text:
    Giovanni COSTA, Appellant, v. Janet L. COSTA, Appellee.
    No. 4D06-688.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied April 16, 2007.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellant.
    Margherita Downey of Law Offices of Glantz & Glantz, P.A., Plantation, for ap-pellee.
   POLEN, J.

Appellant, Giovanni Costa, appeals two issues relating to the trial court’s order of dissolution of marriage with the former wife, Appellee, Janet Costa. In the final order, the trial court awarded Janet permanent periodic alimony in the amount of $750 per month, as well as lump sum alimony of $500, and exclusive use and possession of the marital home until the children reached the age of majority. When the children reached the age of majority, the order provided that the home would be sold, and Janet would be given a credit for 100% of the mortgage, taxes, and insurance and maintenance payments she had made. Giovanni argues that the trial court erred in awarding Janet $750 in permanent periodic alimony, as she was fully capable of working full-time and supporting herself, and in awarding her a 100% credit for all payments made while in receipt of the house. We find merit in both of Giovanni’s arguments and reverse and remand.

Alimony awards are reviewed using an abuse of discretion standard. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005). “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)). “In determining whether to award permanent periodic alimony, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). “The trial court is required to consider the statutory factors of section 61.08(2), Florida Statutes, and the failure to consider these enumerated factors, or to make factual findings related to these fac tors, is reversible error.” Nichols, 907 So.2d at 622. In most cases, permanent periodic alimony is awarded where one party has sacrificed a career for the advancement of the other’s career, the earnings of one party are much smaller than the other’s and there is no evidence showing that the lesser earning party can increase their earnings to a more equal level. See Fontana v. Fontana, 617 So.2d 418 (Fla. 1st DCA 1993). “The purpose of permanent periodic alimony is not to divide future income to establish financial equality.” Rosecan v. Springer; 845 So.2d 927, 930 (Fla. 4th DCA 2003).

We find the trial court’s award of alimony was not an abuse of discretion. After listening to the evidence, the trial court determined that Janet had a need for alimony and Giovanni had the ability to pay some alimony. The parties had been married for approximately eighteen years and had two minor children. Throughout the marriage, Giovanni was the primary breadwinner, taking care of the household bills, etc.

However, while the record supports the finding that Janet was in need of alimony, we find the trial court should have awarded bridge-the-gap or temporary alimony rather than permanent periodic alimony. At trial, Janet’s counsel asked only that Janet be awarded “the house lump sum alimony so she could take a mortgage on it and get herself a car. Or alternatively, Your Honor, if you would be inclined to give her temporary alimony for four years until [the youngest child] gets out of high school.... ” Other than the initial complaint, there was no request for periodic permanent alimony. Janet’s request indicated that she was in need of alimony until the children reached the age of majority. Therefore, we find the trial court’s award of permanent periodic alimony exceeds Janet’s needs, as put forth by her at trial. See Rosecan v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003). We reverse the trial court’s award of permanent periodic alimony and remand for reconsideration of the type of alimony to be awarded, either lump-sum or bridge-the-gap alimony. The trial court has the discretion to modify the alimony award by relying on record evidence or by entertaining additional testimony.

As for Giovanni’s second issue on appeal, we find the trial court erred in awarding Janet a credit for 100% of the house expenses she will incur while in possession of the marital home. Giovanni relies on McCarthy v. McCarthy, 922 So.2d 223 (Fla. 3d DCA 2005) for his assertion that Janet should only receive a credit for 50% of expenses that constituted his obligation for the marital home.

In McCarthy the trial court awarded the former wife exclusive use and possession of the marital home, finding such an award was in the best interests of the children. Id. at 225-26. The trial court also determined that when the children reached the age of majority and the marital home was sold, the former wife would receive a credit for one-half of the expenses she put out for the marital home, presumably for the former husband’s unpaid share. Id. at 225. The trial court stated:

Upon dissolution of marriage, the tenants of an estate by the entirety become tenants in common. As co-tenants, each is ultimately liable for his or her proportionate share of the obligations of the property, including taxes, mortgage payments, insurance and maintenance and repair.
Generally, if one co-tenant pays an obligation for which all are liable, he is entitled to have the other co-tenant pay his proportionate share. But where the final judgment of dissolution of marriage awards one co-tenant the exclusive possession of the marital domicile and directs that co-tenant to pay all or some of the obligations of the property such as taxes, liens and repairs, the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold. However, upon partition or other sale, the tenant paying those obligations of the property is entitled to credit from the proceeds of the sale for the other co-tenant’s proportionate share of those expenses.

Id. at 226.

Based on the holding in McCaHhy, we find the trial court abused its discretion in awarding a 100% post-sale credit to Janet for all expenses relating to the marital home. We reverse this issue and remand with instructions to modify the equitable distribution chart to credit Janet with only 50% of the expenses incurred prior to sale.

We reverse the portions of the trial court’s order awarding permanent periodic alimony to Janet and awarding Janet a 100% credit for household expenses after the sale of the marital home, and remand for modifications consistent with this opinion.

GUNTHER and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie MURPHY, Petitioner, v. SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-0603.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Rehearing Denied April 11, 2007.
    Eddie Murphy, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    U.S. FOUNDRY & MANUFACTURING, INC., a/k/a U.S. Holdings, Inc., and EMI/McCreary Corporation, Appellants, v. Vaughn CARNER, Appellee.
    No. 1D06-0631.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Rehearing Denied March 23, 2007.
    Kimberly J. Fernandes, of Kelley, Kro-nenberg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellants.

      R. Cory Schnepper, of Levine, Busch, Schnepper & Stein, P.A., Miami, for Ap-pellee.
   PER CURIAM.

Appellants, employer and carrier, appeal an order of the Judge of Compensation Claims awarding benefits for a September 2000 date of injury. Appellants raise several issues on appeal, only one of which merits discussion. The appellants correctly argue that the Judge of Compensation Claims did not explicitly make a finding regarding whether the hearing loss is the major contributing cause of of appellee’s disability. Accordingly, the matter is remanded for a determination of major contributing cause. The remaining issues raised on appeal are without merit.

On cross-appeal, the claimant argues the Judge of Compensation Claims erred in failing to award penalties on the temporary benefits awarded. On remand, the Judge of Compensation Claims is directed to clarify that any appropriate penalties are to be included in the award.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, PADOVANO, and POLSTON, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Marvin BERKMAN, Appellant, v. Judy BERKMAN, Appellee.
    No. 3D05-2701.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Alan R. Burton, Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

Marvin Berkman (“the father”) appeals an order issued by the Miami-Dade circuit court (“circuit court”) overruling the recommendations of the general master and ordering that he pay $17,383.21 in child support arrearages. We affirm.

This cause arises out of a Uniform Reciprocal Enforcement of Support Act (“URESA”) proceeding initiated by the ap-pellee, Judy Berkman (“the mother”), in Pennsylvania to enforce her Pennsylvania child support order against the father, who had moved to Florida. URESA provides that a custodial parent may commence a URESA proceeding by filing a petition in the state where the custodial parent resides. After the judge determines the noncustodial parent’s support obligations, the proceeding is certified to where the noncustodial (obligor) parent resides, upon which the responding state will issue an order enforcing the noncustodial parent’s support obligation.

While the record is unclear as to when the original support order was issued, the record does reflect that in 1986, a judgment was issued in Pennsylvania ordering the father to pay $300 a month for child support and declaring the father to be in arrears in the amount of $4,150. This order was registered in Florida for enforcement on December 29, 1986. In July of 1988, the general master issued a report recommending that the father pay $300 a month for child support plus $150 a month towards the arrearages. This recommendation was ratified by the circuit court on September 15,1988.

For the next ten years, the mother filed numerous motions and the circuit court issued various orders to enforce the Pennsylvania and Florida support orders. In 1989, the mother sought to have the father held in contempt of court for failing to meet his support obligations. While no modification was sought by the father, the hearing officer assigned to the case recommended that because the father had been unemployed for a year and was preparing to take his real estate examination, he not be held in contempt of court, and that he be ordered to pay $150 a month for child support and $75 a month towards the ar-rearages. On May 9, 1989, this recommendation was ratified by the circuit court. However, when the father failed to make any of the required payments in May or June, the mother again sought contempt. The circuit court did not hold the father in contempt of court, but once again ordered him to pay $150 a month in child support and $75 a month towards the $6,300 ar-rearages.

On June 18, 1994, the mother filed a petition in the circuit court, claiming that the father was still in arrears in the amount of $5,707.29 pursuant to the 1989 orders, and sought modification of the 1989 orders. In the petition, the mother claimed that the $150 a month child support ordered in the 1989 orders were scrivener’s errors. The mother’s argument was based upon the fact that the Pennsylvania judgment and the Florida orders predating 1989 all ordered the father to pay $150 per child for a total monthly support obligation of $300, and then ordered an additional arrearages amount to be paid. The 1989 orders issued in response to the mother’s motions to enforce the Pennsylvania support order and for contempt, however, only ordered $150 in child support without specifying that the child support obligation was being modified or making the requisite findings to modify the child support. Because there was no transcript for review, the circuit court denied the petition seeking a modification of its 1989 orders, but ordered that $400 a month be deducted from the father’s income. In 1998, the court found the father to be in contempt of court, for failing to make the requisite payments, and that he owed $15,950.19 in arrearages.

Thereafter, the mother filed a motion in Pennsylvania seeking enforcement of the 1986 Pennsylvania judgment requiring the father to pay $300 a month in child support and $150 a month towards the arrear-ages owed at that point. On July 9, 1999, the Pennsylvania court issued an order finding the father in arrears in the amount of $47,245.76, based upon the 1986 Pennsylvania judgment, along with interest on the delinquent payments. When the mother attempted to register the Pennsylvania order in Florida, the matter was referred to a general master, who concluded that since the father had now paid what was owing pursuant to the Florida orders, he owed nothing in child support, and denied registration of the new Pennsylvania order. On April 14, 2004, the circuit court ratified the general master’s recommended order. However, based upon the exceptions subsequently filed by the Department of Revenue on October 20, 2005, the circuit court vacated its April 14, 2004 order, permitted registration of the Pennsylvania order, and found that the father owed $17,383.21 in child support arrearag-es.

The father appeals the circuit court’s 2005 order finding him to be in arrears and ordering him to pay $17,383.21. While the 2005 circuit court order reduces the Pennsylvania court’s order by deleting the amount attributable to a calculation of interest, the mother has not filed a cross-appeal. We, therefore, only address the issue before us and do not address whether the circuit court erred in failing to apply Pennsylvania law, which provides that unless otherwise stated, interest on a judgment shall be 6 percent a year, and that arrearages that accrue in a child support order constitutes a judgment as a matter of law.

Under URESA and pursuant to section 88.281, Florida Statutes (1986), the anti-nullification statute, courts cannot “nullify” a support order issued in another state. See Dep’t of Revenue v. Sloan, 743 So.2d 1131, 1133-34 (Fla. 5th DCA 1999) (finding a Michigan URESA order registered in Florida did not confer subject matter jurisdiction upon the Florida court to modify the Michigan child support judgment; the Florida child support order in an amount less than the Michigan judgment did not nullify the Michigan judgment; and thus, the trial court erred in finding that the Florida order controlled and in holding that all arrearages and support be calculated pursuant to the Florida order); Lorenzo v. Skowronski-Thompson, 738 So.2d 967, 969 (Fla. 2d DCA 1999) (holding that pursuant to section 88.231, “a court in a URESA proceeding could change the amount the payor had to presently pay in support; but ar-rearages continued to accumulate at the rate designated in the original decree”); Dep’t of Health & Rehabilitative Servs. v. Franklin, 630 So.2d 661, 662 (Fla. 2d DCA 1994) (finding that a support order issued in Florida under URESA and section 88.281 could not be nullified in another state operating under a similar act or law in that state, and that any amounts paid for a particular period towards a support order issued in another state should be credited against the amounts accruing or accrued for the same period under the support order issued in Florida).

Both Florida and Pennsylvania adopted URESA and both state’s statutes include an anti-nullification provision. Thus, whether we treat the $150 monthly child support ordered by the circuit court in the two 1989 orders issued by the circuit court as scrivener’s errors or as modifications, is of no consequence, because under URESA, while a respondent state court may order child support payments different from that ordered in the initiating state, the respondent state’s order cannot and does not nullify the initiating state’s judgment. Accordingly, the 1989 orders issued by the circuit court requiring the father to only pay $150 a month in child support did not modify the Pennsylvania child support judgment ordering $300 a month in child support.

We, therefore, conclude that the circuit court correctly found that the child support owed by the father in Pennsylvania continued to accrue in Pennsylvania notwithstanding any differing amount ordered by the circuit court, and since the Pennsylvania child support judgment was not modified or nullified, the amount of child support arrearages that accrued pursuant to that judgment were owed by the father and could be enforced in Florida through the registration process, less any credit for payments made by the father pursuant to the 1986 registration in Florida.

Affirmed.

      . URESA has been replaced in Chapter 88, Florida Statutes (1996), by the Uniform Interstate Family Support Act (“UIFSA”). UIFSA applies to all proceedings for support or modification of support orders, or proceedings for determination of parentage, commenced on or after July 1, 1997. Ch. 96-189, § 13, Laws of Fla. Because the modification actions in this case occurred prior to the effective date of UIFSA, UIFSA does not apply.

      . The anti-nullification statute in Florida is found in section 88.281, Florida Statutes (1986), and in Pennsylvania in 23 Pennsylvania Consolidated Statutes Annotated section 4531.


author: WARNER, J.

text:
    Roger DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1189.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 13, 2007.

      Gregory J. Morse of Morse & Morse, LLC, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal from his conviction for sale and delivery of cocaine within 1000 feet of a church and for possession of cocaine, the appellant claims that the court fundamentally erred in failing to sua sponte dismiss the information when the state could not supply the appellant with the address of the confidential informant involved in the drug transaction. The appellant never objected to the state’s failure to disclose the address of the informant nor offered evidence to show that the state’s inability to supply the address constituted bad faith. As the sanction of dismissal is an exercise of the trial court’s discretion and fact-dependent, we hold that no abuse of discretion occurred. We affirm his conviction. However, we reverse the- appellant’s sentence, as he could not receive consecutive sentences for both the sale and possession of the same cocaine pursuant to Hale v. State, 630 So.2d 521 (Fla.1993).

Appellant, Roger Dawson, was arrested three months after he sold drugs to a confidential informant. A deputy sheriff accompanied the confidential informant when he set up a drug sale with Dawson. Two of the conversations between the informant and the two men involved in the transaction were captured on videotape from the deputy’s vehicle. When the actual exchange occurred, the confidential informant exited the vehicle, so the deputy could see but not hear the transaction.

Dawson moved for the disclosure of the name and address of the confidential informant. The state supplied Dawson with his name, but informed the court that the deputy had lost track of the informant. The detective had attempted to locate him to no avail. Because the state did not intend to call the informant as a -witness, it made no further efforts to locate him. The court entered a stipulated order disclosing the informant’s name but not his address. The defense made no further objection to the failure to disclose the informant’s locational information.

At trial, the deputies involved in the sale testified, and the court admitted videotapes of the conversations between the informant and the men who approached the vehicle, including Dawson, whom the deputy identified as the man in the second videotape. Dawson objected to the statements on those tapes that were made by the informant. In the first conversation, in speaking to the first man who approached the vehicle, the informant said, “Tell Roger I need a quarter.” The court overruled Dawson’s objection to the statement. The deputy positively identified Dawson as the person involved in the transaction, and the state had Dawson stand by the screen during the playing of the second videotape to compare Dawson’s appearance to the person on the videotape. The jury convicted Dawson of all charges.

On appeal, Dawson claims that the court fundamentally erred in failing to dismiss the charges against him when the state failed to provide an address or location for the informant. He must claim fundamental error because he made no motion to dismiss the charges on this ground in the trial court.

The supreme court reiterated the limits of the use of the fundamental error concept most recently in Farina v. State, 937 So.2d 612, 629 (Fla.2006):

“Fundamental error” is the sole exception to the preservation requirement. Harrell [v. State], 894 So.2d [935] at 941 [ (Fla.2005) ]. To be fundamental, an error must “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). We have also defined it as “error which goes to the foundation of the case.” Ray v. State, 403 So.2d 956, 960 (Fla. 1981) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)). We have cautioned appellate courts to “exercise their discretion concerning fundamental error ‘very guardedly.’ ” Id. “[Fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id.

The failure to disclose the address or means of contacting the confidential informant was not a fundamental error requiring the sua sponte dismissal of the charges. This court has previously held that the dismissal of an information is “an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists.” State v. Lowe, 398 So.2d 962, 963 (Fla. 4th DCA 1981). In Simmons v. State, 887 So.2d 1283, 1285 (Fla.2004), our supreme court noted that courts are reluctant to impose the sanction of dismissal when the failure to produce an informant is the result of negligence, as opposed to willful conduct on the part of the state. See also State v. Carpenter, 899 So.2d 1176, 1182 (Fla. 3d DCA 2005) (“Dismissal of an information is, however, an extreme sanction that should be used with caution, and only when a lesser sanction would not achieve the desired result.... Before a court can dismiss an information for a prosecutor’s violation of a discovery rule or order, the trial court must find that the prosecutor’s violation resulted in prejudice to the defendant.”) (emphasis in original).

In this case, the state supplied the name of the confidential informant but not his address, because the deputy had lost track of him about a month after the transaction took place. The defense never challenged this assertion or the efforts of the state to locate the informant. Thus, there is no showing of willfulness. Further, because the defense never really objected to the failure of the state to provide the address of the informant, and the trial court accepted the state’s explanation, the trial court did not demand that the state take other measures to find the informant. Without more, sua sponte dismissal on this record most likely would have been error. Lowe, 398 So.2d at 963. Clearly, no fundamental error has occurred.

Dawson also complains that the informant’s statement, “Tell Roger I need a quarter,” recorded on the videotape, constituted inadmissible hearsay. However, the trial court correctly ruled that this statement was admissible as a verbal act. See Decile v. State, 516 So.2d 1139 (Fla. 4th DCA 1987). Although Dawson also complains of a Confrontation Clause violation, he did not make that objection below. Therefore, it is not preserved. Mencos v. State, 909 So.2d 349, 351 (Fla. 4th DCA 2005).

We do, however, reverse as to Dawson’s sentence. The court imposed a habitual offender sentence of forty years for possession of cocaine within 1000 feet of a church and five years for possession of cocaine to run consecutive to the habitual offender sentence. In Hale v. State, 630 So.2d 521 (Fla.1993), our supreme court held that statutes permitting an enhancement of the sentence for a crime beyond its statutory maximum, such as the habitual offender statutes, may not thereafter be further enhanced by permitting them to run consecutively rather than concurrently. In Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004), the court examined Hale’s holding in the context of a habitual offender sentence imposed together with a non-habitual offender sentence. The trial court had imposed the non-habitual offender sentence for one count in a criminal episode consecutive to the habitual offender sentence for another count. In reversing, the court said, “The whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence.” Id. at 470. See also Canavan v. State, 842 So.2d 306 (Fla. 5th DCA 2003). In this case, where both charges arose out of possession and sale of the same cocaine, imposing the possession sentence consecutive to the enhanced habitual offender sentence was error.

We thus affirm appellant’s convictions but reverse his sentence with directions to modify the sentence to run the sentences for both charges concurrently.

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


author: MAY, J.

text:
    Warren M. FABEL, Appellant, v. Doreen L. MASTERSON and Frank Zammiello, Appellees.
    No. 4D05-4395.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 20, 2007.

      Robert Rivas of Sachs, Sax & Klein, Tallahassee, for appellant.
    John C. Dotterrer and Jenny Torres of John C. Dotterrer, Counsellors at Law, P.A., Palm Beach, for appellees.
   MAY, J.

A failed real estate transaction resulted in a summary judgment for the buyers. The seller appeals the judgment, and raises four issues. Among them, he argues that the trial court erred in finding the buyers were excused from complying with the contract’s deposit requirements because of a lis pendens filed against the property. We agree and reverse.

The seller and his former wife divorced on August 12, 1996. As part of the dissolution, the former wife executed a quit claim deed for the marital home. The seller/former husband was ordered to pay the former wife a total of $366,000, of which $291,000 was to be paid upon the sale of the marital home or within three years.

Having failed to receive the funds within three years, the former wife filed a notice of lis pendens in July 2000. The lis pen-dens did not quantify the outstanding debt. On November 9, 2000, the seller filed a motion to dissolve the lis pendens, asserting the former wife had no interest in the marital home and the lis pendens adversely affected his ability to sell it.

On December 2, 2000, the seller entered into an agreement to sell the property to Doreen Masterson for $2,360,000. Although not a party to the original contract, Frank Zammiello was to finance the purchase. The closing date was set for February 1, 2001.

The contract required an initial deposit of $117,500 at the time of signing and a final deposit of $117,500 within ten days. The buyers failed to make either deposit even though they were unaware of the lis pendens until two years into the litigation.

A few weeks after entering into the contract, the seller sued Masterson and ultimately Zammiello. The seller claimed the buyers breached the contract by failing to make the requisite deposits. The buyers claimed the seller had refused to allow an inspection, thereby relieving them from making the deposits.

On January 19, 2001, the family court heard, but did not rule on, the seller’s motion to dissolve the lis pendens. Meanwhile, the original closing date passed on February 1, 2001, with the thirty-day cure period expiring on March 3, 2001. The family court denied the motion to dissolve on March 29, 2001, finding a nexus between the former wife’s claim and the property. The court found the potential adverse affect of the lis pendens on the seller’s ability to sell the property insufficient cause to dissolve it.

On October 26, 2001, the seller entered into an amended settlement agreement with the former wife, in which the former wife agreed to release the lis pendens in exchange for $1,450,000 upon the sale of the home. The family court accepted the amended agreement on December 19, 2001. Two days later, the seller and former wife executed a warranty deed conveying the property to a new buyer. The lis pendens was removed from the property approximately a week later.

In the seller’s separately filed litigation, the trial court heard the original buyers’ motion for summary judgment on October 14, 2005. The seller argued that he was entitled to the deposit monies because the buyers breached the contract by failing to make the required deposits. The buyers now argued that they were relieved from making the deposits because the former wife’s lis pendens had created a cloud on the title. The trial court agreed with the buyers and entered a summary judgment in their favor. The trial court also set aside a default that had been obtained by the seller against Zammiello.

The seller argues on appeal that the trial court erred as a matter of law in entering summary judgment for the buyers. We review such decisions de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The legal issue focuses on which party breached the agreement first. The trial court concluded that the seller’s inability to deliver marketable title relieved the buyers from making the requisite deposits. We disagree and reverse.

It is axiomatic that the anticipatory breach of a contract by one party excuses contractual compliance by the other. Camel Invs. Inc. v. Webber, 468 So.2d 340, 342 (Fla. 1st DCA 1985). In this case, the first breach occurred when the buyers failed to make the initial deposit at the signing of the contract. A second breach occurred when the buyers failed to make the final deposit within ten (10) days of entry into the contract. From that point forward, the seller was excused from contractual compliance.

There are two additional reasons why the summary judgment should not have been granted. First, the contract provided the seller with a thirty-day period to cure any defect. The buyers were unable to establish that the seller could not have cured the cloud on the title by resolving the lis pendens within that time.

Second, the contract provided specific remedies to the buyers if the seller was unable to provide marketable title by the closing date. The buyers could either elect to provide the seller a reasonable period not to exceed 120 days within which to make a diligent effort to remove any defect on the title or receive a refund of them deposits. Excuse from the buyers’ contractual obligations was not among those remedies.

For these reasons, the trial court erred as a matter of law in entering summary judgment for the buyers. In reversing the summary judgment, we also reverse the trial court’s order setting aside the default against Zammiello which was based upon the summary judgment. Upon remand, the trial court can reconsider the default issue in light of our holding, as well as the seller’s pending motion for sanctions.

Reversed and Remanded.

KLEIN and HAZOURI, JJ., concur.

      . The original contract with handwritten annotations was signed on November 27, 2000. A subsequent typed contract was signed on either December 2 or 5, 2000.

      . Zammiello will be referred to jointly with Masterson as buyers for ease of reference.


text:
    Henry Jerome WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2188.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 20, 2007.
    Henry Jerome Willis, Belle Glade, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION TO RECALL MANDATE

PER CURIAM.

We withdraw the opinion issued August 6, 2003, and substitute the following. We affirm the denial of Willis’s post-conviction relief motion. See Sanders v. State, 946 So.2d 953 (Fla.2006).

STEVENSON, C.J., HAZOURI and MAY, JJ., concur.


text:
    Jeffrey ALVARADO, Petitioner, v. WACKENHUT CORPORATION and Gallagher Bassett Services, Inc., Respondents.
    No. 1D06-6001.
    District Court of Appeal of Florida, First District.
    March 6, 2007.

      Robert L.H. Rampil, Miami, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Petitioner.
    David P. Carugati of Hinshaw & Culbertson, LLP, Miami, for Respondents.
   PER CURIAM.

Claimant petitions for certiorari review of an order of the Judge of Compensation Claims (“JCC”) appointing a neuropsychol-ogist as an expert medical advisor (“EMA”). Because a neuropsychologist cannot serve as an EMA, we grant the petition and quash the order.

The JCC in this case was presented with conflicting testimony from two neuro-psychologists concerning whether Claimant’s work-related accident caused any neurological dysfunction. The E/C filed a motion seeking the appointment of a neu-ropsychologist as an EMA and the JCC granted the motion. Claimant now seeks certiorari review of this order.

When an appellate court reviews a non-appealable, non-final order, the petitioner must demonstrate that the order departs from the essential requirements of the law and that the resulting harm is irreparable and cannot be remedied on appeal of the final order. Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266, 1268 (Fla. 1st DCA 2003). Claimant has established that he will suffer irreparable harm not remedial on appeal from this order because Claimant will have to undergo an invasive examination over his objection. Taylor v. Columbia/HCA Doctors Hosp., 746 So.2d 1244, 1245 (Fla. 1st DCA 1999).

It was proper for the JCC to order the appointment of an EMA in this case because there was a disagreement in opinion between health care providers. § 440.13(9)(c), Fla. Stat. (2002); Broward Children’s Ctr., Inc. v. Hall, 859 So.2d 623, 627 (Fla. 1st DCA 2003) (holding that “the clear intent of section 440.13(9)(c) is to require participation of an expert medical advisor in every case where a disagreement exists between healthcare providers.”) However, the JCC departed from the essential requirements of the law by ordering the appointment of a neuropsy-chologist as an EMA.

Florida Administrative Code Rule 59A-30.002(10) (2006) defines an EMA as a “physician.” Section 440.13(1)(r), Florida Statutes (2002), defines a physician as a person “licensed under chapter 458, an osteopathic physician licensed under chapter 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466, each of whom must be certified by the division as a health care provider.” A neuropsychologist is not included in this narrow definition of physician; thus, a neuropsychologist may not serve as an EMA.

Accordingly, we grant the petition for writ of certiorari, quash the order appointing a neuropsychologist, and remand for the appointment of a physician to resolve the dispute in this case.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: TAYLOR, J.

text:
    Terrell Angelo CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2167.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Rehearing Denied April 16, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Terrell Angelo Carter was tried by jury and convicted of carjacking, aggravated assault, and fleeing or attempting to elude with reckless driving. He appeals his judgment of conviction, arguing that the trial court erred in overruling his hearsay and lack of foundation objections to admission of a police report that contained the victim’s affidavit, which recounted the incident. We reverse for a new trial.

Sean Burke moved to Florida in October 2003 from Long Island, New York with his parents. On February 7, 2004, about four months after he moved here, Burke was driving around downtown West Palm Beach to become familiar with the area. He was driving his mother’s 2003 Saturn. Around 6 p.m., he stopped at a gas station on the corner of Palm Beach Lakes Boulevard and Dixie Highway to phone a friend in New York from a pay phone.

Burke testified that appellant approached him, complaining of stomach pain, and asked Burke if he would give him a ride around the block to his house. He said he lived near a mall. Believing that appellant was in pain, Burke agreed, even though he had never picked up a stranger before.

Appellant got into Burke’s front passenger seat and gave directions as they rode. They headed west on Palm Beach Lakes Boulevard toward 1-95. Appellant told Burke to make a right-hand turn about a mile up the road. After Burke made the right turn, appellant directed him to make another right turn. They ended up in a deserted park area. At that point, Burke started to get suspicious. He detected a change in appellant’s voice and became scared. Appellant suddenly reached over with his left hand and threw the car into park. He then pulled out what appeared to be an ice pick. As soon as appellant threw the car in park, Burke removed his seat belt and bolted from the car. By the time he saw the tip of the ice pick, he was already out of the car.

Burke testified that he went to the nearest corner to flag somebody down for help. An off-duty police officer came along and called the West Palm Beach police for him. Officer Darren Jenne responded to the call. Burke told the officer what happened. Two days later, Burke positively identified appellant from a photo lineup and gave the officer a sworn taped statement concerning the carjacking.

During the defense cross-examination of Burke, Burke denied that he went with appellant to buy cocaine. He acknowledged that his parents were very strict about drug use and that they would be upset if they found out that he had anything to do with drugs.

Officer Jenne testified that he responded to the call regarding a carjacking. Based on the information reported by Burke, the officer prepared a police report titled “West Palm Beach Department Stolen Vehicle/Vessel Affidavit.” The officer filled out the top portion of the form, furnishing the date, time, and location of the car theft, a description of the stolen vehicle, and general information about the victim. In a space provided near the bottom of the form, Burke indicated by check mark his intention to prosecute the offender, and wrote, in narrative form, the following account of events surrounding the theft:

I was at the Amoco gas station on Palm Beach Lakes when a black male came up to me and asked me for a ride. We then drove west on Palm Beach Lakes when he said turn right here. After making the right he threw my car into park and pulled out an ice pick. I jumped out of my mother’s car and ran to the nearest corner. Then a deputy called 911. I want him arrested.

Two days later, while on road patrol, Officer Jenne spotted appellant driving the vehicle described by Burke. The officer arrested appellant after pursuing him by car and on foot.

During the direct examination of Office Jenne, the state questioned the officer about the police report he prepared after speaking to Burke on the evening of the incident. Officer Jenne testified that he and Burke filled out the report together. He said that such reports are generated and kept in the normal course of business at the West Palm Beach Police Department. When the state moved to admit the report into evidence, appellant objected on the grounds of “relevancy, foundation and hearsay.” The trial court overruled the objection without discussion and admitted the report as State’s Exhibit 2.

Appellant testified to a dramatically different version of events. He said that on the evening of this incident, he was leaning on the phone booth at the gas station waiting for his friend to come pick him up so that he could go to Boynton Beach to his girlfriend’s house to get some more money for crack cocaine. Appellant explained that he is addicted to crack cocaine and that the effects of crack cocaine last only two to five minutes before wearing off. He met Burke when Burke stopped to use the phone. According to appellant, he and Burke went to 13th Street to buy some crack. Burke had ten dollars and appellant had twenty-four dollars, so they bought ten dollars’ worth of crack for Burke and twenty dollars’ worth for appellant. They then smoked the crack. After-wards, they went to the McDonalds on Palm Beach Lakes Boulevard. Then they went to Gaines Park and smoked more crack. Burke was trying to sell a bottle of champagne and a calling card that had four hundred minutes on it. They used the minutes to call appellant’s friend to tell her not to come pick him up.

Appellant said that Burke, who is white, did not want to ride back through the black neighborhood, so Burke asked him to give him his two remaining crack cocaine rocks while appellant used his car to go get more cocaine. Appellant testified that he lives in a crack-infested neighborhood and can get crack on credit or sometimes for free. Appellant went to buy more cocaine, but when he came back, Burke was nowhere to be found. Appellant testified that he left Burke in a middle-class neighborhood. He said that if he had pulled an ice pick on Burke, as he testified, Burke would have run to the nearest house, not to an intersection. Appellant admitted to having nine convictions for felonies or crimes involving dishonesty.

The jury returned a verdict finding appellant guilty of carjacking, aggravated assault, and fleeing or attempting to elude with reckless driving. He was sentenced to life imprisonment as a habitual felony offender with a minimum mandatory penalty of thirty years on the carjacking charge. He also received a ten-year sentence on the aggravated assault count as a habitual felony offender, with a minimum mandatory of five years as a prison releas-ee reoffender. He received a thirty year sentence on the fleeing or eluding count, as a habitual felony offender.

The sole issue on appeal concerns the admission into evidence of Officer Jenne’s police report, which contained the victim’s sworn statement concerning the incident. Appellant argues that the trial court abused its discretion and erred in overruling his hearsay and foundation objections to admission of the report. He contends that the state did not establish any basis or lay a predicate for admitting the document as a business record. This error, he asserts, was prejudicial because the report contained an inadmissible prior consistent statement made by Burke, which improperly bolstered his credibility.

The state argues that appellant failed to properly preserve this issue for appellate review because he did not raise the above specific grounds for objection in the trial court. At trial, appellant objected to the report’s introduction at trial on grounds of “relevancy, foundation and hearsay.” On appeal, appellant more specifically argues that the state failed to establish the predicate for a business records exception to the hearsay rule, section 90.803(6)(a), Florida Statutes, because it did not show that the supplier of the information contained in the report was acting within the course of the given business which generated the record, and the victim, who supplied the information, was not acting on behalf of the West Palm Beach Police Department.

To preserve “an error involving a ruling admitting evidence requires a timely objection which states the specific ground of objection if the ‘specific ground was not apparent from the context.’ ” Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999) (citing § 90.104(1)(b), Fla. Stat.). A “lack of foundation” objection is not a “specific ground of objection” sufficient to preserve for appellate review an issue regarding the admission of evidence. Id.; Couzo v. State 830 So.2d 177 (Fla. 4th DCA 2002); Alexander v. State, 778 So.2d 1017 (Fla. 4th DCA 2001); Filan v. State, 768 So.2d 1100 (Fla. 4th DCA 2000).

In Filan, the defendant was tried for felony driving under the influence (DUI). During the trial, the state moved to admit into evidence the hospital records containing the results of the defendant’s blood alcohol test. The defendant objected on the grounds of relevancy and lack of foundation. On appeal, he argued that the state did not lay a proper foundation for admission of the records under section 90.803(6), because it failed to establish that the records were made “by, or from information transmitted by, a person with knowledge” of the matter recorded. We held that the defendant’s general lack-of-foundation objection made at trial was insufficient to preserve his more precise point argued on appeal.

The case before us is distinguishable from Filan. Here, appellant made more than a mere “lack of foundation” objection. When the state moved to admit the police report/victim affidavit into evidence, defense counsel objected on the ground of hearsay. An objection to evidence on hearsay grounds is sufficient to preserve for appellate review the failure of the proponent of the evidence to lay a proper predicate. See Richardson v. State, 875 So.2d 673, 676 (Fla. 1st DCA 2004) (citing Andrews v. State, 261 So.2d 497 (Fla.1972); Neeley v. State, 883 So.2d 861, 864 (Fla. 1st DCA 2004)); see also King v. State, 590 So.2d 1032, 1033 (Fla. 1st DCA 1991) (finding the defendant’s hearsay objection sufficient where the state failed to satisfy the foundational requirements of section 90.803(6) for admission of a computer printout at sentencing).

In Richardson, a defendant charged with robbery of a convenience store objected on hearsay grounds to testimony regarding the amount of money taken from the cash register. On appeal, the defendant argued more specifically that the testimony was inadmissible under the “business records” exception to the hearsay rule because the purported custodian of records never testified that she was the actual custodian of the records on which the loss analysis was based. He further argued that the records were not identified, shown to be kept in the regular court of business, or offered into evidence. Citing Filan and Jackson, the state argued that because the defendant failed to raise these specific grounds for objection in the trial court, they were not preserved for appellate review. The first district rejected the state’s argument, citing the supreme court’s holding in Andrews that “an objection to a question on hearsay grounds is sufficient to preserve for appellate review the failure of the proponent of the testimony to lay a proper predicate.” Id. at 676.

Here, when the state moved the police report/affidavit into evidence under the business records hearsay exception, appellant objected on relevancy, hearsay, and foundation grounds. He makes the same argument on appeal that the document should not have come in as a business record; that it was hearsay. Thus, appellant’s hearsay objection was sufficient to preserve for appellate review his arguments regarding admission of the police report/affidavit.

On the merits, we agree with appellant that the trial court erred in admitting the report. The state argues that the document was properly admitted, contending that the document is not a police report, but a victim affidavit. Yet, the state does not explain why this victim affidavit falls outside the definition of hearsay or suggest some hearsay exception or exclusion that might apply. The state argues only that if the document was admitted in error, it was harmless.

The document in question, whether considered a police report or a victim affidavit, does not fit within the business or public records exception to the hearsay rule. See Burgess v. State, 831 So.2d 137, 140 (Fla. 2002) (noting that police reports or criminal arrest affidavits are not admissible into evidence in criminal proceedings as a public record exception to the hearsay rule because that exception expressly excludes them); Reichenberg v. Davis, 846 So.2d 1233, 1234 (Fla. 5th DCA 2003) (holding that reports of DCF investigators which contained witness interviews were not admissible under the business or public records exception to the hearsay rule because the statements in the reports were not based upon the personal knowledge of an agent of the business or agency); Harris v. Game & Fresh Water Fish Comm’n, 495 So.2d 806, 809 (Fla. 1st DCA 1986) (quoting CHARLES EHRHARDT, FLORIDA EVIDENCE § 90.805, at 563 (2d ed. 1984): “For example, if a business record includes a statement of a bystander to an accident, the bystander’s statement is hearsay and not included within the business records exception because the statement was not made by a person with knowledge who was acting within the regular course of the business activity.”).

Here, the document admitted into evidence as State’s Exhibit 2 contains a sworn statement of the victim recounting-details of the car theft. As such, it is classic hearsay. Section 90.801(l)(c) of the Florida Evidence Code defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of-court statement by someone who is not a witness on the stand testifying to the statement. Chakles EhRháRdt, Floeida Evidence § 801.2 (2003 Edition); see also Ellis v. State, 622 So.2d 991, 996-97 (Fla. 1993) (pre-trial statement to prosecutor of witness who testified during the trial “was hearsay and therefore inadmissible in the absence of any other exception to or exclusion from the hearsay rule”)..

Appellant further argues that the victim’s affidavit is not admissible as a prior consistent statement under section 90.801(2)(b), because the state did not offer it to rebut an express or implied charge against the victim of improper influence, motive, or recent fabrication. See Taylor v. State, 855 So.2d 1, 22 (Fla.2003). “Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony.” Id.

We conclude that the trial judge erred in allowing the police report/victim affidavit into evidence. Moreover, we cannot find the error harmless. The state, as the beneficiary of any error, must demonstrate beyond a reasonable doubt that the complained-of error did not contribute to the verdict. It must prove that “there is no reasonable possibility that the error contributed to the conviction.” Ibar v. State, 938 So.2d 451, 463 (Fla.2006) (citing State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)).

Appellant’s defense to the carjacking count was that Burke provided him with the car and that Burke fabricated his version of events to conceal his drug involvement from his parents and to account for the missing vehicle. Because there was no physical evidence or independent eyewitness testimony to corroborate the victim’s account of events, the victim’s credibility was a crucial issue in the trial. The affidavit tended to bolster the credibility of the victim and provide self-corroboration. Its prejudicial effect was then compounded by the fact that it was introduced through a police officer, who is generally regarded as a disinterested, objective, and, therefore, highly credible witness. See Peterson v. State, 874 So.2d 14, 17-18 (Fla. 4th DCA 2004); Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991).

In addition, the prosecutor referred to the victim’s affidavit in closing argument, urging the jury to take it back with them, look at it, and consider whether it is consistent with the testimony.

The state urges us to find the error harmless because appellant’s story is patently “unbelievable.” But this is not the harmless error test we must apply:

“The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.”

DiGuilio, 491 So.2d at 1139.

Because there is a reasonable possibility that the error contributed to the conviction in this case, we reverse and remand for a new trial.

Reversed and Remanded.

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


author: GUNTHER, J.

text:
    Ralph HAWKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-808.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Rehearing Denied April 16, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

Ralph Hawker was found to be a sexually violent predator and was civilly committed under the Jimmy Ryce Act following a jury trial. Hawker challenges the admission of expert testimony at the trial, both on grounds of relevance and discovery violation. We affirm.

In 1988, Hawker pleaded guilty to two counts of lewd assault on minors and was placed on community control for one year followed by probation for ten years (with adjudication withheld). One of the conditions of Hawker’s community control and probation was that he “[hjave no contact with children under 16 unless supervised by an adult who is aware of these charges.”

Hawker’s community control was modified later in 1989 upon a violation for having unsupervised contact with a boy under the age of sixteen. Hawker’s community control was modified to Community Control II, and his probation was continued.

In 1997, an affidavit of violation of probation was filed against Hawker. Hawker was accused of violating his probation by having contact with and committing sexual battery on two children, J.D. and C.C., while they were under the age of sixteen. Hawker was found to have violated probation on some of the grounds alleged, his probation was revoked, and he was sentenced to concurrent terms of 5.5 years in prison on each of the underlying lewd assault convictions. Before his release from prison in 2000, the State filed a notice of its intention to seek the involuntary civil commitment of Hawker as a sexually violent predator under the Jimmy Ryce Act.

Prior to the commitment trial, several mental health professionals filed evaluations of Hawker, including Chris P. Robi-son, Ph.D., a clinical and forensic psychologist. Robison interviewed Hawker in February 2000, when Hawker was eighty years old, shortly before his release from prison. Hawker denied a history of homosexual experimentation and denied having any sexual contact with underage males, including the alleged contact with J.D. and C.C. that gave rise to the 1997 violation of probation proceedings. In the 2000 report, Robison concluded that: “The evidence of Mr. Hawker’s history of inappropriate sexual behavior with children seems tenuous; however, in light of the numerous and repeated allegations by prepubescent males, it appears likely that Mr. Hawker satisfies diagnostic criteria for Pedophilia, Sexually Attracted to Males, Nonexclusive Type.” However, based on the unsubstantiated 1997 probation violation allegations made by J.D., and because Hawker did not pose a high risk for re-offense due to the relatively benign nature of his assaults (fondling), his advanced age, and the period of time between offenses (nearly ten years), Robison concluded that Hawker was not likely to re-offend so that he did not satisfy the criteria for Jimmy Ryce Act involuntary civil commitment.

In January 2004, Robison updated his 2000 report at the request of the state attorney assigned to Hawker’s case. At this time Robison was provided with the transcript of Hawker’s 1997 violation of probation hearing in which Hawker admitted to engaging in sexual intercourse with J.D. after he turned sixteen. As a result, Robison’s 2000 conclusion that J.D.’s unsubstantiated testimony was supported by Hawker’s advanced age, denial of homosexual conduct, and relatively benign sexual conduct, was contradicted by Hawker’s own admission that he had engaged in sexual intercourse with J.D. after he turned sixteen. Based on Hawker’s admission, Robison concluded in this January 2004 report that it was likely that Hawker had been assaulting J.D. since he was nine or ten as J.D. alleged, and that his belief that Hawker had not re-offended for nearly ten years was also contradicted (along with his belief that Hawker’s conduct had not escalated beyond fondling). As a result of Hawker’s admission, Robison changed his recommendation to a conclusion that Hawker satisfied the criteria for Jimmy Ryce Act commitment.

In December 2004, Robison filed a subsequent report reaching the same conclusion as the January 2004 report. Robison provided two reasons for his opinion that Hawker satisfied the requirements for civil commitment. First, Robison noted that in 2000 he believed that given Hawker’s advanced age, his conduct being limited to relatively benign fondling, and nearly a ten-year gap between incidents, Hawker did not satisfy the requirements for civil commitment. However, when Robison was provided with the documentation establishing Hawker’s admission to sexual intercourse with J.D. after he turned sixteen, Robison revised his opinion based on a new understanding of the extent and duration of Hawker’s sexual conduct. Second, Robison explained that he interviewed Hawker for a second time in November 2004, and Hawker “demonstrated ongoing denial and minimization regarding his offense history,” including denying his admission regarding J.D. until confronted with the documentation. Hawker also did not agree that sex with young boys was wrong or that such behavior could be harmful to young boys. These denials demonstrated beliefs that might promote re-offense.

Prior to the civil commitment trial, Hawker filed a motion in limine seeking to exclude certain matters and testimony from evidence at trial. Hawker sought to exclude references to, inter alia, allegations of a sexual nature involving J.D. and C.C. not deemed proven during the 1997 violation of probation hearing, parts of Ro-bison’s reports which relied on such allegations, and any references to Hawker’s homosexual experiences with J.D. after he turned sixteen.

The trial court held a hearing and granted, in part, Hawker’s motion in limine at the start of the civil commitment trial. The trial court excluded evidence regarding the 1997 allegations involving J.D., because such evidence was unreliable where it was rejected as a basis for violation of probation. The trial court also excluded evidence of any relationships between Hawker and “adults” (including J.D. after he turned sixteen) after Hawker contended that they were not relevant to the commitment trial and were more prejudicial than probative. Finally, the trial court reserved ruling on the admissibility of Robi-son’s reports, but later determined that any evidence that referenced the excluded evidence regarding J.D. (and others) would not be admissible.

At the civil commitment trial, Robison began to testify about his initial evaluation of Hawker, and Hawker objected that through Robison’s discussion of that evaluation he might touch on evidence excluded by pretrial rulings. The trial court called a recess and directed the State and Robi-son to discuss how to approach Robison’s testimony to avoid reference to J.D. and other excluded matters.

Upon reconvening, Robison’s testimony continued in the presence of the jury. When asked why his recommendation had changed between his 2000 and 2004 evaluations, he indicated that one of the reasons was Hawker’s admission to having sexual intercourse with a boy (without mentioning J.D.’s name) after he turned sixteen. Hawker objected and moved for a mistrial based on the motion in limine rulings. The trial court decided to hold a bench conference because it was under the impression that Hawker’s “consensual” sexual activity had played no role in Robison’s evaluation and would need to reconsider its ruling if that activity was relevant to Robison’s conclusion that Hawker satisfied the requirements for civil commitment.

During the ensuing proffer, Robison explained that Hawker’s admission concerning J.D. impacted his recommendation for two reasons. First, the admission concerning J.D. confirmed that Hawker was sexually active at an advanced age, contrary to Robison’s prior belief, and challenged his denial of homosexual conduct, thereby significantly impacting Robison’s understanding of the scope of Hawker’s sexual conduct (which now clearly exceeded fondling), so as to heighten the risk and potential severity of re-offense. Second, the admission concerning J.D. detracted from Hawker’s credibility and lent credibility to J.D.’s 1997 allegations of sexual activity with Hawker.

Hawker’s counsel then cross-examined Robison on his proffer and confronted him with deposition answers given between the December 2004 report and the January 2005 trial. In the answers, Robison indicated that Hawker’s sexual activity with J.D. after he turned sixteen was diagnostically but not globally significant and that such activity was not diagnostically or legally significant standing alone. Robison then admitted that the significance of the sexual activity in part was linked to the likelihood that sexual activity had begun between Hawker and J.D. before he turned sixteen. However, Robison also testified that the admission was significant in two other respects: it demonstrated that Hawker was not honest about the nature and scope of his sexual encounters and it corroborated J.D.’s allegations.

The trial court then reversed its motion in limine ruling, concluding that Hawker’s sexual conduct with J.D. after he turned sixteen was relevant to Robison’s opinion, but maintained the ruling that Hawker’s contact with J.D. prior to sixteen was inadmissible. Hawker’s counsel moved for a mistrial objecting to the trial court’s reversal of the motion in limine ruling, and the trial court denied the motion. Hawker’s counsel later asserted a specific objection to Robison’s changed opinion regarding the significance of Hawker’s sexual contact with J.D. after he turned sixteen, asserting that such was a discovery violation, and moved for a mistrial. The trial court denied the motion for mistrial. Robison ultimately explained to the jury why Hawker’s admission affected his earlier recommendation regarding involuntary civil commitment, discussing the change in his presumptions regarding sexual activity at an advanced age, the type of sexual activity undertaken (homosexual in nature and in excess of fondling in scope), and Hawker’s credibility. Robison did not tell the jury that the admission also could have bolstered J.D.’s credibility concerning the allegations of sexual conduct between Hawker and J.D. before he turned sixteen.

The jury unanimously found Hawker to be a sexually violent predator. Thereafter, Hawker filed a Motion to Set Aside Verdict and Motion for New Trial. Hawker sought a new trial on grounds that the trial court erred by reversing its motion in limine ruling and permitting Robison to testify regarding Hawker’s sexual relationship with J.D., erred by denying Hawker’s motion for mistrial, and erred by not finding a discovery violation after Robison changed the reasoning for his opinion concerning civil commitment. The trial court denied Hawker’s post-trial motion, and Hawker was committed as a sexually violent predator.

On appeal, Hawker contends that the trial court erred by reversing its motion in limine ruling regarding Hawker’s sexual relationship with J.D. after he turned sixteen because such evidence was irrelevant. Hawker also contends that this changed ruling resulted in a discovery violation by permitting Robison to testify regarding Hawker’s admission as the basis for the change in his commitment recommendation.

Turning to Hawker’s first contention, “[rjelevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. A material fact in Hawker’s civil commitment hearing regarded his likelihood to re-offend, because that likelihood impacted whether the requirements for civil commitment were satisfied. The evidence of Hawker’s admission to engaging in sexual intercourse with J.D. after he turned sixteen tended to prove that he had a likelihood to re-offend that was sufficient for civil commitment under the Jimmy Ryce Act. This is so because the admission demonstrated to Robison that Hawker remained sexually active despite his advanced age, Hawker engaged in homosexual activity, and that Hawker’s sexual activity exceeded relatively benign conduct such as fondling. Therefore, the admission was relevant evidence because it formed a basis for Robi-son’s determination of the material fact of Hawker’s likelihood to re-offend so as to satisfy the requirements for civil commitment under the Jimmy Ryce Act.

In light of the relevance of Hawker’s admission to Robison’s evaluation and recommendation, we reject Hawker’s contention that the trial court abused its discretion by reversing its motion in limine ruling excluding the admission. See Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001)(“The standard of review for admissibility of evidence is abuse of discretion. See Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997). However, a trial court’s discretion is limited by the rules of evidence. See Taylor v. State, 601 So.2d 1304, 1305 (Fla. 4th DCA 1992)”). It is well-settled that motion in limine rulings are subject to change during trial as the trial court develops an understanding of the facts and circumstances of the case. See Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997)(“A judge’s pretrial ruling on a motion in li-mine is ‘entirely tentative.’ State v. Zenobia, 614 So.2d 1139 (Fla. 4th DCA 1993). Such a ruling may be based on an incomplete oral proffer or on the trial court’s limited understanding of the issues in the case, not having heard the first bit of evidence. The shifting sands of the trial in progress may cause a judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. See Blackburn v. State, 314 So.2d 634, 641 (Fla. 4th DCA 1975).”). In the case at bar, once Robison was called upon to testify at trial, the trial court developed an understanding that despite the representations and arguments made during the motion in limine hearing, Hawker’s admission to engaging in sexual intercourse with J.D. after he turned sixteen was relevant to Robison’s determination that Hawker satisfied the requirements for Jimmy Ryce Act civil commitment. Consequently, the trial court did not abuse its discretion by reversing its motion in limine ruling, as such was not carved in stone, based upon its full and mature understanding of the relevance of Hawker’s admission to Robi-son’s conclusion.

Turning to Hawker’s second contention, we conclude that the trial court’s reversal of its motion in limine ruling to allow the admission of Hawker’s admission as a basis for Robison’s conclusion did not result in a discovery violation. It is axiomatic that a trial court, by making a ruling, cannot commit a discovery violation; only a party can commit a discovery violation. See Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA 2002)(appropriateness of sanctions for discovery violation in civil case, specifically failure to preserve evidence, is measured by the “willfulness or bad faith of the responsible party” and the resulting prejudice)(emphasis added). Discovery violations relate to the conduct of parties in failing to disclose information relevant to a case, and not to evidentiary rulings of the trial court. The trial court’s sole role in cases where discovery violations are alleged is a determination of whether they exist, whether they prejudiced the opposing party, and what redress is appropriate.

Even if it could be said that a trial court’s reversal of an earlier ruling could result in a discovery violation, Hawker’s contention that Robison’s reference to Hawker’s admission was such a violation would still be without merit. In conducting a discovery violation analysis in a civil case, the trial court should consider the prejudice suffered by the opposing party. See Nationwide, 832 So.2d at 826. In this case, Hawker asserts that he was surprised by Robison’s testimony, thereby contending that he was prejudiced. However, the only “surprise” in this case was not that Robison employed Hawker’s admission as the basis for his changed recommendation, but that the trial court allowed the admission into evidence at all where it had previously excluded it during the motion in limine hearing. In fact, Robison had consistently, from the time of the January 2004 report through his January 2005 trial testimony, employed Hawker’s admission as the basis for his changed recommendation. Additionally, Robison had consistently stated the same rationale for the change based on Hawker’s admission, that being a new understanding of Hawker’s sexual circumstances where he continued to engage in sexual acts despite his advanced age, engaged in homosexual acts, and engaged in acts ranging beyond fondling to intercourse.

Therefore, Hawker was not prejudiced in his ability to prepare for the trial based on a surprise caused by the State. To the contrary, Hawker knew for a year before the civil commitment trial that Robison changed his recommendation based on the admission, its impact on his sexual circumstances, and the resulting increase in his likelihood of re-offense. The State did nothing to prevent Hawker from being prepared to meet the admission at trial. Only the trial court caught Hawker off guard with its change in its motion in limine ruling. But it should have come as no surprise that a motion in limine ruling could be reversed where the facts and circumstances of the case as developed at trial demonstrated that Hawker’s admission that he engaged in sexual intercourse with J.D. after he turned sixteen was relevant to Robison’s conclusion that he satisfied the requirements for Jimmy Ryce Act civil commitment. As such, we conclude that the trial court’s reversed motion in limine ruling did not result in a discovery violation.

In sum, we conclude that Hawker’s admission that he engaged in sexual intercourse with J.D. after he turned sixteen was properly admitted into evidence as the basis for Robison’s changed recommendation. Despite Hawker’s contentions to the contrary, the admission was relevant as it tended to prove his likelihood of re-offense for purposes of Jimmy Ryce Act civil commitment, so that the trial court did not abuse its discretion by reversing its motion in limine ruling excluding the admission. Additionally, the admission of Hawker’s admission did not result in a discovery violation because any surprise caused by the changed motion in limine ruling did not result from the conduct of a party nor was Hawker prejudiced by the State where Robison had consistently stated the same basis and rationale for his changed recommendation that Hawker satisfied the requirements for Jimmy Ryce Act civil commitment. Therefore, we affirm.

Affirmed.

POLEN and HAZOURI, JJ., concur.

      . §§ 394.910, etseq., Fla. Stat.

      . The trial court's 1997 probation order is not in our record on appeal. Relying on the trial court’s rulings in the civil commitment transcript, it appears that the allegations of violation of probation involving J.D. were deemed unsubstantiated by the trial court at the 1997 probation hearing. Based on documents relevant to the 1997 probation hearing that are available in the record, it seems that J.D. (who was bom in 1976) alleged that Hawker was sexually involved with him from 1985— 1996 (or when J.D. was between nine and twenty years old). Overall, it appears that Hawker was found to have violated probation solely for being in the presence of C.C. who was under sixteen years old in 1997, an act which Hawker admitted.

      . The State has never contended that this contact between Hawker and J.D. after he turned sixteen was a criminal offense and has referred to it as a legal and consensual relationship. However, it does not appear that this conclusion is totally accurate under Florida law. Florida Statutes section 794.05 criminalizes, as unlawful sexual activity, “oral, anal, or vaginal penetration by, or union with, the sexual organ of another” where the perpetrator is twenty-four years of age or older and the victim is sixteen or seventeen years of age. § 794.05(1), Fla. Stat. As such, sexual intercourse between the elderly Hawker and J.D. even after he turned sixteen and while he was seventeen would be unlawful under this section (although the relationship between Hawker and J.D. from the time J.D. was eighteen until he was twenty would not be unlawful and could be referred to as consensual). Section 794.05(2) creates an exception in cases where the disability of nonage has been removed, and it is not known from the record before us whether this was true of J.D. Additionally, section 794.05 was amended in 1996 during the timeline of events in this case, but it does not appear that this amendment has any impact under the facts of this case, as J.D. was twenty and outside the scope of the statute at the time of the amendment.

      . Another expert, Gregory A. Prichard, Psy. D., likewise concluded that Hawker satisfied the requirements for civil commitment.

      . It is uncontested that Hawker’s defense counsel was timely provided with copies of all of Robison's reports.

      .J.D. was never referred to by name in front of the jury.

      . This belies Hawker's contention that Robi-son testified in his deposition that Hawker’s admission to having engaged in sexual intercourse with J.D. after he turned sixteen was insignificant. As such, there was no change in Robison’s testimony regarding the significance of the admission between the deposition and the trial. In both instances, Robison indicated that Hawker’s admission was significant; at trial, Robison may have explained this significance in greater detail than during the deposition, because he was asked, but Hawker had the opportunity to explore the significance of his admission further at the deposition based on the rationale stated in Robison’s December 2004 report and did not do so.

      . However, it is worth noting that Robison would have been permitted to testify to his opinion and his reason for changing his opinion, Hawker’s admission, without explaining the underlying rationale for the change unless questioned regarding such on cross-examination under Florida Statutes section 90.705(1).


text:
    Bruce J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3418.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Bruce J. Thompson, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s appeal of the trial court’s denial of his motion for relief pursuant to Florida Rule of Criminal Procedure 3.850. This affirmance is without prejudice to appellant filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), only as to his purported Prison Releasee Reoffender sentence in lower court case number 99-0690 CF10. Such motion must point to those parts of the record that show appellant is entitled to relief.

POLEN, KLEIN and SHAHOOD, JJ., concur.


text:
    Jeffrey E. LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2048.
    District Court of Appeal of Florida, First District.
    March 12, 2007.

      Jeffrey E. Love, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jeffrey E. Love appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and the denial of his Petition for Writ of Habeas Corpus, which the court below treated as a supplement to the postconviction motion. Of the appellant’s twenty-one grounds, we find that ground six stated a facially sufficient claim, which was not refuted by any attachments to the order denying the postconviction motion and, therefore, requires an evidentiary hearing. We affirm the summary denial of the remaining claims.

The appellant was convicted of corruption by threatening a public servant, carrying a concealed firearm, and resisting arrest without violence (a lesser included offense). In amended ground six, the appellant argued that trial counsel was ineffective for failing to call two witnesses to testify: Pam Miller and Ken Beasley, the manager and assistant manager at the place the appellant was arrested. The appellant alleged that they would have testified, among other things, that the police used excessive force in arresting him. In addition, he alleged that they would have testified that the appellant was sitting in a jeep when the police attacked him and he “offered no resistance to police.” He alleged that both witnesses were available to testify and were shocked they were not called to testify. He alleged that counsel failed to contact these witnesses. He argued that counsel acted more as the prosecution and assured the State of a conviction.

In its order summarily denying the appellant’s postconviction motion, the trial court found that the record revealed that Mr. Beasley was listed as a defense witness on March 27, 2003. The court noted that the motion asserted that the witnesses would have testified to the force used by the police officers in arresting the appellant. The court found as follows:

While excessive force may be a justification to resisting arrest with violence, it is not relevant to a defense of insanity. Counsel cannot be deemed ineffective for failing to present two defenses which are not necessarily compatible. Furthermore, Defendant has failed to demonstrate how he was prejudiced by counsel’s failure to call these witnesses, as he was found guilty only of resisting arrest without violence, a conclusion which is not in conflict with the purported testimony of these additional witnesses.... Therefore, Defendant is not entitled to relief on this basis.

It appears, however, that the court overlooked the fact that the appellant alleged that, in addition to testifying regarding excessive force used by the police, the witnesses would also have testified that he did not resist arrest at all.

In order to allege ineffective assistance of counsel for failing to call a witness, a movant must state the witness’s name, the substance of their testimony, and how the omission prejudiced the outcome of the trial. The facts surrounding the omission must show a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different.

Neal v. State, 854 So.2d 666, 669 (Fla. 2d DCA 2003) (quoting McLoyd v. State, 768 So.2d 1159, 1160-61 (Fla. 2d DCA 2000)). Appellant named the two witnesses, and in relevant part, alleged that the witnesses would testify that he did not resist arrest. He argued that counsel relied only on insanity and did not even interview these witnesses who would have testified that he did not resist arrest.

The court found that this was not inconsistent with the verdict, but the verdict found that he resisted arrest without violence. Therefore, testimony of witnesses who specifically would testify that he did not resist arrest could possibly have produced a different result at trial. The court did not attach any records suggesting that the witnesses would testify otherwise. Therefore, the denial of the postconviction motion is reversed as to this issue only for the court to hold an evidentiary hearing on the issue of whether counsel was ineffective for failing to interview and call these witnesses.

Affirmed in part, reversed in part, and remanded.

DAVIS, BENTON, and ROBERTS, JJ., concur.


author: PADOVANO, J.

text:
    The STATE of Florida, Petitioner, v. Denny SMITH, Respondent.
    No. 1D06-4767.
    District Court of Appeal of Florida, First District.
    March 12, 2007.

      Bill McCollum, Attorney General and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Petitioner.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Respondent.
   PADOVANO, J.

The State petitions this court for a writ of certiorari to review a trial court order excluding collateral crime evidence in the defendant’s upcoming criminal trial. Because the State has failed to show that the trial court departed from the essential requirements of the law in excluding the evidence, we deny the petition.

Denny Smith, the defendant in the trial court, is accused of having sexual intercourse with a female under the age of sixteen, in violation of section 794.05, Florida Statutes (2005). The victim was a neighbor, and the act of unlawful intercourse allegedly took place one evening while she was visiting the defendant in his home. In advance of the trial, the State filed a motion to admit evidence that the defendant had committed a sex offense against another victim. This offense involved an incident fifteen years earlier in which the defendant had sexual intercourse with an eleven-year-old girl.

The trial court held a hearing to consider the admissibility of the evidence relating to the earlier crime. During the hearing, the State presented the testimony of the victim in the present offense, as well as the testimony of the victim in the prior offense. Additionally, the State called several other witnesses in an effort to compare the details of the collateral crime with those of the charged offense.

At the close of the hearing, the State argued that the evidence of the prior sexual offense should be admitted in evidence because was relevant to show a common plan and modus operandi, and because it corroborated the victim’s testimony. In response, the defense argued that the circumstances of the two events were not similar enough to justify the admission of the collateral crime evidence.

The trial court compared the facts of the prior sexual offense to the those relating to the present charge and ruled that the evidence of the prior crime was inadmissible. In the order denying the State’s motion, the trial court identified eight similarities and six differences between the charged offense and the collateral offense. The court reasoned that the evidence of the collateral crime should not be admitted in evidence in the defendant’s trial, because the differences showed that the two offenses were “significantly dissimilar.” Additionally, the court concluded that the prejudicial effect of admitting the collateral crime evidence would outweigh its probative value. The State seeks review of this decision.

As the State recognizes, the trial court’s order is not subject to review in this court by appeal. The supreme court has exclusive authority under Article V, section 4(b)(1), of the Florida Constitution to define the jurisdiction of the district courts of appeal to hear interlocutory appeals. Rule 9.140(c) of the Florida Rules of Appellate Procedure defines the jurisdiction of the district courts to hear appeals by the State in criminal cases. This rule specifies the kinds of orders the State may appeal in a criminal case and it does not include a pretrial order excluding evidence of a collateral crime.

A party can challenge an unap-pealable order by filing a petition for writ of certiorari in the appellate court, as the State has done here, but certiorari is an extraordinary remedy that is available only in limited circumstances. Certiorari is not a substitute for an appeal. See Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67 (Fla. 1st DCA 2004). As the Florida Supreme Court has explained, “ ‘certiorari is an extraordinary remedy and [it] should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.’ ” Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987)).

These general principles governing the use of certiorari apply in criminal cases as well as civil cases. The supreme court held in State v. Pettis, 520 So.2d 250 (Fla.1988), that the State may file a petition for writ of certiorari to review a pretrial order in a criminal case if there is no adequate remedy by appeal and if the order is a departure from the essential requirements of law. However, the court cautioned that certiorari should not be used as a matter of course in place of an interlocutory appeal. On this point the court said that “it would be counterproductive for the State to have a full right of interlocutory appeal from all pretrial orders because this would mean the district court of appeal would have to entertain the appeal on its merits which would often result in unnecessary delay.” Id. at 253.

Because certiorari is used to correct only the most serious errors, it is not enough to show that the order to be reviewed is incorrect. To obtain review of a pretrial order in a criminal case by certio-rari, the State must show that the order is a departure from the essential requirements of the law. The supreme court defined this phrase in Combs v. State, 436 So.2d 93, 95-96 (Fla.1983), in the following terms:

In granting writs of common-law certio-rari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

By this standard, the court was plainly referring to something more than the kind of routine legal error that would be addressed in an appeal.

The petitioner in Combs sought review of an appellate decision by the circuit court. However, the same standard applies when a petition for writ certiorari is filed to review a pretrial order, as it was in the present case. Citing its opinion in Combs, the court explained in Pettis, that “[w]hile some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where ‘there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Pettis, 520 So.2d at 254.

It is apparent from the principles articulated in Pettis and Combs that the question presented here is not whether this court can review the order excluding the collateral crime evidence, but whether it should. It is not for us to say that the trial court’s analysis is correct or incorrect. We must decide whether the trial court committed an error so serious that it amounts to a miscarriage of justice. In our view, the arguments in this case fall far short of the mark.

The State does not contend that the trial court applied the wrong procedure in evaluating the admissibility of the evidence. Nor does the State contend that the trial court applied the wrong law in deciding the issue on the merits. All that is in controversy here is the way in which the trial court applied the law to the facts. The State simply takes issue with the trial court’s conclusion that the collateral offense was not similar enough to qualify for admission in evidence. Even if we were to accept the State’s argument that the trial judge erred in concluding that the offenses were not similar enough, we could hardly characterize this alleged error as a departure from the essential requirements of law.

We acknowledge that in some of the cases cited by the State, the courts seem to have treated certiorari like an appeal. For example, in State v. Richman, 861 So.2d 1195 (Fla. 2d DCA 2008), the reason the court gave for quashing an order excluding collateral crime evidence was that the trial court erred in concluding that the facts of the collateral crime were not similar enough to the charged offense. Likewise, it appears from the opinion in State v. Maisto, 427 So.2d 1120 (Fla. 3d DCA 1983), that the court granted certiorari mainly because it disagreed with the trial court as to the requisite degree of similarity between the collateral crime and the charged offense.

More recently, however the Second District Court of Appeal emphasized that cer-tiorari is an extraordinary remedy which should not be used merely to express disagreement with a pretrial ruling on the admissibility of collateral crime evidence. See State v. Storer, 920 So.2d 754, 758 (Fla. 2d DCA 2006). The court noted that such a decision is discretionary with, the trial judge and that the State “would seem to have a very heavy burden of persuasion in establishing that the trial court’s discretionary decision departed from the essential requirement of the law.” In several parts of the opinion, the court expressed its reservations about the correctness of the order under review, yet the court ultimately denied the State’s petition on the ground that it did not meet the standard set in Pettis and Combs.

One other aspect of the Storer opinion is worthy of discussion here. The court observed that most opinions since Pettis “have come in the context of challenges to orders that prevented the State from presenting evidence that was critical to its case.” Id. While that may be correct, the court was not suggesting in this passage that the State has a right to relief by certiorari merely by showing that the evidence was critical. The applicable standard pertains to the seriousness of the error, not the impact of the ruling.

Although we are concerned that the opinions in Richman and Maisto might create an inaccurate impression about the scope of review on certiorari, we have no reason to disagree with the decisions in those cases. We do wish to make our own view clear, however, that certiorari does not lie merely to challenge the correctness of a pretrial order in a criminal case. Among other requirements, the State must show that the trial court made an error so serious that it amounts to a miscarriage of justice. It is not enough to show that the trial court was mistaken. If that were the case, every pretrial order in every criminal case would be subject to review by certio-rari.

For these reasons, we conclude that the petition for writ of certiorari must be denied. The State has failed to show that the order excluding collateral crime evidence was a departure from the essential requirements of the law.

Petition denied.

ALLEN and LEWIS, JJ., concur.

      . The state has a right under section 924.07(1)(Z) to appeal an order excluding collateral crime evidence, but this statute applies only in appeals from county court to circuit court. See Blore v. Fierro, 636 So.2d 1329 (Fla. 1994).