversible error other than to state that “we believe the better practice is to mark such exhibits as ‘Court Exhibit_, Not in Evidence.’ They can then be made part of the record, for appellate review, but should not be in evidence, nor given to the jury for their deliberations.” Id.

In the instant case, to refer to the poster boards admitted into evidence as summaries is misleading. Several of the poster boards dealing with liability issues were in fact mere representations of what was revealed in photographs taken of the scene or the motor vehicles in question. These photographs were admitted into evidence without objection. Many of the poster boards consisted of bullet points of only portions of the testimony of witnesses.

We also note that, in Gold, there was no attempt by the court to do a harmless error analysis as is required by section 59.041, Florida Statutes (2006). Unlike the summaries and charts introduced in Gold, which contained exact computations concerning the economic damages suffered as a result of the alleged malpractice, no such figures are contained in the poster boards introduced in this case. And unlike Gold, where the jury returned a compensatory award in the exact amount as reflected in Dr. Goffman’s summaries and charts, there is no evidence that the jury, during its deliberation, relied upon the poster boards in question. Without a showing of prejudice, the admission of the poster boards constitutes harmless error. See Bottoson v. State, 443 So.2d 962 (Fla. 1983), cert. denied 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153 (1984).

In Bottoson, the defendant was convicted of first-degree murder and the death sentence was imposed. At the sentencing phase of the trial the state called an FBI agent who had investigated the defendant for a bank robbery in California. The agent identified an exhibit as papers relating to the defendant’s conviction, but the state inadvertently neglected to offer the exhibit into evidence. After the jury retired to deliberate, the prosecuting attorney brought to the court’s attention that the exhibit had somehow been included with the materials given to the jury. The defense moved to have the penalty phase retried before a new jury. The trial judge ruled it was harmless error. In affirming the trial judge, the court stated:

We agree with appellant that it is error for the jury to be exposed to materials that have not been properly introduced into evidence. However, before a mistrial can be granted, it must be shown that the existence of an unauthorized object in the jury room has somehow prejudiced the defendant. There is no prejudice where the information conveyed by the unauthorized materials merely duplicates evidence that had been properly presented to the jury at the trial. In this case the unadmitted exhibit that was inadvertently allowed to go into the jury room merely reproduced the testimony of the FBI agent, which the jury had already heard. We therefore hold that the trial court did not abuse its discretion in denying the motion for mistrial.

Id. at 966 (citations omitted). As in Botto-son, even if the poster boards were wrongfully admitted into evidence, what was written on the poster boards merely reproduced the testimony of the witnesses, which the jury had already heard. Additionally, much of the information displayed on the various poster boards was not in dispute. We therefore conclude, as the court in Bottoson concluded, that any error was harmless.

Affirmed.

STONE and STEVENSON, JJ., concur.

      . Section 59.041, Florida Statutes (2006) states:
      Harmless error; effect. — No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.


author: PER CURIAM.

text:
    EUROPEAN BANK LIMITED, Appellant, v. ONLINE CREDIT CLEARING CORP., Sami Slim, Individually, and Brendon Battles, Individually, Appellees.
    No. 4D06-4326.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Rehearing Denied Dec. 20, 2007.
    Robert C. Weill and Robert D. Peltz of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, for appellant.
    Richard A. Ivers of Law Office of Richard A. Ivers, Coral Springs, for appellees Online Credit Clearing Corp. and Sami Slim.
   PER CURIAM.

Appellant, European Bank Limited (“European Bank”), appeals from the trial court’s Final Judgment Awarding Attorneys’ Fees and Costs to appellees, Sami Slim (“Slim”) and Online Credit Clearing Corporation (“Online Credit”). We affirm the trial court’s award of attorney’s fees and costs to Online Credit but reverse the award to Slim.

European Bank filed suit against Online Credit for breach of a credit card processing agreement and against Slim, a former officer of Online Credit, for fraud, unjust enrichment and conspiracy. In addition to damages incurred on the claims made, European Bank sought attorney’s fees and costs under the terms of the written agreement. After protracted litigation and discovery, when European Bank’s former director would not appear for his deposition, the trial court dismissed European Bank’s lawsuit with prejudice on November 19, 2004.

On December 16, 2004, appellees timely served on European Bank their Motion to Recover Attorneys’ Fees and Costs. Ap-pellees asserted that they were the prevailing parties and were therefore entitled to recover fees pursuant to the terms of the credit card processing agreement, Chapter 726, the Florida Fraudulent Transfer Act and section 57.105, Florida Statutes. Almost a year later on November 30, 2005, appellees filed their Amended Motion to Recover Attorneys’ Fees and Costs. Again they reasserted their entitlement to fees as the prevailing party under the agreement, under Chapter 726, and under section 57.105. Slim added his individual claim for attorney’s fees on the ground that he served a proposal for settlement on February 11, 2002, pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, which was not accepted by European Bank.

After a hearing on the motion, the trial court awarded Online Credit its fees pursuant to the terms of the agreement as well as pursuant to English law. The trial court denied appellees’ claim for fees under Chapter 726. Slim was awarded fees pursuant to his proposal for settlement. Thereafter, the parties stipulated to the amount of fees owed and European Bank appealed.

The trial court awarded Online Credit its fees pursuant to English law and we agree. See Pierce v. J.W. Charles-Bush Sec., Inc., 603 So.2d 625, 629 n. 2 (Fla. 4th DCA 1992) (English rule is that losing party always pays the legal fees of the prevailing party). We find European Bank’s argument to the contrary to be without merit and its other arguments with respect to Online Credit to be without merit. We affirm the trial court’s determination that Online Credit is entitled to attorney’s fees.

Slim’s first motion for attorney’s fees, which he and Online Credit jointly served, was timely. It was served within thirty days after filing the judgment but did not state with particularity his claim for attorney’s fees under his proposal for settlement. See Fla.R.Civ.P. 1.100(b) and 1.525. The amended motion was served almost a year later and was therefore untimely. Slim is not entitled to attorney’s fees and we reverse the trial court’s judgment awarding attorney’s fees to Slim. This holding renders Slim’s remaining arguments moot.

Affirmed in Part; Reversed in Part.

STONE, STEVENSON and HAZOURI, JJ., concur.

      . European Bank timely appealed from the dismissal and this court affirmed that dismissal. See European Bank Ltd. v. Online Credit Clearing Corp., 917 So.2d 203 (Fla. 4th DCA 2005).

      . The trial court also awarded attorneys' fees pursuant to section 57.105(7), but appellees withdrew their claim thereunder and that issue is not before the court. The agreement upon which European Bank filed suit provided, inter alia, that any dispute would be governed by English law.


author: ROBERTS, J.

text:
    Jack Ray SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5319.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Trisha Meggs Pate, Bureau Chief of Criminal Appeals; and Joshua R. Heller, Bryan Jordan, and Elizabeth F. Duffy, Assistant Attorneys General, Tallahassee, for Appel-lee.
   ROBERTS, J.

The appellant, Jack Ray Smith (Smith), was convicted of aggravated battery with a deadly weapon when, as part of an attempted sexual battery, he splashed household bleach in his victim’s eyes, nose, and mouth in an attempt to subdue her. In the instant case, he appeals the denial of his motion for judgment of acquittal. Because the determination as to whether an object not ordinarily considered a weapon has been used in a manner likely to cause death or great bodily harm is a question of fact for jury determination, we affirm.

The victim worked for Smith at hotels doing “odd jobs” such as lawn maintenance and moving furniture. One of those jobs was moving items from a hotel in Panama City to a person in Chipley who had purchased them. On the night of the crime, Smith and the victim returned to Chipley around 10:30 or 11:00 p.m. After finishing the delivery, Smith asked the victim to return to his house to have a couple of drinks and relax. Smith lived in a sun-room behind the garage of his mother’s home.

At the house, they sat in the sunroom and drank whiskey and cola. The victim asked for the payment for her work and Smith gave her $30. The victim then walked to her stepfather’s house nearby and gave him the money to repay a debt she owed to him.

At the urging of Smith, the victim returned to his house. After a short time, she indicated that she was tired and was going home. Smith then told the victim that she was not leaving and that he “didn’t give her $30 for nothing.” She offered to retrieve the money from her stepfather and return it to Smith. He replied that he didn’t want the money, but rather “wanted something else and [the victim] wasn’t going to leave until he got it,” which she understood to mean that Smith wanted a “sexual favor.” She repeatedly tried to leave but Smith blocked the door each time.

The victim attempted to use the telephone to call for help, but Smith got “really angry,” grabbing the telephone from her hand and ripping the cord out of the wall. She pulled down the blanket that was serving as a curtain and was yelling for help, but no one heard.

Smith then attacked her, punching her in the face, beating her to the ground, and choking her. At one time, she felt like she was “blacking out, passing out, ... like [she] was dying.” The victim got away and sought refuge under a laundry sink in the garage. When she would not come out, Smith grabbed a container of household bleach and threatened to throw bleach on her. When she still would not come out, he “sloshed it in [her] face about three or maybe four times.” The bleach got into her eyes, burning them so that she could not open them, and into her mouth and throat, causing chemical burns. After the bleach failed to cause the victim to come out from under the sink, Smith threatened to get gasoline or lighter fluid and light her on fire. Because those materials were readily available in the garage, she came out.

Smith made her return to his room and undress. Smith then shifted his attention to the blanket that had fallen from the window and she made another attempt to escape. After another prolonged struggle, she was able to exit the garage and run down the street to her stepfather’s house.

After giving her statement to the police and trying to recover on her own, the victim went to the emergency room complaining of burning on her face and in her eyes and of swelling in her throat to the extent that she could hardly swallow. She was treated by flushing out each of her eyes with an entire I.V. bag.

As a result of the events described above, Smith was charged with aggravated battery with a deadly weapon and false imprisonment.

At trial, in addition to the evidence presented by the victim, one of the investigating police officers testified that the bleach bottle used in the incident had not been collected into evidence, but a similar bottle label was produced in court. The label specifically warned that it was toxic and corrosive, that it should not come into contact with a person’s eyes, mouth or throat, and that it could cause severe burns. The label further warned “corrosive, dangerous if swallowed” and directed a person to seek medical attention if it got into one’s eyes.

At the conclusion of the state’s case, the defense moved for a judgment of acquittal on the aggravated battery charge, arguing that the state failed to provide any evidence that the bleach was a deadly weapon. The defense further argued that the state did not provide expert testimony regarding how bleach affected the body or that it was likely to cause death or great bodily harm. The trial court denied the motion and the defense preserved the issue for appeal.

Smith was convicted on all counts and now appeals the trial court’s denial of his motion for judgment of acquittal.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792 (Fla.2002).

Section 784.045, Florida Statutes (2005), provides, in pertinent part:

(1)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.

In this case, Smith was charged with violating subsection (l)(a)2, use of a deadly weapon. A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. See Fla. Std. Jury Instr. (Crim.) 8.4. A “deadly weapon,” within the meaning of the aggravated battery statute, is “1) any instrument which, when used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.” V.M.N. v. State, 909 So.2d 953, 954 (Fla. 4th DCA 2005).

Whether a weapon is a deadly weapon is a question of fact that should be submitted to the jury “to be determined under all the circumstances, taking into consideration the weapon and its capability for use.” Id. (quoting E.J. v. State, 554 So.2d 578, 579 (Fla. 3d DCA 1989)). Additionally, great bodily harm is “distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in simple assault and battery.” C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000).

Smith relies on D.C. v. State, 567 So.2d 998 (Fla. 1st DCA 1990), and C.A.C., supra, to support his position that the state did not provide sufficient evidence that the bleach, as used, was likely to cause great bodily harm. These cases, however, are distinguishable because in both, the state presented no evidence that the object was used in a manner likely to cause great bodily harm.

In the instant case, evidence that the bleach was used in a manner likely to cause great bodily harm existed in the form of the victim’s testimony that the bleach was “sloshed” into her face three or four times and that it got into her eyes, mouth, and throat, making her unable to open her eyes and constricting her throat, making breathing difficult. Additionally, she testified that she later had to go to the emergency room. The testimony required for the jury to make a determination is testimony that bleach was used, not the effect of its use. The jury, as fact finder, could then determine whether such use was likely to cause great bodily harm.

For example, if Smith had not sloshed the bleach in her face, but instead had poured gasoline on her and lit it, the jury would be entitled to determine whether this was likely to cause great bodily harm. The determination of whether fire can cause great bodily harm would still be in the province of the jury even without testimony, expert or lay.

In the instant case, the investigating officer testified that the bleach label stated that the bleach was toxic and corrosive, should not come into contact with a person’s eyes, mouth or throat, and could cause severe burns. The label further warned that the bleach was “corrosive, dangerous if swallowed.”

Since the jury, as fact-finder, did determine that the bleach, as used by Smith, was a deadly weapon, we AFFIRM.

KAHN and WEBSTER, JJ„ concur.


author: THOMAS, J.

text:
    FAIRPAY SOLUTIONS, Broadspire Services, Inc., and Crum Services, Appellants, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, and Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center, Appellees. Fairpay Solutions, Broadspire Services, Inc., Insurance Services, Inc., and RSCKO, Appellants, v. State of Florida, Agency for Health Care Administration, and Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center, Appellees.
    Nos. 1D06-4653, 1D06-5304.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.

      Annemarie Craft and Tamela Ivey Per-due of Stiles, Taylor & Grace, P.A., Tallahassee; Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Appellants.
    Garnett W. Chisenhall and Justin M. Senior, Chief Appellate Counsels, Agency for Health Care Administration, Tallahassee, for Appellee Agency for Health Care Administration.
    Stephen A. Ecenia and Richard M. Ellis of Rutledge, Ecenia, Purnell <& Hoffman, P.A., Tallahassee, for Appellees Miami Beach Health Care Group, Ltd., and Marion Community Hospital, Inc.
   THOMAS, J.

We have for our review two consolidated appeals involving final orders entered by the Agency for Health Care Administration (“AHCA”) against various workers’ compensation carriers. We hold that AHCA’s interpretation of section 440.13, Florida Statutes (2005), does not violate the carriers’ rights under the Administrative Procedure Act because the carriers had 10 days in which to challenge the medical providers’ petitions seeking higher reimbursement. We affirm.

Proceedings Below

While there are slightly different facts in the two cases, these differences are generally insignificant to the issue before us. Essentially, these cases involve disputes between the medical providers (“the hospitals”) and the reimbursements they received from the workers’ compensation carriers (“the carriers”). In both cases, the hospitals billed the carriers for services provided, and the carriers, after review of the charges by a third-party “medical review company,” paid substantially less than the requested amount and indicated the charges and/or items they would not pay.

The process for disputing the cost of health care services provided to workers’ compensation claimants is set forth in section 440.13(7), Florida Statues (2005). Specifically, the two provisions in question are subsections (a) and (b), which state the following:

(7) UTILIZATION AND REIMBURSEMENT DISPUTES.—

(a) Any health care provider, carrier, or employer who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the agency to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petitioner to submit such documentation to the agency results in dismissal of the petition.
(b) The carrier must submit to the agency within 10 days after receipt of the petition all documentation substantiating the carrier’s disallowance or adjustment. Failure of the carrier to timely submit the requested documentation to the agency within 10 days constitutes a waiver of all objections to the petition.

(Emphasis added.) In both cases before us, the hospitals filed a petition for reimbursement under subsection (a), but the carriers failed to file any response to the petition, as required under subsection (b).

AHCA ruled in favor of the hospitals in both cases, finding that under subsection (b), the carriers’ failure to respond to the hospitals’ petitions constituted a “waiver of all objections” to the petitions. In response, the carriers in both cases filed a petition for administrative hearing, arguing that despite their failure to file a response, they were entitled to a formal hearing under chapter 120, Florida Statutes, the Administrative Procedure Act.

In the first case of this consolidated appeal, AHCA referred the petition to the Division of Administrative Hearings (DOAH). The administrative law judge agreed with AHCA’s interpretation that the carriers’ failure to submit any documentation substantiating its adjustments to the reimbursement amounts constituted a waiver of all objections to the hospital’s petition. Because all objections were waived, the administrative law judge granted the hospital’s request to relinquish jurisdiction back to AHCA, as there could be no material issue of fact; thus, no hearing was justified. Accordingly, AHCA entered a final order adopting its earlier findings and ordered the carrier to reimburse the hospital for services rendered.

In the second case, AHCA simply entered a final order dismissing the carrier’s petition for administrative hearing, citing the first case and other similar decisions, and ordered the carriers to reimburse the hospital for services rendered.

Analysis

The only argument preserved for our review that we will address is whether AHCA’s interpretation of section 440.13, Florida Statutes (2005), denies Appellants’ right to a hearing under the Administrative Procedure Act. Appellants, relying heavily on Gopman v. Department of Education, State of Fla., 908 So.2d 1118 (Fla. 1st DCA 2005), argue that they cannot be deprived of their right to a hearing unless the statute in question specifically exempts itself from the chapter.

In Gopman, this court explained, “The Administrative Procedure Act presumptively governs the exercise of all authority statutorily vested in the executive branch of state government,” but that other statutes must be read “in pari materia with, ... not as repealers by implication of, the Administrative Procedure Act.” Id. at 1120; see Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610 (Fla. 1st DCA 2005). However, this court also stated that “an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57.” Gopman, 908 So.2d at 1122.

We hold that AHCA’s interpretation of section 440.13, Florida Statutes, does not violate the carriers’ right to an administrative hearing. Under the interpretations of both DOAH and AHCA below, AHCA has met the Gopman standard by permitting a “clear point of entry” to the carriers. Specifically, that point of entry is the statutory requirement that any objections to the petition must be put in writing and filed within 10 days of receipt of the petition. Simply put, if objections are timely raised, the carrier reserves the right to contest AHCA’s findings at a later chapter 120 hearing; however, failure to comply with the statute constitutes a waiver of all objections, and with no genuine issues as to any material fact, DOAH must relinquish jurisdiction back to AHCA. § 120.57(l)(i), Fla. Stat. (2005) (“An order relinquishing jurisdiction shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting and opposing affidavits, if any, that no genuine issue as to any material fact exists.”). It should be noted that here, it was the carriers’ failure to act that resulted in the denial of Appellants’ request for hearing.

We agree with AHCA’s interpretation that a carrier’s failure to file a response to a provider’s petition serves as an absolute bar to raise any defense under section 440.13(7)(b). The plain language of the statute clearly demonstrates that the burden is on the carrier to provide the agency with documents supporting their reimbursement decision, not on the agency to request such documents. We find that the phrase “the requested documentation” in the second sentence of subsection (b) refers back to the phrase “all documentation substantiating the carrier’s disallowance or adjustment” in the preceding sentence.

We decline to address any other issues raised by Appellants and AFFIRM the decisions reached below.

WOLF and POLSTON, JJ„ concur.

      . We note that in the second case, AHCA initially rejected the hospital's petition due to missing documents, but once the documents were provided, AHCA accepted the petition.


text:
    Chad Michael CHESHIRE and Christopher Shawn Watley, Appellants, v. STATE of Florida, Appellee.
    No. 1D06-1358.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.

      George W. Blow, III, Live Oak, for Appellants.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellants appeal the trial court’s order designating them as sexual predators. We conclude that the order under review must be reversed and remanded, as the entry of the order violated Appellants’ procedural due process rights.

Facts and Procedural History

In December 1999, Appellants pled guilty to three counts of attempted sexual battery on a person less than 12 years old. The trial court designated them as sexual offenders in February 2000. Appellants completed their five-year prison sentences and are currently on probation. Neither has violated probation.

In July 2004, the trial court conducted a hearing to determine whether Appellants should be designated as sexual predators. At the conclusion of the hearing, the judge took the matter under advisement, but made no ruling before retiring from office.

The Department of Corrections sent a letter to the successor judge on October 6, 2005, requesting direction regarding whether to treat Appellants as sexual offenders or sexual predators. The successor judge sent a letter to the Assistant State Attorney and enclosed the Department’s letter, but did not provide a copy to Appellants’ counsel.

The Assistant State Attorney responded to the judge’s letter in writing, explaining that Appellants should be designated as sexual predators, as each met the qualifications for the predator designation, but the original sentencing court had incorrectly designated them as sexual offenders. The State further explained that (1) the sexual predator designation was mandatory under section 775.21(4)(c), Florida Statutes (1998), and (2) no hearing was required, as section 775.21(5)(c), Florida Statutes (1998), only requires the state attorney to bring the matter to the court’s attention and does not require the trial court to conduct a hearing. The Assistant State Attorney did not send a copy of this correspondence to Appellants or their counsel. The successor judge designated Appellants as sexual predators on February 16, 2006.

Appellants present two arguments on appeal: (1) res judicata and collateral es-toppel precluded the trial court from designating them as sexual predators; and (2) the successor judge’s designation of Appellants as predators, without providing notice or an opportunity to be heard, violated Appellants’ procedural due process rights.

Analysis

Appellants’ arguments regarding collateral estoppel and res judicata are premised on their contention that they pled guilty, at least in part, because they agreed to be designated as sexual offenders rather than sexual predators. Although Appellants claim they raised this argument at the July 2004 hearing below, Appellants were required to raise their argument before the judge who actually designated them as sexual predators and obtain an adverse ruling from that judge. See Phillip J. Padovano, Fla. Appellate Practice § 8.1 (2007 ed.) (“[T]he aggrieved party must obtain an adverse ruling in the lower tribunal to preserve an issue for review. The appellate courts review only the decisions of lower tribunals and not abstract issues that are presented in the course of the proceedings.”).

Although Appellants did not preserve their arguments, they had no opportunity to do so because the trial court entered its order without informing Appellants that it was reconsidering their designations. While this court has held that a jury trial sufficiently protects a sexual predator’s procedural due process rights regarding his designation, a sexual predator does not normally have any argument to raise in response to the court’s designation. See Ames v. State, 870 So.2d 203, 204 (Fla. 1st DCA 2004); Milks v. State, 894 So.2d 924, 926-28 (Fla.2005) (rejecting appellants’ argument that their procedural due process rights were violated when they were not given the opportunity to argue they did not present a current danger to the community because all that a court considers is whether the appellant has been convicted of the offense); see also Burkett v. State, 731 So.2d 695, 698 (Fla. 2d DCA 1998) (holding that entry of a sexual predator designation was only perfunctory; therefore, the appellant had no right to be present at the hearing); Thomas v. State, 716 So.2d 789, 790 (Fla. 4th DCA 1998) (same).

The State concedes that the trial court should have notified Appellants it was again considering designating them as sexual predators, but argues that the court’s lack of notice was harmless error because it was required to designate them as such pursuant to section 775.21(4)(c), Florida Statutes. We find, however, that under the unique circumstances presented here, the trial court violated Appellants’ procedural due process rights by communicating with the Assistant State Attorney, without notice to Appellants’ counsel. Art. I, § 9, Fla. Const.; see generally State v. Robinson, 873 So.2d 1205, 1212 (Fla.2004) (“Procedural due process affords notice of a possible government deprivation and a meaningful opportunity to contest it, usually before it is imposed.”). Section 775.21(5)(c) provides that if a state attorney receives correspondence from the Department of Corrections regarding a court’s failure to enter a written order designating an offender as a sexual predator, the state attorney shall notify the court; the statute does not provide that if a court receives correspondence from the Department of Corrections, then the court shall notify the state attorney and request guidance without also notifying opposing counsel regarding the appropriate action.

We reverse the trial court’s order designating Appellants as sexual predators and remand for further proceedings consistent with this opinion. Because the original judge did not make a ruling after the hearing on this matter, the successor judge shall notify Appellants that it is once again considering whether to designate them as sexual predators, and it shall conduct a hearing in which Appellants may make any arguments they deem appropriate. See Robinson, 873 So.2d at 1213 (stating that the Sexual Predator Act provides for a hearing before designating an individual a predator because it requires the designation be made at the sentencing hearing).

REVERSED and REMANDED.

BENTON, HAWKES, and THOMAS, JJ., concur.


author: BROWNING, C.J.

text:
    Vanessa PHILLIPS, Appellant, v. James R. McDONOUGH, Secretary, Department of Corrections, Appellee.
    No. 1D06-0485.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.
    Vanessa A. Phillips, pro se, for Appellant.
    Bill McCollum, Attorney General, and Alexandria E. Walters, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant appeals the denial, on grounds of untimeliness, of her mandamus petition challenging the repercussions of a finding of contraband under her mattress in Broward Correctional Institution. Because she has been released from incarceration, we affirm the ruling as to gaintime and the dismissal of her disciplinary report because those issues are moot in light of her recent release from incarceration. See Mims-Smith v. Singletary, 719 So.2d 377 (Fla. 3d DCA 1998). However, we reverse the imposition of two liens by the circuit court, the first upon her filing of the mandamus petition, and the second upon her appeal of the ruling on that petition.

Neither lien should have been imposed because the mandamus petition com-meneed a collateral criminal proceeding, and Appellee concedes the liens were incorrectly imposed. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Nor does Appellant’s release from incarceration affect her standing to challenge such liens. Cf. Rowlie v. Fla. Parole Comm’n, 958 So.2d 1131 (Fla. 1st DCA 2007) (holding that claim for reimbursement of fees in collateral criminal proceeding was not moot when fees had been paid in full).

Accordingly, we AFFIRM IN PART AND REVERSE IN PART. We remand with directions that the circuit court order the Department of Corrections to dissolve both liens and direct reimbursement of any monies paid towards either lien.

BARFIELD and BENTON, JJ„ concur.


text:
    SKOPELOS SEAFOOD & STEAK RESTAURANT, INC., Appellant, v. ESTATE OF Paul Gus SILIVOS and Paul Gus Silivos Trust, Appellees.
    No. 1D07-4396.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.
    Robert O. Beasley of Litvak Beasley & Wilson, LLP, Pensacola, for Appellant.
    Teresa N. Phillips of Pohl & Short, P. A., Winter Park, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 20, 2007, the Court has determined that the appellant has prematurely filed the notice of appeal. The order grants summary judgment of all of the counts in the complaint in favor of the appellees, and grants partial summary judgment in favor of the appellees in the appellees’ counterclaim. In the order the court directs the parties to schedule further proceedings to determine damages and states that it will subsequently enter a final judgment. The court has indicated that its judicial labor will continue to be engaged in this lawsuit, and the unfinished business before the lower court concerns a counterclaim interrelated to, and arising out of, the same set of facts as the claims sought to be appealed by the appellant. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Irvine v. Southwood 1295, 948 So.2d 981 (Fla. 1st DCA 2007). The appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

WOLF, POLSTON, and THOMAS, JJ„ concur.