author: ROTHENBERG, Judge.

text:
    Edgar Sylvester WHITBY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1770.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2006.

      Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Edgar Sylvester Whitby, appeals his conviction for battery. As we are constrained by this court’s opinions in Alsopp v. State, 855 So.2d 695 (Fla. 3d DCA 2003), and Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005), we reverse.

The defendant was charged with aggravated battery by knowingly or intentionally causing permanent disfigurement by throwing hot water on the victim. During jury selection, the State sought to back-strike prospective juror Lynn. The defense objected stating that Mr. Lynn, a white male, was a member of a protected class, and requested that the State provide a race-neutral reason. The trial court allowed the peremptory strike of prospective juror Lynn without requiring the State to proffer a race-neutral reason.

The defense then sought to challenge prospective juror Hayes for cause based upon her response that, as a result of her employment with the Drug Enforcement Agency (“DEA”), she would be biased in favor of a police officer when weighing his/her credibility. The State argued that Ms. Hayes should not be excused for cause because after further questioning, she had responded that she would not give a police officer’s testimony more weight merely because he was a police officer. Before ruling on the cause challenge, the trial court brought juror Hayes back into the courtroom for further questioning. During this additional questioning, Ms. Hayes stated unequivocally that her verdict would be based upon the evidence presented. Based upon this response and her previous response that she would not give a police officer’s testimony more weight merely because he was a police officer, the trial court denied the defendant’s cause challenge of juror Hayes.

The jury found the defendant guilty of the lesser included offense of battery and he was sentenced to 300 days in jail. The defendant’s appeal challenges the trial court’s denial of his cause challenge as to juror Hayes and the trial court’s failure to require the State to provide a race-neutral reason for its peremptory challenge of juror Lynn.

The standard for which we review a trial court’s ruling on a cause challenge is abuse of discretion. Kessler v. State, 752 So.2d 545, 550 (Fla.1999). “A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to render an impartial verdict.” Singleton v. State, 783 So.2d 970, 973 (Fla. 2001); see also Kessler, 752 So.2d at 550.

During voir dire, juror Hayes initially indicated that she would be biased in favor of a police officer’s credibility. However, upon further questioning, she unequivocally stated that she would not give a police officer’s testimony more weight due to his/her status as a law enforcement officer and that she would evaluate the case on the evidence presented. We, therefore, conclude that the trial court acted within its discretion by denying the defendant’s cause challenge of Ms. Hayes. See Grullon v. N. Miami Med. Ctr., 780 So.2d 196 (Fla. 3d DCA 2001).

While we conclude that the trial court did not abuse its discretion in denying the defendant’s cause challenge of Ms. Hayes, we reverse based upon the trial court’s failure to conduct a Neil inquiry regarding the State’s peremptory challenge of juror Lynn. In doing so, we express our concern, as other judges of this court have expressed in the past, that the present procedure, which was intended to simplify the process, has led to unnecessary reversals of otherwise error-free trials decided by clearly impartial juries.

In order to protect against racial discrimination in the jury selection process, the Florida Supreme Court in State v. Neil, 457 So.2d 481 (Fla.1984), provided the trial courts with a procedure to follow when determining whether a peremptory challenge is unlawfully being exercised on racial grounds:

A party concerned about the other side’s use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the eomplained-about party to show that the questioned challenges were not exercised solely because of the prospective juror’s race.

Neil, 457 So.2d at 486-87 (footnotes omitted)(emphasis added).

Over the years, when it became clear that trial courts were having a difficult time applying the procedure established in Neil, the Florida Supreme Court refined the procedure in State v. Johans, 613 So.2d 1319 (Fla.1993). The difficulty appeared to be especially with the application of that portion of the Neil test which required the opponent of the strike to show a strong likelihood that the challenged juror was being stricken solely based upon his race before triggering an inquiry by the court. Thus, in order to provide clear guidance to the trial courts, the Florida Supreme Court again simplified the procedure and deleted the requirement that the opponent of the strike show that there was a strong likelihood that the juror was being challenged solely because of his/her race:

In Florida, there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. Neil, 457 So.2d at 486. Consequently, we have held that a party concerned about the other party’s use of peremptory challenges must make a timely objection, demonstrate on the record that the challenged person or persons are members of a distinct racial group, and show that there is a strong likelihood that those individuals have been challenged solely because of their race. Id. However, the case law that has developed in this area does not clearly delineate what constitutes a “strong likelihood” that ve-nire members have been challenged solely because of their race.
Rather than wait for the law in this area to be clarified on a case-by-case basis, we find it appropriate to establish a procedure that gives clear and certain guidance to the trial courts in dealing with peremptory challenges. Accordingly, we hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. We recede from Neil and its progeny to the extent that they are inconsistent with this holding.

Johans, 613 So.2d at 1321 (emphasis added).

Thus, in Johans, the Florida Supreme Court eliminated the requirement in Neil that the party objecting to a particular peremptory challenge demonstrate or show that there is a strong likelihood that the peremptory challenge was racially motivated, and prospectively held that the objecting party only needs to allege that the peremptory challenge is being used in a racially discriminatory manner, in order to trigger an inquiry by the court.

Approximately two months after the Florida Supreme Court decided Johans, it noted in Valentine v. State, 616 So.2d 971 (Fla.1993), that it would be “far less costly in terms of time and financial and judicial resources to conduct a brief inquiry and take curative action during voir dire than to foredoom a conviction to reversal on appeal.” Valentine, 616 So.2d at 974.

While the language in Valentine signaled the Court’s intention to eliminate the requirement that the party objecting to a peremptory challenge, allege the likelihood that the challenge was racially motivated, it apparently did not do so because in 1995, it found no error in the trial court’s failure to require the State to provide a race-neutral reason for a challenge of an East Indian juror in Windom v. State, 656 So.2d 432 (Fla.), cert. denied, 516 U.S. 1012, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995). After objections were raised by both the State and the defense regarding peremptory challenges each had made, inquiries made by the trial court, and the race-neutral reasons provided, the defense questioned an additional challenge exercised by the State, stating: “I’d like to question that choice, too, assuming she is black.” As there was some uncertainty as to the juror’s race, the juror was questioned further and it was learned that she was East Indian. A unanimous Florida Supreme Court concluded that the trial court did not err by failing to require the State to provide a race-neutral reason for the challenge as the defense did not satisfy its burden in order to trigger an inquiry by the court because it failed to allege that there was a strong likelihood that the juror was challenged solely because of her race.

Consistent with what we have held in [State v.] Alen[, 616 So.2d 452 (Fla. 1993),] and Johans, and from our review of the voir dire record, we conclude, in respect to this prospective juror, that the defendant’s expressed objection did not make it necessary for the trial court to require the State to have and express a race-neutral reason for the challenge. We reiterate once again what we stated specifically in Neil: there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side’s use of peremptory challenges must make a timely objection which demonstrates on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. We followed this statement in Johans by requiring a Neil inquiry when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner.

Window, 656 So.2d at 437 (emphasis added).

The following year, 1996, the Florida Supreme Court in Melbourne v. State, 679 So.2d 759 (Fla.1996), did, however, simplify the procedure and once again established new guidelines “to be used whenever a race-based objection to a peremptory challenge is made.” Melbourne, 679 So.2d at 764.

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis,2 b) show that the venireperson is a member of a distinct racial group,3 and c) request that the court ask the striking party its reason for the strike.4 If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.5
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Melbourne, 679 So.2d at 764. The footnotes in paragraph one are as follows:

2. State v. Neil, 457 So.2d 481, 486 (Fla.1984). A simple objection and allegation of racial discrimination is sufficient, e.g., “I object. The strike is racially motivated.”
3. Id.
4. See generally State v. Johans, 613 So.2d 1319 (Fla.1993).
5.See generally id. at 1321 (“[W]e hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner.”). Johans eliminated the requirement that the opponent of the strike make a prima facie showing of racial discrimination.

Melbourne, 679 So.2d at 764 (emphasis added).

While footnotes 2 and 5 seem to say that a timely objection must be made and an allegation of racial discrimination be levied, in order to satisfy the requirements of step 1, necessitating an inquiry by the trial court as to the reason for the strike, the language in the body of the opinion implies otherwise. This ambiguity was, however resolved in a subsequent case decided the same year, State v. Holiday, 682 So.2d 1092 (Fla.1996).

In Holiday, the defendant sought to peremptorily challenge a female juror, Margaret Urrutia. In response, the State asserted: “Your Honor, as far as Ms. Ur-rutia is concerned, I ask for a race and gender neutral reason.” The trial court inquired with defense counsel as to his reason for the peremptory challenge and after concluding that the reason given was not race and/or gender-neutral, disallowed the strike. The juror that the defendant wished to strike sat on the jury that convicted him. On appeal, this court reversed the defendant’s conviction after concluding that the State’s request for a gender and/or race-neutral reason was insufficient to require an inquiry because the State did not place on the record sufficient facts which indicated that the peremptory challenge was being used impermissibly. The Florida Supreme Court quashed this Court’s reversal based upon its decision in Melbourne, eliminating the requirement that the party objecting to a peremptory challenge demonstrate that the challenge was being used impermissibly. When citing to Melbourne, however, the Court quoted the following passages from that holding without including the footnotes contained in the Melbourne opinion.

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis,2 b) show that the venireperson is a member of a distinct racial group,3 and c) request that the court ask the striking party its reason for the strike.4 If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.5
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Melbourne, 679 So.2d at 764 (footnotes omitted). The omitted footnotes are:

2. State v. Neil, 457 So.2d 481, 486 (Fla.1984). A simple objection and allegation of racial discrimination is sufficient, e.g., “I object. The strike is racially motivated.”
3. Id.
4. See generally State v. Johans, 613 So.2d 1319 (Fla.1993).
5. See generally id. at 1321 (“[W]e hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner.”). Johans eliminated the requirement that the opponent of the strike make a prima facie showing of racial discrimination.

By eliminating these footnotes which state that an allegation of racial discrimination is required, the Court intentionally or unintentionally eliminated the requirement that the party objecting to a peremptory challenge, at least allege that the challenge appeared to be racially motivated.

The following year’, the Florida Supreme Court addressed the situation where the trial court conducted an inquiry even though an insufficient objection was raised. In Franqui v. State, 699 So.2d 1332 (Fla. 1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1337, 140 L.Ed.2d 499 (1998), the defense sought to peremptorily strike juror Aurelio Diaz. In opposing the strike, the prosecutor stated: “Wait a minute, Judge, are they striking Aurelio Diaz? State would challenge that strike.” In response, the defense stated: “I don’t like him.” Fran-qui, 699 So.2d at 1334. The trial court disallowed the strike finding that the reason given by defense counsel was not race-neutral and the Florida Supreme Court affirmed the defendant’s conviction. In doing so, it found that while an inquiry was not required, “[w]e cannot agree with the dissenting opinion that the State’s objection was insufficient to 'permit the trial court to make inquiry with respect to whether juror Diaz was being challenged for nonracial reasons.” Franqui, 699 So.2d at 1335 (emphasis added). The Florida Supreme Court concluded that when an objection is insufficient to require further inquiry by the trial court, the court may exercise its discretion to do so when it clearly understands the nature of the objection. “Moreover, we have encouraged trial judges to err on the side of holding a Neil inquiry.” Franqui, 699 So.2d at 1335.

The defendant in the instant case argues that the trial court erred when it failed to conduct a Neil inquiry after his lawyer objected to the State’s peremptory challenge of juror Lynn. Whitby’s lawyer objected to the State’s peremptory challenge of juror Lynn, a white male, and requested a race-neutral reason for the challenge. While counsel did not allege that the challenge was “racially motivated,” we reverse based upon the Florida Supreme Court’s holding in Holiday and the decisions of this court and the various district courts, which have interpreted the Florida Supreme Court’s rulings in Melbourne and Holiday as mandating that a Neil inquiry be conducted when defense counsel simply objects to a peremptory challenge, identifies that the juror is a member of a distinct racial or ethnic group, and requests an inquiry, despite no allegation that the challenge was racially motivated. See Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005); Wicks v. Publix Super Markets, 908 So.2d 1190, 1193 (Fla. 2d DCA 2005); Alsopp v. State, 855 So.2d 695 (Fla. 3d DCA 2003); Murray v. Haley, 833 So.2d 877, 879-80 (Fla. 1st DCA 2003).

While the historical analysis of the peremptory challenge issue reflects the Florida Supreme Court’s valiant attempt to eliminate the exclusion of jurors based upon their race, gender, or ethnic origin, and to create a workable, simplified standard for attorneys and judges to follow, we believe that a study of the nine years of its application, suggests that review and modification of the standard, is warranted.

The application of this “simplified standard” has proven not to be so simple after all and has led to misuse by trial attorneys; lengthy, needless evaluations as to the genuineness of the proffered reason for the challenge; unnecessary reversals due to failures to make an inquiry; and errors made in performing a pretextural analysis. While it is rather simple and hardly a hardship to inquire regarding a lawyer’s motivation for a challenge, if the reason(s) given is/are race-neutral, then the trial court must examine the genuineness of the proffered reason(s). To do so requires a review of each and every prospective juror and every response given by each. This sometimes involves an evaluation of the various responses of over a hundred jurors and often involves that of at least thirty to forty jurors. It is not uncommon in first degree murder death penalty eases, that some 200 jurors may be questioned before a jury is selected. By examining the responses of so many jurors, it becomes obvious how difficult a process this can be both in time and accuracy, and how easy it is for a mistake to be made without having a record to review and an opportunity to review one. To require a reversal over an error regarding a juror’s response in an otherwise fair and impartial trial without so much as an allegation that the peremptory challenge appeared to be racially motivated, we believe is taking good intentions too far, and resulting in needless reversals.

Because we believe that this is an issue of great public importance, we certify the following questions to the Florida Supreme Court:

SHOULD THE FLORIDA SUPREME COURT RECONSIDER THE PEREMPTORY CHALLENGE ISSUE IN LIGHT OF THE SERIOUS PROBLEMS WITH THE CURRENT STANDARD?
IN LIGHT OF THE SERIOUS NATURE OF THE OBJECTION TO A CHALLENGE (THAT OPPOSING COUNSEL IS CLAIMING THAT THE PROPONENT OF THE- CHALLENGE IS ATTEMPTING TO REMOVE A JUROR BASED UPON THE JUROR’S RACE, ETHINICITY, OR GENDER IN VIOLATION OF THE UNITED STATES and FLORIDA CONSTITUTIONS) AND THE SERIOUSNESS OF THE CONSEQUENCES, SHOULD THE OBJECTING PARTY BE REQUIRED TO AT LEAST ALLEGE THAT THE CHALLENGE WAS RACIALLY (OR OTHERWISE IMPERMISSIBLY MOTIVATED)? SHOULD FLORIDA FOLLOW FEDERAL CONSTITUTIONAL LAW AND THE STANDARD EMPLOYED IN FEDERAL CASES WHICH REQUIRES THE DEMONSTRATION OF A PRIMA FACIE CASE OF DISCRIMINATION?
SHOULD WE CONTINUE TO REQUIRE REVERSALS DUE TO PROCEDURAL ERRORS REGARDING PEREMPTORY CHALLENGES WHEN THE RECORD LEAVES NO DOUBT THAT THE CHALLENGES WERE NOT MOTIVATED BY RACIAL PREJUDICE AND WHERE THERE IS NO INDICATION THAT ANY SUCH PREJUDICE INFECTED THE JURY WHICH TRIED THE DEFENDANT?

While discrimination and the systematic exclusion of jurors based upon race, ethnicity, gender, or one’s religious beliefs is abhorrent and an evil we in a civilized society cannot tolerate, we acknowledge that even good intentions can be taken too far and result in an equally unacceptable evil: that cases be reversed where there is no doubt that the challenge in question was not motivated by racial prejudice, and no doubt that the jury which tried the defendant was an impartial jury, without even an allegation by the defendant that the peremptory challenge was motivated by an improper purpose.

Reversed and remanded; questions certified.

      . Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005); Frazier v. State, 899 So.2d 1169 (Fla. 4th DCA 2005); Despio v. State, 895 So.2d 1124 (Fla. 3d DCA 2005); Wallace v. State, 889 So.2d 928 (Fla. 4th DCA 2004); Thomas v. State, 885 So.2d 968 (Fla. 4th DCA 2004); Stephens v. State, 884 So.2d 1071 (Fla. 5th DCA 2004); Russell v. State, 879 So.2d 1261 (Fla. 3d DCA 2004); Alsopp v. State, 855 So.2d 695 (Fla. 3d DCA 2003); Douglas v. State, 841 So.2d 697 (Fla. 3d DCA 2003); Murray v. Haley, 833 So.2d 877 (Fla. 1st DCA 2003); Daniels v. State, 837 So.2d 1008 (Fla. 3d DCA 2002); Fleming v. State, 825 So.2d 1027 (Fla. 1st DCA 2002); Shuler v. State, 816 So.2d 257 (Fla. 2d DCA 2002); Rojas v. State, 790 So.2d 1219 (Fla. 3d DCA 2001); Jones v. State, 787 So.2d 154 (Fla. 4th DCA 2001); Lewis v. State, 778 So.2d 445 (Fla. 3d DCA 2001); Allstate Ins. Co. v. Thornton, 781 So.2d 416 (Fla. 4th DCA 2001); Baber v. State, 776 So.2d 309 (Fla. 4th DCA 2000); Hamdeh v. State, 762 So.2d 1030 (Fla. 3d DCA 2000); White v. State, 754 So.2d 78 (Fla. 3d DCA 2000); Anderson v. State, 750 So.2d 741 (Fla. 3d DCA 2000); English v. State, 740 So.2d 589 (Fla. 3d DCA 1999); Foster v. State, 732 So.2d 22 (Fla. 4th DCA 1999); Michelin N. Am., Inc. v. Lovett, 731 So.2d 736 (Fla. 4th DCA 1999); Henry v. State, 724 So.2d 657 (Fla. 2d DCA 1999); Georges v. State, 723 So.2d 399 (Fla. 4th DCA 1999); Kiwanis Club of Little Havana v. de Kalafe, 723 So.2d 838 (Fla. 3d DCA 1998); Greene v. State, 718 So.2d 334 (Fla. 3d DCA 1998); Randall v. State, 718 So.2d 230 (Fla. 3d DCA 1998); Overstreet v. State, 712 So.2d 1174 (Fla. 3d DCA 1998); Vasquez v. State, 711 So.2d 1305 (Fla. 2d DCA 1998); Archie v. State, 710 So.2d 234 (Fla. 3d DCA 1998); Murphy v. State, 708 So.2d 612 (Fla. 1st DCA 1998); Dean v. State, 703 So.2d 1180 (Fla. 3d DCA 1997); Daniel v. State, 697 So.2d 959 (Fla. 2d DCA 1997); Hernandez v. State, 686 So.2d 735 (Fla. 2d DCA 1997); Morris v. State, 680 So.2d 1096 (Fla. 3d DCA 1996).


source: Caselaw Access Project

author: KAHN, C.J. PADOVANO, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Earnest L. SCURRY, Appellee.
    No. 1D05-2051.
    District Court of Appeal of Florida, First District.
    March 17, 2006.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellee.
   KAHN, C.J.

The State appeals an order of dismissal on double jeopardy grounds. Because the record will not support a finding of intentional prosecutorial misconduct, we reverse and remand this case for further proceedings.

“[T]he granting of a motion for a mistrial made by the defense ordinarily does not bar a retrial, even where the error was due to action of the state.” State v. Balezos, 765 So.2d 819, 822 (Fla. 4th DCA 2000); see Fuente v. State, 549 So.2d 652, 657-58 (Fla.1989). A narrow exception exists, however, when the State’s misconduct was intended to provoke the defendant into moving for a mistrial. See Gibson v. State, 475 So.2d 1346, 1347 (Fla. 1st DCA 1985) (stating that for double jeopardy to attach after a mistrial due to prosecutorial misconduct, court must find that prosecution intended to “goad” defendant to move for mistrial). Only under such a scenario of intentional prosecutorial misconduct, will double-jeopardy attach. See Fuente, 549 So.2d at 658 (“ ‘Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’ ” quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); see also Rodriguez v. State, 622 So.2d 1084 (Fla. 4th DCA 1993) (finding that retrial did not violate double jeopardy because prosecutorial misconduct, although present, was not intentional).

In the instant case, the trial judge instructed both parties not to reference appellee’s previous trial. The State communicated this command to its witnesses. Nevertheless, one of the State’s witnesses, when asked by defense counsel on cross-examination about her previous testimony in the matter, mentioned the first trial. The exact exchange was as follows:

Q: Detective Morgan, do you recall testifying previously in this matter on July 14, 2003?
A: The previous trial? I don’t know what you are talking about.

The witness, obviously confused by counsel’s question after she was instructed not to mention the previous trial, innocently committed the very error she was trying to avoid. This falls far short of intentionally goading the defendant into requesting a mistrial. Accordingly, we REVERSE and REMAND this case for further proceedings.

THOMAS, J., concurs and PADOVANO, J., concurs in part and dissents in part with written opinion.

PADOVANO, J.,

concurring in part and dissenting in part.

I would reverse on the ground that the defendant failed to give proper notice of the hearing on his motion to dismiss. The motion was considered during a status hearing held just one day after the mistrial had been granted. Even if we were to assume that the state had adequate time to prepare, it does not appear from the record that the defendant served notice that his motion would be considered during the status hearing. The primary purpose of that hearing was not to consider pending motions, but rather to reset the trial date.

My colleagues reason that the motion should have been denied because the pros-ecutorial misconduct in question was innocent. With all due respect, I cannot join in this conclusion. Neither of the two prosecutors who participated in the trial was present at the time the motion was heard. The trial judge took no evidence on the question of the intent of the prosecutors and made no finding on the question of their intent. Consequently, I do not think that this court has the authority to excuse the prosecutorial conduct at issue by concluding as a matter of fact that it was innocent. That issue was not addressed, much less decided in the trial court.

Nor do I find anything confusing about the defense lawyer’s question of the detective. Defense counsel simply asked the detective, “Do you recall testifying previously in this matter on July 14, 2003?” This was not an invitation to violate the trial court’s order to refrain from discussing the prior trial. The question did not imply that the testimony was given in a trial.

Although I think the trial judge acted too hastily in ruling on the defendant’s motion to dismiss, I certainly understand his frustration. This was a routine drug case involving simple factual issues. The trial judge was forced to try the case for a second time because the prosecutor made an improper comment on the defendant’s right to remain silent, a blunder any prosecutor should know enough to avoid. Then the trial judge was faced with the prospect of trying the case a third time because the prosecutor was unable to convey a simple instruction to a witness. Florida trial judges have very heavy caseloads; they cannot afford to waste precious time correcting errors that could easily be avoided.

The majority has remanded the case to the trial court for proceedings consistent with its opinion, but the majority’s conclusion that the prosecutors acted innocently compels only one possible disposition on remand: an order denying the motion to dismiss. Because I do not think it is possible to excuse the conduct at issue as innocent when the prosecutors who tried the case have never appeared in court to explain themselves, I would remand the case for a hearing on the merits of the defendant’s motion to dismiss.


author: PER CURIAM.

text:
    Tarrell J. SMITH and wife, June E. Smith, Appellants, v. Damon L. GORE and wife, Kimberly M. Gore, Appellees.
    No. 1D05-5306.
    District Court of Appeal of Florida, First District.
    March 17, 2006.
    Rehearing Denied April 19, 2006.
    D. Michael Chesser, Shalimar, for appellants.
    Richard H. Powell, Ft. Walton Beach, for appellees.
   PER CURIAM.

Appellants seek review of an order granting specific performance of a residential sale and purchase contract. Appellees moved to dismiss this appeal. In response to the motion to dismiss, Appellants filed a notice of voluntary dismissal. Appellees now move for attorney’s fees pursuant to section 57.105, Florida Statutes (2005). We grant the motion.

Following the lower court’s final judgment granting specific performance, Appellants conveyed to Appellees the subject residential dwelling on October 20, 2005. The warranty deed was recorded on October 21, 2005. Appellants filed the instant appeal on November 2, 2005.

Significantly, Appellants filed their appeal after attending the closing of the real estate transaction and accepting the benefits of the transaction. By closing the real estate transaction, Appellants recognized the validity of the final judgment entered by the lower court, closed on the contract, deeded the property to Appellees, and accepted payment of the contract sale price. Thus, when Appellants filed the appeal, they knew or should have known the grounds argued for reversal were not supported by material facts necessary to establish relief, nor were they supported by the application of then-existing law to those material facts. See § 57.105(1)(a)-(b), Fla. Stat. (2005); see also Albritton v. Ferrera, 913 So.2d 5 (Fla. 1st DCA 2005).

We again remind the bar that section 57.105 expressly states courts “shall” assess attorney’s fees for bringing, or failing to timely dismiss, baseless claims or defenses. See Albritton, 913 So.2d at 8-9 (noting the word “shall” in section 57.105 evidences “the legislative intent to impose a mandatory penalty in the form of reasonable attorney’s fees to discourage baseless claims, by placing a price tag on losing parties who engage in these activities.”) (emphasis in original).

Appellees’ motion for attorney’s fees is GRANTED, and the case REMANDED to the trial court to assess the amount.

VAN NORTWICK, HAWKES and THOMAS, JJ., concur.


text:
    Eric L. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0498.
    District Court of Appeal of Florida, First District.
    April 21, 2006.
    Eric L. White, pro se, petitioner.
    Charlie Crist, Attorney General, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as successive. See Johnson v. Singletary, 647 So.2d 106 (Fla.1998).

VAN NORTWICK, HAWKES and THOMAS, JJ., concur.


author: THOMAS, J.

text:
    Brandon Kenneth JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3227.
    District Court of Appeal of Florida, First District.
    April 27, 2006.

      Terry Clifton Christian, Tampa, Attorney for Appellant.
    Charlie Crist, Attorney General, and Sharon Wells, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   THOMAS, J.

Appellant, Brandon Kenneth Johnson, appeals his first-degree felony murder convietion for the death of his three-month-old infant son. Appellant raises six issues on appeal, including whether the trial court erred in admitting medical testimony attributing the infant’s death to “Shaken Baby Syndrome.” Because we find no merit in any issue raised, we affirm Appellant’s conviction. We write only to address whether the trial court erred in admitting the medical examiner’s expert opinion testimony on Shaken Baby Syndrome.

Before trial, Appellant filed a motion for a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), challenging the testimony of the medical examiner who found that the infant’s death resulted from abusive head trauma, or Shaken Baby Syndrome. Appellant argued that a Frye hearing was necessary because Shaken Baby Syndrome is controversial and is not generally accepted by the relevant scientific community.

A Frye hearing is appropriate to determine the admissibility of a “new or novel” scientific principle. See Zack v. State, 911 So.2d 1190, 1197-98 (Fla.2005). While Shaken Baby Syndrome has been reported in the medical literature since 1972 and is not new, Florida courts must conduct a Frye hearing if one has not previously been conducted. See Hadden v. State, 690 So.2d 573, 576 (Fla.1997). Shaken Baby Syndrome has not previously been subjected to a Frye analysis in Florida.

However, Florida courts have allowed Shaken Baby Syndrome testimony as expert opinion regarding the cause of a child’s death. See Washington v. State, 737 So.2d 1208 (Fla. 1st DCA 1999); Caban v. State, 892 So.2d 1204 (Fla. 5th DCA 2005). Because Shaken Baby Syndrome testimony has been admitted in Florida and in other jurisdictions, Shaken Baby Syndrome testimony is no longer a new or novel scientific principle subject to a Frye analysis. See, e.g., In re Child of Green, Nos. C3-03-125, Cl-03-205, 2003 WL 21652472 at *5 (Minn.App. Jul. 15, 2003) (explaining that the theory that an infant can sustain injuries from shaking is generally accepted by physicians who regularly examine, diagnose, or treat infants who have sustained brain injuries, therefore, Shaken Baby Syndrome is not new or novel and subject to Frye); People v. Yates, 290 A.D.2d 888, 736 N.Y.S.2d 798, 801 (2002) (stating that evidence of Shaken Baby Syndrome is not a novel scientific theory); State v. McClary, 207 Conn. 233, 541 A.2d 96, 102 (1988) (concluding that Shaken Baby Syndrome has been generally accepted as a diagnosis in the medical field); State v. Compton, 304 N.J.Super. 477, 701 A.2d 468, 473-74 (1997) (finding that Shaken Baby Syndrome is recognized in medical literature and has been accepted in numerous other jurisdictions as a reliable scientific premise and citing cases from other jurisdictions).

We find that a Frye hearing was not required in this case for two reasons. First, Shaken Baby Syndrome is accepted in the relevant scientific community and, therefore, is no longer new or novel. Second, the identification of Shaken Baby Syndrome as the cause of the infant’s death was an expert opinion based on the medical examiner’s personal training and experience. An expert opinion based on personal training and experience is not subject to a Frye analysis. See Herlihy v. State, 927 So.2d 146 (Fla. 1st DCA 2006) (citing Gelsthorpe v. Weinstein, M.D., 897 So.2d 504, 509 (Fla. 2d DCA 2005)). In Herlihy, we held that the appellant’s trial counsel was not ineffective for failing to object to medical testimony identifying Shaken Baby Syndrome as the cause of the child’s death and that counsel was not ineffective for failing to request an unnecessary Frye hearing. Similarly, the testimony here was the medical examiner’s expert opinion, and the testimony would have been properly admitted without first subjecting it to a Frye hearing.

AFFIRMED.

BARFIELD, and BROWNING JJ., concur.

      . John Caffey, On the Theory and Practice of Shaking Infants: Its Potential Residual Effects of Permanent Brain Damage and Mental Retardation, 124 American Journal of Diseases in Children 161 (1972).


text:
    Michael EDDIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4093.
    District Court of Appeal of Florida, First District.
    May 22, 2006.
    Rehearing Denied July 13, 2006.
    See also 740 So.2d 583.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

This is an appeal from the trial court’s order revoking Appellant’s probation. Appellant argues that the trial court lacked jurisdiction to revoke his probation. Because we find that the trial court did lack jurisdiction, we must reverse.

Appellant was originally sentenced to 76 months’ imprisonment followed by 5 years of sex offender probation. Upon his release to probation, Appellant filed a motion seeking to extend his probationary term by two years in exchange for the State voluntarily dismissing civil commitment proceedings against him. The trial court granted the motion and extended Appellant’s probation from March 5, 2005, until March 5, 2007.

On May 9, 2005, an affidavit of violation of probation was filed against Appellant. After a hearing, the trial court found that Appellant had willfully and substantially violated his probation. The trial court revoked Appellant’s probation and sentenced him to 101 months’ imprisonment. Appellant now argues that the trial court lacked subject matter jurisdiction to revoke his probation because it was error to extend his probation by two years. Because this is a question of fundamental error, it may be addressed for the first time on appeal. Oglesby v. State, 911 So.2d 1288 (Fla. 1st DCA 2005).

Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993). Clark v. State, 579 So.2d 109, 110-11 (Fla.1991); Mundorff v. State, 890 So.2d 1234 (Fla. 1st DCA 2005); Martin v. State, 691 So.2d 1204, 1205 (Fla. 4th DCA 1997); Delancey v. State, 653 So.2d 1062, 1064 (Fla. 4th DCA 1995). In this case, Appellant was never charged with a violation of probation before his probationary term was extended; thus, the trial court was without subject matter jurisdiction to enter the order of modification. Mundorff, 890 So.2d at 1236; see also Woods v. State, 879 So.2d 651, 654 (Fla. 5th DCA 2004) (holding that lack of jurisdiction may not be cured by consent).

Because the modification order was entered in error, Appellant’s probationary term expired on March 5, 2005. The affidavit of violation of probation was not filed until May 2005, two months after expiration of Appellant’s probationary term. Thus, the trial court lacked jurisdiction to revoke Appellant’s probation and sentence him to a term of imprisonment. Morgan v. State, 757 So.2d 618, 619 (Fla. 2d DCA 2000).

Accordingly, the order modifying Appellant’s probation and the judgment and sentence of violation of probation are VACATED and Appellant is to be discharged. All other issues raised on appeal are AFFIRMED.

BARFIELD, BROWNING and THOMAS, JJ., concur.


author: KLEIN, J.

text:
    Alexander POLLOCK, Individually and as Personal Representative of the Estate and Survivors of Bessie K. Kleinman, deceased, Appellant, v. CCC INVESTMENTS I, LLC, d/b/a Tiffany House by Marriott, a foreign corporation, Marriott Senior Living Services, Inc., a foreign corporation, Marriott International, Inc., a foreign corporation, Appellees.
    No. 4D05-1990.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied Aug. 8, 2006.
    Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville, and John J. Glenn of Anderson Glenn, LLC, Boca Raton, for appellant.
    John A. Brekka, Christy E. Brigman and Elaine J. LaFlamme of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauder-dale, for appellees.
   KLEIN, J.

Appellant’s mother, a resident of an assisted living facility, was murdered by another resident living at the facility. Appellant brought this action for her wrongful death which resulted in a verdict for the defense. We reverse because the court erred in not instructing the jury regarding statutes and regulations which may have been violated by the defendants.

The incident occurred at Tiffany House by Marriott, a minimum level assisted living facility managed by Marriott Senior Living Services, Inc. and owned by Marriott International, Inc., where the plaintiffs mother began living in June, 1998. Around three years later, in May, 2001, another patient, Felix Freed, who had been living at Tiffany House for about eighteen months, murdered appellant’s mother and then called the nurses’ desk to report that he had killed another resident.

Plaintiff brought this suit alleging violations of Chapter 400, Florida Statutes, and that Tiffany House had acted negligently in admitting Freed and allowing him to continue to reside there. The evidence at trial showed that just before his admission to Tiffany House, Freed had been hospitalized in a psychiatric facility because he suffered from dementia and there were concerns that he could be dangerous to himself or others. When he was admitted to Tiffany House, he suffered from major depressive disorder, dementia, and psychosis. His medical evaluation indicated that he was in need of continuous licensed nursing care.

In March, 2001, Freed informed employees of the defendants that he was concerned that he could hurt himself or others. He was then evaluated at a local hospital and, after reporting that these homicidal or suicidal tendencies had ceased, he returned to Tiffany House. Soon after that, according to his medical records, other residents had observed personality changes in Freed, including increased signs of frustration and lack of tolerance. His daughter reported that she was concerned about her father’s increasing paranoia and his psychiatrist prescribed an antipsychotic medication. The psychiatrist’s records reflect that on May 3, 2001, he ordered a psychiatric nurse to monitor Freed, but a nurse was never retained by the defendants nor was there any indication in the defendants’ medical records of this order by the psychiatrist. The murder occurred seven days later.

Plaintiff requested several jury instructions involving state regulations and statutes pertaining to assisted living facilities. One of those instructions was a portion of Residency Criteria and Admission Procedures. Fla. Admin. Code 58A-5.0181.

1) Admission Criteria. An individual must meet the following minimum criteria in order to be admitted to a facility holding a standard, limited nursing or limited mental health license, g) Not be a danger to self or others as determined by a physician, or mental health practitioner licensed under Chapters 490 or 491.
1) Not require 24-hour nursing supervision.

Another provided:

Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and provision of adequate care to all residents ...

§ 400.4176, Fla. Stat.; Fla. Admin. Code R. 58A-5.019(1).

A third'provided:

All staff shall be assigned duties consistent with his/her level of education, training, preparation, and experience. Staff providing services requiring licensing or certification must be appropriately licensed or certified. All staff shall exercise their responsibilities, consistent with their qualifications, to observe residents, to document observations on the appropriate resident’s record, and to report the observations to the resident’s health care provider in accordance with this rule chapter.

Fla. Admin. Code R. 58A-5.019(2)(b).

A fourth provided:
(3) Staff Records.
(b) Personal records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition as applicable: (listing numerous required licenses and certifications.)

Fla. Admin. Code R. 58A-5.024. There was evidence from which the jury could have found violations of all of the above.

Although, generally speaking, the standard of review for jury instructions is abuse of discretion, Florio v. Eng, 879 So.2d 678 (Fla. 4th DCA 2004), “a party is entitled to have the jury instructed upon his theory of the case [statutory violation] when there is evidence to support the theory.” Seaboard Coastline R.R. v. Addison, 502 So.2d 1241, 1242 (Fla.1987). Because it appears from the cases that reversal is inevitable, where the trial court erroneously fails to instruct on a statutory violation, Holley v. Kelley, 91 So.2d 862 (Fla.1957), Riley v. Willis, 585 So.2d 1024 (Fla. 5th DCA 1991), Menard v. O’Malley, 327 So.2d 905 (Fla. 3d DCA 1976), Florio, we cannot agree with the defendants that the trial court’s discretion was broad. On the contrary, any discretion for the omission of this type of instruction is strictly limited by the case law.

Because, as we noted earlier, there was evidence from which the jury could have found violations of the statutes and regulations, plaintiff is entitled to a new trial. Reversed.

SHAHOOD and TAYLOR, JJ., concur.

      . Justice Anstead, when he was a judge on this court, addressed the analogous problem of the abuse of discretion standard of review applied routinely by opinions to the admissibility of evidence, in a case in which the issue was whether an out-of-court statement was offered to prove the truth of the matter contained in the statement. § 90.801, Fla. Stat. (1991). The state acknowledged that the trial court should have admitted the testimony, but argued it was not an abuse of discretion. Judge Anstead responded: "As to abuse of discretion, we cannot agree, since the trial court's discretion here was narrowly limited by the rules of evidence." Taylor v. State, 601 So.2d 1304, 1305 (Fla. 4th DCA 1992). See also, Johnston v. State, 863 So.2d 271 (Fla. 2003) (the trial court's discretion is limited by rules of evidence).


text:
    Laura Ann HARMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0337.
    District Court of Appeal of Florida, First District.
    May 30, 2006.

      Laura Ann Harman, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Michael Craig GARRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1920.
    District Court of Appeal of Florida, First District.
    May 30, 2006.
    Michael Craig Garrison, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Rudolph BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0483.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Rehearing Denied July 13, 2006.
    Rudolph Bonner, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated April 19, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on January 27, 2006, appealing the Order on the appellant’s postconviction motion, rendered on December 22, 2005, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. RApp. P. 9.110(b).

DISMISSED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    Leslie PHILLIPS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2242.
    District Court of Appeal of Florida, First District.
    June 1, 2006.
    Leslie Phillips, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Robert Paul OCHALA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2241.
    District Court of Appeal of Florida, First District.
    June 2, 2006.
    Robert Paul Ochala, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    J.G. and K.M., children, Petitioners, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D06-2775.
    District Court of Appeal of Florida, First District.
    June 2, 2006.
    Nancy Daniels, Public Defender, and John W. Hedrick, Assistant Public Defender, Tallahassee, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

DENIED. E.W. v. Brown, 659 So.2d 712 (Fla. 1st DCA 1990); In re M.T., 627 So.2d 1319 (Fla. 4th DCA 1993).

KAHN, C.J, and THOMAS, J„ Concur; BENTON, J, Dissents.


text:
    Leon FRANKLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6173.
    District Court of Appeal of Florida, First District.
    June 6, 2006.
    Rehearing Denied July 20, 2006.
    Leon Franklin, Jr., pro se, Appellant.
    Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The rule 3.800(c) motion for reduction or modification of sentence is directed to the discretion of the trial court and is not appealable. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

WOLF, PADOVANO, and POLSTON, JJ., Concur.


author: SHARP, W., J.

text:
    Edward L. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4346.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Rehearing Denied July 18, 2006.

      Edward L. Washington, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Washington appeals from an order dismissing his petition for a writ of habeas corpus, which raises for the fifth time the issue of whether the trial court erred in permitting him to represent himself in his criminal trial that resulted in his conviction for arson of a dwelling, and burglary of a dwelling. We affirm.

After his conviction and sentencing for these crimes, Washington raised this issue in his direct appeal. We affirmed, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (defendant who elects to represent himself cannot thereafter complain that the quality of his defense constituted a denial of effective assistance of counsel).

On June 9, 2003, Washington filed a 3.850 motion for post conviction relief, claiming that the trial court erred in permitting him to waive counsel without holding a hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). This claim was denied by the trial court on the merits, appealed, and affirmed by this court. Washington v. State, 854 So.2d 828 (Fla. 5th DCA 2003), again citing Faretta.

On November 2, 2004, Washington filed a second 3.850 motion, which was denied. This court affirmed. Washington v. State, 894 So.2d 1073 (Fla. 5th DCA 2005).

On November 3, 2004, Washington filed a petition for habeas corpus with this court, alleging ineffective assistance of appellate counsel. This court denied that petition on December 9, 2004.

On March 3, 2005, Washington filed a third motion for post conviction relief, which was denied by the trial court. This court per curiam affirmed. Washington v. State, 906 So.2d 1081 (Fla. 5th DCA 2005).

On October 12, 2005, Washington filed this petition for writ of habeas corpus in the trial court. He argued again that the trial court committed reversible error when it discharged his appointed counsel and permitted him to represent himself without holding a Nelson, hearing. The trial court dismissed this petition on the ground that this issue had been raised in three post conviction motions, which were denied and affirmed on appeal. The current petition was “yet another attempt” to raise the same issue.

This petition is legally dead in the water for three reasons:

First, a habeas petition cannot be used to provide a petitioner -with an additional appeal regarding issues that could have been or were raised on appeal or in post conviction motions. See Baker v. State, 878 So.2d 1236, 1245 (Fla.2004); Mills v. Dugger, 559 So.2d 578, 579 (Fla. 1990); Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006); Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003). Here, Washington’s claims either were or should have been raised in a direct appeal, the three 3.850 motions, or a petition for ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(c).

Second, issues denied on the merits in collateral proceedings or on appeal are res judicata for habeas corpus purposes. Mapp v. State, 224 So.2d 431 (Fla. 1st DCA 1969). Attempting to raise this issue again is frivolous, successive and an abuse of process. See Jones v. State, 591 So.2d 911, 913 (Fla.1991). See also Jackson v. State, 774 So.2d 747 (Fla. 3d DCA 2000); Scott v. State, 656 So.2d 204 (Fla. 5th DCA 1995).

Third, if there is an adequate remedy available under Florida Rule of Criminal Procedure 3.850, a petition for a writ of habeas corpus is time barred if filed more than two years after the conviction becomes final. Richardson. In this case, Washington’s direct appeal was decided more than two years ago, on March 25, 2003. The petition for writ of habeas corpus was filed October 12, 2005. Thus, the petition is beyond the two year time bar. No possible exception to the time bar has been pled, nor could it be alleged under the circumstances.

This court lacks the judicial resources to deal with such frivolous and successive petitions and appeals. We warn Washington not to raise this issue in future collateral attacks on his conviction and sentences in this case. If he does so, we will sanction him and bar him from filing additional pleadings in this court unless signed by a licensed, active member of The Florida Bar. See Day v. Vinson, 713 So.2d 1016 (Fla. 2d DCA 1998); Attwood v. Eighth Circuit Court, Union County, 667 So.2d 356 (Fla. 1st DCA 1995); Platel v. Maguire, Voorhis & Wells, P.A, 436 So.2d 303 (Fla. 5th DCA 1983).

AFFIRMED.

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

      . § 806.01(l)(a), Fla. Stat. (2001).

      . §§ 810.02(1) and (3); 810.07, Fla. Stat. (2001).

        .See Washington v. State, Case No. 04-3656 (Fla. 5th DCA December 9, 2004) (denied by order).


text:
    Stephen MADDRIE, Appellant, v. James R. McDONOUGH and Aramark Corporation, Appellees.
    No. 1D06-0881.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Rehearing Denied July 14, 2006.

      Stephen Maddrie, pro se, Appellant.
    Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee; Louis A. Vargas, General Counsel, Tallahassee, for Appel-lees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(£); Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). In light of the dismissal of this appeal, all pending motions are denied as moot.

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


author: SHEPHERD, J.

text:
    Antonia BUCACCI, Appellant, v. Paul BOUTIN, Appellee.
    No. 3D04-2299.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Bennett Aiello Henry McGuinness, LLP, and Paul Aiello, Miami, for appellant.
    Neal R. Lewis, Miami, and Thomas Murphy, for appellee.
    Before GERSTEN, SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

Antonia Bucacci appeals from an adverse final summary judgment directing the partition of a Miami-Dade County residence jointly acquired by her and her significant other, Paul Boutin, during their now defunct relationship and dismissing for lack of subject matter jurisdiction her action to impose an equitable lien on a Monroe County parcel purchased by him during the relationship. We affirm the order of partition relating to the Miami-Dade County property with minor modifications, and find that the circuit court in Miami-Dade County has jurisdiction to adjudicate Bucacci’s claim for equitable relief on the Monroe County parcel.

FACTS

From 1984 to 2000, Bucacci and Boutin lived together. Boutin managed the couple’s personal finances and investments. In 1986, the couple purchased a home in North Bay Village as joint tenants with the right of survivorship pursuant to a written joint venture agreement. Apparently, Bucacci could not advance her portion of the down payment and closing costs. Thus, Boutin supplied the full amount needed and was afforded a lien against Bucacci’s interest in the property for Bucacci’s half, some $16,600, together with interest at the rate of nine percent, to be repaid from any future sale “either to a third party or to one of the Joint Ventur-ers.” The parties otherwise agreed that “all expenses of ownership of the ... property shall be borne equally ...” provided, again, that in the event one venturer “is unable to meet his or her responsibilities in this regard, the other Joint Venturer may advance [his or her share]” with the advance likewise to bear interest and “constitute a lien as against the defaulting Joint Venturer’s interest” upon sale either to a third party or to one of the joint venturers.

Although the couple’s ownership, maintenance, and expense responsibilities are well-delineated in the joint venture agreement, the terms and conditions for the disposition of the property in the event one of the parties desires to sell the entire property or his or her interest over the objection of another leave something to be desired. In this regard, paragraph eight of the joint venture agreement provides:

In the event either of the Joint Ventur-ers wish to sell and the other does not wish to sell, the non-selling Joint Ven-turer shall purchase the selling Joint Venturer’s interest. The selling Joint Venturer shall serve the non-selling Joint Venturer with a written notice of his or her desire to sell and there shall be a period of sixty (60) days from service of said written notice to obtain appraisals as more fully set forth above, and after obtaining said appraisals the non-selling Joint Venturer shall have sixty (60) days from the date of the final appraisal to obtain necessary financing and close the purchase of the selling Joint Venturer’s fifty percent (50%) interest in the property. In the event of the default on the part of the non-selling Joint Venturer, the selling Joint Ven-turer shall be free to convey his or her interest in the property to a third person or pursue appropriate legal remedies.

(Emphasis added).

In 1996, ten years after the purchase of the North Bay Village residence, acting with Bucacci’s knowledge, Boutin purchased a five-acre waterfront parcel on Big Torch Key in his name alone. At the same time, the parties took out an equity credit line on the North Bay Village property. Bucacci alleges the purchase was made using funds from the credit line. She also alleges that with Boutin’s encouragement, she devoted her own time and financial resources to make this their new home. In early 2000, Bucacci learned that Boutin had turned this new purchase, in her words, into a “love nest” for himself and a new paramour. By the end of the year, Bucacci’s relationship with Boutin was over, and Boutin had departed the North Bay Village residence to pursue his new interest.

In both May and June 2001, Boutin communicated with Bucacci through counsel and sought either to put the North Bay Village property up for sale or sell his fifty-percent interest to Bucacci in accordance with the joint venture agreement. Bucacci admits receiving at least one of these communications, but did not respond to either. Boutin therefore filed a one-count complaint seeking partition and sale of the residence. Bucacci countered with a declaratory action, alleging the joint venture agreement precludes an involuntary sale. Specifically, Bucacci urged “she has a life estate in the subject real property, and that [unless the parties] jointly agree to sell the property, the house cannot be sold.... ” She further sought an accounting of the parties’ expenses for the fifteen years they jointly owned the property and an equitable lien on the Big Torch Key acreage for funds and resources attributable to her that went into improving the property. Bucacci has at all times refused to include her interest in the North Bay Village property in a sale.

DISCUSSION

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). As such, our standard of review is de novo. Id. Generally, interpretation of a document is a question of law rather than of fact. See Peacock Const. Co. v. Modern Air Conditioning, Inc., 358 So.2d 840, 842 (Fla.1977). Although parol evidence is admissible to assist a court in contract interpretation when the language of a contract is not clear, plain, certain, undisputed, unambiguous, or is subject to conflicting inferences, it is also a well-settled rule that “parol evidence is not admissible to vary or contradict the terms of a written instrument, and that a written instrument which is intelligible on its face must control.... ” Olin’s, Inc. v. Avis Rental Car Sys. of Fla., Inc., 141 So.2d 609, 611 (Fla. 3d DCA 1962) (emphasis added). Finally, we note that if an issue of contract interpretation concerns the intent of the parties and the relationship between them is a common one, in such a circumstance the issue is more likely to lend itself to judicial interpretation without resort to parol evidence. E.g., Peacock Const. Co., 353 So.2d at 842 (recognizing that, although it may be expressed differently, the intent in most construction subcontracts is that the obligation of the general contractor to pay the subcontractor is not dependent upon receipt of funds from the owner).

THE NORTH BAY VILLAGE PARCEL

The issue presented with respect to this parcel is a matter of contract interpretation. Bucacci contends that at the time she joined Boutin in the purchase of the property, they agreed it could not be sold without the consent of the other. She places primary reliance for her argument on the language of paragraph eight of the joint venture agreement, which purports to limit the judicial relief available to a non-defaulting party under the joint venture agreement to the “[pursuit of] appropriate legal remedies” in the event the defaulting party fails to carry through with her obligation to purchase the interest of the other. When used with precision in the legal world, reference to one’s “legal remedies” ordinarily refers to actions at law, including prominently an action for monetary damages. See De Pantosa Saenz v. Rigan & Rigau, P.A., 549 So.2d 682 (Fla. 2d DCA 1989) (distinguishing between the applicability of legal and equitable remedies). Partition, the remedy sought by Boutin, is an action in equity. § 64.011, Fla. Stat. (2001). Thus, argues Bucacci, Boutin is constrained by paragraph eight of the joint venture agreement either to: (1) sell his interest in the property to a third party if he can find someone to buy it; or (2) continue to pay half of the expenses of the property so long as Bucacci lives in return for the privilege of receiving title to the property upon her death, if he happens to survive her. Notably, if Boutin were to select the second of Bucacei’s proposed alternatives, there is nothing in the joint venture agreement requiring Bucacci to live in the property during the term of the life estate she claims. Moreover, Boutin has no contractual assurance that he would recoup the half of the expenses of the continued joint ownership of the property he would be obligated to advance into the future to preserve the chance that the fates of life would lead to his acquisition of the property. And, ironically, if the fates ultimately were to favor Boutin, he would in any event lose the benefit of the security out of which the joint venture agreement provides he is to recoup the down-payment on the residence he made for the benefit of Bucacci now twenty years ago (Bucacei’s half interest in the property), as well as the security for any other advances he feels economically compelled to make to cure a default of hers in the future because, by operation of law, that security passes to him upon her death. See Florida Nat'l Bank v. Gann, 101 So.2d 579, 580 (Fla. 2d DCA 1958) (specifically identifying the benefit of a joint tenancy relationship as “the right of survivorship, by which the entire tenancy, on the decease of one tenant, remains to the survivors, and ultimately to the last survivor.”). Thus elucidated, one can readily glean the absurdity of Bucacci’s legal position.

Partition in Florida is governed by statute. See §§ 64.011-091, Fla. Stat. (2001). The general rule is that partition is a matter of right. Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957) (citing Willard v. Willard, 145 U.S. 116, 12 S.Ct. 818, 36 L.Ed. 644 (1892)). However, the right to partition may be waived. Condrey, 92 So.2d at 426 (“[U]nder our system of government, our guarantees of right to contract and rights of ownership and use of property, there appears to us to be no valid reason why the owners of undivided interests cannot contract not to partition land, except where the prohibition is for an unreasonable and/or indefinite period, or is otherwise so unreasonably] restrictive as to be contrary to public policy.”). In Con-drey, Chase L. Condrey, Sr. and his wife conveyed their single-family residential parcel, including two rental units, to their son and his spouse to be held by both couples as joint tenants with the right of survivorship, the same estate as exists in our case. The parents asserted the conveyance was part of an oral arrangement whereby the younger Condreys would move into the main house with the parents, receive the income from the rental property, contribute to their aging parents’ care and living expenses, and ultimately receive the property upon their death. Five years later, the younger Condreys moved out because of family differences and sought to partition the property. Our supreme court affirmed the trial court’s decision denying partition. Recognizing that partition is favored in the law, the high court nevertheless concluded this was one of those “extreme cases ... where manifest injustice, fraud or oppression will result if partition is granted.” Id. at 427. The Court explained:

It is not conceivable under these facts that the parents, defendants, intended by said arrangement to put themselves in position to be forced from their home or to surrender the right to live there. Obviously this would not be for the protection of the parents and could not have been, in our opinion, the intention of the parties.

Id.

Similarly, our case law makes it clear that while litigants should be wary of relying upon an expectation that a court will so exercise its discretion, see id., a trial court sitting in equity has the authority to annul an agreement by one party to waive his statutory partition right where enforcement of that right would result in a manifest injustice, fraud, or overreaching by the party seeking to profit from the waiver, especially where that party does not appear before the court with clean hands herself. See Forehand v. Peacock, 77 So.2d 625 (Fla.1955) (holding that joint tenant who had agreed orally to waive her right to partition during her lifetime could seek dissolution of her agreement and partition where co-tenant breached his obligation to allow her the quiet enjoyment of the property during her lifetime).

Based upon our reading of the joint venture agreement, it is questionable in our mind whether the parties intended to waive their statutory partition rights. The parties took title as joint tenants with right of survivorship shortly after they began living together as a couple. For fifteen years, the property was their personal residence. We have no reason to believe that if they had been married, they would not have taken title to the home as tenants by the entireties, as do most married couples. The conveyance of the marital home to one spouse or its sale is a common feature of marital dissolution actions. See, e.g., Sharon v. Sharon, 862 So.2d 789, 791-792 (Fla. 2d DCA 2003) (trial court did not abuse its discretion by allocating marital home to wife in dissolution action); Griffiths v. Griffiths, 563 So.2d 773, 776 (Fla. 3d DCA 1990) (trial court had discretion to order sale of marital residence in light of wife’s request for partition).

Although Bucacci contends here that the agreement should be read to allow her a life estate in the property with a right of survivorship in Boutin, the agreement, when made, contemplated the possibility of a future joint decision to sell the property and the mechanics for its implementation. It also contains an express provision that if the parties are not in agreement concerning a sale, a party desiring to sell his interest, Boutin here, can enter into an agreement to sell that interest to a third party in the event of a default, as occurred here, by the non-selling venture partner in her obligation to purchase that interest. Although the provision is of marginal practical value to Boutin in the circumstances, it is apparent as a matter of law that if Boutin made an arms’-length sale of his interest in the property to a third party, the sale would have the legal effect of converting the present estate to an estate as tenants in common between Bucacci and the new purchaser, see Kozacik v. Kozacik, 157 Fla. 597, 26 So.2d 659, 661 (1946); Wittock v. Ramponi, 446 So.2d 271 (Fla. 4th DCA 1984), after which the same right to partition would inhere in the new purchaser as is presently prayed by Boutin. See § 64.071(1), Fla. Stat. (2001)(where the land is so situated that physical partition cannot be made without prejudice to the owners, the court may order a public sale); Carlsen v. Carlsen, 346 So.2d 132, 133 (Fla. 2d DCA 1977) (recognizing the marital home is not usually susceptible to division in kind). If Bucacci had, in the blissful early days of her relationship with Boutin, consciously intended to secure for herself a life estate in the property under all future circumstances, it is apparent from a perusal of the joint venture agreement as a whole that she neither indicated that intent in the document, nor definitively guaranteed herself that emolument. Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435 (Fla.1951) (“This Court, from time to time, has approved certain rules to be observed in the construction of contracts and among them are the following: (1) the contract should be considered as a whole in determining the intention of the parties to the instrument....”); Macaw v. Gross, 452 So.2d 1126 (Fla. 3d DCA 1984) (“To ascertain the intention of the parties to a contract, the trial court must examine the whole instrument, not just particular portions, and reach an interpretation consistent with reason, probability, and the practical aspects of the transaction between the parties”). Given the inartfulness with which the agreement was drafted, we conclude it is more likely that the parties’ use of the term “legal remedies” was intended to be construed in the more colloquial sense of any legal or equitable remedy. This conclusion is also consistent with what we perceive to be the usual intent in relationships of this type, that upon its conclusion, one of the parties will acquire the residence from the other or the residence will be sold. See Peacock Const. Co., 353 So.2d at 842. It also is more harmonious with the ordinary disposition of the marital home in a dissolution action.

However, even if the parties intended in 1986 to waive their right to partition, we still conclude the trial court correctly ordered a partition and sale of the property in this case because, for the reasons stated aforesaid, we believe it would be manifestly unjust to enforce the purported waiver provision in this case. Unlike Condrey, wherein the senior Condreys performed their obligation under the agreement with their son and daughter-in-law, and like Forehand, where it was alleged the party seeking to enforce the waiver of the right to partition had engaged in misconduct or overreaching, it does not appear Bucacci has engaged in any additional conduct or action not contemplated by her participation in the joint venture from which an argument can be made that Boutin should be estopped from seeldng dissolution of the purported waiver. It also is clear Bucacci has refused to purchase Boutin’s interest in the property. We consider this to be one of those rare circumstances contemplated by our supreme court in which it is appropriate for the trial court to decline to enforce a purported waiver provision if such is deemed to exist in this case. As our high court stated in Forehand, “[o]ne entering into an agreement like that disclosed in this case is not required to pay the freight and then suffer torture by the other party to live by it.” Forehand, 77 So.2d at 625.

Finally, Bucacci complains of the terms of the private sale of the property ordered by the trial court, arguing that the terms are confusing and “uncertain” of implementation. She also complains the trial court erred in not granting her an accounting with respect to contributions made and expenses incurred in the ownership and maintenance of the property during the years the parties have owned it. We agree with Bucacci on these points, and remand with directions that the property be sold by the clerk of the circuit court at a public auction pursuant to section 64.071 of the Florida Statutes, that an accounting be had to properly allocate and adjust the contributions and expenses among the parties during the years of their ownership of the property in accordance with the terms of the joint venture agreement, and that a distribution of the proceeds thereafter be made to the parties in proportion to their interest pursuant to section 64.071, after the payment of all costs, attorney fees and taxes, as required by section 64.081. In allocating each party’s share of costs and attorney fees under section 64.081, the trial court may take into its consideration the fee shifting provision appearing in paragraph eight of the joint venture agreement.

THE EQUITABLE LIEN CLAIM

Additionally, we reverse the trial court’s dismissal of Bucacci’s claim seeking to impose an equitable lien on the Monroe County property. We agree with Bucacci that the local action rule, invoked by the trial court, does not prohibit the maintenance by her of this claim in the Miami-Dade County Circuit Court.

According to the local action rule, “when the property that is the subject matter of the controversy is real and the parties are seeking to act directly on the property or the title thereto, jurisdictional authority exists over the property only in the circuit where the land is situated.” Ruth v. Dep’t of Legal Affairs, 684 So.2d 181, 185 (Fla.1996); see also Goedmakers v. Goedmakers, 520 So.2d 575, 579 (Fla.1988); Lallouz v. Lallouz, 695 So.2d 466, 467 (Fla. 3d DCA 1997). However, the local action rule does not preclude an action where the parties seek an equitable remedy not directly affecting title to real property. Ruth, 684 So.2d at 186. If Bucacci is successful on her equitable lien claim, the title to the property will not be directly affected. We have long recognized that equitable lien claims may be brought in this district, even though the suit affects land not within the territorial jurisdiction of the court. Singer v. Tobin, 201 So.2d 799, 801 (Fla. 3d DCA 1967); see also Greene v. A.G.B.B. Hotels, Inc., 505 So.2d 666, 667 (Fla. 5th DCA 1987) (permitting a court in equity to entertain an action to reform a promissory note secured by a second mortgage on real property in another jurisdiction); Royal v. Parado, 462 So.2d 849, 854-55 (Fla. 1st DCA 1985) (permitting a court of equity to entertain an action to cancel and rescind a quitclaim deed to parcels of land located in another county). Furthermore, we anticipate some overlap in at least the evidentiary sources, if not the evidence itself, in the prosecution and defense of both the accounting and equitable lien claim. Accordingly, we reverse the trial court’s order dismissing Bucacci’s equitable lien action against the Monroe County property.

Affirmed in part and reversed in part. Cause remanded with directions.

      . At the time the couple parted company in 2000, Bucacci was forty-two-years old; Bout-in was forty-eight-years old.