author: NORTHCUTT, Chief Judge. COBB, WARREN H., Associate Senior Judge,

text:
    E.A.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3972.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

On appeal from his delinquency adjudication for obstructing an officer without violence, E.A.B. contends that the charge was not proved. We agree and reverse.

The State filed a petition alleging that E.A.B. was delinquent for obstructing an officer without violence, contrary to section 843.02, Florida Statutes (2005). ' This statute makes it a crime to “resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty.” To prove this charge against E.A.B., the State presented the testimony of Hillsborough County Sheriffs Deputy Richard Morales. He testified that on the day in question he responded to a particular intersection in Wimauma to investigate a “stolen vehicle that had just occurred.” The deputy described this as an area where, based on his experience, a lot of drugs are sold. When he arrived at the intersection, the deputy observed the driver of a truck sounding his horn, flashing his lights, and pointing to a Chevrolet Cavalier.

Deputy Morales testified that, to determine “whether they were involved,” he activated his lights and siren to make a traffic stop but the Cavalier left the scene. The deputy followed at a high rate of speed (although he never said that they exceeded the speed limit). The Cavalier entered a trailer park and stopped at a dead end. As Deputy Morales approached, he saw the driver and a passenger exit the car. The deputy verbally ordered them to stop, but both ran off. A short time later the passenger, E.A.B., was apprehended by another deputy.

At the conclusion of the deputy’s testimony, defense counsel moved for a dismissal of the charge. He argued that the State had failed to show that the deputy was engaged in the lawful execution of a legal duty because the deputy lacked a reasonable basis for believing that E.A.B. was involved in criminal activity. The trial court rejected this argument and found E.A.B. delinquent.

We review the denial of a motion to dismiss de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003) (citing Pagan v. State, 830 So.2d 792 (Fla.2002)). The evidence is viewed in the light most favorable to the State, but a dismissal is warranted when the State’s evidence was not sufficient to permit a rational trier of fact to find that the elements of the crime were proved beyond a reasonable doubt. Id.

The issue we thus confront is whether Deputy Morales was engaged in the lawful execution of a legal duty when E.A.B. fled. In D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996), a case involving facts very similar to those present in this case, we explained the State’s burden when attempting to prove an obstruction based on the defendant’s flight:

In order to prove that a defendant is guilty of unlawfully obstructing an officer without violence, the state must establish that the defendant fled with knowledge of the officer’s intent to detain him and the officer was justified in making the detention due to his founded suspicion that the defendant was engaged in criminal activity.

Id. at 797 (emphasis supplied); see also Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006) (construing identical element in obstruction with violence statute and explaining that an investigatory detention “constituted lawful execution of a legal duty only if the facts known to the officer created a reasonable suspicion either that Tillman was involved in criminal activity or that he was armed and dangerous”); E.A.B., 851 So.2d at 311 (“The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest.”).

Therefore, E.A.B.’s delinquency adjudication can stand only if Deputy Morales had a particularized and objective basis for suspecting that E.A.B. was involved in criminal activity. See Tillman, 934 So.2d at 1273; see also Popple v. State, 626 So.2d 185, 186 (Fla.1993) (requiring “well-founded, articulable suspicion of criminal activity” to support investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); § 901.151, Fla. Stat. (2005) (authorizing investigatory stop when circumstances reasonably indicate that person stopped has committed, is committing, or is about to commit crime).

Nothing in the scenario described by the deputy gave him an objective basis for suspecting E.A.B. of criminality. The failure of the car to stop when first directed to do so could not be attributed to E.A.B. because he was not driving it. In D.M., 681 So.2d 797, the juvenile defendant was the passenger in a car that fled after running a red light and almost hitting a police car. We reversed an adjudication for obstruction without violence based on the passenger’s flight because the officer lacked a founded suspicion to conclude that the passenger was engaged in criminal activity. As we explained in J.R.P. v. State, 942 So.2d 452, 454 (Fla. 2d DCA 2006), another case that reversed an obstruction adjudication under similar facts, the police may have had a basis to stop the drivers, but the passengers had the right to leave in the absence of a well-founded, articulable suspicion that they were involved in criminal activity. See also T.H. v. State, 554 So.2d 589, 590 (Fla. 3d DCA 1989) (reversing delinquency adjudication for resisting without violence because “absent objective proof of actions by a passenger which evidences some substantial involvement in the driver’s actions, a mere passenger cannot be held responsible for the actions of the driver of the vehicle”). J.R.P. also described various circumstances that might require a passenger to remain, 942 So.2d at 454-55, but none of those circumstances were present in this case.

Neither could E.A.B.’s own flight from the scene at the trailer park have given the deputy a well-founded, articulable suspicion that he was engaged in criminal activity. There was no evidence that the trailer park was a high crime or drug area. And although the incident began with the deputy’s response to a report of a vehicle theft, the State offered no evidence to suggest that the Cavalier was the stolen vehicle, or even that the deputy believed it to be the stolen vehicle.

Obviously, the deputy attributed some sort of significance to the truck driver’s actions, and he acted on them. But he offered no basis for relating the truck driver’s behavior to the stolen vehicle report or to any other possible criminality. Nor do we know anything about the truck driver’s reliability or motive. The deputy did not state where the theft supposedly occurred and did not describe the intersection or surrounding area, the level of activity there, or even the time of day. See State v. Wise, 603 So.2d 61, 63 (Fla. 2d DCA 1992) (discussing factors bearing on whether officer has reasonable suspicion to conduct a stop pursuant to a be-on-the-lookout report, including amount of time since offense, distance from offense, specificity of description of vehicle and occupants, and source of BOLO information). At most, the State’s evidence established that the deputy had a mere hunch that the Cavalier he encountered at the intersection might be involved in some sort of criminal conduct. The deputy’s testimony certainly never established that this defendant, as the passenger, knew or should have known that the car was stolen. Cf. E.A.B., 851 So.2d at 310 (reversing passenger’s adjudication for trespass in a conveyance when State failed to prove his knowledge that car was stolen).

The trial court relied principally on this court’s decision in McGee v. State, 818 So.2d 558 (Fla. 2d DCA 2002), but that case is distinguishable. In McGee, an officer driving in a high crime area saw the defendant standing in an alley. McGee fled at the sight of the police, and upon his apprehension he discarded cocaine. This court affirmed McGee’s convictions for possession of cocaine and obstructing an officer without violence. Factually, the cases appear similar in that the only conduct described in the McGee opinion that seemed to support the obstruction charge was the defendant’s flight from an officer. Legally, however, the cases are not the same. In McGee, the issue was the propriety of the stop, raised by a motion to suppress. 818 So.2d at 558 (noting that McGee “pleaded to the charges after reserving his appellate right to challenge the denial of his dispositive motion to suppress”). Citing Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), this court found that the officer had a reasonable suspicion sufficient to justify stopping McGee because he fled when approached by the police in a high crime area. McGee did not address the issue before us today, that being the sufficiency of the evidence to prove the crime of obstructing without violence.

As such, McGee does not stand for the proposition that flight from a police officer, standing alone, constitutes the crime of obstructing without violence. To base an obstruction conviction on the defendant’s flight, the State has to show that the defendant fled with knowledge of the officer’s intention to detain him, and that the officer’s attempt to detain the suspect was lawful. D.M., 681 So.2d at 797. If it was not lawful, the defendant had the perfect right to depart notwithstanding the officer’s direction to remain, and that departure could not be deemed an obstruction of the officer’s performance of a lawful duty.

The Third District has also rejected the applicability of McGee and Wardlow when deciding whether flight alone constitutes obstruction without violence. In D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004), the court held that even after the Supreme Court’s decision in Wardlow, flight alone is not obstruction if the officer lacked a reasonable suspicion of criminal activity necessary to support an investigatory detention. See also Slydell v. State, 792 So.2d 667, 676 (Fla. 4th DCA 2001) (Farmer, J., concurring) (“The answer to the question whether the state proved a prima facie case of obstructing an officer without violence will be found in the cases interpreting our state statute [on obstruction], not in Wardlow.”)

Because the deputy lacked a reasonable suspicion to believe that E.A.B. was engaged in criminal activity, the deputy was not lawfully executing a legal duty when he ordered E.A.B. to stop. Therefore, E.A.B. could not be guilty of obstruction when he fled in defiance of the deputy’s order. See, e.g., J.A. v. State, 679 So.2d 843 (Fla. 2d DCA 1996) (holding that when officer lacks well-founded, articulable suspicion of criminal activity to justify an investigatory detention, defendant’s flight does not constitute obstruction without violence). Accordingly, we reverse the delinquency adjudication for obstructing an officer without violence, and we remand for E.A.B.’s discharge in this ease.

Reversed.

SALCINES, J., Concurs.

COBB, WARREN H., Associate Senior Judge, Dissents with opinion.

COBB, WARREN H., Associate Senior Judge,

Dissenting.

The unrebutted evidence adduced below was that Deputy Morales went to an intersection known as a drug area in response to a report that a vehicle had just been stolen. Upon his arrival he saw two vehicles, a truck and a Cavalier automobile (which could have been the reported vehicle so far as Morales knew). The driver of the truck was honking his horn, flashing his lights, and pointing to the Cavalier in which E.A.B. was a passenger. Morales activated his lights and siren attempting a traffic stop of the Cavalier to ascertain if it was the stolen car and determine the cause of the truck driver’s agitation. The driver of the Cavalier raced away at a high rate of speed until cornered at a dead end, at which point the driver and E.A.B. fled on foot despite being ordered by Morales to stop. E.A.B. subsequently was apprehended by another deputy.

The question presented on appeal is whether Morales was authorized, pursuant to section 901.151, to stop E.A.B. upon the latter’s exit from the vehicle for investigatory purposes to ascertain whether he was engaged in criminal activity. Given the plethora of circumstances — the stolen vehicle report, the truck driver’s actions, the high crime location, and E.A.B.’s flight on foot — it seems to me that the answer to that question clearly is yes. See McGee, 818 So.2d 558.

The case of J.R.P., 942 So.2d 452, is readily distinguishable from the instant facts. In that case nothing showed a high crime area, intentional flight from an officer, a reported crime in the area, or an excited citizen directing the officer’s attention to the juvenile.

I would affirm.

      . Although the appellants’ initials are the same, the cited case did not involve the juvenile who has appealed in this case.

      . See also Terry, 392 U.S. at 21-22, 88 S.Ct. 1868.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Wagner MORA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1707.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.

      Lowy and Cook, P.A., and Ronald S. Lowy, Miami Beach, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   SUAREZ, J.

Wagner Mora appeals from the sentence imposed pursuant to violation of probation. We affirm.

On August 31, 2003, defendant Wagner Mora (“Mora”), driving with passenger John Michael Perez (“Perez”), engaged in a high speed chase with another vehicle. Mora lost control and his car hit a concrete beam and struck another vehicle. Both Mora and Perez were ejected from the vehicle, with Mora suffering serious injuries and Perez immediately perishing; the occupants of the third vehicle were also seriously injured. Mora was charged by information with vehicular homicide caused by reckless driving, as well as with two counts of reckless driving resulting in serious bodily injury. While these charges were pending, Mora was charged in an unrelated incident with DUI, leaving the scene of a crash, reckless driving and DUI with property damage.

The cases were consolidated, and the parties entered a plea agreement in which Mora pleaded guilty to a reduced charge of reckless driving resulting in serious bodily injury, as well as to the other two counts of the information, and received a withhold of adjudication on all counts. Mora also was adjudicated guilty on the unrelated DUI charge and was placed on six months of probation. The agreement further stipulated that any subsequent arrest or conviction could result in the vacating and setting aside of the plea agreement, as well as a violation of his probation. If he were to violate the plea agreement, Mora would face up to fifteen years in state prison. Further, if Mora did not violate any of the provisions of the agreement, the State agreed to nolle pros all remaining charges.

On January 27, 2006, Mora was arrested for a second DUI. On violation of probation, the State requested the maximum sentence of five years for each of the three third-degree felony charges. The trial court revoked Mora’s probation and sentenced him to ten years in state prison, to be followed by five years of probation. Mora appeals from the sentence, asserting that the trial court violated his due process rights by considering and relying upon an impermissible factor in evaluating the probation violation, i.e., the death of the passenger Perez in the original case.

In order for an error to be raised on appeal, it must be preserved by contemporaneous objection, or be fundamental in nature. Gore v. State, 964 So.2d 1257, 2007 WL 1932061 (Fla. July 05, 2007) (to preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur at the time of the alleged error); see also F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (“The sole exception to the contemporaneous objection rule applies where the error is fundamental.”); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.”). Mora failed to object to the testimony concerning the death of Perez. Therefore, it was not preserved for appeal. The issue is also not fundamental, as the alleged error had no effect on the validity of the probation violation hearing or the ultimate sentence imposed. See, e.g., Carratelli v. State, 961 So.2d 312 (Fla. 2007); Pryor v. State, 704 So.2d 217 (Fla. 3d DCA 1998) (defendant’s appeal is barred, as it was not properly preserved for review and does not show fundamental error on the part of the sentencing court); see also § 924.051(3), Fla. Stat. (2006).

Not only was this issue not preserved for appeal, it is foreclosed from review by the invited error doctrine. The doctrine prevents a party from inviting error, then attempting to make that error an issue on appeal. See Norton v. State, 709 So.2d 87, 94 (Fla.1997) (the invited error doctrine prevents a party from making or inviting error in a case and then taking advantage of that error on appeal); Terry v. State, 668 So.2d 954, 962 (Fla. 1996); Czubak v. State, 570 So.2d 925, 928 (Fla.1990); Pope v. State, 441 So.2d 1073, 1076 (Fla.1983). The mention of Perez’s death arose for the first time at the probation violation hearing when the defense questioned an expert witness, Dr. Merry Haber, who was there in part to testify that Mora suffered psychological trauma resulting from Perez’s death. Mora not only invited the claimed error, but also failed to object to any subsequent references to Perez’s death. He has not raised the issue in a Rule 3.800(b) motion. See Fla. R.App. P. 9.140(e).

Even if the issue of Perez’s death had been properly preserved for review, Mora’s claim is without merit. The factors considered by the trial court in sentencing Mora on violation of probation, including the death of passenger Perez, were not impermissible. First, “[t]he sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.” Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002); see also Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (it is permissible for judges to exercise discretion and to take into consideration various factors relating both to offense and offender, in imposing a judgment within the range prescribed by statute). Second, in order for an impermissible factor to have played a role in sentencing, it must have obviously affected the sentence, and it does not appear from this record that it did. See Evans v. State, 816 So.2d 742 (Fla. 4th DCA 2002). The plea agreement provided a fifteen-year prison sentence for Mora, and the trial court imposed a shorter term of ten years in prison.

And, last, a trial court has great discretion in determining the length of a sentence, so long as it is within the statutory limits. § 921.002(l)(g), Fla. Stat. (2006). Mora originally faced a sentence of twenty-five years in prison on the original charges, and the plea agreement to which he fully and competently agreed subjected him to a maximum of fifteen years in state prison were he to violate its terms. By sentencing him to ten years, followed by five years of probation, the trial court was acting well within its sentencing discretion. See Preston v. State, 641 So.2d 169 (Fla. 3d DCA 1994)(sentences within the sentencing guidelines are not subject to appellate review at all). Mora conceded that the sentence he received was only two-thirds of what the plea agreement called for. The sentence appears on its face to be fair and lacking fundamental error.

Affirmed.


author: FULMER, Judge.

text:
    Randall Carlton GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1595.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Randall Gray challenges his conviction for manslaughter and the resulting fifteen-year sentence. We affirm the conviction without further discussion. We reverse the sentence because the trial court erred in considering the details of pending charges that were alleged to have occurred after the manslaughter offense while Gray was out on bond.

At sentencing for the manslaughter charge, the parties engaged in a discussion over whether a plea agreement could be reached for the other cases pending against Gray. Gray Informed the court that he wanted to have the new cases continued and that he would not enter a plea to the new charges because he was not guilty. The trial court set the new cases for future trial dates.

The court then turned its attention to sentencing for the instant manslaughter case. The State indicated its intention to introduce evidence, photographs and testimony from the officers involved, concerning the pending offenses that were alleged to have occurred after the manslaughter. The defense attorney for the manslaughter case, who was not representing Gray for the new charges, objected to the court considering the new charges. However, the defense attorney took the position that, assuming his objection was overruled, the court should review the exhibits relating to the new charges rather than hearing testimony from the officers involved. The trial court agreed to review the State’s exhibits, which consisted of numerous photographs relating to the new charges.

In Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001), the Fourth District remanded for resentencing because of improper information which may have influenced the trial court’s sentence. Seays was charged with burglary with a battery. While he was out on bond, he was charged with attempted murder of the same victim. 789 So.2d at 1209. After a jury found Seays guilty of the burglary charge, a sentencing hearing was held at which Seays asked for the bottom of the guidelines since this was his first felony offense. The State reminded the trial court of the pending attempted murder charge and asked for the top of the guidelines, which the trial court imposed. Id. On appeal Seays argued that the trial court erred in considering the pending attempted murder charge in sentencing him for burglary. Id. at 1209. The district court concluded that the State had not carried its burden to show that the trial court did not consider the pending charge in sentencing Seays and, therefore, reversed and remanded for resentencing by a different judge. Id. at 1210.

Here, the State’s presentation and argument before the trial judge centered on the new charges. As the court did in Seays, we reverse the sentence and remand for resentencing by a different judge.

Affirmed in part, reversed in part, and remanded.

SALCINES and WALLACE, JJ., Concur.


author: FULMER, Judge. VILLANTI, Judge, Specially

text:
    Alexander WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-245.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Alexander Walker appeals his conviction for trafficking in heroin and his sentence of life in prison as a habitual offender. We affirm the conviction without discussion. Because the State did not present sufficient proof of the qualifying prior convictions, we reverse the habitual offender sentence and remand for resentencing under the Criminal Punishment Code.

At the sentencing hearing, the defense counsel objected to the State’s documentation of prior convictions to prove habitual offender status, arguing that there was no fingerprint comparison and no identifying marks to show that this defendant was the same person sentenced to the prior offenses. We agree that the State’s evidence fell short of establishing the prior convictions. See Rivera v. State, 825 So.2d 500, 501 (Fla. 2d DCA 2002) (“A fingerprint expert or some other supporting evidence was required to connect the earlier judgments to Rivera.”); see also Wallace v. State, 835 So.2d 1281 (Fla. 2d DCA 2003) (reversing habitual offender sentence where record did not contain a certified copy of a conviction for the second felony offense).

In Collins v. State, 893 So.2d 592 (Fla. 2d DCA 2004), this court followed Wallace and Rivera but acknowledged conflict with the First, Fourth, and Fifth Districts as to whether the State should be afforded an opportunity on remand to demonstrate that the defendant meets the habitual offender criteria.

In previous cases, when an appropriate objection to a habitual felony offender sentence was presented in the trial court at sentencing, this court has not afforded the State a second opportunity on remand to demonstrate that the defendant meets the habitual felony offender criteria. See Wallace v. State, 835 So.2d 1281 (Fla. 2d DCA 2003); Rivera v. State, 825 So.2d 500 (Fla. 2d DCA 2002); Reynolds v. State, 674 So.2d 180 (Fla. 2d DCA 1996). Accordingly, we remand for resentencing under the Criminal Punishment Code.
We acknowledge that the position we have adopted on this issue is in conflict with decisions of the First District, the Fourth District, and the Fifth District. See Wilson v. State, 830 So.2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 746 (Fla. 4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We therefore certify direct conflict with Wilson, Cameron, Morss, Roberts, Rhodes, and Brown, pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi).

893 So.2d at 594 (footnotes omitted).

Because Walker made an appropriate objection to the sentence in the trial court, we remand for resentencing under the Criminal Punishment Code. As we did in Collins, we certify conflict with the First, Fourth, and Fifth Districts.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge, Specially

concurring.

If this result were not mandated in this district, I would allow the State a “second chance” to meet its burden to establish the habitual offender criteria, as allowed by our sister districts in Wilson, Cameron, Morss, Roberts, Rhodes, and Brown. On resentencing, a defendant is entitled to a de novo sentencing hearing unless the resentencing is limited in some way, such as to correct clerical or nondiscretionary legal errors. See, e.g., Baldwin v. State, 700 So.2d 95, 96 (Fla. 2d DCA 1997). Therefore, I believe the State should be permitted to present evidence establishing Walker’s habitual offender status just as Walker would be permitted to present evidence challenging such status. During a de novo sentencing hearing, “both sides are free to argue or present evidence on whatever factors the law permits a trial court to consider before imposing sentence.” Gisi v. State, 948 So.2d 816, 819 (Fla. 2d DCA), review granted, 952 So.2d 1189 (Fla.2007); see also Street v. State, 899 So.2d 440, 441 (Fla. 4th DCA 2005). Thus, in my view, mandating a guidelines sentence on remand here is legally unjustified and serendipitous to Walker.


author: SALCINES, Judge.

text:
    Kessington NWAJEI, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-648.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.
   SALCINES, Judge.

Kessington Nwajei appeals the summary dismissal of his motion to vacate judgment that was treated as a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the dismissal because the motion did not include an oath as required by rule 3.850(c). See also Fla. R.Crim. P. 3.987 (providing two forms of the oath for use in rule 3.850 motions). This affirmance is without prejudice to Nwajei’s right to refile a properly sworn motion within the time remaining under rule 3.850(b). Any such motion shall not be deemed successive.

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.


author: PER CURIAM.

text:
    Anthony LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4529.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Smiley v. State, 32 Fla. L. Weekly S303, — So.2d —, 2007 WL 1628111 (Fla. June 7, 2007).

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Steven D. FIRESTONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant moved to correct the sentence imposed upon his plea of no contest to criminal charges in four cases: Case Nos. 01-601, 01-661, 01-701, and 01-759. We affirm that portion of the order denying the motion to correct, which was based on the trial court’s finding that the sentencing judge clearly pronounced that the five-year sentence imposed in Case No. 01-759 would be consecutive to the ten-year sentence in Case No. 01-661. However, because the trial court did not orally pronounce sentence in Case No. 01-601, we remand for resentencing in that case. See Fla. R.Crim. P. 3.700(b) (“Every sentence or other final disposition of the case shall be pronounced in open court....”).

Affirmed in part, reversed in part, and remanded for resentencing.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


author: HAZOURI, J. GUNTHER J.,

text:
    Joseph MOURNING and Taneisha Mourning, Appellants, v. BALLAST NEDAM CONSTRUCTION, INC., a foreign corporation, Appellee.
    No. 4D06-2557.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellants.
    Sylvia H. Walbolt and Laura W. Paquin of Carlton Fields, P.A., Tampa, and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
   CORRECTED OPINION

HAZOURI, J.

We withdraw our prior opinion, and substitute the following corrected opinion in its place.

Joseph and Taneisha Mourning (Mourning) appeal from a non-final order granting Ballast Nedam Construction, Inc.’s (Ballast) motion to vacate the final judgment which had been entered in favor of Mourning.

The issue before this court is whether the trial court reversibly erred in vacating the final judgment against Ballast based on the trial court’s failure to serve Ballast with the order resetting the trial on damages. Mourning contends the trial court’s failure to serve the order was remedied by Mourning subsequently mailing Ballast a copy of the order. We agree and reverse.

In April of 2003, Joseph Mourning was involved in a single-car automobile accident while driving on a road that was under construction. Mourning and his wife subsequently filed a lawsuit against Ballast, alleging that Ballast negligently maintained the construction site. A default was entered against Ballast for failing to respond to the complaint.

After entering the default on liability, the trial court entered an order dated April 22, 2005, setting the trial on the unliquidated damages to be held during the September 12, 2005, docket. This order was not served on Ballast by the court or Mourning at the time of its entry. However, Mourning subsequently mailed a copy of the order to Ballast which was received by Ballast in June 2005. This case was not reached on the trial docket of September 12, 2005 and thereafter Mourning sought a special trial date. In response to Mourning’s request, the trial court entered an order on October 5, 2005, resetting the trial for an eight-week trial docket beginning November 7, 2005.

On October 15, 2005, Mourning mailed a copy of the court’s order to Ballast. On December 12, 2005, the court conducted a jury trial on Mourning’s unliquidated damages. Ballast failed to appear for the trial. A verdict in the amount of $1,155,000 was entered in favor of Mourning. Final judgment was entered on May 24, 2006, and amended on June 6, 2006, to add Ballast’s insurer to the final judgment.

On June 8, 2006, Ballast filed a motion to vacate the default judgment. Ballast argued that the damages judgment was inappropriately entered and violated due process because Mourning, not the trial court, had served Ballast with the order resetting the trial on damages. By way of this motion, Ballast sought to have the damages judgment set aside only on that specific basis. Ballast filed a separate motion to set aside the entire default based on excusable neglect, which is not the subject of this appeal.

At the hearing on Ballast’s motion to vacate the default judgment, the trial court acknowledged that it did not serve a copy of the order resetting the damages trial and concluded that, even though Ballast received a copy of the order mailed by Mourning, the amended final judgment had to be set aside because of the due process violation caused by the court’s failure to serve the order setting trial in accordance with the requirements of Florida Rule of Civil Procedure 1.440(c).

Florida Rule of Civil Procedure 1.440(c) provides:

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).

Florida Rule of Civil Procedure 1.080(a) provides:

(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.

Although rule 1.080(a) provides that pleadings and papers generally need not be served upon a defaulted party, Florida Rule of Civil Procedure 1.080(h)(l)-(3) requires service of an order setting an-action for trial and the final judgment.

Florida Rule of Civil Procedure 1.080(h)(l)-(3) provides:

(h) Service of Orders.
(1)A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment.
(2) When a final judgment is entered against a party in default, the court shall mail a conformed copy of it to the party. The party in whose favor the judgment is entered shall furnish the court with a copy of the judgment, unless it is prepared by the court, and the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.

It is uncontroverted that the trial court did not send the order of October 5, 2005, to Ballast. It is uncontroverted that Mourning did in fact send the order of October 5, 2005, setting trial to Ballast on October 15, 2005. It is further uncontro-verted that the trial itself did not take place until December 12, 2005, which is 58 days after Ballast received notice of the jury trial docket.

Ballast argued, and the trial court accepted, that rule 1.440(c) and rule 1.080(h)(l)-(3), must be strictly construed as bright-line rules that the court must send out the order setting an action for trial. Ballast further argued the failure of that to occur required the setting aside of the default final judgment for unliquidated damages.

A trial court’s ruling on a motion to vacate under Florida Rule of Civil Procedure 1.540 is reviewed under the abuse of discretion standard. Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298, 1300 (Fla. 4th DCA 1998). However, in this case there appears to be no factual dispute upon which the trial court based its determination to vacate the default final judgment. The trial court based its decision on a pure question of law, i.e., that rule 1.440(c) and rule 1.080(h)(l)-(3) required as a matter of law that the order setting the trial on the unliquidated damages must be served by the court and not by Mourning’s counsel. Therefore, since the court’s ruling was as a matter of law, our standard of review is de novo.

In support of its position, Ballast cites Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1133 (Fla. 5th DCA 1987), Pierce v. Anglin, 721 So.2d 781 (Fla. 1st DCA 1998), and Viets v. American Recruiters Enterprises, 922 So.2d 1090 (Fla. 4th DCA 2006). We find these cases distinguishable.

The underlying principle inherent in rule 1.440(c) is one of due process. Rule 1.440(c) mandates the parties to litigation are entitled to an order setting a case for trial and the order setting the case for trial shall give at least thirty days notice from the entry of that order to the trial date itself. See Bennett v. Cont’l Chems., Inc., 492 So.2d 724 (Fla. 1st DCA 1986). This requirement of due process as it relates to claims for unliquidated damages is reiterated in Lauxmont Farms, Pierce, and Viets. Ballast relies heavily upon Lauxmont Farms, and asserts it is squarely on point. The facts outlined in Lauxmont Farms are somewhat limited and so it is questionable that it is “squarely on point” with the instant case.

Lauxmont Farms involved an appeal from a judgment which awarded un-liquidated damages without a trial. Although a default judgment can be entered to establish liability, a trial is necessary to establish unliquidated damages. See Bowman v. Kingsland Dev., Inc., 432 So.2d 660 (Fla. 5th DCA 1983). The Lauxmont Farms court held that the award of unliq-uidated compensatory damages by summary judgment is error. The court noted:

After the motion for summary judgment and compensatory damages were [sic] granted, the attorney for appellee sent a notice of nonjury trial to the appellant. The notice was defective because the order was sent by the opposing attorney rather than the court and did not give the requisite thirty-days notice of trial. Fla. R. Civ. P. 1.440(c). Lauxmont Farms did not attend the nonjury trial in which the trial court awarded $1,600,000 in punitive damages and $6,400 in attorney’s fees and costs.

Lauxmont Farms, 514 So.2d at 1134. The court went on to state:

We have stated before that a party has a due process entitlement to notice and an opportunity to be heard on unliquidated damages pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So.2d at 663. Lauxmont Farms’ fundamental due process rights were violated by the defective notice of nonjury trial for both compensatory and punitive damages as well as attorneys fees and costs.

Lauxmont Farms, 514 So.2d at 1134.

Ballast asserts that Lauxmont Farms establishes a bright-line rule that not only must an order setting the case for trial set the trial at least thirty days from the date of the order, but that the order must be sent by the trial court. We disagree. The language in Lauxmont Farms referring to the notice as being defective because it was sent by opposing counsel rather .than the court is unnecessary for the disposition in Lauxmont Farms and is therefore dicta. As noted earlier, the judgment for unliqui-dated damages was determined by summary judgment rather than a jury trial and Lauxmont Farms did not get an order setting its case for trial with the requisite thirty days notice.

In Pierce, the court reversed a final judgment that was entered only on a motion for default and affidavit without a trial on unliquidated damages having been set or held. Unlike the instant case, no order setting trial under rule 1.440(c) was ever entered or served upon defendant Pierce.

In Viets, our court vacated a default judgment on the defendant’s counterclaim because there was no trial held on the unliquidated damages. There was not even a notice of trial in Viets, only an order on a motion for default judgment and affidavit without any hearing. The plaintiff/eounter-defendant in Viets was given no opportunity to defend. This court in Viets held these defects violated due process because there was no notice or order setting the hearing on the motion for default judgment and damages were awarded without a hearing.

Ballast argues that our court in Viets cites Lauxmont Farms with approval. There is no specific discussion of the requirements of rule 1.440(c) in Viets, and we cited to Lauxmont Farms as support for vacating a default judgment where there was a lack of due process. Mailing of a notice or an order was not involved in Viets. In the instant case, there was an order, it was served on Ballast, the order gave Ballast notice of the calendar call, the duration of the trial docket, and the trial itself did not take place until December 12, 2005. Ballast received due process and chose not to show up and defend.

Although Ballast has cited to this court numerous cases involving the question of the necessity of notice of setting a trial date for due process purposes, in each instance either an order was not sent, a jury trial was not held, or if a trial took place, the trial occurred before the thirty-day requirement. To read into rule 1.440(c) in conjunction with rule 1.080 that the order setting a case for jury trial to be effective must be placed in envelopes addressed to a defendant by the court itself is unreasonable and adds nothing to the requirement to afford Ballast due process. We can discern no due process implication if Ballast receives the order setting the trial docket in a timely fashion and that order comes in a properly addressed envelope sent' through the U.S. mail by Mourning’s counsel. We fail to see the logic in permitting Ballast to ignore the order and thereafter engage in “gotcha” tactics to set aside the final judgment.

The dissent advocates a bright-line rule that the order setting the instant case for trial must be sent to Ballast by the trial court in order to assure due process. However, the dissent fails to explain or delineate how Ballast was deprived of due process by receiving the order setting the case for jury trial in an envelope mailed by Mourning. It is the identical order Ballast would have received had the order been posted by the trial court. If Ballast were asserting any of the following: (1) that it did not receive the order, or (2) that without receiving an order in an envelope mailed by the court, it created doubt as to the order’s authenticity, or (3) that the trial commenced less than 30 days from the receipt of the order, then there would be due process implications. None of that is alleged in the instant case.

The dissent lists a litany of cases to support her position concerning bright-line rules. None of those cases except Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1986), are germane to the facts in this case. Even Bennett is distinguishable from the instant case because in Bennett, the trial court never entered an order setting the case for trial. The court in Bennett disapproved of what apparently was a local procedure that parties scheduling non-jury matters simply have the trial date and time reserved on the judge’s calendar. Additionally in Bennett, the case could not be set for trial because it was not at issue.

The dissent also relies heavily on this court’s opinion in Stowe v. Universal Property & Casualty Insurance Co., 937 So.2d 156 (Fla. 4th DCA 2006), in advocating a bright-line rule. However, this court in Nicholson-Kenny Capital Management Inc. v. Steinberg, 932 So.2d 321 (Fla. 4th DCA 2006), in fact made an exception to the bright-line rule in the application of Florida Rule of Civil Procedure 1.820(h). In Nicholson-Kenny, this court would not permit Steinberg to engage in “gotcha” tactics. The dissent attempts to distinguish this court’s departure from an application of a bright-line rule in Nicholson Kenny by concluding that the defendant in Nicholson-Kenny “waived” the bright-line rule by participating in the pretrial conference even though the plaintiff failed to file a motion for a trial de novo. In the instant case, Ballast received the order setting the case for trial, and without any explanation or justification failed to appear to defend the jury trial for unliquidated damages. This failure to appear constitutes a waiver and such conduct should not be countenanced.

The dissent’s reference to the Florida Supreme Court’s recent decision in Campbell v. Goldman, 959 So.2d 223 (Fla.2007), as additional support for the application of a bright-line rule is misplaced. The issue in Campbell is whether a proposal for settlement could be enforced without citation to section 768.79, Florida Statutes. The majority in Campbell held that the attorney fee-shifting provision of a proposal for settlement was created by statute and because it is penal and in derogation of the common law, rule 1.442 and section 768.79 must be strictly construed. Id. Neither of the rules implicated in the instant case is penal in nature nor in derogation of the common law.

To elevate form over substance under the facts of this case does nothing to advance the due process of law. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

POLEN, J., concurs.

GUNTHER, J., dissents with opinion.

GUNTHER J.,

dissenting.

I respectfully dissent.

Based on the facts in this case, I would affirm the trial court’s order vacating the judgment for unliquidated damages. The trial court entered a default on liability against Ballast Nedam Construction, Inc. The trial court then entered an order setting a trial on unliquidated damages. Contrary to the Florida Rules of Civil Procedure, the trial court did not serve the order setting trial on Ballast, which was unrepresented by counsel at this point in time. Thereafter, the Mournings sought a special trial date, and, on October 5, 2005, the trial court entered a new order resetting trial to the November 7, 2005 docket. The trial court again failed to serve on Ballast the order setting trial for November 7, 2005. However, on October 15, 2005, only twenty-three days prior to the beginning of the trial docket on which the case was set, the Mournings’ counsel served on Ballast a copy of the trial court order setting trial. As such, even if it were proper for counsel, and not the trial court, to serve an order setting trial on Ballast, the service would have provided less than the mandatory thirty-day notice required by Rule 1.440(c). Plus, the order was sent ten days after entry by the trial court, contrary to the requirement of Florida Rule of Civil Procedure 1.080(h)(1) that the order be served at the time it is entered by the trial court. At the start of the November 7, 2005 trial docket the case was rescheduled for December 12, 2005, for a jury trial on unliquidated damages. Ballast was not notified of the December 12 trial date. Ballast did not appear on December 12 for trial, and following the jury verdict a final judgment was entered against Ballast. Thereafter, Ballast, through counsel, filed a motion to vacate the damages judgment based on the trial court’s failure to comply with rules of civil procedure. At a hearing on that motion, the trial court recognized that it had not complied with Florida Rule of Civil Procedure 1.440(c) and granted Ballast’s motion to vacate.

The language of the applicable Florida Rules of Civil Procedure is clear. Florida Rule of Civil Procedure 1.440(c) provides:

Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).

Florida Rule of Civil Procedure 1.080(a) provides:

Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.

Finally, Rule 1.080(h)(1) specifically addresses service of orders setting trial on defaulted parties:

A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment.

A combined reading of these rules reveals that it is the trial court’s, and not opposing counsel’s, responsibility to serve orders setting trial on parties, including those in default. Under the plain language of Rule 1.440, the trial court was required to enter an order fixing a date for trial. This the trial court did. Under the plain language of Rule 1.080(h), the trial court, and not Mourning, was required to transmit the order setting trial to Ballast at the time the order was entered. This the trial court did not do. Yet, the rules make it clear that the trial court must serve, at the time of entry, the order setting trial on the parties and that the trial shall not be set less than thirty days from service of the notice of trial.

The various cases considering a trial court’s failure to comply with this mandatory service requirement lead me to conclude that failure to comply is a due process violation warranting reversal of a final judgment. In Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1183 (Fla. 5th DCA 1987), after a motion for summary judgment on unliquidated damages in a default case was erroneously granted, an order setting non-jury trial on punitive damages and attorney’s fees was sent by Flavin’s counsel. Id. at 1134. Lauxmont Farms did not appear at trial and a punitive damages and attorney’s fees judgment was entered against it based on the jury’s verdict. Id. The Fifth District reversed and held as follows:

Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So.2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1986); see aiso Broussard v. Broussard, 506 So.2d 463 (Fla. 2d DCA 1987). We have stated before that a party has a due process entitlement to notice and an opportunity to be heard on unliquidated damages pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So.2d at 663. Lauxmont Farms’ fundamental due process rights were violated by the defective notice of nonjury trial for both compensatory and punitive damages as well as attorneys fees and costs. Accordingly, the judgments for damages, attorney’s fees and costs are reversed and remanded for new trial after proper notice under Florida Rule of Civil Procedure 1.440.

Id. Apart from the erroneous grant of summary judgment regarding unliquidated damages, the court in Lauxmont held that the trial court’s failure to comply with the strict requirement of serving an order setting a trial, even one for punitive damages and attorney’s fees against a defaulted party, required reversal on due process grounds.

In Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1986), the court likewise held that the trial court’s failure to serve an order setting trial on a party that did not ultimately appear for trial required the reversal of a final judgment on due process grounds (and in the interest of promoting uniformity) and concluded that “strict compliance with rule 1.440 is mandatory.” Id. at 727. As such, it is clear from cases such as Lauxmont and Bennett that except in cases of waiver, the trial court’s failure to transmit the order setting trial to the parties is reversible error because of the risks to due process, without engaging in any type of calculus or entertaining the particular circumstances of a case. See also Brown v. Reynolds, 872 So.2d 290, 297 (Fla. 2d DCA 2004)(“The rule [1.440] is designed to safeguard the parties’ right to procedural due process. Noncomplianee •with the rule may violate a party’s due process rights. Thus strict compliance with the rule is mandatory.”)(internal citations omitted).

Moreover, the current trend to construe Florida Rules of Civil Procedure in a bright-line fashion based on their plain language and unambiguous meaning supports the conclusion that the clear rules governing the serving of orders setting trial should likewise be construed in a bright-line fashion. See Sata Motor Freight Line, Inc. v. Reid, 980 So.2d 598, 600 (Fla.2006)(concluding that a Rule 1.525 motion for costs was untimely despite a reservation of jurisdiction based on the plain meaning of the rule: “When we adopted rule 1.525, effective January 1, 2001, we established a bright-line time requirement for motions for costs and attorney fees which the Rules of Civil Procedure had not previously contained. Judge Altenbernd correctly made this point stating, in Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002), that ‘[r]ule 1.525 was created to establish a bright-line rule to resolve the uncertainty surrounding the timing of these posttrial motions.’ ”); Wilson v. Salamon, 928 So.2d 363, 368 (Fla.2005)(“However, the language of the rule [1.420(e) ] is clear-if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review.of the face of the record reveals activity by ‘filings of pleadings, order of court, or otherwise,’ an action should not be dismissed. See Metropolitan Dade County v. Hall, 784 So.2d 1087,1090 (Fla.2001). This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court. As Justice Wells noted in Hall, there is either activity on the face of the record or there is not. Id. We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active. It is this burden which has created the difficulty with which litigants and trial courts have struggled to determine whether a particular filing or action will advance the cause to resolution.”); Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005)(applying bright-line rule to particularity and specificity requirements of Rule 1.442 governing proposals for settlement).

My conclusion that the Florida Supreme Court’s bright-line trend should be applied to the construction of the rules regarding mandatory trial court service of orders setting trial is further supported by this Court’s repeated strict application of rules of civil procedure in a bright-line fashion, on no less than seventeen occasions since December 2005.

The first case recognizing the bright-line trend for construing rules of civil procedure was Lynch v. United Distributors, Inc., 915 So.2d 274 (Fla. 4th DCA 2005). In Lynch, this court reversed an order dismissing a case for lack of prosecution under Rule 1.420(e), finding that there was sufficient activity on the face of the record during the relevant time period (Lynch’s notice of compliance with discovery), and cited Wilson. Id. at 274. This Court did likewise in the second bright-line case, Frisbie v. Gardiner, 917 So.2d 403 (Fla. 4th DCA 2006), involving a motion to withdraw as counsel and an order granting the motion, again citing Wilson. Id. at 404. This Court followed suit yet again in the third bright-line case, Commercial Union Insurance Co. v. Marine Sales & Services, Inc., 923 So.2d 535 (Fla. 4th DCA 2006), involving a civil cover sheet, again citing Wilson. Id. at 535.

The fourth bright-line case, Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371 (Fla. 4th DCA 2006), was the first to deal with the bright-line construction of Rule 1.442. In Graham, this Court affirmed an order denying attorney’s fees based on a proposal for settlement, finding that the proposal did not apportion the offer between the co-defendants as required by Rule 1.442(c)(3). Id. at 371. This Court concluded that the failure to apportion was fatal based on the Florida Supreme Court’s bright-line interpretation of Rule 1.442 and cited Lamb. Id. at 372. On rehearing, this Court farther opined:

To us a bright line rule means that it applies in all proposal for settlement cases, without exception. Rule 1.442 applies to “all proposals for settlement authorized by Florida law ...” Fla. R. Civ. P. 1.442(a). In Lamb and rule 1.442(a), we believe that the supreme court, like Dr. Seuss’s Horton the elephant, meant what it said and said what it meant— rule 1.442(c) applies in all cases where proposals for settlement are authorized by Florida law, without exception for claims against litigants relating to property they own as tenants by the entirety.

Id. at 373.

The fifth bright-line case, Hunnewell v. Palm Beach County, 925 So.2d 468 (Fla. 4th DCA 2006), shifted back to yet another consideration of Rule 1.420(e). In Hunne-well, this Court again reversed an order dismissing a case for lack of prosecution, finding sufficient activity on the face of the record during the relevant time period (an order denying the County’s motion to dismiss), and noted that following Wilson, the court no longer needed to determine whether the record activity was active or passive. Id. at 470. This Court further noted that Wilson evidenced that “our supreme court sensed the need for a bright-line test to balance the competing need of litigants to have claims heard on the merits with the court’s need to dispose of cases that are not being prosecuted.” Id.

In the sixth bright-line case, Richards v. Sheriff of Palm Beach County, 925 So.2d 1166 (Fla. 4th DCA 2006), this Court continued its bright-line application of Rule 1.420(e). In Richards, this Court yet again reversed an order dismissing a case for lack of prosecution, finding sufficient activity on the face of the record during the relevant.time period (an order granting Richards’s attorney’s motion to withdraw), and cited Wilson. Id. at 1167-1168. The seventh bright-line case, Carnes v. Fender, 936 So.2d 11 (Fla. 4th DCA 2006), again considered rule 1.442. In Carnes, this Court denied a motion for appellate attorney’s fees based on proposals for settlement, finding that they lacked the specificity required by Rule 1.442(c)(2)(D), and cited to a predecessor case to Lamb, Swartsel v. Publix Super Markets, Inc., 882 So.2d 449 (Fla. 4th DCA 2004). Id. at 15.

The eighth bright-line case, Walker v. McDonough, 929 So.2d 1127 (Fla. 4th DCA 2006), again dealt with Rule 1.420(e). In Walker, this Court reversed an order dismissing a case for lack of prosecution, finding sufficient activity on the face of the record during the relevant time period (two notices of change of address and a notice of absence from the jurisdiction), and cited Wilson. Id. at 1128. The ninth bright-line case, Rivera v. Publix Super Markets, Inc., 929 So.2d 1184 (Fla. 4th DCA 2006), again involved Rule 1.442. This Court reversed an order awarding attorney’s fees based on an offer of judgment, finding that the offer failed to state its non-monetary terms with the particularity required by Rule 1.442(c)(2)(C)-(D), and cited Swartsel. Id. at 1184.

The tenth bright-line case is Stowe v. Universal Property & Casualty Insurance Co., 937 So.2d 156 (Fla. 4th DCA 2006), which is the first case to apply the bright-line trend to a rule outside the triad discussed by the Supreme Court in Saia, Lamb, and Wilson, Rule 1.820(h). In Stowe, an insurance contract dispute was referred to non-binding arbitration under Florida Statutes section 44.103. Id. at 157. Following the arbitration, but before a decision was issued, Stowe filed a notice for trial. Id. at 157-158. The arbitrator then rendered a decision, but Stowe did not file another notice for trial requesting trial de novo within the twenty-day window following the decision, so Universal moved for entry of judgment based on the arbitrator’s decision in accordance with Rule 1.820(h). Id. at 158. This Court affirmed the resulting judgment, finding that a motion for trial does not comply with Rule 1.820(h) if it is filed after an arbitration hearing but before the rendition of the arbitrator’s decision. Id. at 157. This conclusion was based on the plain language of Rule 1.820(h) in keeping with the bright-line trend for interpreting rules of civil procedure, as explained by this Court:

When it comes to interpreting rules of civil procedure, often the job of an intermediate appellate court is to read the tea leaves of Florida supreme court decisions. The recent trend in these decisions is to construe rules of civil procedure according to their plain meaning. Some high court opinions strictly construe provisions to create rules that are clear-cut and easy to apply. Thus, Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), adopted a bright line rule concerning the form of a rule 1.442 proposal for settlement. Recently, in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006), the supreme court described rule 1.525 as establishing “a bright-line time requirement for motions for costs and attorney fees.” Wilson v. Salamon, 923 So.2d 363 (Fla.2005) interpreted rule 1.420(e) by its “plain meaning” to “further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court’s docket.”

Id. at 158. Additionally, in following the bright-line trend, this Court noted the slippery-slope-like dangers of exceptions to bright-line rules, such as that suggested by Stowe’s circumstances:

The position that Stowe urges us to adopt does violence to the concept of a bright-line rule. If a motion for trial after an arbitration hearing but before a decision complies with the rule, what about a motion after the arbitration is set, but before the hearing, or a motion filed before an order setting arbitration, but after arbitration has been put into play by the court or the parties?

Id. at 158-159.

The eleventh bright-line rule case is Rubio v. Cuba, 933 So.2d 1292 (Fla. 4th DCA 2006), once again confronting Rule 1.420(e). In Rubio, this Court reversed an order dismissing a case for lack of prosecution, finding sufficient activity on the face of the record during the relevant time period (Rubio’s notice of deposition), and cited Wilson. Id. at 1292-1293. This Court did likewise in the twelfth bright-line case, Johnson v. Maroone Ford LLC, 944 So.2d 1059 (Fla. 4th DCA 2006), involving a request for production, again citing Wilson. Id, at 1061. The thirteenth bright-line case, Joseph v. Chanin, 938 So.2d 619 (Fla. 4th DCA 2006), was the first to address the bright-line construction of Rule 1.525. In Joseph, this Court accepted Chanin’s concession of error admitting that her post-judgment motion for costs was untimely served under Rule 1.525 and cited Saia. Id. at 619-620.

The fourteenth bright-line case, Papouras v. BellSouth Telecommunications, Inc., 940 So.2d 479 (Fla. 4th DCA 2006), once again returned to consideration of Rule 1.442. In Papouras, this Court affirmed an order denying attorney’s fees based on a proposal for settlement, because the proposal lacked the specificity required by Rule 1.442. Id. at 479. The specificity that was lacking was the details (whether a summary or copy) of the full release to be executed based on the terms of the proposal. Id. at 480. In reaching this conclusion, this Court recognized that the Florida Supreme Court had adopted a bright-line interpretation of Rule 1.442 and cited to a predecessor case to Lamb, State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So.2d 1067 (Fla.2006).

The fifteenth bright-line case, State Farm Mutual Automobile Insurance Co. v. Stylianoudakis, 946 So.2d 647 (Fla. 4th DCA 2007), involved yet another application of Rule 1.525. In Stylianoudakis, this Court reversed a costs judgment filed beyond the thirty-day window provided by Rule 1.525 due to a reservation of jurisdiction based on Saia. Id. at 649. The sixteenth bright-line case, ZC Insurance Co. v. Brooks, 32 Fla. L Weekly D829, 2007 WL 911843 (Fla. 4th DCA Mar.28, 2007), also addressed Rule 1.525. In Brooks, this Court again reversed a fees and costs judgment for failure to timely serve a motion under Rule 1.525 based on a reservation of jurisdiction, relying on Saia. Id.

The seventeenth (and final at the time of this writing) bright-line case, Metcalfe v. Lee, 952 So.2d 624 (Fla. 4th DCA 2007), is the second case to apply the bright-line trend to a rule outside the triad discussed by the Supreme Court in Saia, Lamb, and Wilson, Rule 1.260(a). In Metcalfe, a medical malpractice suit was dismissed for failure to comply with Rule 1.260 and substitute a personal representative as the plaintiff in the lawsuit following Metcalfe’s death. Id. at 626. On June 30, 2005, counsel filed a motion for substitution indicating that Metcalfe’s estate was being probated, that the estate was seeking the appointment of a personal representative, and that counsel was requesting that the personal representative be substituted into the malpractice suit as the plaintiff. Id. On August 10, 2005, a defendant filed a motion to dismiss for failure to substitute parties, asserting that a suggestion of death had been filed on May 9, 2005 so that the ninety-day period for substitution under Rule 1.260(a)(1) had expired on August 8 without the occurrence of substitution. Id. at 626-627. Thereafter, the trial court denied the motion for substitution and granted the motion to dismiss for failure to substitute based on the asserted untimeliness. Id. at 627. Recognizing that rules of civil procedure are to be construed based on their plain and ordinary meaning, and citing the triad of Florida Supreme Court bright-line cases, this Court reversed the dismissal, holding that dismissal was inappropriate “in light of the rule’s plain language as to when a trial court can dismiss an action — only when there is a failure to make a motion for substitution” because a motion for substitution had been timely filed within the ninety-day window of Rule 1.260(a) (regardless of whether substitution had yet occurred) by a party with standing under the plain language of the rule. Id. at 629-630.

Against this backdrop of bright-line cases regarding the interpretation of rules of civil procedure and clear cases regarding the per se offense to due process resulting from noncompliance with Rules 1.440(c) and 1.080(h)(1), it seems to me that these rules must be interpreted based on their plain meaning. Thus, the rules require that the trial court in all cases, without particularized exceptions, must transmit to the parties, at the time of entry, the order setting a case for trial and that the trial shall be set not less than thirty days from the service of the order. To conclude otherwise would defeat the due process protections inherent in the rules and would stray from the Florida Supreme Court’s bright-line trend for applying rules of civil procedure.

Perhaps a bright-line construction of Rules 1.440(c) and 1.080(h)(1) may appear to elevate form over substance, but I believe it more importantly promotes the efficient administration of justice through uniformity and certainty in the practice of law and in the application of rules designed to achieve these very ends. See Fla. R. Civ. P. 1.010 (“These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”). It allows counsel to know what type of notice to expect without speculation, it eliminates subjectivity in the application and interpretation of the rules, and it promotes due process in the sense that all parties, regardless of their circumstances, will receive the same notice, at the same time, from the same impartial trial court.

If there are legitimate concerns about whether the mandatory requirement of service by the trial court promotes the interests of due process or rather elevates form over substance, those concerns are best resolved by the Florida Supreme Court which approved the present rules. See BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366, 370 (Fla. 4th DCA 2001)(“[Article V, Section 2(a) of the Florida Constitution] provides that the ‘supreme court shall adopt rules for the practice and procedure in all courts.’ That provision endows the supreme court ‘with the exclusive authority to adopt rules for practice and procedure in the courts of this State.’ ”)(Gross, J., concurring specially). The present rules, as approved by the court, simply do not allow for due process distinctions based on the circumstances of individual cases.

For these reasons expressed, I conclude that based on the clear facts of this case and the plain language of the applicable rules of civil procedure, the trial court did not err in granting Ballast’s motion to vacate the damages judgment. I would affirm.

      . After entry of the default judgment, Mourning filed a unilateral pretrial statement on August 19, 2005, a copy of which was sent certified mail to Ballast. In anticipation of the trial in September 2005, Mourning also set the deposition of two treating physicians and sent notices to Ballast, one on September 2, 2005 and the other on September 14, 2005. Ballast failed to respond or to attend these depositions.

      . This order provides for mandatory attendance at the calendar call scheduled for October 21, 2005. Because there were numerous cases set on the calendar, one of the purposes of the calendar call was to set the actual trial date for any individual case. By attending the calendar call, parties could be apprised when their case would be reached during the eight-week period. Ballast failed to attend the calendar call.

      . The definition of waiver in Black's Law Dictionary is as follows:
      The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong. An express or implied relinquishment of a legal right....
      Black's Law Dictionary 1580 (6th ed.1995).

      . An example of waiver can be found in the lone case which the majority suggests consti-lutes an instance in which this Court failed to adhere to the bright-line trend for construing rules of civil procedure, Nicholson-Kenny Capital Management, Inc. v. Steinberg, 932 So.2d 321 (Fla. 4th DCA 2006). In Nicholson-Kenny, a party filed a "Notice of Conference of Parties & Attorneys” to address pretrial issues four days after a non-binding arbitration decision. Id. at 323., The opposing party filed a motion for final judgment alleging that the party had failed to comply with Florida Rule of Civil Procedure 1.820(h) by not expressly requesting a trial de novo. Id. This Court affirmed the ensuing entry of final judgment, writing:
      Even though the notice indicating a continued demand to proceed to trial was not specifically styled a "motion for trial de novo,” we would conclude that Steinberg, through its conduct, is precluded from raising the issue of non-compliance with rule 1.820. It did not object when its attorneys were noticed to attend the pretrial conference; it worked with Nicholson’s attorney to develop the pretrial statement; and it did not object to setting the trial at the docket call. All of these events occurred within the time in which Nicholson could have filed a "motion for trial de novo” had it known that Steinberg was insisting that it file a document so styled. Steinberg continued preparing for a trial and never revealed its argument that the notice of setting the pretrial conference in accordance with the order setting trial was insufficient to put it on notice that Nicholson intended to proceed with a trial.

        Id. at 324-325. As such, I conclude that Nicholson-Kenny is not so .much a deviation from the bright-line trend, as it is an instance in which compliance with a rule was waived by a party's “gotcha” conduct. Thus, it is clearly distinguishable from the present case involving a default in which the aggrieved party took no action inconsistent with enforcement of the rules in question nor participated in any of the proceedings to the point of misleading the plaintiff.

      . In fact, there are only two instances during this time period in which it could be legitimately contended that this Court failed to follow the bright-line trend. One of these cases was Nicholson-Kenny, as discussed in Footnote 1, a case involving a waiver of rule compliance based on "gotcha” conduct that is not a true deviation from the bright-line trend. The other case was Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006), which although recognizing the bright-line trend, did not apply it to a case involving some unique circumstances surrounding Rule 1.442 and the law related to proposals for settlement. In Goldman, the plaintiff failed to cite Florida Statutes section 768.79 in his proposal for settlement as required by Rule 1.442(c)(1) and the statute, and this Court concluded that such a technical violation of the rule did not warrant invalidating the proposal where only one statute presently governed proposals for settlement. Id. at 1266. However, this case, and the technical violation exception to the bright-line rule which it arguably created, was recently reversed by the Florida Supreme Court in Campbell v. Goldman, 959 So.2d 223 (Fla.2007). The Supreme Court rejected a distinction between the substantive and procedural portions of Rule 1.442, and held that because the plain language of the rule and statute requiring citing the statute in a proposal for settlement must be strictly construed (in keeping with the bright-line trend established by cases like Willis Shaw and Lamb), the proposal for settlement at issue was invalid. This development further supports my position that the bright-line trend is thriving and should be equally applied to the construction of the rules at issue in this case.


text:
    Donald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4444.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2007.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Thomas v. State, 748 So.2d 970, 983 (Fla.1999) (“A motion for a jury view may be granted if it appears that a useful purpose would be served. However, such a determination is left to the discretion of the trial judge and there is a presumption of correctness as to his rulings absent a demonstration to the contrary.”); Rosen v. State, 940 So.2d 1155, 1159 (Fla. 5th DCA 2006) (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then there is sufficient evidence to sustain a conviction.”); Miller v. State, 782 So.2d 426, 430 (Fla. 2d DCA 2001) (holding question of proximate cause was for jury to decide).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Donald E. SARGENT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1993.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2007.
    Donald E. Sargent, Cross City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Donald Sargent has filed a petition in this court seeking a writ of habeas corpus requesting a belated appeal. We deny the petition without prejudice to refile a legally sufficient petition. The instant petition, although executed with proper legal formality, fails to allege that Sargent requested his attorney to file an appeal on his behalf in a timely manner. If he failed to make a timely request for an appeal, he is not entitled to receive a belated appeal.

Petition for Writ of Habeas Corpus DENIED without prejudice.

PALMER, C.J., SAWAYA and TORPY, JJ., concur.

      . See Fla. R.App. P. 9.141(c)(3)(F). See also Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005).


text:
    WALANPATRIAS FOUNDATION, Petitioner, v. AMP SERVICES LIMITED, as Trustee for the Walter and Anna Bronner Trust, Respondent.
    No. 4D07-1990.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Charles C. Kline and David P. Draigh of White & Case LLP, Miami, for petitioner.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., and Adam J. Hodkin of the Hodkin Kopelowitz Ostrow Firm, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

The Walanpatrias Foundation (the Foundation), a defendant below, seeks review of a non-final order finding that the plaintiff, AMP Services Limited (AMP), presented a prima facie case that the crime-fraud exception to the attorney-client privilege applied and ordering delivery to the court of the documents on the Foundation’s privilege log, for in camera inspection. We grant the petition in part.

The challenged order provides that any documents on the privilege log which discuss the perpetuation of a crime or fraud by misleading the court and others would be released immediately to AMP, without making provision for any further hearing or order.

As the Foundation points out, this procedure is defective in that it does not allow it the opportunity to present evidence to rebut the trial court’s conclusion as to any particular document selected by the trial court for release. No eviden-tiary hearing is required before the in camera inspection, nor does the record reflect that the Foundation requested one; for this purpose, “it would be sufficient for the trial court, in its discretion, to consider only the presentation made by the party challenging the privilege.” Am. Tobacco Co. v. State, 697 So.2d 1249, 1255 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 96 (3d Cir.1992)). However, prior to disclosure to the other sides, the party defending the privilege must be “given the opportunity to be heard, by evidence and argument, at the hearing seeking an exception to the privilege.” Id. at 1255 (citing Haines, 975 F.2d at 97). See also IDS Long Distance v. Heiffer, 837 So.2d 1130, 1131 (Fla. 4th DCA 2003) (quashing portion of order applying crime/fraud exception to attorney-client privilege without the evidentiary hearing contemplated by American Tobacco)-, Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne Developers, Inc., 873 So.2d 339, 342 (Fla. 3d DCA 2003) (explaining that if trial court determines crime-fraud exception applies, then client is entitled to evidentiary hearing where client would carry burden of persuasion to give a reasonable explanation for its communication or conduct), rev. dismissed, 881 So.2d 1111 (Fla.2004). This evidentiary hearing has been omitted by the terms of the trial court’s order.

Second, this procedure is defective in that the order provides for an immediate turning over of the documents by the judge to AMP, without further opportunity for appellate review of the judge’s decision following the in camera inspection. Ordinarily, “an order requiring production for an in camera inspection cannot display the appropriate characteristic of permanent harm because a remedy is available if and when the trial court enters a further order (after in camera inspection) requiring dissemination of the protected matter to the appropriate party or parties.” Cebrian by and Through Cebrian v. Klein, 614 So.2d 1209, 1210 (Fla. 4th DCA 1993). That remedy is lacking under the terms of the order under review. Compare In re Grand Jury Subpoena, 190 F.3d 375, 388 (5th Cir.1999) (providing that when trial court orders production of documents following in camera review, it should provide the individual who submitted them an opportunity to comply or stand in contempt, a procedure which secures to the individual an avenue of immediate review of the order).

However, we find the trial court did not depart from the essential requirements of law in determining that AMP presented a prima facie case that the crime-fraud exception to the attorney-client privilege applied, sufficient to justify an in camera inspection.

Accordingly, we quash only that portion of the order on review that provides for the immediate release of documents to AMP without allowing the Foundation an opportunity to (1) present evidence and argument on the question of disclosure of particular documents; and (2) seek appellate review in the event the disclosure of any specific documents is ordered.

Granted in part; Denied in part.

SHAHOOD, C.J., FARMER and KLEIN, JJ., concur.

      . Inter alia, the Foundation argues the trial court departed in applying the wrong standard when it indicated that a document would be produced as falling within the exception if it merely discussed, rather than furthered, a crime or fraud. As the in camera inspection has not yet occurred, we find this issue is not yet ripe for review.


author: STONE, J. POLEN, J.,

text:
    Tom MARTINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2325.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, and Michael J. Pasano and Brian T. James of Zuckerman Spaeder LLP, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Martino’s convictions and sentences for one count of organized scheme to defraud and six counts of purchase or receipt of a legend drug from an unauthorized person. This was a complex case; the information was seventy pages in length. The sole issue we address is whether the trial court’s limitation of cross-examination of the state’s witness requires reversal.

The witness, Mark Novosel, was a participant in a scheme with Martino to obtain legend drugs from an unauthorized source and commercially resell them. He testified for the state under a plea agreement providing him with a possible two-year sentence and had not yet been sentenced. Novosel’s testimony was the most telling evidence against Martino.

Novosel admitted he had a plea agreement that could benefit him in this case, and he had previously been convicted of six felonies — one of which was in the instant case. When defense counsel asked what the other five felonies were, the prosecution objected. The defense then proffered the following:

Are you the same Michael Novosel convicted in '97 [9 years earlier] in federal court of the crime of racketeering, and the same Michael Novosel convicted of the crime of tax evasion, the same Mark Novosel convicted of the crime of Medicare fraud. I believe that—
... where I would seek to go next, ... I believe that in 1997, approximately, Mr. Novosel is charged with a variety of crimes. Those crimes carried very severe sentences in part of — in pleading to those he then enters into an agreement and agrees to cooperate and testifies. And by testifying against specifically judges and lawyers, he ends up with his sentence that is, in fact, a house, home confinement type sentence, he avoids jail.
... what I would seek to establish in connection with his prior problems, whatever they were, he was able to resolve them and that part of the way he resolved them was being able to cooperate. Part of that cooperation was actually testimony from the successful execution of that testimony resulted back, then in being able to limit his sentence and that I would argue to the jury in closing he’s doing it again.

The trial court sustained the state’s objection, stating: “You know, you can ask if he’s been convicted and go into all of the details as to any plea agreement in this case ... I think the other ones really are collateral matters.” A trial court’s limitation of cross-examination is reviewed for abuse of discretion. See Docekal v. State, 929 So.2d 1139 (Fla. 5th DCA 2006).

We recognize that the Sixth Amendment and Florida law provide wide latitude for cross-examination in criminal cases. Martino argues that the proffered testimony would reflect a motive for Novo-sel’s making Martino the fall guy for their offense, and the testimony would establish a pattern and practice of avoiding or minimizing his criminal punishment by placing blame on others and showing a continuing motivation to frame testimony to benefit himself.

A criminal defendant has a constitutional right to full and fair cross-examination to show a witness’ possible bias or motive to be untruthful. Commerford v. State, 728 So.2d 796, 799 (Fla. 4th DCA 1999); see also Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). “This right ⅛ especially necessary when the witness being cross-examined is the key witness on whose credibility the State’s case relies.’ ” Docekal, 929 So.2d at 1142 (quoting Torn,engo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004)). We further recognize that a trial court may not prohibit cross-examination “when the facts sought to be elicited are ‘germane to that witness’ testimony and plausibly relevant to the theory of defense.” Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994) (quoting Pace v. State, 596 So.2d 1034, 1035 (Fla.1992)). Section 90.608(2), Florida Statutes, permits cross-examination to “attack the credibility of a witness by ... [s]howing that the witness is biased.”

The state argues that the evidence which Martino sought to admit is inadmissible under section 90.404(1), Florida Statutes, which provides that “[e]vidence of a person’s character or trait of character is inadmissible to probe action in conformity with it on a particular occasion.... ” Mar-tino, however, asserts that he did not seek to cross-examine Novosel on his “character or trait.” Rather, he sought to bring to the jury’s attention Novosel’s motive for testifying adversely to Martino.

We do not address whether the ruling should be sustained under section 90.404(1) because, in any event, a trial court could well conclude that the questioned proffer is not relevant or material, as it does not, taken alone, demonstrate that the witness had a pattern or practice of avoiding or minimizing his own risk by placing blame on others. In Chaudoin v. State, 707 So.2d 813 (Fla. 5th DCA 1998), the court recognized that it is not an abuse of discretion to preclude inquiry on cross-examination of a state’s witness concerning a previous case in which the witness had received a light sentence by testifying against the co-defendant. We do recognize, however, that in Chaudoin, the witness had not been charged.

Novosel’s only prior plea was nine years earlier, and nothing is known of the circumstances surrounding the plea. The fact that Novosel entered a plea arrangement several years earlier says nothing about his motive to lie in this case. Neither need it evidence a pattern or proclivity to do so. The defense was given a free hand in this case at inquiring into the circumstances of Novosel’s plea deal. To allow further inquiry into the circumstances of a totally unrelated nine-year-old plea would invite additional inquiry into the details of that plea and circumstances leading up to it. Here, there is no showing of a sufficient similarity to invite a finding of relevancy. See Slocum v. State, 757 So.2d 1246 (Fla. 4th DCA 2000) (attempted cross-examination of officer concerning officer’s interrogation procedures in an unrelated case resulting in a “confession” and confinement of an innocent suspect held not relevant).

A trial court has broad discretion in weighing the relevance of evidence. E.g. Slocum, 757 So.2d at 1250. As we recognized in Slocum,

The United States Supreme Court has stated that “trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Id. at 1250-51 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

As to all other issues raised, we also find no reversible error or abuse of discretion. Therefore, the judgment and sentence are affirmed.

GROSS, J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent as to the majority’s affirmance of the trial court’s limitation of defense’s cross-examination of state’s witness Mark Novosel. Not only was Novosel’s testimony “the most telling evidence against Martino,” as the majority describes it — it was the only testimony to link Martino to this plot to sell or distribute legend drugs from an unauthorized person. It was clear that Novosel was at least as culpable as Martino in this scheme. Yet Novosel was able to obtain a favorable plea bargain by “flipping” and giving testimony favorable to the state against Martino. It is significant, in my view, that there was no tangible evidence — no documents, invoices, cancelled cheeks, memos, or other papers, electronic or telephonic evidence — to corroborate No-vosel’s testimony. Further, the two men Novosel claimed were the source of these drugs, Vilachao and Villanueva, did not testify at trial.

Recently a panel of this court — in fact the same panel as the present case — affirmed a criminal conviction where the accused argued the trial court reversibly erred by allowing the state to cross-examine the defendant at trial concerning the defendant’s prior criminal record. See Rogers v. State, 964 So.2d 221 (Fla. 4th DCA 2007). In Rogers, the defendant testified on direct that he had pled no contest in his thirteen prior felony convictions “because he was guilty.” Obviously, the intent works to create the inference that he went to trial in this case because he was innocent. On cross, the state was allowed to conduct limited questioning into the pri- or convictions, beyond the number of convictions and whether any involved dishonesty. § 90.610, Fla. Stat. (2006). We held in Rogers that a very limited exception to this rule exists when the defendant takes the stand and tries to do “spin control” by so testifying why he pled out thirteen times before. While the state was not allowed to go into all the details of the prior crimes, we held that in this scenario, the state could properly elicit that in each of the prior cases, Rogers received a plea deal more favorable than the sentences he would otherwise have faced.

I find it difficult to reconcile the majority’s holding here with Rogers. It seems to me if the state is allowed such latitude regarding prior convictions, the defense should certainly be allowed to bring out the details, not of Novosel’s prior crime, but rather the similarity of his giving favorable prosecutorial testimony for a more lenient sentence in the prior case, just as he did here. As the majority has correctly noted: “A criminal defendant has a constitutional right to full and fair cross-examination to show a witness’ possible bias or motive to be untruthful.” I would reverse for a new trial.


text:
    N.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-783.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Kevin G. Thomas, Hallandale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
    Patricia M. Propheter, Orlando, for ap-pellee Guardian ad Litem Program.
   PER CURIAM.

The mother appeals the trial court’s order granting the Department of Children and Families’s motion to change her case plan goal from reunification to permanent placement with a fit and willing relative, and order placing the mother’s minor child permanently with a fit and willing relative.

Although a trial court’s placement determination is reviewed for abuse of discretion, it must be supported by competent and substantial evidence. See In the Interest of K.H., 320 So.2d 868, 868 (Fla. 4th DCA 1975); In the Interest of M.A., N.S. & S.S., 906 So.2d 1226, 1227 (Fla. 1st DCA 2005).

We find that there was competent substantial evidence to support permanent placement of the child with a fit and willing relative. However, we reverse and remand for the trial court to make the required written findings pursuant to section 39.6231(8), Florida Statutes (2006).

Reversed and Remanded.

STONE, STEVENSON and HAZOURI, JJ., concur.