text:
    The STATE of Florida, Appellant, v. Rodney CALABRO, Appellee.
    No. 3D06-199.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing Denied May 24, 2007.

      Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellant.
    Charles G. White, Miami, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The State of Florida (“State”) appeals an order of the trial court excluding certain statements made by the defendant, Rodney Calabro (“Calabro”), as inadmissible offers for a plea agreement. Because we conclude that Calabro’s statements were unsolicited, unilateral utterances not made in connection with plea negotiations, we find that the trial court erred in excluding the statements, and therefore, reverse the trial court’s order.

The State filed an information charging Calabro with one count of second degree murder. On November 26, 2002, during the arraignment in open court, with Calab-ro and the prosecutor present, the trial judge reviewed Calabro’s financial affidavit and subsequently, appointed Calabro a public defender to represent him. Immediately after the appointment of the public defender, the following discussion took place:

MR. WILLIAMS [the public defender]: Stand mute, demand discovery, trial by jury. Is it murder second degree?
MS. SEITCHIK [the prosecutor]: Is that in a — right now, it is. I have discovery and I also amended discovery will [sic] all the reports that I have at this time.
THE COURT: Set for trial.
CLERK: March 10th.
MR. CALABRO: Is there any possible way I can get an earlier date? I just want to get this over with as soon as possible. I know what I’m saying. I’m very coherent, my mind is a proven perspective. I’ll just like to avoid trial and get sentenced on this.
You should have talked to me three weeks ago, I haven’t had no representation since I’ve been in jail, for three weeks. Where have you been? I will like to avoid the trial and have some kind of plea agreement set earlier than March or whatever that was.
THE COURT: Four weeks for report.
MS. SEITCHIK: No.
THE COURT: Just report regarding status.
MS. SEITCHIK: That’s fine, Judge.
MR. CALABRO: I know this is unusual but unfortunately, I’m guilty of this. And the police up there, what they say up there is; this is what you are getting. And you are getting the truth, maybe I’m catching some people off guard here.
But if an attorney came to see me within its past three weeks, maybe they’ll have an idea of where my mind is at but right now I’m guilty. I’m not proud of it, but.
THE COURT: This is the first time I appoint[ ] this gentleman in particular to represent you.
MR. CALABRO: Supposedly there was somebody representing me.
THE COURT: The Public Defender was appointed, but the Public Defender in general, at your bond hearing. But this gentleman in particular I just appointed.
THE COURT: I’ll see him on December 18th, Wednesday; does that give you sometime to speak to him?
MR. WILLIAMS: Sure.
THE COURT: And we will see what his mind set is at that time....

(Emphasis added). Calabro thereafter filed a motion to exclude the statements relating to his admissions of guilt, alleging that the statements were offers to plead guilty or made in connection with plea negotiations and thus, inadmissible under section 90.410 of the Florida Statutes and Florida Rule of Criminal Procedure 3.172(h). In responding to Calabro’s motion to exclude the statements, the State conceded that the first statement uttered by Calabro, “I will like to avoid the trial and have some kind of plea agreement,” is inadmissible under section 90.410, Florida Statutes, and Rule 3.172(h) of the Florida Rules of Criminal Procedure. As to the second statement, “I know this is unusual but unfortunately I’m guilty of this .... right now I’m guilty,” the State argued that it was a separate and distinct, unsolicited and unilateral utterance, which did not satisfy the two-prong test required by the Florida Supreme Court in characterizing a statement or discussion as an inadmissible plea negotiation. The trial court entered an order excluding both statements, concluding that the statements made by Cal-abro “were offers for a plea agreement and are inadmissible pursuant to § 90.410, Fla. Stat. (2005) and Fla. R.Crim. P. 3.172(h).”

On appeal, similarly to its argument below, the State only challenges the exclusion of Calabro’s second statement and argues that the trial court erred in excluding the statement as an offer for a plea agreement. Without reaching a conclusion as to the propriety of the State’s concession of Calabro’s first statement as an inadmissible offer for a plea agreement, we agree with the State that Calabro’s second statement relating to his admission of guilt was an unsolicited, unilateral utterance not made in connection with any plea negotiation and is therefore, admissible.

Section 90.410, Florida Statutes (2005), provides that:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

Similarly, Florida Rule of Criminal Procedure 3.172(h) provides that “[ejxcept as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo conten-dere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”

The Florida Supreme Court has repeatedly emphasized that in order to determine whether a statement is made in connection with plea negotiations and therefore, falls within the ambit of the exclusion, a court must apply a two-tiered analysis and determine: (1) whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) whether the accused’s expectation was reasonable given the totality of the objective circumstances. Owen v. Crosby, 854 So.2d 182, 189 (Fla.2003); Richardson v. State, 706 So.2d 1349, 1353 (Fla.1998); Groover v. State, 458 So.2d 226, 228 (Fla.1984); Bottoson v. State, 443 So.2d 962, 965 (Fla.1983); Stevens v. State, 419 So.2d 1058, 1062 (Fla.1982). Whether the accused’s subjective expectation of negotiating a plea is reasonable “depends on whether the state has indicated a willingness to plea-bargain and has in fact solicited the statement in question from the defendant. Unsolicited, unilateral utterances are not statements made in connection with plea negotiations.” Owen, 854 So.2d at 189. Here, Calabro fails to meet either prong of the test.

At the time Calabro uttered the statement admitting his guilt neither side was in any position to negotiate a plea. Calab-ro had just been appointed a public defender, whom he met for the first time at the arraignment hearing. Calabro’s counsel did not know the facts of the case nor the evidence against his client. The State never indicated a willingness to enter into a plea bargain with Calabro nor were negotiations taking place between the State and Calabro. Calabro’s statement admitting his guilt was not made in response to any preliminary questions or in exchange for any concession from the State. Calab-ro, instead, made the statement without any prompting or inducement. Clearly, Calabro’s unsolicited, unilateral statement was not made during a free and open discussion between the prosecution and the defense in an attempt to reach any compromise. See Groover, 458 So.2d at 228 (explaining that the purpose behind the exclusionary rule and statute is “the need for free and open discussion between the prosecution and the defense during attempts to reach a compromise ”)(quoting United States v. Davis, 617 F.2d 677, 683 (D.C.Cir.1979)(emphasis added)). Therefore, we conclude that given the totality of the objective circumstances, Calabro could not have had a reasonable subjective belief that his statement was a part of any plea negotiation. See Owen, 854 So.2d at 190. Finding that the trial court erred in excluding Calabro’s second statement, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We also conclude that whether the statements are viewed as two separate statements or the continuation of a single statement, is of no consequence. The Stale's agreement not to introduce the initial statement made by Calabro does not constitute a waiver nor does it preclude the introduction of the remainder of Calabro’s statement, which we have found was not made in connection with plea negotiations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 07-852.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Rehearing Denied May 24, 2007.
    Juan Gonzalez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See §§ 775.087(2)(a)(l)(f), (2)(a)(2), Fla. Stat. (2005); McClenithan v. State, 855 So.2d 675, 676 (Fla. 2d DCA 2003).


text:
    Lorenzo TATUM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2816.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Lorenzo Tatum, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800. On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to relief.

Reversed and remanded for further proceedings.


author: RAMIREZ, J.

text:
    SOUTH MOTOR COMPANY OF DADE COUNTY, a Florida corporation, d/b/a South Motors Honda, Appellant, v. Edith DOKTORCZYK, Personal Representative of the Estate of Menachem Doktorczyk, Appellee.
    No. 3D05-2244.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Rehearing Denied June 14, 2007.
    Goldsmith & Atlas, P.A. and Glen R. Goldsmith; Greenberg Traurig, P.A., and Elliot H. Scherker, and Elliot B. Kula, Miami, for petitioner.
    George, Hartz, Lundeen Fulmer, John-stone, King & Stevens, and Esther E. Galicia, Fort Lauderdale, for respondent.
    Before, GERSTEN, GREEN, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, J.

Upon consideration of petitioner South Motor Company of Dade County’s motion for rehearing, we grant the motion for rehearing. Accordingly, we withdraw this Court’s September 1, 2006 opinion, and substitute the following in its stead.

South Motor petitioned for a writ of certiorari seeking to quash a decision of the Circuit Court Appellate Division in which the circuit court reversed a summary judgment entered by the county court based on the expiration of the statute of limitations. Certiorari review is appropriate here where the circuit court appellate division has applied the incorrect law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003); Auerbach v. City of Miami, 929 So.2d 693, 694-95 (Fla. 3d DCA 2006); Morningside Civic Ass’n, Inc. v. City of Miami Comm’n, 917 So.2d 293, 295 (Fla. 3d DCA 2005).

In its discussion of the second-level certiorari standard, the Florida Supreme Court has recognized that second-level review is not intended to serve as a second appeal, and that the phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. See Combs v. State, 436 So.2d 93, 95 (Fla.1983). As the Florida Supreme Court stated in Kakla-manos, however, certiorari review properly lies where, as here, a case calls for the interpretation or application of a statute. Kaklamanos, 843 So.2d at 890. In that case, the Florida Supreme Court determined that the district court correctly granted certiorari on second-tier review because the circuit court’s interpretation of the legal issue in question was too narrow and conflicted with the intent and language of the statute under review. Id. at 890-91. The conflict in Kaklamanos, between the circuit court’s interpretation and the intent underlying the statute, evidently was sufficient to satisfy the standard that the circuit court had failed to apply the correct law as clearly established. The Florida Supreme Court stated in Kaklamanos that clearly established law can be derived not only from case law, but also from “the interpretation or application of a statute, a procedural rule, or a constitutional provision.” Id. at 890. We therefore grant the petition and quash the circuit court’s August 22, 2005 order, finding that the Circuit Court Appellate Division’s decision departs from the essential requirements of law and results in a miscarriage of justice.

On October 8, 2002, Max Doktorezyk initiated an action against South Motors pursuant to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The suit complained of misrepresentations that South Motors allegedly made nearly six years earlier in connection with the purchase of a used vehicle and an extended warranty. Specifically, in his amended complaint, Doktorezyk alleged, as the sole basis for his FDUTPA claim, that on December 21, 1996, South Motors misrepresented that the factory warranty on the used vehicle had expired and that he was persuaded to purchase a power train warranty.

Section 95.11(3)(f), Florida Statutes (1996), covers “[a]n action founded on a statutory liability,” which would apply to Doktorczyk’s FDUTPA claim. The circuit court agreed that Doktorczyk’s sole claim was a statutory cause of action, but held that the part payment tolling exception contained in section 95.051(l)(f) was applicable to this statutory claim because it was based on events that “occurred as part of the sales contract transaction.” Section 95.051, entitled “[w]hen limitations tolled,” provides in pertinent part:

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument. (emphasis added).

The circuit court then proceeds in a convoluted nine-page opinion to convert a statutory action into an action founded on a written instrument.

After quoting extensively from Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So.2d 602 (Fla. 2d DCA 1997), the circuit court stated that FDUTPA actions

are sometimes necessarily based on a written contract; the underlying transaction. The Court feels that this is such a case. [Doktorczyk] purchased an unnecessary power train warranty that was included and spread out in installments during a period of five years. Based on certain misrepresentations and deceiving practices during the execution of a “written instrument,” i.e. the RSIC, [Doktorczyk] purchased an unnecessary warranty which was never refunded. If, as [South Motors] correctly points out, the general statute of limitations in § 95.11(3)(f), Fla. Stat. (2004) applies, then, it logically follows that the part payment tolling exception of § 95.061(1X0, Fla. Stat. (2004), should apply as well, particularly when the deception occurred as part of the sales contract transaction. [South Motors] is asking this Court to completely disconnect a FDUPTA action from any contract action as if they were entirely unrelated. However, as the Delgado court explained, deceiving practices and unfair trading which takes place during negotiation of a contract or other written instrument, are obviously interrelated. Here, the RSIC, or “1996 finance agreement” as referred to in [Doktorczyk’s] amended complaint, was the underlying basis for the deceit. Therefore, this Court finds that [Doktorczyk’s] FDUP-TA action was necessarily based on a “written instrument,” i.e. the RSIC, and, consequently, the tolling provision of § 95.051(l)(f), Fla. Stat. (2004) applies.

A court cannot re-plead the allegations of a complaint to convert a statutory cause of action into one “founded on a written instrument.” An action for tortious interference with a contractual relationship is subject to a four-year statute of limitation even if the suit is “necessarily based on a ‘written instrument.’ ” If Doktorczyk had sued for fraudulent inducement to enter into the contract, the statute of limitations would be four years, even though it resulted in the execution of a written instrument. The suit that Doktorczyk filed, a suit under FDUTPA, is likewise not converted into an action founded on a written instrument simply because the alleged deception resulted in the execution of a written instrument.

In Yusuf Mohamad Excavation, Inc. v. Ringhaver Equipment, Co., 793 So.2d 1127, 1128 (Fla. 5th DCA 2001), the court stated that, “[s]ection 95.11(3) of the Florida Statutes (1989) provides a four year statute of limitations for tortious interference, and for unfair and deceptive trade practice claims. See § 95.11(3)(f); (o), Fla. Stat. (1989).” (emphasis added). Dok-torczyk’s amended complaint was based solely on his allegation that South Motors made misrepresentations during the negotiations prior to forming and executing a contract to purchase a pre-owned automobile — and wholly independent of such contract formation and execution. Specifically, Doktorczyk alleged that South Motors misinformed him regarding the status of the automobile’s existing factory warranty and correspondingly the advisability of purchasing an extended warranty, contributing to his decision to purchase an overlapping warranty. Doktorczyk did not allege with any particularity anything having to do with the contract formation and execution. He is certainly not suing for any breach of the contract.

A claim is, of course, limited by the allegations in the complaint. See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988). Yet, the circuit court construed Doktorczyk’s action as “necessarily based oh a written instrument,” effectively recasting Doktorczyk’s FDUTPA claim. After recasting Doktorc-zyk’s FDUTPA action, the circuit court incorrectly held that “it logically follows that the part payment tolling exception ... should apply as well, particularly when the deception occurred as part of the sales contract transaction.”

The finance agreement referred to by Doktorczyk in his amended complaint, however, was not the basis for the alleged deceit that he asserted in support of his FDUTPA action, and the payments tendered pursuant to the finance agreement thus did not operate to toll the statute of limitation period pursuant to section 95.051(l)(f), Florida Statutes (2004).

The circuit court’s holding derives from a misreading of the Delgado case. The issue in Delgado was “whether the economic loss rule has eliminated a claim brought under the FDUTPA when, as [in Delgado], the consumer transaction is based on a written sales contract.” Delgado, 693 So.2d at 606. The court held that economic loss rule does not preclude a statutory cause of action under FDUTPA involving consumer transactions based on written sales contracts because the Legislature’s intent when it enacted the FDUT-PA was to establish a cause of action “independent of any contractual obligation which may exist between the parties.” Id. at 610-611.

The circuit court’s decision would effectively toll the running of the statute of limitation for all consumer transactions with extended payment plans for at least the life of the payments. This is a complete misapplication of the part-payment tolling provision in section 95.051(1)(f). The statute is obviously intended for those who seek to enforce the obligations under a note when there has been no default under the payments. In those cases, the action has not accrued until there is a default, giving rise to the cause of action. The statute of limitations is tolled while payments (even part-payments) are being made on an installment note. See In re Whittaker, 177 B.R. 360 (N.D.Fla.1994). Without the protection of the statute, a compassionate obligee that accepts sporadic part-payments from the obligor could risk jeopardizing its collection rights.

Here, the cause of action accrued when South Motors sold the unnecessary warranty to Doktorczyk. The payments made for such warranty would merely go to the amount of damages, but the cause of action accrued on the date of sale.

We therefore grant the petition for writ of certiorari and quash the order under review. We further remand the case with directions to affirm the county court’s summary judgment in all respects.