author: FARMER, J.

text:
    Robert Wayne MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3691.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In criminal trials the law requires a high level of confidence in the guilt of the accused. That requirement is vital to the outcome. By long tradition, the State is required to produce evidence of defendant’s guilt “to the exclusion of and beyond a reasonable doubt.” This burden of proof lasts throughout the entire trial. The State is never freed from the imperative to make defendant’s guilt appear virtually certain.

But there are issues for which the defendant himself may incur some obligation to present evidence. For one, there are the yes-but defenses. Essentially they admit the critical facts charged but then seek to avoid culpability on the basis of still other facts. If a defendant claims: “I didn’t know what I was doing” {insanity); “I was forced to do it against my will” {coercion ); “I was only defending myself’ {justification ); or “I wouldn’t do such a thing and was seduced by the police” {entrapment ), he will have to do something to get the crucial additional facts into evidence before the jury.

In this case the State charged defendant with aggravated battery. He sought to avoid culpability with the legal justification of self-defense, claiming that his deadly force against the roommate was legally permitted because the roommate was already committing an aggravated battery against him. Under Florida law a defendant may claim this defense if there is evidence indicating that initially he was the object of a “forcible felony” such as aggravated battery. Thus, to be lawfully allowed to use deadly force defendant had to produce evidence that his roommate brought the knife into their fight.

While the State bore the ultimate burden of proving guilt beyond a reasonable doubt, defendant laid upon himself a requisite of producing evidence of the additional facts necessary for his defense of justification. But, with thése additional facts, did he also incur a “burden of proof’ identical to the State’s? That is, did he' have to prove the additional facts for self-defense beyond a reasonable doubt? Or was he instead bound by some lesser standard— say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without’ any burden as to .the strength of their probative value — other than they might be true?

The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense,

But that is not what the jury instructions said in this case. After first explaining the State’s burden of proof and the statutory elements of the charge of aggravated battery charge against defendant, the instructions then turned to his claimed justification of self-defense. Using Florida Standard Jury Instruction (Criminal) 3.6(f) as a template, the self-defense instruction began with a description of when deadly force could be justifiable. At this point, nothing is amiss. But the court concluded that it was thereupon necessary within the justification instruction to define once again what constitutes the forcible felony of aggravated battery. The court decided to instruct the jury that defendant had the burden of proving self-defense to a near certainty, approving a written instruction saying: “the Defense must prove the following two elements beyond a reasonable doubt.” [e.s.]

Later, while reading the written instructions to the jury it must have occurred to the Judge that there is something improbable about a criminal defendant having a burden of proving any defense beyond a reasonable doubt, for the trial judge faltered in reading the previously approved written instruction to the jury. According to the transcript, as the trial court actually voiced it, the instruction came out:

To prove the crime of aggravated battery, great bodily harm, the State must prove — the defense — for the defense of self-defense must be proved the following two elements beyond a reasonable doubt., [e.s.]

In contradiction, later on the instructions properly told the jury that if they had “a reasonable doubt on the question of whether or not the defendant was justified in the use of [deadly force] ... you should find the defendant'not guilty.”

The record indicates that the written jury instructions were sent into the deliberation room with the jury. The jury was not explicitly instructed what to do if they perceived a conflict between the written and the spoken words. With the spontaneous oral change, it seems likely that the jury was confused and forced to wonder just who had what burden of proof. It is also true, however, that any difference between the oral and written instructions is immaterial to the outcome of this appeal because both were defective as to the applicable “burden of' proof’ as to the defense.

We emphasize that the defect involves an erroneous reasonable doubt standard. Jurors were forced to choose between two contradictory standards: (1) that defendant was required to prove self-defense beyond a reasonable doubt, and (2) that if they had reasonable doubts about his claim of self-defense they should find him not guilty. When jurors are faced with both correct and erroneous instructions as to the applicable legal rules, there is no reason to believe that they are likely to intuit which is the correct one and which is the erroneous one. Indeed, as the following authoritatively explains:

“Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the [law] .... When ... jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”

Griffin v. United States, 502 U.S. 46, 59-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); see also Mackerley v. State, 754 So.2d 132, 138 (Fla. 4th DCA 2000), disapproved on other grounds, 777 So.2d 969 (Fla.2001); Tricarico v. State, 711 So.2d 624, 625-26 (Fla. 4th DCA 1998). The conclusion is therefore inescapable that the jury may well have decided this case under an erroneous instruction as to the burden of proof.

Defendant’s position is that the instructions clearly prejudiced him by substantially negating his defense of justification. In response the State argues that defendant waived this defect at the charge conference when counsel agreed to the redefinition of aggravated battery as part of the justification defense. The State is saying that defense counsel consented to the court rereading the original definition used to instruct the jury on the crime charged against defendant, only this time with the burden of proof beyond a reasonable doubt shifted from the State to defendant. In effect, the State contends that defense counsel knowingly agreed that the court could tell the jury that defendant had the burden of proving self-defense beyond any reasonable doubt.

From the transcript, it is not clear to us that defense counsel should really be understood to have agreed to this. Indeed it does not seem that he did anything more than bow to a judicial determination to reinstruct the jury on the meaning of aggravated battery. On the other hand, it is clear that defense counsel did not expressly object to this instruction.

Even so, we have previously deemed it fundamental error to instruct a jury in such a way as to define a legal defense out of existence. See Sigler v. State, 590 So.2d 18, 20 (Fla. 4th DCA 1991) (holding that an unprotested jury instruction may be fundamental error when it is improper and has the effect of negating defendant’s only defense). Telling the jury that defendant had to prove the basis for self-defense beyond a reasonable doubt had exactly that effect.

Additionally, the United States Supreme Court has made clear that:

“[for a valid conviction] the essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings. A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’ ” [e.s.]

Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In the critical words of the Court, an erroneous instruction on the burden of proof “vitiates all the jury’s findings.” This kind of error is deemed structural — “the jury guarantee being a ‘basic protection[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function.” 508 U.S. at 281, 113 S.Ct. 2078 (citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Were we to validate the verdict, the wrong entity- — this court — ■ would effectually decide defendant’s guilt.

To repeat, the law did not require defendant to prove his justification of self-defense to any standard measuring an assurance of truth. He did not have to prove the exigency of self-defense to a near certainty (reasonable doubt) or even to a mere probability (greater weight). His only burden was to offer additional facts from which it could be true, that his resort to such force could have been reasonable.

Under the instructions in this case — oral and written — it was possible for the jury to have reasonable doubts about his justification of self-defense but still find him guilty because he did not prove those additional facts beyond a reasonable doubt. It follows that the case must be returned for a new trial. The judgment is therefore

Reversed.

SHAHOOD, J., concurs.

TAYLOR, J., concurs in result only.

      . See e.g. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (requiring reversal of criminal conviction where suppression of evidence undermined confidence in the result).

      . See e.g. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error.”).

      . See Fla. Std. Jury Instr. (Crim.) 3.7.

      . Id.

      . Id.

      . Murray and his roommate fought outside their apartment. The State charged that Murray introduced a butcher knife into the fight, but he claimed that the other guy first wielded a pocket knife against him. The key fact for the trial was who brought the knife to the fist fight.

      . § 776.012, Fla. Stat. (2005) ("a person is justified in the use of deadly force and does not have a duty to retreat if ... he ... reasonably believes that such force is necessary ... to prevent the imminent commission of a forcible felony”).

      . See Fla. Std. Jury Instr. (Crim.) 3.6(f) ("If in your consideration of the issue of self-defense you have a reasonable doubt on the question whether the defendant was justified in the use of [deadly force] you should find the defendant not guilty”.).

      . So it would be for the insanity and coercion defenses as well. On the other hand, a statute has made the burden on defendant heavier for entrapment. See § 777.201(2), Fla. Stat. (2005) ("A person prosecuted for a crime shall be acquitted if the person proves by a preponderance [greater weight] of the evidence [e.s.] that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.”). With entrapment, the court instructs the jury: "defendant must prove to you by the greater weight of the evidence [e.s.] that a law enforcement officer ... induced or encouraged the crime charged.” Fla. Std. Jury Instr. (Crim.) 3.60. No such instruction applies to self-defense or the other yes-but defenses.

      .This conclusion was in keeping with the standard jury instruction for self-defense, which directs the trial judge at that point to "insert and define applicable felony that defendant alleges victim attempted to commit.” Fla. Std. Jury Instr. (Crim.) 3.6(f). Yet to properly instruct lay jurors, it does not seem wise — much less necessary — to "define” the forcible felony allegedly being perpetrated by the Victim with the same legal punctilio used in defining the crime with which an accused has been charged. In context, the circumstances suggest that the forcible felony which the victim is said to have undertaken against the defendant could properly be described in less formally legalistic, even idiomatic terms, e.g. shoot, stab, choke, beat, rape, etc., modified by some suitable adjective such as unjustifiably, illegally or improperly.

      . In the beginning of the charge to the jury, the Judge said: "You’ll get copies of these, so you don’t need to take copious notes, because I’ll send you back a copy of them."

      . Here is the relevant exchange:

        Court: So then I need an instruction on Aggravated Battery. Because at that point you insert and define the applicable felony the defendant alleges victim attempted to commit. You can’t just say aggravated battery and not define it.

        Defense: Well I think we already got that. Its—

        Court: You got to do it again.

        Defense: Okay.

        Court: So I need another instruction on aggravated battery immediately following his instruction. Do you understand?

        State: No, I don’t understand. After — oh, the use of force likely to cause death or great bodily harm is not justified — justifiable if you find' — ■

        Court: We are not there.

        State: Oh, okay. So where are we?

        Court: For 782.02, if I tell the Jury that he was trying to prevent an attempt to commit aggravated battery, then I need an instruction on aggravated battery.

        State: Okay, I think I have it.

        Court: We have it, because he’s charged with it. But, I need it again for—

        State: Okay

        Court: I must read it again in its entirety.

        State: Okay. Okay.

        Court: So I need it inserted there—

        State: Okay

        Court: — right after this. Okay. Then 776.012, 776.031. “A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm, the imminent commission of aggravated battery against himself.” And aggravated battery is an applicable forcible felony, is that correct? Is that the defense’s position?

        Defense: That’s our position yes.


source: Caselaw Access Project

author: GROSS, J. KLEIN, J.,

license: Public Domain

text:
    Alan Z. APPELBAUM, Appellant, v. Peter FAYERMAN and Don Raab, Appellees.
    No. 4D05-4106.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Daniel S. Newman, P.A., and Cynthia Morales of Broad and Cassel, Miami, for appellant.
    Mark H. Muller and Michael H. Schaal-man of Quarles & Brady LLP, Naples, for appellee, Peter Fayerman.
   GROSS, J.

The issue in this case is whether the parties to an arbitration expressly waived their right to have a court decide the issue of attorney’s fees. We hold that there was no express waiver and reverse the order of the circuit court denying attorney’s fees.

Appellee, Peter Fayerman, filed a claim in arbitration against his former bond broker, appellant Alan Appelbaum. The statement of claim alleged various legal theories of misconduct and requested an award of attorney’s fees under section 517.211(6), Florida Statutes (2004), which provides that “[i]n any action brought under this section, including an appeal, the court shall award - reasonable attorneys’ fees to the prevailing party unless the court finds that the award of such fees would be unjust.”

In the arbitration proceeding, Appelb-aum filed an answer, affirmative defenses, and counterclaim. He also sought attorney’s fees under section 517.211(6).

The three-member arbitration panel conducted a six-day evidentiary hearing. During closing argument, Appelbaum’s lawyer argued that his client was “entitled to attorney’s fees on 517.”

The arbitration panel denied all of Fay-erman’s claims against Appelbaum. The order stated, “[a]ny and all claims for relief not specifically addressed herein, including Claimant Fayerman’s claims and Claimants’ request for punitive damages, are denied.” The award did not specifically mention attorney’s fees with respect to Appelbaum.

In the circuit court, Appelbaum sought to confirm that portion of the arbitration award denying Fayerman’s claims; he also sought an award of attorney’s fees as the prevailing party on Fayerman’s Chapter 517 causes of action. The circuit court confirmed that portion of the arbitration award denying Fayerman’s claims. However, the court denied Appelbaum’s request for attorney’s fees, ruling that “based on the pleadings and transcripts of the closing argument submitted, the right of the parties to have the issue of attorneys’ fees determined by the Court was submitted to the arbitration panel by agreement and if not, that right was expressly waived by the parties, who submitted the issue to the arbitration panel.”

The supreme court has held that under section 682.11, Florida Statutes (2004), an arbitrator “has no authority to award [attorney’s] fees absent an express waiver of [the] statutory right” to “have the issue of attorney’s fees decided in court.... ” Tumberry Assocs. v. Serv. Sta tion Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995); see Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1020 (Fla. 4th DCA 1999); D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912, 914 (Fla. 4th DCA 1997). In Tumberry, we believe that the supreme court used the term “express” as it is used in the field of contracts; a waiver or agreement is “express” when it “is arrived at by words, oral or written.... ” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). This means that under Tumberry there can be no waiver implied in fact; a- court cannot “examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Id. As the third district has observed, for there to be an “express waiver” under Tumberry, “there must be either a stipulation during the course of arbitration or a specific finding based on substantial, competent evidence that the parties agreed to submit the attorney’s fees issue to the arbitrator.” GCA Inc. v. 90 S.W. 8th St. Enters., Inc., 696 So.2d 1230, 1233 (Fla. 3d DCA 1997). Of course, evidence of the parties’ agreement may well be, as Judge Klein’s concurring opinion points out, that the arbitrator took evidence from the parties and awarded or denied fees.

In this case there was neither an on-the-record stipulation that the arbitrators would determine the issue of attorney’s fees, see Pierce v. J.W. Charles-Bush Sec., Inc., 603 So.2d 625, 626 (Fla. 4th DCA 1992), nor was there substantial, competent evidence to support the circuit court’s finding of an express waiver. The only record evidence of an express waiver was the parties’ requests for attorney’s fees in their arbitration pleadings and Appelb-aum’s brief reference in closing argument that chapter 517 entitled his client to attorney’s fees. Faced with similar evidence, Blair and Charbonneau held that no Tumberry express waiver occurred.

Blair involved an arbitration award in a securities case similar to the one here at issue. In Blair, both parties submitted claims for attorney’s fees to the arbitration panel and “executed an NASD uniform submission agreement stating that the parties would abide by any arbitration award.” Id. at 913. The arbitrators awarded the claimant damages and “attorney’s fees in an amount to be determined by a court of competent jurisdiction.” Id. The respondent moved to vacate the portion of award ordering them to pay attorney’s fees arguing that the “arbitrators exceeded their powers in determining [the claimant’s] entitlement to fees.” Id. The trial court confirmed the award, awarding the claimant fees. Id.

This court “agree[d] with the [respondent’s] argument that the arbitration panel did not have authority under Florida law to award fees[,]” concluding that “the supreme court has expressly limited its holding that the parties may voluntarily agree to submit an attorney’s fees issue to an arbitration panel to an express agreement.” Id. at 914 (citing Tumberry, 651 So.2d at 1173-75). Blair supports the conclusion that implications from the 'parties’ conduct cannot form an express waiver of the right to have a court determine the issue of attorney’s fees incurred in arbitration.

In Charbonneau, both parties discussed the issue of attorney’s fees in their arbitration pleadings. 727 So.2d at 1019. The claimant’s attorney recognized that “the arbitrator can decide the issue if both parties agree” and then indicated that he had “no objection to that arrangement.” Id. After the arbitrator denied his request for attorney’s fees, the claimant’s attorney sought an award of fees from the circuit court. Id. The circuit court denied attorney’s fees. Id. at 1021. We reversed, concluding that the actions of the claimant’s attorney “did not constitute an express waiver by either express stipulation or by a specific finding based on substantial competent evidence that the parties agreed to submit the attorney’s fee issue to the arbitrator.” Id. This case offers less evidence of an express waiver than Charbonneau.

We reject Fayerman’s argument that the arbitration award was deficient for failing to specify the prevailing party. The award denied all of Fayerman’s claims, including the Chapter 517 claim. Appelbaum thus prevailed on all legal theories that Fayerman asserted. This is not a case where a plaintiff brought a claim under several theories and the arbitration award fails to specify the basis for recovery. Cf. Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 232, 236 (Fla.2001).

We reverse the order denying attorney’s fees and remand to the circuit court for determination of fees under section 517.211(6).

WARNER, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the result reached by the majority, but the opinion appears to require more for a waiver than I believe is necessary under Tumberry Associates v. Service Station Aid, Inc., 651 So.2d 1173 (Fla.1995). I am specifically referring to the following statement in the seventh paragraph of the majority opinion:

In Tumberry, we believe that the supreme court used the term “express” as it is used in the field of contracts; a waiver or agreement is “express” when it “is arrived at by words, oral or written .... ” Commerce P’ship 8098 Ltd. v. Equity Contracting Co., Inc., 695 So.2d 383, 385 (Fla. 4th DCA 1997). This means that under Tumberry there can be no waiver implied in fact; a court cannot “examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Id.

In my opinion, if a party does not object when the arbitrator takes evidence as to attorney’s fees and awards or denies fees, it could be found by the court to be a waiver. The language I rely on from Tumberry is:

Notwithstanding our ruling today, we will continue to permit trial courts, in the event a dispute arises, to enjoy exclusive jurisdiction to resolve the factual issue of whether the parties have waived their statutory right to have the court decide the fee issue. Under section 682.11, as previously construed by this Court, the parties continue to have the right to have the issue of attorney’s fees decided in court if they wish. The arbitrator has no authority to award fees absent an express waiver of this statutory right.
Tumberry argues that in this case there was neither an oral nor written stipulation by the parties to permit the arbitrator to enter an award of attorney’s fees. However, as the Third District Court noted, and we agree, the trial court made a factual finding that the parties had agreed to permit the arbitrator to decide the issue of attorney’s fees.

Id. at 1175. I believe the above language allows a trial court to make a factual finding that, by conduct, a party waived the statutory right to have the court decide the fee. Otherwise there was no need for the court to include this language.

I therefore agree with Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 751 So.2d 143 (Fla. 1st DCA 2000), in which the arbitrator awarded attorney’s fees under section 448.08, Florida Statutes (1993) in a claim for unpaid wages. Although the employer had objected to the claim for attorney’s fees on the ground that section 448.08 did not apply, the employer did not object to the jurisdiction of the arbitrator to award fees in the absence of a waiver. The employer first raised the jurisdictional argument in the circuit court, and the circuit court vacated the fee award. The first district reversed, holding that under Tumberry

no “express agreement” devoted exclusively to the question of attorney’s fees is necessary, and the parties may, by their actions, filings, and submissions, expressly waive their right to insist that only a court decide the issue of attorney’s fees.

Id. at 149. The Cassedy panel disagreed with our decision in D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912 (Fla. 4th DCA 1997), because Blair appears to require a separate written agreement waiving the right to have a circuit court determine attorney’s fees.

I do agree with the result reached by the majority in this case because merely requesting attorney’s fees in claims or responses in arbitration is insufficient to constitute a waiver. GCA, Inc. v. 90 S.W. 8th St. Enters., Inc., 696 So.2d 1230 (Fla. 3d DCA 1997). There was no evidence in this case from which a waiver could be found under Tumberry.

      . Fayerman’s father-in-law, Don Raab, was also a claimant against Appelbaum in claims distinct from Fayerman's. The panel found Appelbaum liable to Raab and awarded attorney's fees “in an amount to be determined by a court of competent jurisdiction.” The claims involving Raab are not at issue in this appeal.


author: PER CURIAM.

text:
    Darrin TERRANOVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1081.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Carey Haughwout, Public Defender, and Tatjána Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his convictions for manslaughter and aggravated battery by causing great bodily harm, permanent disability or permanent disfigurement. We affirm on all issues, but write to address the defendant’s argument that the trial court erred in adjudicating the defendant guilty of both manslaughter and aggravated battery.

The State charged the defendant with manslaughter and aggravated battery where the facts revealed the defendant beat the victim, who died several days later. Apparently, there was some question regarding the victim’s cause of death. The jury found the defendant guilty of both charges. The State then requested the court to adjudicate the defendant guilty on both charges, but requested that a sentence be imposed only on the manslaughter charge. This is precisely what the trial court did.

On appeal, the defendant argues the court erred in adjudicating the defendant guilty of both charges. We disagree. Our supreme court has consistently held that similar types of related crimes meet the Blockburger test and are not “degree variants” of the same underlying offense. See, e.g., State v. Florida, 894 So.2d 941 (Fla.2005); Gordon v. State, 780 So.2d 17 (Fla.2001).

We also approve of the trial court’s procedure of adjudicating the defendant guilty of both crimes, but withholding sentence on the second charge. In this way, the court retains the ability to sentence the defendant on the second charge should the first charge be reversed on appeal and avoids the problem that is created by either vacating the jury’s finding of guilt on the second charge or holding the second charge in abeyance. These later procedures often result in double jeopardy arguments that would not otherwise arise.

Affirmed.

GUNTHER, HAZOURI and MAY, JJ., concur.


author: GROSS, J.

text:
    Jermaine SHENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4407.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse the convictions in this case because of the admission of testimonial hearsay that violated the Sixth Amendment Confrontation Clause as the United States Supreme Court has construed it in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The state charged appellant, Jermaine Shennett with: 1) burglary of a convey-anee and 2) possession of burglary tools, identified in the information as “porcelain pieces.” After a jury trial, Shennett was convicted of attempted burglary, as a lesser included offense, and possession of burglary tools as charged.

The conveyance burglarized was a 2000 Dodge Caravan minivan owned by Allison Brown. Brown parked her auto in an empty row of parking spaces at Plantation Central Park. She took her three children to the playground. Within five minutes, a plain clothes officer told her that someone had broken into her minivan. When Brown returned to the parking lot, she saw that her passenger side window had been shattered. There was glass inside and outside of the van. Nothing was missing from inside the Caravan.

At the time Brown parked her vehicle in the lot, Officers Craig Boermeester and Jeff Young were conducting an undercover surveillance in the park. Each officer was in a different unmarked police car. Boer-meester testified at trial; Young did not because he was serving in the armed forces in Afghanistan.

Before Brown arrived at the parking lot, Boermeester saw a Ford Taurus pull up next to a Ford Explorer. Boermeester drove into the lot past the Taurus. He noticed that the driver of the Taurus was a heavy set black male with short hair, but he could not tell if anyone else was in the Taurus.

Meanwhile, Officer Young entered the parking lot by a different entrance and took up position on a rooftop so that he could better observe the Taurus. Using his radio, Young notified Boermeester of his position. The Taurus moved and parked next to a red vehicle that blocked Boermeester’s view of the Taurus.

Over the radio, Young relayed his observations to Boermeester. Defense counsel raised both a hearsay and Confrontation Clause objection to the admission of Officer Young’s statements to Boermeester. The trial court overruled the objections, ruling that the spontaneous statement exception to the hearsay rule applied.

The state played an audiotape of Young’s play-by-play description to Boer-meester over the radio. On the tape, Young described the following facts, as they occurred, most of which Boermeester was not in a position to observe:

1. When it was next to the red SUV, the door to the Taurus opened twice, but no one exited the car. The driver of the SUV returned and drove away.
2. Brown’s minivan pulled into the lot and parked.
3. The Taurus backed into the parking space next to Brown’s Caravan, so that the two vehicles were passenger side to passenger side. The passenger of the Taurus got out of the car, crouched down on his knees next to the minivan, and threw something at the minivan’s window. The window broke. The Taurus’s passenger was a black male with dreadlocks, wearing a black tank top and black shorts. Once the window broke, the passenger began rummaging though the minivan. Boermeester conceded at trial that he did not observe anything that took place by Brown’s minivan.
4. At this point, marked police vehicles arrived. The passenger got back in the Taurus and the car slowly moved away, only to be blocked by the police cars. The Taurus then led the police on a

high-speed chase. Ultimately, the Taurus spun out of control and struck a guardrail. Officer Clark, one of the officers in pursuit, approached the passenger side of the Taurus and saw that the door was jammed. Clark identified Shennett as the passenger in the Taurus.

A search of the Taurus revealed a Ziploc baggie containing several pieces of porcelain from a sparkplug and a screwdriver on the front passenger seat. A crime scene technician observed pieces of porcelain among the broken glass in the parking lot. The owner of the Taurus testified that he loaned the car to Shennett, that he knew nothing about the baggie with porcelain, and that the screwdriver was his.

Officer Young’s taped statements to Officer Boermeester were inadmissible under Crawford v. Washington, 541 U.S. 36 (2004)

Shennett argues that the audio-taped statements of Officer Young failed to satisfy the Confrontation Clause requirements of the United States Constitution under Crawford. Because the- statements were testimonial and Shennett had no opportunity to cross-examine Young, we hold that the statements were inadmissible under Crawford.

In Crawford, the United States Supreme Court held that the admission of testimonial hearsay statements against an accused violates the Confrontation Clause of the Sixth Amendment to the United States Constitution if the declarant is unavailable to testify at trial and the accused had no “prior opportunity” to “cross-examine” the declarant. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354

Young’s audiotaped statement was hearsay, since the statements were not made “at the trial” and were “offered in evidence to prove the truth of the matter asserted,” that Shennett committed a burglary. See § 90.801(l)(c), Fla. Stat. (2005). Hearsay is inadmissible under section 90.802, Florida Statutes (2005), unless it falls within an exception to the hearsay rule. The trial judge ruled that the audiotape was admissible under the spontaneous statement exception to the hearsay rule, contained at section 90.803(1), Florida Statutes (2005).

The crucial question in this case is whether Young’s audiotaped statement was “testimonial” under Crawford. In setting out the rule in Crawford, the Supreme Court declined to specifically define the term “testimonial.” 541 U.S. at 68, 124 S.Ct. 1354. The opinion provides guideposts for analysis. At a minimum, testimonial statements include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.” Id.

Beyond the minimum, the Court commented on other, proposed formulations of the “core class of ‘testimonial’ statements.” Id. at 51, 124 S.Ct. 1354. Crawford argued. for a definition that would include “ ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.’ ” Id. (quoting Brief for Petitioner at 23). The majority opinion also took note of a formulation previously set forth in a concurring opinion in another case that would have included “ ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’” Id. at 51-52, 124 S.Ct. 1354 (quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring)). Finally, amici curiae argued that testimonial statements included those “ ‘that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Id. at 52, 124 S.Ct. 1354 (quoting brief for National Association of Criminal Defense Lawyers, et al as Amici Curiae at 3). Without endorsing a particular definition of a testimonial statement, the court indicated that all “formulations ... of testimonial statements” share a “common nucleus.” Id.

The “common nucleus” present in the various formulations centers on the reasonable expectation of an objective declar-ant that the declarant’s statement may later be used in the investigation or prosecution of a crime. It is this expectation that distinguishes a child’s spontaneous declaration to a parent, see Herrerar-Vega v. State, 888 So.2d 66 (Fla. 5th DCA 2004), or a spontaneous statement in a 911 tape, see Towbridge v. State, 898 So.2d 1205 (Fla. 3d DCA 2005), from a true testimonial statement, such as a witness statement to a police officer at the scene of a crime, see Lopez v. State, 888 So.2d 693, 696-700 (Fla. 1st DCA 2004). The circumstances surrounding some types of out-of-court statements, such as police interrogations or statements given under oath, typically give rise to the expectation that they will have a role in a criminal proceeding.

This objective test, focusing on the reasonable expectations of the declarant, is the one we applied in Belvin v. State, 922 So.2d 1046, 1050 (Fla. 4th DCA 2006) (en banc). There we held that breath test affidavits generated by law enforcement for use at a later criminal trial or driver’s license revocation proceeding were testimonial, because they qualified as “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Id. (quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354); see Contreras v. State, 910 So.2d 901, 905 (Fla. 4th DCA 2005) (indicating that testimonial statements shared an “objective characteristic: ‘the generation of statements that might be used later against a defendant at trial’ ”) (quoting John F. Yetter, Wrestling With Crawford v. Washington and the New Constitutional Law of Confrontation, 78 Fla. Bar. J. 26, 28 (Oct. 2004)). The Belvin standard for a “testimonial” statement is similar to that established in United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004):

The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the de-clarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

Applying the objective test in this case leads to the conclusion that Officer Young’s audiotaped statements over the radio to Officer Boermeester were “testimonial” under Crawford. Young was aware that he was in the midst of a surveillance investigation. He knew that his recorded observations would have their place in a criminal prosecution as a contemporaneous record of the criminal conduct of the occupants of the Taurus. Objectively, there was a reasonable expectation that the taped statements would later be used in the prosecution of a crime. Because Shennett did not have the opportunity to cross-examine Young, the admission of the taped statements violated the Confrontation Clause.

The Screwdriver and the Videotape Reenactment Were Inadmissible

In the state’s case, Officer Nelson testified that he decided to use the porcelain pieces recovered from the Taurus to try to break a van window. A Dodge dealership provided a 2000 Caravan door and oversaw the demonstration. Nelson testified that a videotape of the event accurately represented the demonstration.

Nelson attempted to break the window three times. The first two times he completely missed the window with the porcelain. On the third attempt, he made contact with the upper left hand corner of the window and broke it. The glass did not fall out because of tinting on the window. The video was played for the jury.

On cross-examination, Nelson conceded that he threw the porcelain at the window like a pitcher in a baseball game. He never attempted to throw while crouching on his knees.

The admission of the videotape demonstration was error. Videotaped reenactments representing an experiment are admissible if they are “conducted under sufficiently similar circumstances.” See Dowell v. State, 516 So.2d 271, 274 (Fla. 2d DCA 1987) (citing Young v. Ill. Cen. Gulf R.R., 618 F.2d 332, 337-38 (5th Cir.1980); Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962, 965 (Fla. 3d DCA 1976)). “[A] court’s conclusion as to the similarity of [an] experiment to the event is a matter within the court’s discretion.” McFarland & Son, Inc. v. Basel, 727 So.2d 266 (Fla. 5th DCA 1999) (citing Vitt, 340 So.2d at 962). If evidence of an experiment is deemed “sufficiently similar” to the actual event, the degree of similarity between the two is more appropriately directed toward the weight of the evidence rather than its admissibility. See Johnson v. State, 442 So.2d 193, 196 (Fla.1983). The requirement of “sufficient similarity” was significant in this case because the videotaped demonstration was to prove an issue in dispute — whether the porcelain pieces were capable of breaking the car window, so that they could be a “burglary tool” within the meaning of section 810.06, Florida Statutes (2005), one of the charged felonies.

In this case, the videotaped demonstration was not sufficiently similar to the crime to be of evidentiary value. Shennett threw something from a crouched position, on his knees next to the minivan, to shatter the window. Like a baseball pitcher, the officer in the demonstration threw the porcelain from a standing position and broke the window, but did not shatter it. The trial court abused its discretion in admitting the videotape of the porcelain tossing demonstration.

The trial court also admitted into evidence the screwdriver found on the front passenger seat of the Taurus after Shennett was caught. The owner of the Taurus, Michael Walsh, testified that the screwdriver was his, that he usually kept it in the trunk, but there were times when he kept it in the passenger compartment of the car.

The screwdriver was irrelevant to the issues at trial because it did not “tend[ ] to prove or disprove a material fact” in the case. § 90.401, Fla. Stat. (2005). The burglary tool which Shennett was charged with possessing was “porcelain pieces.” There was no evidence that he used the screwdriver in any way to burglarize Brown’s minivan. The screwdriver had no connection with either charged offense. See Rigdon v. State, 621 So.2d 475, 478 (Fla. 4th DCA 1993).

Reversed and Remanded.

WARNER and KLEIN, JJ., concur.

      . Because the issue was not briefed on appeal, we do not consider whether Officer Young's audiotaped play-by-play fell under the spontaneous statement exception to the hearsay rule, contained at section 90.803(1), Florida Statutes (2005). See McGauley v. State, 638 So.2d 973 (Fla. 4th DCA 1994); J.M. v. State, 665 So.2d 1135 (Fla. 5th DCA 1996); United States v. Woods, 301 F.3d 556, 562-63 (7th Cir.2002); United States v. Ruiz, 249 F.3d 643, 646-47 (7th Cir.2001); Hallums v. United States, 841 A.2d 1270 (D.C.2004).


text:
    Debra Jean HOLBROOK f/k/a Johnny A. Logan, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-98.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, STONE and WARNER, JJ., concur.


author: WARNER, J.

text:
    Lin Castre GOSMAN, an individual, Petitioner, v. Joseph J. LUZINSKI, as Trustee of the Bankruptcy Estate of Abraham David Gosman, Respondent.
    No. 4D06-1896.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Stephen Rakusin of The Rakusin Law Firm, Fort Lauderdale, for petitioner.
    Craig S. Barnett of Greenberg Traurig, P.A., Fort Lauderdale, and Mark D. Bloom, Elliot H. Scherker, Elliot B. Kula, and Daniel M. Samson, Miami, for respondent.
   WARNER, J.

The petitioner seeks certiorari review of an order of the circuit court compelling the production of documents and determining that petitioner waived her attorney-client privilege by failing to, file a privilege log, even though she moved for an extension of time to file one. We grant the petition.

In connection with an action by a bankruptcy trustee seeking to set aside transfers from the debtor to his wife, the trustee served a discovery request on the wife seeking documents relating to her ownership and residence at various properties. The request demanded documents regarding ownership and use over a ten-year period. The wife timely filed a response to the request, in which she objected to its overbreadth and burdensomeness as beyond any relevant time frame for the underlying litigation. Subject to that objection, the wife stated that she would produce the requested documents, except those that violated the attorney-client privilege, accountant-client privilege, work-product privilege, and Fifth Amendment right against self-incrimination. Within that response and objection the wife also objected to the preparation of a privilege log as demanded in the request to produce, because the request required more identifying information as to each document of claimed privilege than was required by the rule. However, if the court determined that a privilege log would be required under the request, the wife requested a thirty day extension to prepare it.

Shortly thereafter, the wife filed a motion to dismiss the complaint against her, and the court denied the motion approximately five months later. Four days after the denial of the wife’s motion, .the trustee moved to compel production of documents and claimed that the wife had waived any privilege by failing to file a privilege log. At the hearing on the motion to compel, the trustee agreed to limit the request for production to a year-and-a-half prior to the request but continued to insist that the wife had waived any claim of privilege by failing to file a privilege log and not obtaining an extension. The trial court entered an order granting the motion to compel but limiting the document production to the year-and-a-half prior to the request. However, it also determined that the wife had waived any privilege by failing to file a privilege log or requesting an extension.

Certiorari review is proper when a discovery order compels production of privileged materials. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). An order which improperly compels discovery of attorney-client privileged documents is reviewable by certiorari. See United Servs. Auto. Ass’n v. Crews, 614 So.2d 1213 (Fla. 4th DCA 1993).

Florida Rule of Civil Procedure 1.350(b) provides as follows with respect to requests for production:

(b) Procedure. Without leave of court the request may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party.... The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant.... For, each item or category the response shall state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated.... The party submitting the request may move for an order under rule 1.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit inspection as requested.

(emphasis added). Rule 1.380(a)(2) provides that where a party fails to permit inspection, the party requesting the production of documents may move for an order compelling inspection.

Rule 1.280(b)(5) requires the creation of a privilege log as to materials sought to be protected from production:

Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to. assess the applicability of the privilege or protection.

(emphasis added). Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule is mandatory and a waiver can be found by failure to file a privilege log. See TIG Ins. Corp. of Am. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001). Nevertheless, as noted in Bankers Security Insurance Co. v. Symons, 889 So.2d 93, 95 (Fla. 5th DCA 2004),

Attorney-client privilege and work-product immunity are important protections in the adversarial legal system, and any breach of these privileges can give one party an undue advantage over the other party. Florida’s courts generally recognize that an implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but resorted to only when the violation is serious.

A party is required to file a log only if the information is “otherwise discoverable.” Where a party claims that the production of documents is burdensome and harassing, such as was done here, the scope of the discovery is at issue. Until the court rules on the request, the party responding to the discovery does not know what will fall into the category of discoverable documents. If the party is correct in her assertion that the documents requested are burdensome to produce, why should she still go through all the requested documents to determine which ones are privileged, even though none of them may be required to be produced because the request is burdensome?

Here, the trustee requested ten years worth of documents which the wife objected to as burdensome and irrelevant. She also asserted various privileges. She did not ignore her obligation to file a privilege log but affirmatively recognized it by requesting an extension of time in which to file it once the court determined the proper scope of the production. By filing her objection, she complied with rule 1.350(b), permitting the trustee to bring a motion to compel the production and then allowing the court to determine the validity of the objection. In fact, her objection was well-taken, because at the hearing the trustee essentially conceded its overbreadth by agreeing to production of only a year-and-a-half of documents.

Before a written objection to a request for production of documents is ruled upon, the documents are not “otherwise discoverable” and thus the obligation to file a privilege log does not arise. Once the objection is ruled upon and the court determines what information is “otherwise discoverable,” then the party must file a privilege log reciting which documents are privileged. If it is not done in that order, then the party faced with an unduly burdensome document request still has to obtain and review all the documents to determine which are privileged, even though the court may later limit the scope of the request if it was unduly burdensome.

The trustee faults the wife for failing to secure a ruling on her motion for extension of time at an earlier time. However, such an argument assumes that without such an extension, the wife was required to file a privilege log. In our view, the objection to the discovery as burdensome essentially “tolled” the obligation to file a privilege log until that objection was ruled upon. Therefore, the wife did not have to seek an extension of time independent of her previously filed objection to the scope of discovery.

Because the wife followed the procedural rules, the court departed from the essential requirements of law in concluding that failure to file a privilege log in these circumstances constituted a waiver of the privileges. We grant the writ.

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

      . Obviously, if the sole objection to discovery were that it sought privileged documents, then compliance with Rule 1.280(b)(5) would be required prior to any hearing on the objection as the information contained in the privilege log would be necessary to "assess the applicability of the privilege or protection.”


author: POLEN, J.

text:
    Donald BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-205.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Donald Baker (“Baker”), timely appeals a conviction following a jury trial for battery on a law enforcement officer. Baker raises two independent challenges on appeal. First, he contends that he received ineffective assistance of counsel as regards video evidence presented at trial. For the reasons set forth below, we decline to address this issue on direct appeal, and affirm without prejudice to further proceedings on the issue at the trial level. Second, Baker contends that he received ineffective assistance of counsel regarding a witness’s opinion testimony and a jury instruction on self-defense. As explained below, we affirm because the issue was not preserved for appellate review.

The State charged Baker with battery on a law enforcement officer, depriving an officer of means of protection, and resisting an officer with violence. The jury returned a verdict of guilty only on the battery charge. The following evidence was adduced at trial.

A police officer encountered Baker drinking beer in a parking lot and arrested him for carrying an open container. The officer then took Baker to the Hollywood Detention Center, where the alleged battery occurred. At trial, the arresting officer testified to the events at the detention center as the jury watched video captured by the surveillance camera located in the center’s lobby. The officer testified that Baker started yelling, jumped up and grabbed the officer’s hand, punched the officer in the back, tackled him to the ground, and was subdued only after another officer intervened.

An internal affairs officer testified that Baker told him that a police officer had struck another arrestee at the detention center. When Baker protested, the arresting officer punched him and knocked him down. Because Baker was afraid that the arresting officer would continue punching him, Baker grabbed him and pushed him to the ground.

The internal affairs officer also testified to his belief that Baker’s statement was an admission to a battery on a law enforcement officer. He repeated this opinion on cross examination and testified that self-defense did not apply to such situations. Defense counsel did not request that these remarks be stricken from the record.

After the jury entered its verdict, Baker filed an unsworn pro se motion to discharge his trial counsel, and for appointment of a special assistant public defender. In response to the motion, the court removed trial counsel and appointed Baker new counsel. Baker then filed an unsworn motion for new trial on the ground that new and material evidence, i.e. missing frames from the video, was available which trial counsel could not have discovered with reasonable due diligence.

Before trial, McNamara, a relative of Baker, had put Baker’s counsel in contact with an expert who had compared copies of the video received from the State with those obtained by McNamara directly from the police. McNamara asked Baker’s counsel to consider inconsistencies in the video evidence uncovered by the expert. However, counsel did not follow up.

During the hearing on the motion, the expert testified that, of the videos he tested, not one was an original. Moreover, no video was an identical copy of another, with some differing by more than fifty frames. There were six frames missing from a three-minute segment of the copy admitted into evidence, two of which showed the demeanor of the officers in releasing Baker’s handcuffs.

The court denied the motion for new trial, finding that Baker’s trial counsel could have discovered problems with.the video evidence through due diligence. In response, Baker filed a motion for mistrial based on ineffective assistance of counsel, which the court denied, finding that a motion for mistrial could not be made on such grounds. The jury returned a verdict of guilty of battery on a law enforcement officer. Baker was sentenced to sixty months in Florida State prison.

Regarding Baker’s first point, we hold that his claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. The general rúle is that the adequacy of a lawyer’s representation may not be raised for the first time on direct appeal. Bruno v. State, 807 So.2d 55, 63 (Fla.2001). The proper method of raising such an issue is by way of a post-conviction relief motion in the trial court, which “allows full development of the issues of counsel’s incompetence and the effect of counsel’s performance on the proceedings.” Grant v. State, 864 So.2d 503, 505 (Fla. 4th DCA 2004). “An exception .to the general rule exists where both counsel’s deficient performance and the prejudice to the defendant are apparent on the face of the record.” Id. at 505; see also Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001) (finding ineffective assistance of counsel on direct appeal when trial counsel failed to request jury instruction regarding the mens rea element of the crime charged); Johnson v. State, 796 So.2d 1227, 1228-29 (Fla. 4th DCA 2001) (finding ineffective assistance of counsel on direct appeal due to trial counsel’s failure to file a motion to dismiss, where an appellate decision published four months earlier mandated dismissal).

Appellate courts generally do not consider claims of ineffective assistance of counsel on direct appeal because there usually is insufficient opportunity to develop the record pertaining to the merits of these claims. United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.1992), superseded by statute on other grounds, 18 U.S.C.S. app. 1B1.3 (2006). Such cases are usually resolved in post-conviction Rule 3.850 proceedings, where an eviden-tiary hearing may be held. See Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002); Fla. R.Crim. P. 3.850 (2006). In the instant case, the facts giving rise to Baker’s claim are not apparent from the record. The reasons for his counsel’s alleged failure to investigate possible gaps in the video evidence are not clear. Therefore, we do not grant the relief requested in this case. However, our holding is without prejudice to Baker asserting this claim in a motion for post-conviction relief.

As to Baker’s second point, we hold that he did not preserve for appellate review the issue of ineffective assistance of counsel regarding the internal affairs officer’s opinion testimony and his counsel’s failure to request a jury instruction on self-defense. In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation. Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002) (citing Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Since the substantive issue of alleged ineffective assistance of counsel is not within this court’s purview on direct appeal, we do not review it here. However, as with Baker’s first point, we affirm without prejudice to Baker to assert this claim in a motion for post-conviction relief.

Based on the foregoing, we affirm without prejudice to Baker’s right to litigate his claims in post-conviction proceedings.

Affirmed.

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


text:
    Jerome DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2078.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   BATEMAN, THOMAS H. Ill, Associate Judge.

Following a jury trial, Jerome Davis was convicted of one count of sale of cocaine and one count of possession of cocaine. The only issue raised in this appeal is whether' the trial judge erred in denying Davis’s request for a jury instruction ori entrapment. We affirm.

Davis was arrested for the sale of crack cocaine to a confidential informant (Cl) of the Indian River Sheriffs Office. The Cl was a professional informant employed by five law enforcement agencies to buy drugs on the street. On April 29, 2004, the Cl was issued twenty dollars from Deputy Rodriquez to buy crack cocaine. A video camera was attached to the headrest of the Cl’s car and recorded the entire transaction between the Cl and Davis. As the transaction was occurring, Deputy Rodriquez drove around the area monitoring the video and audio of the sale. After the sale, the Cl drove to a pre-arranged location and gave Deputy Rodriquez the evidence. Within minutes, Davis was arrested. The twenty dollar bill the Cl used to purchase the crack cocaine was found on Davis. At trial, the video showing the drug transaction was shown to the jury, and an expert testified that the substance the Cl purchased from Davis was crack cocaine.

Davis claimed at trial that he was induced into the drug transaction because of the loose-fitting garments the Cl wore. Davis alleged that these garments showed her entire breast and also asserted that the conversation between them was about having sex. However, the record reflects the majority of the “conversation” was with another person who accompanied Davis, and took place when Davis went to get the crack from a person sitting in a car some distance away. Moreover, the “conversation” consisted mainly of the second person making suggestive sexual comments about the Cl’s good looks. At trial, the Cl testified that even if the “conversation” involved sexual overtones, she clearly told Davis, “No.” She also testified that she normally wore loose cotton shorts, a tank top, and no under-garments, along with sandals or flip-flops, to fit the role of a crack buyer.

Davis requested an entrapment instruction, claiming there was a clear inference of entrapment as evidenced by the Cl’s improper innuendo, her impetus to produce for the law enforcement agency and her manner of dress. The trial court denied the requested instruction, finding that the entrapment defense was not supported by the evidence.

It is axiomatic that a defendant is entitled to have the jury instructed on the rule of law applicable to the theory of defense if there is any evidence to support the instruction. Evans v. State, 831 So.2d 808 (Fla. 4th DCA 2002). And, if some evidence has been presented at trial that suggests the possibility of entrapment, a defendant has the right to have the jury instructed on the law of entrapment. Thomas v. State, 547 So.2d 989 (Fla. 1st DCA 1989). It is not necessary to convince the trial judge of the merits of the entrapment defense because the judge may not reweigh the evidence to determine if the instruction is appropriate. It is enough if the entrapment defense is suggested by the evidence presented at trial. Chavers v. State, 901 So.2d 409 (Fla. 1st DCA 2005).

Trial judges have wide discretion in decisions regarding jury instructions. The discretion is narrower in a criminal case due to the defendant’s right.to have the jury instructed as to the theory of a valid defense. Goode v. State, 856 So.2d 1101 (Fla. 1st DCA 2003). However, appellate courts will not, reverse the trial court’s decision in the absence of prejudicial error that would result in a miscarriage of justice. Lewis v. State, 693 So.2d 1055 (Fla. 4th DCA 1997).

There are two types of entrapment: objective and subjective. Objective entrapment analysis focuses on the conduct of law enforcement. Objective entrapment operates as a bar to prosecution in those instances where the government’s conduct “so offends decency or a sense of justice” that it amounts to a denial of due process. State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005). Subjective entrapment analysis is applied in the absence of egregious law enforcement conduct and focuses on inducement of the accused based on an apparent lack of predisposition to commit the offense. See Munoz v. State, 629 So.2d 90, 98-99 (Fla.1993). We apply the subjective entrapment analysis in this case.

An accused has the initial burden of establishing by the preponderance of the evidence that he was induced to commit the crime. The accused must demonstrate that an agent of the government induced him or her to commit the crime. Id. at 99. If the accused establishes inducement by the government then the accused must demonstrate a lack of predisposition to commit the crime. Id. If the accused produces evidence establishing lack of predisposition, the state is given the opportunity to rebut the evidence be-' yond a reasonable doubt. Id. The subjective test set forth in section 777.201, Florida Statutes, is the test to be applied on the issue of entrapment in the absence of egregious law enforcement conduct. Id.

In section 777.201(1), Florida Statutes, the Legislature has defined inducement as occurring when:

A law enforcement officer, a person engaged in cooperation with a law enforcement office, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

§ 777.201(1), Fla. Stat. (2005).

However, a subjective evaluation of an entrapment defense is not always one for the jury. Rather, when the evidence is not conflicting and the factual circumstances not in dispute, the determination of whether an accused has been entrapped is an issue that is determined as a matter of law by the trial judge. Munoz, 629 So.2d at 100 (“[W]e construe section 777.201 as requiring the question of predisposition to be submitted to a jury when factual issues are in dispute or when reasonable persons could draw different conclusions from the facts. In certain instances, ... the trial judge and appellate courts clearly have the authority to rule on the issue as a matter of law.”) (internal citations omitted).

We hold that Davis failed to demonstrate he was induced to commit the crime by the Cl’s dress or her “conversation” about sex and he failed to put forth any evidence of lack of predisposition.

Davis’s claim that he was induced to sell the crack cocaine simply by the Cl being a white woman in a predominately African-American neighborhood, and by her wearing loose-fitting clothing, is without merit and not deserving of further discussion. With regard to the “conversation” about sex, the record demonstrates that the small talk actually took place after Davis’s return from getting the crack cocaine the Cl offered to buy. During this brief post-purchase conversation, Davis asked the Cl if she wanted to “hang out” and attempted to kiss her. She made it clear, however, that she was not interested. Such talk occurring after the sale could not have, served as an inducement to Davis to commit the crime.

Finally, Davis failed to present any evidence of lack of predisposition. Munoz, 629 So.2d at 99 (defendant initially has burden to establish predisposition). The evidence in the record demonstrated that Davis approached the Cl,-who told him what she was looking for but expressed some reluctance at turning over the money, telling him she had been robbed before. Davis gave the Cl assurances that he could get the crack from his friend parked in a car on the other side of the bar. And he did just that. Clearly, Davis was ready and willing to sell the crack cocaine at that opportune moment.

Accordingly, the trial judge did not err in refusing to give an entrapment instruction to the jury.

Affirmed.

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


author: MAY, J.

text:
    RICHARD E. BASHA, P.A., a Florida Corporation, Appellant, v. Didier DORELIEN, Giovanni Dorelien, Carl Dorelien, and Marie-Carline Dorelien, Appellees.
    No. 4D05-2612.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Jeffrey M. Weissman of Weissman, Der-vishi, Borgo & Norlund, P.A., Fort Laud-erdale, for appellant.
    Phillip J. Brutus of The Brutus Law Group, P.A., North Miami, for appellees.
   MAY, J.

The plaintiff, an attorney, appeals an adverse summary judgment in an action to recover fees and costs incurred in representing one of the defendants, Carl Dore-lien. He raises numerous arguments, but ultimately the appeal involves a single issue — the trial court erred in granting the defendants’ motion for summary judgment. We agree and reverse.

On January 25, 2003, Carl Dorelien was detained in Krome Detention Center awaiting deportation to Haiti to serve a life sentence, having been convicted of participating in the “Raboteau massacre.” On the same date, he was served with a summons and complaint in a civil action pending in the United States District Court for the Southern District of Florida brought by survivors of one of the massacre victims. Carl also happened to have won the Florida Lottery in 1997.

After Carl was deported, his wife, Marie-Carline, and son Didier met with the plaintiff concerning legal representation of Carl in the federal case and conversion of his lottery winnings from an annual to a lump sum payment. Because Marie-Car-line did not speak English, Didier translated during the meeting. Marie-Carline agreed to pay the plaintiff a $850 hourly rate and a partial retainer fee of $5,000 with the remaining $95,000 retainer to be paid by May 30th from the proceeds of the lottery conversion. Marie-Carline signed the Authority to Represent on February 8, 2003.

Thereafter, the defendant Didier and another son, Giovanni, communicated frequently by e-mail and regular mail. By March, however, it became clear that the family was concerned about the fees and wanted more detail about the progress of the litigation. On March 27, 2003, Giovanni, purportedly a law student, sent the following e-mail to the plaintiff.

I am writing this email to inform about the positive outcome of the family debate held last night. After a long discussion, my family came to the conclusion that this lawsuit is of tremendous significance and needs to be address [sic] properly and promptly. Therefore, we have decided to retain your services ....
Although the lawsuit and its potential financial ramifications might be damaging, my family views it as an opportunity, a channel to export to truth. Yet towards this goal, it is important to secure a lawyer who will not only believe in the truth but who will loudly defend it. Didier and I attested that you are the man for the job. Therefore, I join my family in expressing our unconditional support.
We also addressed the legal fees. I believe that my mother spoke to Mr. Laham regarding this subject. Let me clarify one thing, we have embraced your offer to reduce your legal fees to $275 per hour. We also agreed to pay the balance owed in full. Most important of all, we have decided to go ahead and sell the lottery. We spoke to my father last night. Although he disagreed with our legal approach, he accepted to support our decision. This is not set in stone, but rest assure [sic] that you will receive the final response tomorrow, Friday, once we verify that he signed the legal documents.

According to the complaint, between February and April, the plaintiff expended considerable time researching issues, working on the lottery conversion, and appearing in federal court. The plaintiff also exchanged e-mails with a man in Haiti, representing Carl. Nevertheless, Carl refused to sign the plaintiffs retainer agreement.

On April 10th, Didier discharged the plaintiff and refused to pay the attorney’s fees and costs incurred. The plaintiff withdrew as counsel in the federal case, ceased work on the lottery conversion, and made written demand for the fees and costs. On May 8th, the plaintiff filed an eleven-count complaint against Carl, Marie-Carline, Didier, and Giovanni, alleging breach of express and implied contract, fraud, misrepresentation, and conspiracy to defraud. The complaint sought to hold the defendants jointly and severally liable for attorney’s fees and costs, and other damages.

Ultimately, Didier and Giovanni (the sons) filed a motion for summary judgment. They asserted: (1) the plaintiff did not work on their behalf; (2) the plaintiff failed to allege any specific conduct on their part to support a conspiracy to defraud; (3) they never agreed to pay the plaintiff for services on behalf of their father; (4) they did not sign the only document supporting a relationship between the Dorelien family and the plaintiff. The sons provided identical affidavits supporting these assertions.

The plaintiff moved to dismiss the motion for summary judgment and to strike their affidavits. He also filed an affidavit in opposition. At the hearing on the motion, the Court stated:

Gentlemen, I have read all of the materials submitted to the Court. I’ve read the entire contents of both files and I have come to the following conclusion that as to the Motion for Summary Judgment in reference to Didier Dore-lien and Giovanni Dorelien, the motion should be granted. Don’t be so shocked. I have gone through all of this, including the testimony from the last time before me. Every single thing in here tells me that the word “we” was used in the context of the culture of the Haitian people. But without a doubt the persons who are the client in this case is the father, who is Mr. Carl Dorelien and Marie-Carline Dorelien, she signed the agreement, but the two children, Didier and Giovanni did not. And all of these E-mails, all of this discussion keeps referring to the father did this, the father said that, the father was in control, notwithstanding the reality of his imprisonment in Haiti. Without a doubt the father was in control.

After plaintiffs counsel responded, the trial court stated:

Counsel, I am not going to entertain any further argument. The decision of the court is that the pleadings are insufficient, the pleadings and the contents of the official court file. And the documents submitted by the Plaintiff himself in opposition to the Motion for Summary Judgment confirm and support the Court’s opinion that the children Didier and Giovanni Dorelien did not assume responsibility for paying any of the costs or fees associated with the representation of their father, Carl or the mother Marie-Carline. The Motion for Summary is granted as to the two children. You go to trial as soon as possible.

In essence, the plaintiff argues on appeal that the trial court erred in granting the motion for summary judgment because the motion was facially insufficient, genuine issues of material fact existed, and the court improperly based its decision on an issue not raised in the motion (imposing a Haitian cultural interpretation on the words employed in the e-mail). We agree.

A final order granting a motion for summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Only when there is a showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” is summary judgment proper. Fla. R. Civ. P. 1.510(c).

First, the sons’ motion for summary judgment merely alleged there were no issues of material fact, but neither the motion nor the affidavits set forth a specific basis for that conclusion. See Spinner ex rel. Spinner v. Wainer, 430 So.2d 595 (Fla. 4th DCA 1983). Second, the complaint raised legal issues: (1) whether the sons acted as agents of Carl and Marie-Carline; (2) whether an implied contract formed between the plaintiff and the sons; and (3) whether the sons misrepresented their intention to procure free legal counsel.

There is no requirement that an agreement for legal services be in writing, even when a third party is taking responsibility for payment, unless a contingency fee is involved. R. Regulating Fla. Bar 4-1.5(d) — (f), 4 — 1.7(b). At the hearing on the motion for summary judgment, the plaintiff factually established face-to-face meetings between Didier and the plaintiff, and numerous e-mails and correspondence exchanged between the plaintiff and the sons. The sons demanded details of the federal litigation and suggested ways to defeat the case against their father. And, it was the sons who aggressively negotiated the plaintiffs fee in lieu of finding another attorney. Whether these facts established the formation of a contract was a question of fact that could not be decided on a motion for summary judgment.

And third, a plain reading of the correspondence revealed that the sons were well educated and fluent in English. It was the trial court that sua sponte imposed a Haitian cultural interpretation of the language employed in the communications. This was not an issue raised by the sons’ motion for summary judgment. As plaintiffs counsel argued at the hearing, had the motion raised the issue, the plaintiff could have countered with an expert on Haitian culture.

For these reasons, we reverse the summary judgment and remand the ease to the trial court.

Reversed and Remanded.

GUNTHER and HAZOURI, JJ., concur.


text:
    Martin MAZZA, Penmar, Inc., and Morden, Corp., Appellants, v. ROSE MEDIA GROUP, INC., et al., Appellees.
    No. 4D05-2613.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Ross Bennett Gampel of Law Offices of Klemick and Gampel, P.A., Miami, Carl H. Hoffman of Hoffman & Hertzig, P.A., Coral Gables, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellant.
    Charles L. Curtis, Fort Lauderdale, and Charles Pettit, Fort Lauderdale, for appel-lee.
   MAY, J.

The plaintiffs appeal summary judgments and judgments on the pleadings on their claims for civil theft, an accounting, dissolution of partnerships, and the establishment of a receivership in favor of various corporate defendants Rose Media Group (Rose), Rose Media Group of Florida, Inc. (Rose Florida), Sorden Corporation (Sorden), Liberty Management, Inc. (Liberty), Pandom of Florida, L.L.C. (Pandom), Verdi Management Group, Inc. (Verdi), Amden Corporation (Amden), and Biscayne Holding Company (Biscayne). At the center of this dispute is the question of whether the plaintiffs’ monies were a loan or an investment in certain adult entertainment companies. In essence, the trial court found these corporate defendants were not part of the original oral agreement and were therefore not liable on certain claims. The court also found the civil theft claims barred by unmet legal requisites. We agree and affirm.

The three plaintiffs filed a forty-eight page, twenty-count complaint against nine defendants. The plaintiffs are Martin Mazza, Penmar, Inc., and Morden, Corp. Mazza is the president and sole shareholder of Penmar and Morden. The nine defendants include three individuals and six related business entities. George and Bernice Santoni are owners and controlling persons of Rose, Rose Florida, and Sorden. Robert Wollman is the owner and controlling person of Liberty, Amden, and Biscayne. Rounding out the defendants are Video Outlet I, Inc., Video Outlet II, Inc., Video Outlet III, Inc. (collectively referred to as the Outlets), Pandom, and Verdi, a corporation controlled by Woll-man and Santoni.

The complaint listed Mazza as the individual plaintiff, and then alleged “[w]here necessary to do equity and justice, reference to “MAZZA” includes PENMAR and MORDEN.” After alleging Rose, Rose Florida and Sorden as business entities controlled by Santoni, the plaintiffs alleged “[wjhere necessary to do equity and justice, reference to “SANTONI” includes ROSE, ROSE FLORIDA, SORDEN and PANDOM.” For Wollman, the plaintiffs alleged “[wjhere necessary to do equity and justice, reference to ‘WOLLMAN” includes LIBERTY, AMDEN, BISCAYNE and PANDOM.”

The plaintiffs alleged that Mazza assisted Santoni and Wollman with setting up several adult videotape rental business locations in Maryland. In November of 1996, Santoni and Wollman approached Mazza about setting up an adult videotape rental business in Broward County, Florida. Mazza alleged that he, Santoni, and Wollman orally agreed to be equal partners in Outlet I, each party contributing money and personal effort.

Outlet I opened on January 28, 1997. Bernice issued share certificates for Outlet I to Penmar, Rose Florida, and Biscayne, representing Mazza’s, Santoni’s and Woll-man’s ownership interests, respectively. Outlet II and Outlet III opened, and certificates were issued in a similar fashion, in the following years.

The complaint alleged Santoni and Woll-man forced Bernice to appoint a deceased Bahamian lawyer, Bethell, as the sole officer and director of the Outlets in 1998 without providing notice to any of the plaintiffs. Through Bethell, Santoni and Wollman allegedly exercised complete control of the Outlets. They allegedly created a scheme to receive more than their share-of the profits from the Outlets and eventu-; ally excluded Mazza. Santoni and Woll-man allegedly made distributions to Verdi, a management services entity they controlled. Those distributions became so large the Outlets operated at a loss.

Counts one, two, and three were for breach of the oral contract relating to each specific outlet. Counts four and five were for breach of contract implied in fact and implied in law. Counts six, seven, .and eight were for fraudulent inducement relating to each specific outlet. Count nine was for conversion, and counts ten and eleven were for breach of fiduciary duty. Counts twelve and thirteen were for civil theft and civil conspiracy, respectively. Counts fourteen, fifteen, and sixteen were derivative claims relating to each specific outlet. Counts seventeen, eighteen, and nineteen requested the dissolution of the individual outlets. And, count twenty-sought an accounting, dissolution of partnerships, and establishment of a receivership.

The defendants filed motions for partial summary judgment and motions for judgment on the pleadings on the fifth .amended complaint. The trial court granted the defendants’ motion for partial, summary judgment on the plaintiffs’ claims for civil theft against Santoni, Wollman, Rose, Rose Florida, Liberty and Verdi on two theories: (1) the economic loss rule; and (2) because the plaintiffs did not and could not allege specifically identifiable money.

With regard to count twenty, seeking an accounting, dissolution.of the partnerships,- and establishment of a receivership, the trial court denied the motion for partial summary judgment against Santoni and Wollman, but granted it with respect to all other defendants.

The court also granted the joint motion for judgment on the pleadings as to count twenty, filed by Liberty, Rose, Rose Florida, Pandom, Amden, Sorden and Biscayne. It found the plaintiffs alleged the requisite partnership to support an accounting only with respect to Santoni and Wollman. The court granted Verdi’s separately filed motion for judgment on the pleadings on count twenty.

From these judgments, the plaintiffs appeal. We find no error in the trial court’s rulings as they relate to Rose, Rose Florida, Liberty, Verdi, Pandom, Amden, Sorden, and Biscayne.

With regard to the civil theft claims against Rose, Rose Florida, Liberty and Verdi, the court correctly held that the plaintiffs’ inability to allege and prove the loss of specifically identifiable funds bars these claims. Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000). A civil theft claim requires that the funds sought be specifically identifiable funds of the plaintiff. See Fla. Desk, Inc. v. Mitchell Int’l, Inc., 817 So.2d 1059, 1060-61 (Fla. 5th DCA 2002); Escudero v. Hasbun, 689 So.2d 1144, 1147 (Fla. 3d DCA 1997); Capital Partners Inv. Co. v. Am. Inv. Group, 500 So.2d 249, 250 (Fla. 4th DCA 1986). This was an omission that could not be corrected based on the facts alleged.

The court correctly granted the partial motion for summary judgment for Rose, Rose Florida, Liberty, and Verdi’s separately filed motion for judgment on the pleadings, on count twenty’s request for an accounting, dissolution of the partnerships, and establishment of a receivership. The plaintiffs failed to allege that any of these entities were partners with the plaintiffs or had any contractual relationship that would serve as the basis for the equitable relief requested.

For these reasons, we therefore affirm the judgments in favor of Rose, Rose Florida, Liberty, Verdi, Sorden, Pandom, Am-den, and Biscayne.

Wollman, Santoni and the Outlets, however, suggest that they should be considered appellees in this appeal. They argue that because their motions were also granted as to these counts, the plaintiffs waived the right to appeal the judgments as to them when they did not include them in this appeal. They are incorrect. Woll-man, Santoni and the Outlets currently have other claims that arise out of the same transaction pending in the trial court. Based upon the prohibition of piecemeal appeals established in Mendez v. West Flagler Family Ass’n, 303 So.2d 1, 5 (Fla.1974), their appeal must await the disposition of the pending claims against them.

Affirmed.

GUNTHER and HAZOURI, JJ., concur.

      . The plaintiffs voluntarily dismissed the complaint against Bernice.

      . The plaintiffs chose not to address the judgments in favor of Pandom, Amden, Sorden, and Biscayne in their brief. "[Pjoints covered by a decree of the trial court will not be considered by an appellate court unless they are properly raised and discussed in the briefs.” City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla.1959). We therefore deem any issues regarding the judgments in favor of these defendants abandoned.


text:
    Mark W. RICKARD, Appellant, v. Alexander BORNSCHEUER, Appellee.
    No. 4D05-4602.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant.
    No appearance for appellee.
   BATEMAN, THOMAS H„ III, Associate Judge.

Attorney Mark W. Rickard timely appeals an October 18, 2005 final order entering sanctions against him personally in the sum of $750.00.

Under the facts of this case, we find that the trial court erred in imposing personal sanctions against Rickard. In this case, Rickard was not given adequate notice and an opportunity to be heard and to present witnesses or other evidence in the case against him. See Moakley v. Smallwood, 826 So.2d 221 (Fla.2002) (while a trial court has the inherent authority to impose sanctions in the form of attorney’s fee against an attorney for bad faith conduct, the authority carries with it the obligation to use restraint as guided by the circumstances and degree of the alleged bad conduct and to provide due process in the form of notice and an opportunity to be heard-including the opportunity to present witnesses and other evidence). Moreover, the trial court’s order does not make any factual findings nor does it state the basis for the award of personal sanctions against Rickard. Therefore, we reverse.

Reversed.

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


text:
    William MALOY, II, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3409.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 6, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for tampering with evidence, possession of drug paraphernalia, and resisting an officer without violence. The trial court did not abuse its discretion by disallowing appellant to display the inside of his mouth to a state witness during cross examination. Appellant did not seek to display the inside of his mouth to the jury once the state had rested. Therefore, appellant failed to preserve any objection by obtaining a definitive ruling on the issue of the closing argument “sandwich.” See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (stating that “[a] plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review”); Marin v. State, 624 So.2d 808 (Fla. 3d DCA 1993) (concerning a defendant’s right to open and close final argument). We also reject appellant’s claim on direct appeal that trial counsel provided him with ineffective assistance of counsel. See Dennis v. State, 696 So.2d 1280 (Fla. 4th DCA 1997).

WARNER, KLEIN and GROSS, JJ., concur.