author: GROSS, J. FARMER, J.,

text:
    Clara L. ROWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1869.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Michael H. Bloom of the Law Offices of Michael H. Bloom, Coconut Grove, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Clara Rowley appeals her conviction for fleeing and eluding a police officer, a third degree felony, contrary to section 316.1935(2), Florida Statutes (2004). We affirm the conviction.

She argues that the trial court erroneously restricted her cross-examination of a police officer on a matter that went to his bias. However, the defense failed to proffer what the excluded evidence would have revealed or how it was relevant to this case. The absence of such a proffer precludes our review of the restriction of cross-examination.

Mrs. Rowley is a 71-year-old grandmother who has been married for 55 years. She has five children, fifteen grandchildren and three great-grandchildren. After attending mass and stopping for pancakes at Wal-Mart, Mrs. Rowley’s ear was stopped by Officer Robert Kyzer of the Sebastian Police Department for a broken taillight, an infraction for which Kyzer intended to give Mrs. Rowley a warning. This innocuous traffic stop escalated into something more and ended with Mrs. Rowley’s arrest, at another location, following a low-speed chase. Mrs. Rowley’s defense at trial was that the conduct of police officers at the traffic stop gave rise to the defense of necessity, which justified her leaving the scene of the traffic stop contrary to the direction of the officers, and driving down the road with two police cars in pursuit.

During a proffer, defense counsel questioned Officer Kyzer about something called the “Pomeroy matter” as follows:

Q: And in fact, isn’t it true, that the Sebastian Police Department has already had one difficulty with Mr. Pom-eroy?
A: No.
Q: You weren’t involved in the Pomer-oy matter?
A: Yes.
Q: Mr. Pomeroy died; isn’t that right?
A: Yes.
Q: And isn’t it true that you didn’t want to have that happen again?
A: No.
Q: No, you wanted it to happen again?
A: No.
Q: So in fact because you have a seventy-one-year-old woman who’d been injured by the police and because we have Mr. Pomeroy’s family suing the Sebastian Police Department and you in particular that you concocted this situation where she committed this felony of fleeing and attempting to elude in order to protect yourself and the Sebastian Police Department.
A: No, that’s absolutely incorrect.

As Mrs. Rowley argues on appeal, case law recognizes that exploration of bias in a criminal case allows for cross-examination into an “officer’s use of excessive force in other cases,” “[wjhere there is an issue of whether or not excessive force was used by a law enforcement officer” in the case at hand. Michael v. State, 884 So.2d 83, 85 (Fla. 2d DCA 2004); see also Hinojosa v. State, 857 So.2d 308, 310 (Fla. 2d DCA 2003); Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982); Henry v. State, 688 So.2d 963, 965-66 (Fla. 1st DCA 1997); Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981). The existence of other complaints about an officer provide a motive to color testimony “to avoid another complaint which could [lead] to disciplinary action” or another lawsuit. Michael, 884 So.2d at 85. Thus, as the second district wrote in Mendez, evidence of an officer’s prior suspensions for excessive force “would have provided the jury with a highly plausible motive for [the officer’s] misrepresentation of the true facts surrounding the shooting incident” in that case. 412 So.2d at 966.

Defense counsel’s proffer failed to demonstrate that cross-examination was appropriate under the Michael, Henry, and Mendez line of cases. The proffer established only that the Sebastian Police Department had a “matter” with Mr. Pomeroy and that Pomeroy died. The proffer failed to specify how, if at all, Officer Kyzer was involved in the “Pomeroy matter,” so that the trial court was alerted to the Michael, Henry, and Mendez basis for cross-examination. Neither by his questions to Kyzer nor by an offer of proof did defense counsel establish facts that would have justified the proposed cross-examination. The absence of an adequate proffer precludes our review of the alleged error. See § 90.104(1)(b), Fla. Stat. (2004); A McD. v. State, 422 So.2d 336, 337-38 (Fla. 3d DCA 1982).

Even assuming that the trial judge erroneously restricted cross-examination, we find such error in this case to be harmless.

When rejecting the police officers’ version of the facts and viewing Mrs. Row-ley’s testimony in the most favorable light, the facts do not support the defense of necessity. Mrs. Rowley testified that: (1) after stopping her car for having a broken taillight, the officer took a long time to write her a warning; (2) during the process of writing the warning, the officer returned to the car and asked her the color of her eyes; (3) when she got out of her car, two officers, “yelling as loudly as they could” and “bellowing in [her] face,” told her to get back in the car; (4) a police dog was barking inside the patrol car, which had its emergency lights flashing; (5) one officer told Mrs. Rowley, “[w]e have had just about enough of you;” (6) it was night; (7) once she informed the officers that she was “terribly afraid and I want to go home, I’m going home,” the officers “were walking towards the van and they were screaming no, you’re not, no, you’re not, over and over. And I said but I am, I am leaving. And they said no, you’re not. And I, then I, then I said, well of course I am going home.” Stating that she was, “very aware of driving very carefully,” Mrs. Rowley then started her car and left the scene of the stop, leading several police cars, with sirens and lights flashing, “on a low speed chase.”

There was no dispute at trial that Mrs. Rowley violated section 316.1935(2); she willfully fled or attempted to elude a law enforcement officer who was “in a jurisdic-tionally marked vehicle with sirens and lights activated.” Anderson v. State, 780 So.2d 1012, 1014 (Fla. 4th DCA 2001). The only defense to the charge was necessity, also called duress, compulsion, or coercion. See Mickel v. State, 929 So.2d 1192, 1196 n. 2 (Fla. 4th DCA 2006). The trial court charged the jury on this defense. Mrs. Rowley’s version of the facts do not rise to the level required to make out the defense. See Driggers v. State, 917 So.2d 329, 331 (Fla. 5th DCA 2005); Fla. Std. Jury Instr. (Crim.) 3.6(k).

Affirmed.

GUNTHER, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Late one summer night, a 71 year-old woman was stopped by an officer with the canine unit of the Sebastian Police Department as a matter of courtesy to advise her that the license tag light was out. That “courtesy” ended nearly an hour later with the woman being pulled from her auto, arrested, handcuffed and charged with the serious felony of fleeing and eluding an officer.

Just how did this seemingly improbable episode evolve? Is the officer’s version of events reliable to prove guilt beyond a reasonable doubt? How might his direct testimony hold up under a full cross examination as to possible biases, prejudices, or ulterior motives? Well, the world will never know because when the cross examination of the officer at trial finally reached the subject of a reason to color, exaggerate or even misrepresent events, it was cut off before it could begin. The exclusion of this standard line of cross examination is the reason for this appeal.

Although the officer first said he deemed it a courtesy stop, he testified that he decided to issue the lady a written warning. But when she began to leave her vehicle to inspect her tag light, the officer physically restrained her from doing so, explaining that he “laid hands on her” to carry out police policy of keeping people in their vehicles “for their own safety and protection.” Tellingly, he did not suggest what she needed such protection from. Meanwhile the officer’s dog, Gunner, incessantly barked at defendant from his vantage in the police vehicle immediately behind.

After 15-25 minutes of being detained inside her auto while he prepared a written warning, the lady declined the officer’s invitation to sign it. That refusal led the officer again to change his mind, this time to convert the written warning into a formal citation of a civil traffic infraction. Defendant then drove off, allegedly in spite of the officer’s claimed warning not to leave. She was followed by the canine officer and (now) a backup police unit, during which she did not speed or violate any traffic laws. After 5-10 minutes, the convoy of officers ultimately pulled next to her in a parking lot, took her from her vehicle, arrested and handcuffed her, and “assisted her in sitting on the ground.” Formal felony charges were later filed. Trial came in due course.

At trial, defense counsel sought to show that the canine officer had unreasonably detained her at night by the side of the road for an excessive period of time; that the continued barking by his police dog had frightened her; that the officer was “belligerent”; that he “manhandled” her; and that he had manufactured her arrest on felony charges to protect himself and the Sebastian Police Department from civil liability resulting from his handling of the incident. The excluded line of cross examination concerned something called the Pomeroy matter, a prior incident involving the same officer. The Pomeroy incident is said to have resulted in the death of the detainee from excessive force and a consequent civil suit for damages against the officer and the City. In sustaining the State’s objection to any questions on the subject, the Judge explained:

“That certainly has no relevance to this case.... And that would end up being a trial within the trial. That testimony about this Mr. Pomeroy issue is not relevant. The prejudicial value substantially outweighs any probative value, if any. Frankly, there isn’t any....”

From her conviction, we now have the case.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Court dealt with the constitutional right of the defendant in a criminal trial to cross examine the state’s key witnesses against him. The Court explained:

“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ ... ‘Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.’ Professor Wig-more stated:
‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to 'preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” [e.s., e.o.]

415 U.S. at 315-17, 94 S.Ct. 1105. In spite of these controlling principles, the trial judge deemed defense counsel’s attempt to explore the Pomeroy matter to reveal “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” not important enough to allow.

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Court repeated the Davis holdings. Critical to the present appeal, the Court added that the trial judge does not have discretion to prohibit all questioning on a relevant line of inquiry. 475 U.S. at 679-80, 106 S.Ct. 1431. The Court made clear that a total prohibition of a subject conceivably affecting the motives of the witness to testify in a particular way results in a violation of the Confrontation Clause of the Sixth Amendment. Id.; see also Olden v. Kentucky, 488 U.S. 227, 231-32, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (same); Gibson v. State, 661 So.2d 288, 291 (Fla.1995) (“Inherent within this right is a defendant’s right to expose a witness’s motivation in testifying because it is ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’ ”); Coco v. State, 62 So.2d 892, 895 (Fla.1953) (“The constitutional right of cross-examination is not a mere privilege to be granted or withheld at the discretion of the court, but a substantive right possessed by the accused”). The Court held that the discretion reposed in the trial judge is to protect against harassment, prejudice, confusion, and repetitive or marginally relevant questions, or to insure the safety of a witness, by imposing “reasonable limits” on such cross examination. Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431.

In sum, the only authority reposed in the trial judge here is for a very narrow purpose. In the plain words of Davis, it is solely for the purpose of “preclud[ing] repetitive and unduly harassing interrogation.” 415 U.S. at 316, 94 S.Ct. 1105. It is not discretion to bar defense counsel entirely from dipping a toe in the water on a specific subject that could possibly discredit the testimony of the witness. See, id. Discretion is instead to determine only if it is time for counsel to leave the water. In spite of the clear holding in Davis and Van Arsdall, here the trial judge barred the entire line of questioning about the Pomer-oy matter on the grounds that it would not be relevant and that some unexplained “prejudice” would exceed any probative value.

Neither ground passes even superficial scrutiny. As for a lack of relevance to sustain the exclusion, the constitutional rule is that this kind of cross examination is classically relevant. Davis, 415 U.S. at 316, 94 S.Ct. 1105 (“partiality of a witness is ... ‘always relevant [e.s.] as discrediting the witness and affecting the weight of his testimony.’ ”); see also Johnston v. State, 863 So.2d 271, 278 (Fla.2003) (“The trial court’s discretion is limited by the rules of evidence.”). As for prejudice being greater than proof, the notion comes from a Florida Statute of doubtful bearing, namely section 90.403. In Pardo v. State, 596 So.2d 665 (Fla.1992), the court explained that the concerns reposed in section 90.403 are those underlying the common law rule barring proof of prior consistent statements. Under what theory would the “probative” weight of constitutionally required cross examination lie within the section 90.403 powers of the trial judge to exclude unfairly prejudicial testimony that would be contrary to the state’s case?

I find it very difficult to comprehend the reliance on the concept of prejudice being weightier than cross examination being a proper basis to bar the subject of the Pomeroy matter entirely. The section 90.403 terminology refers to unfair prejudice. The essential purpose of cross examination is to expose something discrediting the reliability of a witness’s testimony. Because of this purpose, discrediting is not what unfair prejudice means. Yet apparently the trial judge’s reliance on prejudice was precisely that. In the only applicable sense of the word, the State cannot really be deemed prejudiced by cross examination turning up doubts about the accuracy or truth of a witness’s testimony.

It bears repeating that the State of Florida’s only interest in any criminal prosecution is that justice be done. Justice Jackson once observed that the state can have no valid concern in interposing an obstacle to cross examination to find the truth “unless it is interested in convicting accused parties on the testimony of untrustworthy persons.” Gordon v. United States, 344 U.S. 414, 419, 73 S.Ct. 369, 97 L.Ed. 447 (1953) (quoting from People v. Davis, 52 Mich. 569, 18 N.W. 362, 363-64 (1884)). The Michigan court had gone on to elaborate:

“But surely the state has no such interest [in convictions based on testimony of unworthy persons]; its interest is that accused parties shall be acquitted, unless upon all the facts they are seen to be guilty; and if there shall be in the possession of any of its officers information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it.”

Id. The truth is the State is never unfairly prejudiced by the full truth — not even when it results in an acquittal.

The crucial thing about cross examination is that its effects are for the jury, not judges. It is the jury who must ultimately weigh and apply any truth-giving value — its real effect, prejudicial or otherwise. As Davis and Van Arsdall expounded, trial judges do not have the authority under the Confrontation Clause of the Sixth Amendment to preclude cross examination on the grounds that it is really too discrediting — or, as here, not discrediting enough. If this kind of cross examination is always relevant and admissible to carry out the essential right of the accused to confront witnesses, on what theory could its adverse effect on the State’s case ever outweigh its discrediting value? No state statute, certainly not section 90.403, can overpower the Confrontation Clause. Frankly I doubt that section 90.403 has any application to this kind of cross examination except to determine whether it has become cumulative or harassing. In my opinion, the stated rationale for exclusion is legally incoherent.

The State depends on Slocum v. State, 757 So.2d 1246 (Fla. 4th DCA 2000), to rescue its position. Slocum did indeed read section 90.608 to exclude cross examination of a police officer about his interrogation technique of defendant, as compared with the technique he had used on a suspect in another case initially convicted but later determined to be innocent. As with this case, Slocum is a no-toe-in-the-water decision, rather than a time-to-get-out-of-the-water ruling and is therefore directly in conflict with Davis and Van Ars-dall, both of which make that distinction. Slocum is also contrary to Gibson which interpreted section 90.608 to liberally permit cross examination of possible motives for lying. Compare Slocum, 757 So.2d at 1250, with Gibson, 661 So.2d at 291.

Slocum is unworthy for yet another reason. It resorts to the shibboleth that such an inquiry inescapably would have “needlessly lengthened” the trial, “obscure[d] the discovery of truth,” and “sunk this trial into litigation over the myriad details of a completely unrelated homicide.” 757 So.2d at 1251. Similarly in this case, the trial judge referred to cross examination on the Pomeroy matter as unavoidably becoming “a trial within a trial.” Precisely how or why — or even whether — that possibility would necessarily occur is not explained in Slocum or here. Actually the short answer to this familiar attempt at last-ditch justification was given by Justice Holmes, and it is this: not while a court sits! Such undesirable consequences will occur only if judges allow them. Would the trial judge have departed the courtroom during the cross examination? Would the judge refuse to make proper determinations as to the length and breadth of such cross examination? Are trial judges so incapable of recognizing reasonable limits and apprehending when it has become time to stop repetitive or harassing questioning?

Slocum lies outside constitutional requirements for confrontation by cross examination as to possible biases or motives of adverse state witnesses in a criminal trial. Its rationale directly conflicts with decisions of this court in Mitchell v. State, 862 So.2d 908 (Fla. 4th DCA 2003); Shaw v. State, 831 So.2d 772 (Fla. 4th DCA 2002); Barows v. State, 805 So.2d 120, 122 (Fla. 4th DCA 2002); Purcell v. State, 735 So.2d 579, 581 (Fla. 4th DCA 1999). Green v. State, 691 So.2d 49 (Fla. 4th DCA 1997); Caton v. State, 597 So.2d 412 (Fla. 4th DCA 1992); Auchmuty v. State, 594 So.2d 859 (Fla. 4th DCA 1992); Jones v. State, 577 So.2d 606 (Fla. 4th DCA 1991). It conflicts with decisions in Gibson v. State, 661 So.2d 288 (Fla.1995), and Chadwick v. State, 680 So.2d 567, 568 (Fla. 1st DCA 1996). It conflicts with Davis v. Alaska and Delaware v. Van Arsdall. I propose that we, ourselves, recede from this self-inflicted wound and conform our own precedents to constitutional requirements, saving the Supremes the exertion.

As I have suggested, the circumstances of this case raise many questions, the answers to which could lead to doubts about the justice of a conviction. Why is an officer on canine duty stopping anyone late at night for a faulty license tag light? If it were merely a non-criminal traffic courtesy stop, why can’t she get out of her car to check her light? In this non-criminal setting, under what authority is she being confined to her car? If just a courtesy stop, why issue a formal written warning? Why did it take so long to issue the warning? Why is she being required to sign a warning to go on her way? If the situation indicated just a warning, what is the reason for issuing a citation? Why should a non-criminal traffic stop result in physically laying hands on her? Why are multiple police units involved with a senior citizen driver with a malfunctioning tag light? Under the circumstances was it really unreasonable that defendant felt impelled to leave? If the jury knew of the canine officer’s history of excessive force and his knack of failing to exercise common sense, would they have convicted defendant of a felony under the facts of this case?

The constitutional way to illuminate these issues was to allow the kind of cross examination required by the Confrontation Clause to work its justice-liberating effects. I would reverse so that can take place.

      . There was no dispute that Mrs. Rowley suffered no physical injury at the initial traffic stop.

      . The officer answered “Yes” to the question "You weren't involved in the Pomeroy matter?,” which suggests that he was not involved.

      . Which the parties homophonically refer to as "K-9” duty.

      . § 90.403, Fla. Stat. (2005) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”).

      . In this case we can rule out the idea of cumulative evidence because the judge ruled the entire line of questioning out.

      . § 90.403, Fla. Stat. (2005) (if its probative value is substantially outweighed by the danger of unfair [e.s.] prejudice).

      . As a basis for upholding the trial judge, the probative efficacy of the proffer is meaningless. This proffer's only purpose was to show there was an incident involving this same officer involving accusations of excessive force and a suit against him and the city. Its role was to briefly illuminate the proposed subject to show that it would be traditional cross examination. The proffer was not to show Judges that, if allowed, the cross examination would probably succeed in discrediting the witness.
      While it is apparent that the brief sketch of testimony elicited by the proffer failed to move either the trial judge or two appellate judges, it is really not for them to weigh or gauge. In deciding whether to exclude evidence, judges are not authorized to decide that a proposed cross examination would end up failing to discredit. Yet essentially that is the rationalization of the affirmance. Frankly, given the improbable facts of this case, I doubt anyone can authoritatively say beyond a reasonable doubt that this testimony would have had no effect on the finder of fact and that its exclusion was harmless. Goodwin v. State, 751 So.2d 537, 540 (Fla.1999) ("The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or ... that there is no reasonable possibility that the error contributed to the conviction.”).

      . In Coolen v. State, 696 So.2d 738 (Fla.1997), the court posited in dicta that evidence of bias is subject to being excluded when unfair prejudice to a witness exceeds probative value. But in context the court merely upheld a reasonable limitation into the discrediting subject, not — as here—a total ban on it. 696 So.2d at 743 ("Through cross-examination, the jury learned that Kellar had been criminally charged in another incident that occurred after her husband's death, that she was currently in a pretrial intervention program, and that the charges against her would be dismissed if she successfully completed that program. Thus, Kellar's bias was established and the court did not err by limiting cross-examination into the details of the charge against her.”).

      . Slocum also relies on the very same rationale of prejudice overwhelming the probative nature — a rationale that I have just shown to be legally untenable.

      . Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct 451, 72 L.Ed. 857 (1928) (Holmes, J., dissenting from the Court's decision to strike down state taxes on sales to the United States government on the basis that the power of the States to tax the federal government would inevitably lead to its destruction). The decision was later overruled in Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941).


source: Caselaw Access Project

author: STEVENSON, C.J.

license: Public Domain

text:
    Manuel CASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2011.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Manuel Alvarez of Gonzalez & Alvarez, P.A., Miami Lakes, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Manuel Castro was tried by a jury and convicted of solicitation to commit first degree murder and conspiracy to commit first degree murder. Castro appeals these convictions, arguing (1) that a new trial is required as a consequence of the trial court’s' failure to instruct the jury on the crimes of solicitation to commit second degree murder and conspiracy to commit second degree murder — offenses which he claims are necessarily lesser included offenses of the charged offenses — and (2) that his convictions for both crimes violate double jeopardy principles. We find merit in neither contention and affirm.

The Evidence at Trial

The State’s theory of the case was that Castro was bitter following his divorce and decided to have his ex-wife, Luz Flores, killed to exact revenge for the property she had taken from him in the divorce. The State presented evidence that to accomplish Flores’s death, Castro reached out to his employee, Wilson Lopez. Lopez then reached out to Tobias Brown, a friend since childhood. Brown reached out to Seth Bain, a man he knew from work, who, unbeknownst to him, was working as an informant for the FBI. Bain reported the matter to the FBI. Agents put a recording device on Bain and recorded conversations Bain had with Brown and Lopez and had an undercover ATF agent act as the hit-man. The “hit-man” agreed to do the job for $10,000. Lopez told Castro the cost was $20,000, as he, Brown, and Bain were going to split the remaining $10,000. FBI agents contacted Flores and she agreed to allow a make-up artist to apply products to make it look as though she had been shot in the head. These photographs were provided to Brown and Lopez as proof that the job had been completed. Lopez testified that he gave Castro the picture and that Castro responded in the affirmative when he remarked “that’s what you wanted.”

Castro was not a participant in any of the recorded conversations and the evidence introduced by the State established that of all the people involved in the murder for hire scheme, Castro had spoken only to Lopez. Castro’s defense was that he had not solicited Lopez to have his ex-wife killed. Rather, Lopez had done this on his own accord in an attempt to impress Castro and in the hopes of furthering his plans to somehow purchase Castro’s deli meat delivery business.

The Jury Instruction Issue

During the charge conference, Castro’s counsel asked that the judge instruct the jury on the lesser crimes of solicitation to commit second degree murder and conspiracy to commit second degree murder. The trial court refused, finding the evidence did not support the giving of the instructions. Castro insists that solicitation to commit second degree murder and conspiracy to commit second degree murder are necessarily lesser included offenses of the charged crimes of solicitation and conspiracy to commit first degree murder and, thus, that the trial court’s failure to give the requested instructions was reversible error.

It is true that, where requested, the trial court must instruct the jury on category one, necessarily lesser included offenses and the failure to do so constitutes reversible error per se. See, e.g., Bryant v. State, 932 So.2d 408 (Fla. 2d DCA 2006); Nelson v. State, 665 So.2d 382 (Fla. 4th DCA 1996). We reject, however, Castro’s claim that solicitation to commit second degree murder is a necessarily lesser included offense of solicitation to commit first degree murder and that conspiracy to commit second degree murder is a necessarily lesser included offense of conspiracy to commit first degree murder. Not only does the schedule of lesser included offenses, which is “designed to be a complete, authoritative compilation that is presumed to be correct,” see Moore v. State, 932 So.2d 524, 527 (Fla. 4th DCA 2006), fail to list any lesser included offenses for the crimes of solicitation and conspiracy, but proving the crimes of solicitation and conspiracy to commit first degree murder will not necessarily prove the solicitation and conspiracy to commit second degree murder. See Higgins v. State, 565 So.2d 698, 699 (Fla.1990) (“The term ‘necessarily lesser included offense’ is self-defining. If the greater offense is proved the lesser offense is also necessarily proved.”). This is so because the object of the solicitation or conspiracy is an element of the crime and if the object changes, then there is a separate crime — not a subset of a greater crime. See Jones v. State, 908 So.2d 615, 619 (Fla. 4th DCA 2005) (on clarification) (setting forth elements of crime of solicitation); Spera v. State, 656 So.2d 550, 551 (Fla. 2d DCA 1995) (setting forth elements of crime of conspiracy); Fla. Std. Jury Instr. (Crim.) 5.2 & 5.3 (framing jury instruction in fashion that requires judge to fill in the blank with the crime that is the object of the solicitation or conspiracy).

Having concluded that solicitation to commit second degree murder is not a necessarily lesser included offense of solicitation to commit first degree murder and that conspiracy to commit second degree murder is not a necessarily lesser included offense of conspiracy to commit first degree murder, Castro was entitled to the requested jury instructions only if the evidence before the court supported the giving of the same. We find that it did not.

This court has twice addressed this issue under facts similar to those here. In Miller v. State, 430 So.2d 611 (Fla. 4th DCA 1983), the defendant responded to a magazine ad, complaining he had been required to give his ex-wife forty percent of his retirement and indicating he was looking for a solution to his problems. The person who placed the ad was working with police and, ultimately, recorded conversations that led to the defendant’s being charged with and convicted of solicitation to commit first degree murder. After the conviction was affirmed on appeal, the defendant filed a writ of habeas corpus, alleging ineffective assistance of appellate counsel. Among the defendant’s myriad claims was a contention that appellate counsel had been ineffective for failing to challenge on appeal the trial court’s refusal to instruct the jury on the offenses of solicitation to commit second degree murder and solicitation to commit third degree murder or manslaughter. This court rejected the claim, writing “[w]e cannot envision a situation in which a jury could find a contract killing as anything other than premeditated. Therefore, petitioner could not have solicited manslaughter or any degree of murder less than first degree.” Id. at 615.

In Jones v. State, 908 So.2d 615 (Fla. 4th DCA 2005), the defendant was charged with solicitation to commit first degree murder. The evidence established Jones solicited a man he knew as “Frankie,” who was really an undercover police officer, to kill his wife’s boyfriend. There was some evidence that Jones solicited and intended the boyfriend’s death and other evidence that he only wanted the boyfriend very badly beaten. Over defense counsel’s objection that the instruction would be confusing, the trial court instructed the jury on the crime of solicitation to commit second degree murder. The jury found Jones guilty of solicitation to commit second degree murder and Jones appealed, arguing that the crime of solicitation to commit second degree murder did not exist in Florida. This court reversed Jones’s conviction, writing

We are aware of Miller v. State, 430 So.2d 611 (Fla. 4th DCA 1983), ... in which we held “[w]e cannot envision a situation in which a jury could find a contract killing as anything other than premeditated.” Although we stated that we “cannot envision” a contract killing that was not first degree murder, we did not go so far as to hold that solicitation to commit second degree murder does not exist. However, we do not need to hypothesize here as to potential factual scenarios in which the crime of solicitation to commit second degree murder might exist because we hold that, under the facts in this case, the only available options for the jury were solicitation to commit first degree murder or solicitation to commit aggravated battery.

908 So.2d at 620. In both Miller and Jones, we held that there could be no conviction for, and thus no jury instruction on, solicitation to commit second degree murder where the evidence established a contract killing. Such are the facts of this case. We thus find no error in the trial court’s refusal to give the requested instructions. As we have resolved the jury instruction issue by concluding that the evidence did not support the giving of the requested instructions, we do not reach the State’s argument that the crimes of solicitation to commit second degree murder and conspiracy to commit second degree murder do not exist in Florida.

The Double Jeopardy Issue

Next, Castro asserts that dual convictions for solicitation to commit first degree murder and conspiracy to commit first degree murder violate double jeopardy. “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). A determination of this legislative intent involves a two-part inquiry: first, the court must engage in the Blockburger same elements test, i.e., “whether each offense has an element that the other does not,” (codified at section 775.021(4)(a)) and, second, even if each of the offenses has an element that the other does not, the court must determine if one of the exceptions set forth in section 775.021(4)(b) applies and nonetheless precludes separate convictions and sentences. Id. at 19-20.

The first part of the inquiry is satisfied as each crime requires proof of an element that the other does not. Solicitation requires proof that the defendant hired or encouraged another to commit a specific crime, while conspiracy does not, and conspiracy requires proof of an agreement between the defendant and another, while solicitation does not. See § 777.04(2)-(3), Fla. Stat. (defining crimes of solicitation and conspiracy); Jones, 908 So.2d at 619 (setting forth elements of solicitation); Spera, 656 So.2d at 551 (setting forth elements of conspiracy); State v. Johnson, 561 So.2d 1321, 1323 (Fla. 4th DCA 1990) (recognizing solicitation does not require an agreement with another and the offense is complete upon the asking).

In considering the second prong of the inquiry, Castro argues that separate convictions for solicitation to commit first degree murder and conspiracy to commit first degree murder are precluded because this case fits within the statutory exception for “[o]ffenses which are degrees of the same offense as provided by statute.” § 775.021(4)(b)2., Fla. Stat. In determining whether the second exception in section 775.021(4)(b) applies, it is appropriate to look to whether the two offenses arising from the single criminal episode are simply varying degrees of the same core offense, i.e., are the two crimes directed at the same evil. See State v. Florida, 894 So.2d 941, 949 (Fla.2005); Gordon, 780 So.2d at 23; Gorday v. State, 907 So.2d 640, 644 (Fla. 3d DCA 2005). We find persuasive the view expressed by a Michigan appeals court: “the purpose of the conspiracy statute is to protect society from the increased danger presented by group activity as opposed to individual activity” and “the purpose of the solicitation statute is to prescribe [sic — proscribe] the inducement of another to commit an offense.” People v. Jones, No. 250326, 2005 WL 657578, at *5 (Mich.Ct.App. Mar.22, 2005); see also People v. Herman, 97 Cal.App.4th 1369, 1384-85, 119 Cal.Rptr.2d 199 (2002) (stating “threatened communication of criminal inclinations so as to infect others and enlarge the criminal enterprise is the core evil at which criminal solicitation laws are aimed”); People v. Roberts, 83 Ill.App.3d 311, 319, 38 Ill.Dec. 854, 404 N.E.2d 278 (1980) (stating “the evil of conspiracy to be punished centers around the group activity and combination inherent in such conduct”). We thus reject Castro’s claims that solicitation to commit first degree murder and conspiracy to commit first degree murder are simply degree variants of the same core offense and that a conviction for each crime violates double jeopardy.

Affirmed.

STONE and POLEN, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: SHAHOOD, J.

text:
    Dwayne SHEPARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2636.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal from a disposition order revoking probation. Appellant Dwayne Shepard (“Shepard”) raises two issues in this appeal. First, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because the State failed to prove his ability to pay those costs. Second, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because he had until the end of his probationary period to pay. We reverse and remand based upon the State’s failure to prove that Shepard had the ability to pay the required costs. We affirm as to the second issue, finding the trial court’s order that Shepard pay monthly installments sufficient to sustain the trial court’s finding of guilt as to that allegation.

Shepard was originally charged in 2002 with one count of lewd or lascivious battery and one count of contributing to the delinquency of a minor. In 2003, Shepard entered a plea of no contest. He was sentenced to four years of sex offender probation for the lewd or lascivious battery count and time served on the contributing to the delinquency of a minor count.

In December 2004, Shepard was charged with violating his probation. The amended affidavit alleged eight separate probation violations. Allegations II and III concerned Shepard’s alleged failure to report to probation on December 3, 2004. Allegation IV concerned Shepard’s alleged failure to pay costs of supervision in the amount of $113.06. Allegation V concerned Shepard’s alleged failure to pay court costs in the amount of $125.55.

Shepard’s probation officer, Tony Porter, testified at the final violation of probation hearing. Porter had instructed Shepard “word-for-word” on each of the conditions of Shepard’s probation. Shepard was required to report to probation on the third day of each month, and Porter testified that Shepard failed to report on December 3, 2004. The last contact that Porter had with Shepard was a telephone conversation on November 29, 2004.

Porter further testified that as a condition of probation, Shepard was required to pay $60.30 per month in court costs and costs of supervision. On November 3, 2004, Shepard made a payment of $70.00. Porter believed that Shepard previously made other payments, because otherwise his arrearage at the time of the hearing would have been significantly higher. Porter did not have a record of the other payments at the time of the hearing.

Shepard told Porter “in spurts” that he was having trouble finding employment. Shepard could have worked for a landscaping business owned by his father, but instead he eventually found employment somewhere else. Shepard also told Porter that he was having trouble paying costs. After the State rested, the defense called Porter who testified that Shepard was in custody from June 8, 2004 to October 22, 2004.

The trial court found Shepard guilty of allegations II and III, for failing to report to probation on December 3, 2004. As to allegations TV and V, regarding Shepard’s payment obligations, Shepard’s counsel argued that the State failed to prove that he had the ability to pay these costs. Defense counsel also argued that since Shepard was in custody from June to October 2004, his violation was not substantial or willful. The trial court cited section 948.06(5), Florida Statutes, for the rule that in any hearing in which there is an allegation of failure to pay the costs of supervision, it is incumbent upon the probationer to prove by clear and convincing evidence he does not have the resources. The trial court found that Shepard had failed to meet this standard and found him guilty on allegations IV and V.

Shepard raises two points on appeal. Initially, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because the State failed to prove his ability to pay. We agree.

Shepard argues that the trial court erroneously required him to prove his inability to pay court costs and costs of supervision by clear and convincing evidence. He further argues that the burden was on the State to prove that the violation of probation was willful by proving his ability to pay, and the State did not meet this burden. The State claims that Shepard had the burden to prove his inability to pay costs.

It is well-settled that probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation. See Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation. See Blackshear v. State, 771 So.2d 1199, 1200 (Fla. 4th DCA 2000).

This case demonstrates the tension between the State’s burden to show that the probationer willfully, substantially, and deliberately violated a condition of his probation, and the requirement of section 948.06(5), Florida Statutes, that a probationer asserting inability to pay must prove such inability by clear and convincing evidence. This section, upon which the trial court relied, provides in pertinent part:

In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision ... is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.

§ 948.06(5), Fla. Stat. (2003).

Shepard argues that despite the plain language of the statute, the State’s overriding burden to prove that the probation violation was willful and deliberate requires that the State show that the probationer had the ability to pay the costs. In Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994), the Florida Supreme Court considered whether a probationer could legally have his probation revoked for failure to pay court-ordered restitution. The court examined the United States Supreme Court’s holding in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the Court stated that it would be contrary to the fundamental fairness required by the Fourteenth Amendment to deprive a probationer of his conditional freedom for failure to pay fines or restitution in probation proceedings, if the probationer could not pay despite bona fide efforts to acquire the resources to do so. 461 U.S. at 672-73, 103 S.Ct. 2064. Following the reasoning of Bearden, the Florida Supreme Court in Stephens held that “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” Stephens, 630 So.2d at 1091.

Shepard also relies on Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005). In Blackwelder, appellant Blackwelder argued that the trial court erred in finding that he had violated his probation by failing to pay the costs of supervision. 902 So.2d at 906. At the hearing, the trial court heard evidence that Blackwelder was delinquent $658.20 at the time of the hearing, and that Blackwelder was employed until one month prior to the hearing. Id. at 907. Citing Stephens, the Second District held that the State is required to present evidence of the probationer’s ability to pay to demonstrate the willfulness of the probation violation. Id.

Despite the language of the statute, where the violation alleged is a failure to pay costs or restitution, there must be evidence and a finding that the probationer had the ability to pay. See Warren v. State, 924 So.2d 979, 980-81 (Fla. 2d DCA 2006). In this case, the trial court failed to make a finding that Shepard had the ability to pay. Additionally, based on the record before us, we hold there was no evidence to support such a finding. We therefore reverse as to this issue.

Shepard also urges that the trial court erred in finding him guilty of violating probation for failing to pay court costs because he had until the end of his probationary period to do so. The State contends that this argument is without merit and argues that where the probation order does not specify the time and manner in which to pay court costs, Florida law requires they be paid immediately, not by the end of the probationary term. We affirm as to this issue.

Regarding payment of costs on conviction, section 938.27(2)(a), Florida Statutes, provides that the trial court “shall require the defendant to pay the costs within a specified period or in specified installments.” § 938.27(2)(a), Fla. Stat. (2003). However, section 938.27(2)(c), Florida Statutes, provides that if the court does not specify, “costs shall be paid immediately.” § 938.27(2)(c), Fla. Stat. (2003).

The State relies upon the plain language of section 938.27(2)(c) in support of its position that costs must be paid immediately if the probation order mandating payment of costs does not specify a time. Shepard argues to the contrary, that if the probation order does not specify the time or schedule for payment, the probationer has until the end of the probation period to pay. See Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005)(reversing revocation of defendant’s probation for failure to pay court costs where no schedule or time period for payment was provided); see also Tracy v. State, 673 So.2d 544, 544-5 (Fla. 4th DCA 1996)(reversing revocation of appellant’s community control for failure to pay costs and fees where order placing him on community control failed to specify time limit or schedule for payment).

Although we note the cases cited by Shepard, this case differs from Shipman and Tracy because although Shepard’s probation order did not include a time limit by which Shepard was required to have paid, it did include a schedule in that the order required payment to be made in monthly installments. See Francois v. State, 923 So.2d 1219, 1222 (Fla. 3d DCA 2006). We find this sufficient in the present case and affirm Shepard’s revocation as to this issue.

The trial court found Shepard guilty of allegations II and III for his failure to report to probation. These allegations are not at issue on this appeal and may be sufficient to support the revocation of Shepard’s probation and his sentence. However, in the absence of any indication in the record that the trial court would have revoked Shepard’s probation and imposed the same sentence based upon a finding of guilt on allegations II and III alone, we must remand to the trial court for redetermination and, if the trial court again determines to revoke Shepard’s probation, for resentencing. See Powell v. State, 920 So.2d 720, 721 (Fla. 1st DCA 2006); Fox v. State, 876 So.2d 717, 717 (Fla. 4th DCA 2004).

Reversed and Remanded.

STONE and HAZOURI, JJ., concur.

      . The State dismissed allegations I, VI, VII, and VIII at the hearing, leaving the trial court to consider allegations II, III, IV, and V only.

      . The trial judge stated at the hearing that the violation was failing to report on December 5th, but Porter’s testimony was that Shepard was to report on the third day of each month, and failed to do so on December 3rd.


text:
    CITY OF HOLLYWOOD, Appellant, v. Richard H. WITT, Appellee.
    No. 4D05-3041.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Daniel L. Abbott, City Attorney, and Robert M. Oldershaw, Chief Litigation Counsel, Hollywood, for appellant.
    Pamela S. Terranova of the Law Offices of Pamela S. Terranova, Fort Lauderdale, for appellee.
   STEVENSON, C.J.

Following his termination as Chief of Police, Richard H. Witt filed suit against the City of Hollywood (the “City”). This appeal arises from the second trial in this case and, as in the first trial, the jury found in favor of Witt. The City has again appealed the verdict in favor of Witt and Witt has cross-appealed his prevailing party attorney’s fees award. The issues raised center largely around the law of the case doctrine. We find merit in the City’s claim that the trial court erred in relying upon the law of the case to remove issues from the jury’s consideration in the second trial. Accordingly, we reverse the judgment in favor of Witt and, consequently, Witt’s prevailing party attorney’s fees award, remanding the matter for a new trial.

The Appeal

This case was first tried in March of 2000. At that time, Witt had proceeded to trial on two counts. Count I alleged wrongful termination in violation of an employment contract and count II a violation of Florida’s “Whistle-blower’s Act.” The Whistle-blower’s Act bars a government employer from dismissing, disciplining, or taking an “adverse personnel action” against an employee who disclosed violations or suspected violations of laws or regulations or acts or suspected acts of “gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty.” See § 112.3187(4)-(5), Fla. Stat. (2005). The protections of the statute are afforded those employees “who disclose information on their own initiative in a written and signed complaint.” See § 112.3187(7), Fla. Stat. The City argued Witt was not entitled to the protections of the statute because Witt failed to satisfy subsection (7) of the statute, which it labeled the “notice” requirement. The trial ended in a verdict in favor of Witt. With regard to the whistle-blower claim, the verdict form simply asked whether the City violated the statute when it terminated Witt. The City appealed.

On appeal, the City raised four issues: (1) whether the trial court erred in failing to direct a verdict in favor of the City with respect to the breach of contract claim; (2) whether the trial court erred in refusing to allow the City to present evidence concerning its reasons for terminating Witt; (3) whether the trial court erred in failing to direct a verdict in favor of the City on the whistle-blower claim as a consequence of Witt’s failure to comply with section 112.3187(7)’s “notice” requirement; and (4) whether the trial court erred in applying a multiplier in awarding fees to Witt. This court reversed the verdict in favor of Witt. The panel concluded the verdict on the breach of contract claim could not stand as there was no enforceable contract because the alleged agreement had not been executed in compliance with the city charter. See City of Hollywood v. Witt, 789 So.2d 1130, 1132 (Fla. 4th DCA 2001). The verdict on the whistle-blower claim could not stand because the existence of reasons for termination, apart from any alleged whistle-blowing, constitutes a defense that is expressly recognized by the whistle-blower act. The City was not allowed to present any such evidence with regard to Witt. The panel “reverse[d] for a new trial limited to the Whistle Blower claim in which the city will be able to put on evidence as to its reasons for terminating the chief.” Id. The “notice” issue was not addressed in the opinion.

In January 2005, the whistle-blower claim was retried. At the outset, Witt’s counsel contended this court’s prior opinion and the law of the case doctrine precluded the retrial of any issue except whether the City had cause for terminating Witt apart from his alleged whistle-blower activities; the trial court agreed. The jury was thus instructed that section 112.3187(7)’s “notice” requirement had already been resolved favorably to Witt. The City now complains of the trial court’s refusal to allow it to present evidence, argument, and jury instructions directed to whether Witt’s action satisfied the whistle-blower statute’s “notice” requirement. The City’s argument raises issues concerning the breadth of the law of the case doctrine and the scope of the issues to be tried following an appellate court’s reversal and remand for a new trial. These are questions of law and thus subject to de novo review. See Vinson v. Johnson, 931 So.2d 245, 247 (Fla. 1st DCA 2006).

The law of the case doctrine is a principle of judicial estoppel serving to preclude the re-litigation of matters within the confines of the same case. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001).

The doctrine ... requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case....
As to the scope of the law of the case doctrine, this Court in U.S. Concrete [Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983) ], explained that the doctrine is “limited to rulings on questions of law actually presented and considered on a former appeal.” (Emphasis supplied) .... Additionally, the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court’s decision.

Id. at 105-06 (citations omitted). The law of the case doctrine does not bar the consideration of issues neither raised by the parties nor implicitly and necessarily considered in the prior appeal. Id. at 107.

Applying these principles to the case at bar, we find that the prior appeal served to establish two things: (1) that grounds for termination apart from the whistle-blowing activities constitute a defense to a whistle-blower claim and thus the trial court erred in refusing to allow the City to present evidence of such grounds and (2) that the evidence presented with regard to Witt’s provision of the “notice” required under subsection (7) of the whistle-blower statute was sufficient to survive a motion for directed verdict, thus requiring jury resolution of the matter. The prior opinion did not address this latter issue; nonetheless, the issue was necessarily decided adversely to the City in the prior appeal. This is so because if the evidence were not sufficient to survive a motion for directed verdict, then the City would have been entitled to a judgment in its favor apart from the existence of any cause for Witt’s termination and this court would not have needed to remand for a new trial. Thus, if the same evidence regarding the “notice” claim were presented at a second trial, the law of the case doctrine would preclude the granting of a directed verdict in favor of the City.

The law of the case doctrine does not, however, serve to limit the scope of the new trial and to preclude the retrying of any aspect of the whistle-blower claim except that of whether the City had reason to terminate Witt apart from his alleged whistle-blower activities. When a judgment is reversed and the matter remanded for a new trial, “[w]hen not expressly so limited by an appellate court, the new trial is to be presumed as awarded on all issues.” Pavlis v. Atlas-Imperial Diesel Engine Co., 121 Fla. 185, 163 So. 515, 517 (1935); see also Kenan v. Black, 150 Fla. 208, 7 So.2d 462 (1942). Nothing in this court’s prior opinion limited the new trial on the whistle-blower claim to the sole issue of whether the City had reason for terminating Witt. The error in the trial court’s refusal to allow the City to litigate the “notice” issue compels reversal without regard to the City’s additional appellate claims. Because the case will be retried, however, we note that we find no abuse of discretion in the challenged evidentiary rulings.

The Cross-Appeal

Following the first trial, Witt was awarded prevailing party attorney’s fees. Despite this court’s reversal of the judgment that made Witt the prevailing party, following the second trial, Witt argued that, as a consequence of the law of the ease doctrine, the initial fee award remained undisturbed. This position is simply not consistent with Florida law, which provides that where an award of attorney’s fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award. See, e.g., Keybank Nat'l Ass’n v. Int’l Fin. Bank, 875 So.2d 672 (Fla. 3d DCA 2004); Marty v. Bainter, 727 So.2d 1124 (Fla. 1st DCA 1999); Nathanson v. Houss, 717 So.2d 114 (Fla. 4th DCA 1998). Further, just as our reversal of the underlying judgment in the initial appeal necessarily implied the reversal of the prevailing party attorney’s fee award, our reversal of the underlying judgment in this appeal requires reversal of the fee award. We thus do not reach any argument regarding the propriety of a contingency multiplier.

Reversed and Remanded.

STONE and POLEN, JJ., concur.


author: SHAHOOD, J. HAZOURI, J.,

text:
    Juan Carlos CORDOBA, Yolanda M. Cordoba, and Wotchild Gibbs, Appellants, v. Derick and Dianna RODRIGUEZ, Individually and as Husband and Wife, Appellees.
    No. 4D05-3250.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Patrick B. Flanagan of Flanagan, Ma-niotis & Berger, P.A., West Palm Beach, for appellants.
    Jane Kreusler-Walsh and Barbara J. Compiani of Jane Kreusler-Walsh, P.A., and Bettye J. King of Law Office of Bettye J. King, West Palm Beach, for appellees.
   SHAHOOD, J.

This is an appeal by Juan Carlos Cordoba, Yolanda M. Cordoba, and Wotchild Gibbs (appellants) from a final order granting appellees’ motion for a new trial. Appellants raise three issues on appeal. We affirm on all issues, writing only to address the first issue raised.

Appellees, Derick Rodriguez and Dianna Rodriguez, brought an action seeking damages for personal injuries sustained in an automobile accident. Appellants admitted liability and did not allege comparative negligence. The only issue at trial was damages.

The jury returned a verdict in favor of appellees in an amount to compensate them for past and future medical expenses, but found they had sustained no permanent injury and were, therefore, not entitled to an award of non-economic damages. Initially, appellants urge that the trial court erred in finding that the reference made to the “Palm Beach Post” during cross-examination by the orthopedic surgeon, Dr. Harry Lambe, who performed the independent medical examination (IME), constituted grounds for a new trial.

Dr. Lambe testified at trial that there was no evidence that either of the appel-lees sustained any permanent injury as a result of the accident. On cross-examination, appellees’ counsel questioned Dr. Lambe with respect to his determination that appellees had not sustained any permanent injury. The following transpired:

Q. Why did you disbelieve them?
A. In my experience, these kind of injuries usually heal. People with soft tissues strains to their neck and back heal. In Florida, 99 percent of motor vehicle accidents result in lawsuits where people are claiming personal injuries.
Q. Excuse me? 99 percent of automobile accidents result in lawsuits?
A. According to the Palm Beach Post. And in each of those lawsuits, a patient is claiming permanent injury. Now commonsense tells us that not every person who claims personal injury is injured. In fact, in other countries where we don’t have a tort — where they don’t have tort systems such as eastern Europe—
Q. We don’t live in eastern Europe, Dr. Lambe.
A. You’re right. But they have automobile accidents in eastern Europe.
Q. Dr. Lambe, we don’t care what happens in eastern Europe. We’re talking about what happened to the Rodriguez’s on December 11, 2003. And I want to go back to my—
A. Ms. King, you asked me for the basis of my opinion and I’m trying to give you the basis for that opinion.
Q. I am talking about — my original question to you was; do you have any reason to believe these people when they told you that they had an onset of pain following this accident and that pain has continued to varying degrees up until today? You don’t have any reason to disbelieve them other than perhaps something you read in the Palm Beach Post that has zero to do with these people? You’re going to lump them into that category just because?
A. You asked me the basis of my disbelief of them. And I was trying to explain that basis of my disbelief.

Generally, a motion for a new trial based on an error occurring during the trial will not be granted unless the moving pai’ty had previously made an objection during trial at the time of the alleged error. See Wasden v. Seaboard Coast Line R.R. Co., 474 So.2d 825 (Fla. 2d DCA 1985), disapproved on other grounds by Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). The standard of review of an order granting a new trial based on incidents occurring during trial is whether the trial court abused its discretion. See North v. Altech Yachts, Inc., 815 So.2d 643 (Fla. 4th DCA 2002). However, where a trial court grants a new trial on the ground of unpreserved error, the court is not operating within the area of its discretion, and the ruling will be upheld only if the error corrected was fundamental. See Murphy, 766 So.2d 1010.

Here, the alleged error is an expert witness’s reference to an outside source to backup his opinion. No objection was made. This is unpreserved error and must be reviewed under a fundamental error analysis to see whether the trial court abused its discretion.

“Fundamental error,” for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury. See Anderson v. Watson, 559 So.2d 654 (Fla. 2d DCA 1990). Whether an error is fundamental is reviewed on appeal as a question of law. See Goutis v. Express Transp., Inc., 699 So.2d 757, 759 (Fla. 4th DCA 1997), rev. dismissed, 705 So.2d 901 (Fla.1998), disapproved on other grounds, Murphy, 766 So.2d 1010.

Here, Dr. Lambe, an expert in orthopedic medicine, cited the Palm Beach Post to support his opinion as to the appel-lees’ injuries. Medical expert testimony concerning the causation of a medical condition will be considered pure opinion testimony and admissible when it is based solely on the expert’s training and experience. See Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005). However, expert testimony which “relies on some scientific principle or test ... implies infallibility not found in pure opinion testimony.” Flanagan v. State, 625 So.2d 827, 828 (Fla.1993). Although there was no explanation of how the Palm Beach Post gathered and used the statistics to determine that 99 percent of automobile accidents result in lawsuits, the mere mention of this provides credibility to the expert’s opinion not available to the opposing expert.

An expert bolstering his own opinion by inadmissible evidence deprives the parties of a fair trial. See Phillip Morris, Inc. v. Janoff, 901 So.2d 141, 144, 145 (Fla. 3d DCA 2004) (error to permit expert to be questioned on re-direct examination by “identifying specific authoritative publications and asking whether they lacked articles stating that exposure to ETS [environmental tobacco smoke] causes chronic sinusitis.” The examination “was solely to bolster the defense expert’s opinion by showing that his opinion must be correct because it was supported by the lack of articles stating otherwise.”). Furthermore, witnesses may not testify to matters that fall outside of their area of expertise. See Jordan v. State, 694 So.2d 708, 715 (Fla.1997). We hold the error in this case was fundamental.

Appellant also argues that ap-pellee “invited error” by the cross-examination of Dr. Lambe. We disagree. “[U]nder the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.” Goodwin v. State, 751 So.2d 537 (Fla.1999). The primary consideration in deciding whether a party has opened the door to comments on cross-examination is whether the witness’s answer is responsive to the question asked. See Cartwright v. State, 885 So.2d 1010, 1014 (Fla. 4th DCA 2004). If it is, then it is considered invited error. See Terry v. State, 668 So.2d 954, 962 (Fla.1996); Sneed v. State, 736 So.2d 1274, 1275 (Fla. 4th DCA 1999).

Here, Dr. Lambe was asked why he disbelieved the appellees concerning their injuries. This question sought a medical opinion, based on a medical diagnosis, not an interpretation of statistical data from the news media involving accidents and lawsuits in the United States and/or Eastern Europe. Dr. Lambe’s answer was not invited. The jury in this case was entitled to expect from Dr. Lambe, based on the question asked, a well-reasoned medical opinion based on reasonable medical probability. It did not receive such a response, but rather received an opinion based upon printed news media.

We hold the other issues argued by appellant are also without merit and affirm.

Affirmed.

STONE, J., concurs.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

I have some reservation as to whether Dr. Lambe’s testimony concerning the article in the Palm Beach Post rises to the level of fundamental error. Nonetheless, I join in the majority because Dr. Lambe is a professional witness who testifies regularly for defendants in personal injury litigation and is well aware that this testimony is highly improper. It is disingenuous to argue that this was invited error. It is extremely unlikely that as a board certified orthopedic physician, Dr. Lambe customarily relies on articles printed in a local newspaper as a basis for his medical diagnoses and opinions. Therefore, I concur that the trial court is in the best position to determine the prejudicial impact of this highly improper testimony.


text:
    Joseph FRICANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3807.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Phillip Menditto of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Joseph Fricano pled nolo contendere to charges of possession of cocaine and drug paraphernalia, reserving his right to appeal the trial court’s denial of his motion to suppress the evidence against him. On appeal, Fricano argues the motion to suppress should have been granted as the evidence was obtained during an investigatory stop that was not supported by the requisite “founded suspicion.” We find merit in Fricano’s argument and reverse.

The only witness to testify at the suppression hearing was the arresting officer. At around 2:00 a.m., the officer observed a taxi cab run a stop sign and head down a dead-end street. The officer initiated a traffic stop and the car came to a stop near a marina. The officer exited his car and walked toward the taxi cab. Fricano, a passenger in the cab, jumped out of the car, speaking loudly and indicating to the officer that he was there to see somebody because he wanted to look at his boat. The officer approached Fricano, told him to have a seat in the car and “relax” and asked him for identification. According to the officer, Fricano bent into the passenger side of the cab and began trying to crush a suspect crack rock. The officer also observed a glass pipe, commonly used for smoking crack, on the car seat. Frica-no was arrested; the crack and pipe formed the basis for the charges against him.

There are three levels of police/citizen encounters: “(1) consensual encounter where a citizen voluntarily complies with a police request or chooses to ignore it, (2) an investigatory stop which requires a ‘well-founded, articulable suspicion of criminal activity,’ and (3) ‘an arrest supported by probable cause that a crime has been or is being committed.’ ” Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006) (quoting Johnson v. State, 785 So.2d 1224, 1226 (Fla. 4th DCA 2001)). “A citizen encounter becomes an investigatory stop once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply.” Oslin v. State, 912 So.2d 672, 674-75 (Fla. 5th DCA 2005). In this case, the drugs and paraphernalia were not discovered until after police ordered a passenger, who had exited the car following a traffic stop, back into the ear. Thus, the issue here is whether the officer’s ordering the passenger back into the car, coupled with the request for identification, was a “show of authority” transforming the encounter between the officer and the passenger into an investigatory stop that must have been supported by a well-founded, articulable suspicion of criminal activity. We find that it was.

Similar facts were addressed in Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999), where a prior panel of this court distinguished between the rights of a passenger and driver involved in a traffic stop. There, the officer made a traffic stop in the parking lot of a bar. When the vehicle stopped, the passenger jumped out and began walking to the bar. Despite the fact that he did not suspect the passenger of any criminal wrongdoing, the officer ordered him to return to the car and sit until the traffic stop was complete. After he ordered the passenger back into the car, the officer observed contraband on the passenger side of the vehicle. More drugs were discovered during a subsequent search of the passenger’s person. The passenger sought to suppress the evidence, arguing the officer’s ordering him to return to the car was tantamount to an investigatory stop that was not supported by the required “founded suspicion.” The State argued the detention was permissible for the officer’s safety. In resolving the case, the court considered whether existing authority allowing police to order a driver and passenger out of the car for officer safety and allowing police to order a driver back into the car should be extended to permit police to order a passenger back into the car. The court found that Fourth Amendment jurisprudence did not allow police, as a matter of course, to order passengers back into a car following a traffic stop, noting that, at the time of a traffic stop, passengers, as opposed to drivers, are not suspected of any violation of the law and ordering a passenger to return to the vehicle does not generally serve officer safety concerns. See also F.J.R. v. State, 922 So.2d 308 (Fla. 5th DCA 2006) (reversing denial of motion to suppress where police stopped vehicle and ordered the passenger, who attempted to walk away, to stop as there was no founded suspicion of criminal activity and no evidence that officer had concerns for his safety). Compare State v. McClendon, 845 So.2d 233 (Fla. 4th DCA 2003) (distinguishing Wilson and finding officer’s ordering passenger into car did not convert encounter into impermissible stop where passenger did not attempt to leave scene and officer testified that he ordered passenger back into car out of concern for his safety because he was at the rear of the car with the driver and could see only one of the passenger’s hands).

We find that the facts of the instant case make it indistinguishable from Wilson. In both cases, the officer ordered a passenger, who indicated his intent to leave the scene of the traffic stop, back into the car under circumstances where the passenger was not suspected of criminal activity and the officer’s actions were not motivated by concern for his safety. Thus, as in Wilson, we reverse the denial of the motion to suppress.

Reversed and Remanded.

STONE and POLEN, JJ., concur.


text:
    R.J.Y., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4317.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   BATEMAN, THOMAS H., Ill, Associate Judge.

Appellant pleaded no contest to possession of marijuana while reserving his right to appeal the denial of his motion to suppress evidence. The trial court withheld adjudication and placed appellant on juvenile probation following which he timely appealed the denial of his motion to suppress. We affirm.

On the night of May 9, 2005, Palm Beach County deputies Psani and Van Du-sen were patrolling a neighborhood in response to a call regarding juveniles carrying a BB gun. Each drove a marked patrol car and encountered appellant and his friend as the pair walked down a street. The deputies asked the boys for their names and identification. They focused their attention on appellant’s friend, who appeared to try to walk away when they approached. The officers paused to tell appellant to wait on the side of the road. Appellant moved off the roadway onto the adjacent grassy swale, approximately twenty feet away, where he stood ignored by the deputies.

Corporal McKenna, having heard on his radio that the deputies had encountered the two juveniles, responded to the scene and parked a short distance away. McKenna’s arrival was unnoticed by the deputies or by appellant. He testified at the hearing on the motion to suppress that he saw appellant standing alone in the swale off to the side of the roadway. McKenna saw that appellant was merely watching the deputies interact with his friend and was not in police custody. As Corporal McKenna approached, still unnoticed, he saw appellant reach into his pocket, discretely pull out a small plastic baggie, drop it near his feet, and walk away from it. McKenna retrieved the baggie, saw that it contained a substance resembling marijuana, and arrested appellant. The contents of the bag were later identified as 1.22 grams of marijuana.

The sole issue for our consideration is whether the trial court erred in denying appellant’s motion to suppress the marijuana evidence. The trial court’s ruling comes to this court with a presumption of correctness. This court must interpret the evidence and all reasonable inferences in a manner most favorable to sustaining the ruling. Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003) (citing Pagan v. State, 830 So.2d 792, 806 (Fla.2002)). The standard of review applied to the trial court’s factual findings is whether competent, substantial evidence supports the findings; however, the trial court’s application of the law to the facts is reviewed de novo. Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004); Backus v. State, 864 So.2d 1158 (Fla. 4th DCA 2004); State v. J.D., 796 So.2d 1217 (Fla. 4th DCA 2001).

We find that the trial court’s ruling is supported by competent substantial evidence. There is nothing in the record below to indicate that appellant’s encounter with the deputies was anything other than consensual or that appellant submitted to some sort of police authority that would convert his abandonment of the marijuana from voluntary to involuntary. See California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Popple v. State, 626 So.2d 185 (Fla.1993). Compare State v. Baldwin, 686 So.2d 682 (Fla. 1st DCA 1996) (Baldwin voluntarily abandoned contraband when police asked him to take his hands out of his pockets while they questioned his friend) with Lang v. State, 671 So.2d 292 (Fla. 5th DCA 1996) (involuntary abandonment when Lang dropped contraband after being instructed to get into police car).

We find no error in the trial court’s denial of appellant’s motion to suppress.

Affirmed.

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


author: POLEN, J.

text:
    Bryce RUTHERFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2162.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Oct. 18, 2006.
    Carey Haughwout, Public Defender, Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, and Bryce Rutherford, Lake Worth, pro se, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

POLEN, J.

Appellant, Bryce Rutherford, has filed a motion for rehearing, rehearing en banc and in the alternative, a motion to certify her appeal as a question of great public importance. On June 21, 2006, this court issued a per curiam affirmance of the trial court’s decision finding Rutherford guilty of perjury by false declaration. We deny Rutherford’s motions for rehearing and certification, but replace the previously entered per curiam affirmance with a written opinion.

Rutherford filed a bar complaint accusing her former employer, an attorney, of forging his signature for that of a court-appointed guardian, John Boden, on a Motion for Attorney’s Fees. Boden was the guardian for the estate of Marion P. Towne. Boden retained Rutherford’s employer as the attorney for matters relating to the guardianship. Rutherford asserted that Boden’s signature found on the form did not appear to be the same signature found elsewhere in the document, and on other documents. The complaint stated, in relevant part: “I know for a fact that John Boden, the court-appointed guardian in the Guardianship of Marion P. Towne ... DID NOT SIGN the attached petition ... rather [the attorney] forged John Boden’s signature on this petition.... I kept [the page] when I saw that [the attorney] forged John Boden’s signature to the Petition attached ...” (emphasis added). Rutherford worked as the attorney’s assistant, preparing proceedings and documents for him. Rutherford prepared the document in which she alleged that her employer had forged Boden’s signature. After Rutherford prepared the document, she turned it in to her employer, unsigned. The next time she saw the document, it had the signature of the attorney and Bo-den on it. Rutherford was suspicious of the abnormally short time in which the document was purportedly signed by Bo-den, as it would normally take a few days for the document to be sent to Boden’s office and be returned to the Rutherford’s employer. Rutherford did not approach her employer or Boden about her suspicions before filing the complaint detailed above.

The State filed criminal perjury charges against Rutherford. At trial, testimony was presented to explain the short amount of time that elapsed between the document’s preparation and Boden’s signing of the document. This testimony unequivocally showed that Boden’s signature had not been forged. However, Rutherford made a motion for judgment of acquittal, asserting that the State had failed to prove that she knowingly made the false statements, as several of the State’s witnesses had admitted that the signatures on the document appeared to be different from one another. The trial court denied the motion and found Rutherford guilty of perjury.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence. Denial of a motion for judgment of acquittal is reviewed by the de novo standard. If there is competent substantial evidence to support the jury’s verdict, the trial court’s denial of the motion will not be disturbed on appeal. In reviewing the trial court’s denial of the motion for judgment of acquittal, the appellate court must follow the well settled principle that a defendant, in moving for a judgment of acquittal, admits all facts adduced in evidence, and the court draws every conclusion favorable to the state which is fairly and reasonably inferable from that evidence.

Sapp v. State, 913 So.2d 1220, 1223 (Fla. 4th DCA 2005). Section 92.525(3), Florida Statutes, states in relevant part: “A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree.... ” § 92.525(3), Fla. Stat. (2004).

In this case, Rutherford’s complaint stated that “I know for a fact that John Boden ... did not sign the attached petition ... rather [the attorney] forged John Boden’s signature on this petition.” (Emphasis added.) While Rutherford testified at trial that she believed that the signature was a forgery, the bar complaint stated that she knew for a fact that Boden did not sign the petition, not that it was to the best of her knowledge or that it was her belief that the signature was forged. Further, Rutherford’s testimony established that she did not know whether Boden had signed that petition or not, as she never contacted Boden to confirm her suspicions. While Rutherford may have believed that the signature was a forgery, she did not know for a fact that it was a forgery, and that is exactly what the complaint stated. While this may appear to be trifling with semantics, we find that Rutherford knew that she did not know for a fact that the signature was forged. Therefore, we find that there was competent and substantial evidence to uphold the trial court’s determination that Rutherford was guilty of perjury.

STONE and FARMER, JJ., concur.

      . We certainly hope that our decision today will not deter others who believe they have a basis to report suspected unethical attorney conduct to the Florida Bar. The importance of having a safe, effective mechanism for the Bar to investigate such complaints, and for complainants to report their suspicions without fear of reprisal, cannot be overstated. This process must be balanced, however, against the desirability of attorneys being able to perform their services without fear of unwarranted complaints brought by former clients or disgruntled employees. Unfortunately for appellant, as we explain above, this case hinges on her choice of words: "I know for a fact ...” (which she did not), versus "I believe” or "I suspect.”

      . In appellant’s pro se motion for rehearing, etc., she alludes to her years of experience working in the Palm Beach County legal community. While this fact may be dehors the record, and certainly has no bearing on our decision, if in fact she has the experience, she must surely know the impact of her choice of words in making her Bar complaint.


text:
    Melvin A. RAGIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3197.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by Melvin A. Ragin from his conviction and sentence on the chai'ges of false imprisonment, burglary of an occupied conveyance, and grand theft following a jury trial. He raises three issues on appeal. We affirm the first two issues argued, reverse the final issue raised, and remand for resentencing.

As his first issue, appellant argues the trial court abused its discretion and reversibly erred in allowing into evidence inadmissible hearsay. Specifically, appellant argues that it was error for the State to ask and for the court to allow one of the police officers involved to testify as to the description of who he was looking for based on the BOLO issued. In this case, the victim testified as to the identity and the description of appellant.

As a result, the hearsay statement deemed erroneously admitted is cumulative in nature and therefore the error, if any, is harmless. See, e.g., Miles v. State, 839 So.2d 814, 819 (Fla. 4th DCA 2003) (police officer’s statement as to what a witness told him was harmless because the witness testified to the same account and description just prior); Caruso v. State, 645 So.2d 389, 395 (Fla.1994); Presley v. State, 839 So.2d 813 (Fla. 4th DCA 2003). We, therefore, affirm as to this issue.

Appellant argues in the second issue that the trial court reversibly erred in admitting an affidavit of an official of the State of Florida, Department of Corrections certifying the last release date of appellant from prison. Appellant argues that such admission was (a) inadmissible hearsay, and (b) violated his right to confrontation.

We affirm as to this issue based on Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and Corker v. State, 937 So.2d 757 (Fla. 4th DCA 2006). As in Yisrael and Corker we also certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Finally, appellant argues the trial court committed error in sentencing him as a prison releasee reoffender (PRR) on the charge and conviction of burglary of an occupied conveyance. He argues that burglary of an occupied conveyance did not qualify as a PRR qualifying offense because the jury in this case did not find that appellant used or threatened to use force or violence against an individual. We agree.

The enumerated offenses under section 775.082(9)(a)1, Florida Statutes, do not include a burglary of an occupied conveyance. State v. Huggins, 744 So.2d 1215, 1216 (Fla. 4th DCA 1999) (en banc) (“the legislature did not deem that burglary of an occupied conveyance was a serious enough offense to warrant inclusion in the PRR”); see also Sampson v. State, 798 So.2d 824, 826 (Fla. 3d DCA 2001) (burglary of an occupied conveyance without an assault did not qualify a defendant as a PRR because it was not an offense cited under the PRR statute, nor did it qualify as a felony that involved the use or threat of physical force or violence against an individual because the jury specifically found that it was committed without an assault).

Because a burglary of an occupied conveyance was not an offense listed under the PRR statute and the jury did not specifically find that it involved the use or threat of physical force or violence against an individual, the sentence is reversed and remanded for resentencing in accordance with this opinion.

Affirmed in Part, Reversed in Part, and Remanded for Resentencing.

STONE and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Robert L. GUTNER, Appellant, v. Stacy L. GUTNER, Appellee.
    No. 4D05-4724.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Matthew S. Nugent and Rosanna Ferrari of Law Office of Matthew S. Nugent, North Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See Roque v. Paskow, 812 So.2d 500 (Fla. 4th DCA 2002) (clarification does not seek to change rights and obligations but makes a judgment more clear and precise).

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


text:
    ABRAHAM & ASSOCIATES, INC., Appellant, v. SURREY HOLDING CORP., a Florida corporation, Silveri Leasing, Inc., a Florida corporation, and Mike Silveri, Appellees.
    No. 4D05-4825.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    David S. Chaiet and Jed L. Frankel of Eisinger Brown Lewis & Frankel, P.A., Hollywood, for appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee Surrey Holding Corp., a Florida corporation.
    Roger Barry Davis of Law Offices of Roger Barry Davis, Hollywood, for appel-lees Silveri Leasing Inc., a Florida corporation, and Mike Silveri.
   PER CURIAM.

Appellant, Abraham & Associates, Inc., appeals from the trial court’s dismissal with prejudice of its five-count Third Amended Complaint. Abraham, a licensed real estate broker, alleges that it brought together the seller, Surrey Holding Corporation, and the buyers, Silveri Leasing, Inc. and Mike Silveri, who went through with the sale and purchase of Surrey’s property without Abraham’s knowledge. The causes of action asserted by Abraham are (1) procuring cause, (2) breach of an oral listing agreement, (3) breach of a completely performed unilateral offer, (4) unjust enrichment, and (5) tortious interference with a business relationship.

This court reviews an order granting a motion to dismiss de novo. We find that the trial court erred in dismissing the complaint because the allegations made are sufficient to state a cause of action in each count.

Reversed and Remanded for Further Proceedings.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Mario QUINTERO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3556.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Barbara J. Scheffer of Mitchell J. Beers, P.A., Palm Beach Gardens, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence for robbery with a weapon, carjacking, and two counts of false imprisonment. We affirm on all issues, but remand the case to the trial court to correct the scrivener’s error in the judgment. The jury convicted, and the judge properly sentenced, the defendant on two counts of false imprisonment, but the judgment reflects two counts of false imprisonment with a weapon. Upon remand, the court should correct the judgment to accurately reflect the charges on counts five and six.

Affirmed.

POLEN, KLEIN and MAY, JJ., concur.


author: GROSS, J.

text:
    Ralph LIOTTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1847.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Douglas Duncan of Roth & Duncan, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

In a delicatessen that he eo-owned, Ralph Liotta shot John Gurino four times with a handgun, causing Gurino’s death. The state charged Liotta with manslaughter with a firearm. Liotta claimed self defense. Although there was evidence that Gurino was violent and dangerous, and that Liotta was in fear for his life, the jury convicted Liotta as charged.

Liotta first argues that the trial court erred in denying his motion for judgment of acquittal. “The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002). “The essential question in [Liotta’s] theory of self defense was whether he reasonably feared for his own safety....” Wilson v. State, 707 So.2d 1200, 1201 (Fla. 4th DCA 1998). Liotta’s statements to the 911 operator — that Guri-no “kept threatening me and threatening me. And ... I just couldn’t take it any more” — combined with conflicts in the defense case and forensic testimony that two of the four shots hit Gurino in the back, were “enough to cast doubt on the requisite state of mind and thus to send the case to the jury.” Id. at 1201.

Liotta next claims that the court committed fundamental error by reading the standard jury instruction on the use of deadly force. He complains that the court confusingly instructed the jury on both a duty to retreat and the absence of a duty to retreat. Liotta did not object to the instructions at trial. We rejected the identical argument in Wilson, 707 So.2d at 1201, and Dias, 812 So.2d at 492, and do not accept Liotta’s invitation to recede from those cases. We note that the prosecutor did not exploit potential confusion in the instruction in her closing, but argued generally that Liotta had not acted reasonably under the circumstances of the case.

We find no error in the prosecutor’s cross-examination of Peter Navratil, a defense witness. As the trial court ruled, the questions regarding Navratil’s immigration status went to bias, because Liotta was Navratil’s sponsor for an immigration visa and Navratil had lived with Liotta for about two months. The prosecutor properly explored the extent of the men’s relationship; Navratil depended on Liotta for his employment, living quarters, and as an immigration sponsor. This case is therefore unlike O’Neil v. Gilbert, 625 So.2d 982 (Fla. 3d DCA 1993), where questions about a witness’s immigration status were improper, because no fact in the case linked the immigration issue to the witness’s credibility. Id. at 983-84. Finally, we find that no fundamental error occurred in either the prosecutor’s cross-examination of Liotta or closing argument.

Affirmed.

GUNTHER and FARMER, JJ., concur.


text:
    Harry LARKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1264.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006).

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    Navara PEOPLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1192.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Carey Haughwout, Public Defender, and Paul E. Perillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc).

POLEN, KLEIN and MAY, JJ., concur.