text:
    C.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2493.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

C.H. appeals an adjudication of delinquency entered against him for a charge of resisting an officer without violence. C.H. argues that there was insufficient evidence to support the trial court’s denial of a motion for judgment of acquittal and that the trial court erred in allowing the State to speak first and last in closing argument. We find that there was sufficient evidence to overcome a motion for judgment of acquittal and affirm on this issue. See I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005). However, we hold that the trial court erred in directing the State to proceed first and last in closing argument, and reverse and remand for further proceedings.

Florida Rule of Juvenile Procedure 8.110(d) states that “[a] child offering no testimony in his or her own behalf except his or her own shall be entitled to the concluding argument.” Section 918.19, Florida Statutes (2007), provides, however, that the prosecution may speak first and last during closing arguments in a criminal prosecution. In E.K. v. State, 963 So.2d 309 (Fla. 1st DCA 2007), this court held that in juvenile delinquency cases Florida Rule of Juvenile Procedure 8.110(d) governs. Further, “because the right to a final closing argument is a vested procedural right, the error cannot be considered harmless.” Id. at 309-310 (citing Wike v. State, 648 So.2d 683, 686 (Fla.1994); Freeman v. State, 846 So.2d 552 (Fla. 4th DCA 2003)).

Here, C.H. offered only his own testimony as evidence at trial and, thus, was entitled to the concluding argument under rule 8.110(d). Accordingly, we affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part and REMANDED.

ALLEN, WEBSTER and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    Desmond HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1123.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Desmond Harris appeals his revocation of probation and sentence to the Department of Corrections. The evidence presented to the court was a lab test that indicated Harris tested positive for THC. When the State proffered the lab test to the trial court, the defense attorney objected, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The attorney argued that the lab report was hearsay and testimonial in nature and its admission violated Harris’ Sixth Amendment right of confrontation. We affirm.

In Wilcher v. State, 946 So.2d 114 (Fla. 5th DCA 2007), and Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006), rev. granted, 926 So.2d 1270 (Fla.2006), we held that Crawford does not apply to probation revocation proceedings. Harris concedes that we have previously addressed the issue and requests that we certify the question to the Florida Supreme Court. We grant the request and certify the following question to the Florida Supreme Court as one of great public importance:

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS?

AFFIRMED; QUESTION CERTIFIED.

TORPY and LAWSON, JJ., concur.

      . Delta-9-Tetrahydrocannabinol, THC, is the psychoactive ingredient in marijuana.


author: THOMAS, J.

text:
    G.M., as the parent of B.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-1301.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.
    Patricia S. Wihnyk, Gainesville, for Appellant.
    Joann M. Humburg, Trenton, for Appel-lee Department of Children and Families.
    Robert Moeller, Cross City, for Appellee S.C.
   THOMAS, J.

Appellant, a non-offending father, challenges the trial court’s order granting long-term custody of B.M. to her maternal grandmother and terminating protective services supervision by the Department of Children and Families (“the Department”). We affirm.

Facts

The Department removed B.M. from her mother’s custody on January 27, 2005, after the mother was admitted for in-patient drug treatment. B.M. was placed with her maternal grandmother, and Appellant was allowed to continue the visitation schedule he was granted following his divorce from B.M.’s mother. Appellant has vigorously opposed B.M.’s current placement and has sought custody of her.

Throughout these proceedings, B.M.’s therapist and guardian ad litem have continuously expressed concerns that Appellant lacks a true emotional bond with his daughter, reporting that Appellant has routinely dismissed requests to attend counseling to strengthen this bond. Furthermore, B.M. has conveyed to her therapist that she does not enjoy the time she spends with her father and wants to live with her grandmother and siblings.

Two separate home studies were completed, and no concerns were found regarding the safety or stability of Appellant’s home. In the most recent study, however, the reviewer denied recommending placement with Appellant “due to lack of case plan compliance as to family counseling to address the issues of a meaningful relationship with [B.M.].”

Upon the Department’s motion, the trial court heard arguments regarding whether B.M.’s case should be closed to long-term placement, and Appellant’s renewed custody request. At the hearing, B.M.’s counselor testified that B.M. feels Appellant does not love her and that B.M. “would be further emotionally harmed if she were taken out of her present environment” and placed with Appellant. The counselor reiterated Appellant rejected her many attempts to involve him in family counseling sessions, and that he refused to change his work schedule in order to spend more time with B.M. Appellant testified that he was aware his case plan required him to follow the recommendations in the comprehensive assessment, which suggested he attend family counseling with his daughter.

Based on the testimony presented, the court found “there is substantial competent evidence that placement with [Appellant] at this time would endanger [B.M.’s] well-being and emotional health,” granted B.M.’s maternal grandmother long-term relative custody, and allowed Appellant to continue with his unsupervised visitation. We write to address Appellant’s argument that the court abused its discretion by denying placement with him.

Analysis

Section 39.521(3)(b), Florida Statutes (2005), provides in pertinent part:

If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child.

This court has held that

[t]he ‘best interest’ standard does not apply under this section, and in the absence of evidence of endangerment, the non-offending parent is entitled to custody. A natural parent cannot be denied custody of his child unless evidence demonstrates compelling reasons that the parent is unfit or otherwise unable to exercise custody, and that placing the child with the parent would endanger the child’s safety and well-being.

L.P. v. Dep’t of Children & Families, 871 So.2d 306, 308 (Fla. 1st DCA 2004) (citations omitted).

We review a trial court’s order denying a father custody of his child under the abuse of discretion standard. Id. Here, based on Appellant’s failure to participate in family counseling and spend more quality time with his daughter, the trial court found B.M.’s well-being and emotional health would be endangered if placed with Appellant. We cannot say this was an abuse of discretion. Discretion is abused only where the trial court acts in an “arbitrary, fanciful, or unreasonable” manner and no reasonable person would agree with its view. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Here, it cannot be said there was an “absence of evidence” of endangering B.M.’s well-being or emotional health. On the contrary, competent, substantial evidence was presented demonstrating that Appellant knew he should attend family counseling to strengthen his ability to protect his daughter’s well being and emotional health, yet he failed to do so. Accordingly, we affirm the trial court’s order placing B.M. in long-term custody with her maternal grandmother.

Although Appellant raises various points regarding possible defects in the procedural posture of this case, it does not appear that any of his claims were argued below. Thus, any objections to the finding of dependency or specific defects in Appellant’s case plan have been waived and are not preserved for our review. See F.L.M. v. Dep’t of Children and Families, 912 So.2d 1264, 1268 (Fla. 4th DCA 2005) (“It is clear to us that the Department waived all these alleged procedural defects by failing to assert them at the trial.”); R.G. v. Dep’t of Children and Family Servs., 792 So.2d 1269 (Fla. 3d DCA 2001) (holding that any due process concerns were barred from consideration on appeal where they were never raised before the trial court).

The trial court’s order is AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.


author: TORPY, J.

text:
    Samuel FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2764.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      Samuel Fuller, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant seeks review of the order summarily denying his rule 3.850 motion, which challenged his conviction for cocaine possession. He claims that his trial attorney was ineffective for failing to properly contest the legality of the purportedly consensual search of his person. We conclude that his claim was not conclusively negated by the record provided by the trial court and accordingly reverse for further proceedings.

According to trial testimony, Corporal Sosa and Deputy Phillips of the Seminole County Sheriffs Office stopped Appellant around midnight for riding a bicycle without lights. After checking Appellant’s license, Sosa asked Appellant for his consent to a body search for drugs or weapons. Appellant initially consented. As Phillips began the search, Appellant reached into his pants pocket and pulled out his cell phone. Sosa then noticed that Appellant was holding something else underneath the phone, trying to conceal it from the officers. Sosa exited his patrol vehicle because he felt that Appellant had narcotics in his hand. Phillips asked Appellant to open his hand but Appellant did not comply. Sosa then performed a “leg-sweep” takedown while Phillips secured Appellant’s left arm. After handcuffing Appellant, the officers searched the area of the struggle and discovered a silver wrapper containing cocaine.

Although Appellant’s rule 3.850 motion is not a model of clarity, he does claim that he was denied effective assistance of trial counsel based on his attorney’s failure to properly preserve his claim that the cocaine was illegally seized. Appellant claims that this procedural omission occurred when counsel failed to argue the issue after the close of the State’s evidence. Actually, to preserve the issue it should have been the subject of a pretrial motion to suppress the evidence. Nevertheless, the substance of Appellant’s claim is sufficiently stated and is not negated by the record before us.

The State argues that Appellant was not prejudiced by the purported omission and directs our attention to the trial testimony that Appellant consented to the search. We cannot agree that the claim of prejudice is conclusively negated by this record. The fact that Appellant might have initially consented to the search does not necessarily end the inquiry, because Appellant’s actions in refusing to open his hand might be taken to manifest an intent to withdraw consent previously given. See, e.g., E.B. v. State, 866 So.2d 200 (Fla. 2d DCA 2004) (juvenile’s attempt to leave after he consented to pat down search constituted revocation of consent to search).

On remand, the trial court shall either conduct a hearing on Appellant’s claim or attach portions of the record that conclusively negate the claim.

REVERSED AND REMANDED.

MONACO and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Edward L. CLARK, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2974.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2007.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We have for review appellant Edward Clark’s convictions for resisting an officer without violence and sexual battery on a person physically helpless to resist, a conviction supported largely by circumstantial evidence. The trial court partially excluded important testimony of appellant’s expert witness, and for that reason we reverse Clark’s sexual battery conviction and remand for a new trial. We reject appellant’s eight other claims and affirm without comment his conviction for resisting an officer, for which the court sentenced him to time served.

BACKGROUND

The State charged Clark with sexual battery on a person physically helpless to resist, after police discovered the intoxicated victim, T.D., asleep in a bedroom inside appellant’s apartment, and forensics tests confirmed that sexual activity had taken place. See § 794.011(4)(a), Fla. Stat. (2001) (prohibiting sexual battery upon a person “physically helpless to resist”). The State alleged, and the jury found, that two of appellant’s three roommates participated in the encounter, elevating the offense from a first-degree felony to a life felony. See § 794.023(2)(b), Fla. Stat. (2001).

The only truly disputed issue in Clark’s trial was whether T.D., who had consumed a substantial amount of alcohol, was “physically helpless to resist,” as that phrase is statutorily defined, during the early-morning sexual encounter with appellant and his roommates — all strangers to her— about which T.D. remembers nothing. The record contains no eyewitness testimony concerning the episode. Neither do we find any testimony regarding T.D.’s consent or lack thereof.

Defending against the State’s circumstantial case, appellant sought to introduce the testimony of Dr. Chowallur Chacko, a forensic and addiction psychiatrist who studied T.D.’s deposition and the surrounding circumstances of this case and was prepared to testify, among other things, as follows: (1) T.D.’s blood alcohol level at the height of her intoxication was between 0.16 and 0.31 grams per 100 milliliters; (2) in Dr. Chacko’s experience, a person with a blood alcohol level of less than 0.35 would not lose consciousness; (3) T.D. was an alcoholic prone to alcoholic blackouts, during which she remained functional and would have been able to consent to sexual activity without remembering anything she did; and (4) T.D. was not physically helpless to resist during the sexual encounter. During his deposition and a proffer at trial, Dr. Chacko cited a number of circumstances and facts upon which he relied in reaching opinions concerning T.D.’s condition.

The trial judge permitted Dr. Chacko’s testimony as to the first two propositions but, over the course of both a hearing on the State’s motion in limine and a trial proffer, excluded his testimony as to the latter two. Defense counsel proffered at trial an extensive portion of Dr. Chacko’s proposed testimony, including the doctor’s testimony that, in his opinion, T.D. was an alcoholic who had suffered blackouts in the past. The court excluded that testimony because the doctor had not examined T.D. and had based his conclusion solely on an examination of the records of this trial, appellant’s first trial (which ended in mistrial), and T.D.’s deposition testimony. The court ruled, “[F]or this doctor to come in ... and tell the jury that [T.D.] is an alcoholic ... never having examined [T.D.] ..., I do not think that is scientifically based.” The judge also found the testimony would be unfairly prejudicial to the State.

That ruling followed the judge’s earlier exclusion of Dr. Chacko’s testimony that, in his estimation, T.D. was not physically helpless to resist during the encounter with Clark. The judge ruled that testimony inadmissible during a pretrial hearing on the State’s motion in limine, filed generally “to prohibit” Dr. Chacko’s testimony on the ground that it was “speculative and novel, and not something ... commonly accepted as a matter upon which an expert opinion can be expressed.” Referring at the conclusion of the hearing to Dr. Chacko’s deposition testimony that the victim would not have been physically helpless, the judge said:

First ... [Dr. Chacko] says that the alleged victim was not physically incapacitated. [Next] he says that the woman was capable of consenting for sex at the time....
And I am going to determine that those opinions, ... that the victim was [not] physically incapacitated [and] ... that she was capable of consentingf, are] inadmissible....
I think the jury is fully capable of making the same type of analysis based on hearing the same testimony as to the condition of the alleged victim.

Although defense counsel failed to proffer Dr. Chacko’s testimony with regard to his estimation of T.D.’s faculties at trial, the judge at trial reiterated his earlier decision on the State’s motion in limine, ruling again at the conclusion of the trial proffer as follows:

I think the jury is fully capable. They’ve heard the witnesses firsthand as to [T.D.’s] behaviors prior and after the incident.... So when [Dr. Chacko] talks about blood alcohol levels, he is going to be restricted to talking in terms of how that generally affects people.... But in terms of what that does to people, I think it needs to be generalized testimony, not specific as to this victim.

The jury convicted Clark of sexual battery with multiple perpetrators on a person physically helpless to resist. The court sentenced him to fifteen years’ imprisonment.

ANALYSIS

The State had to prove at trial, among other things, that T.D. was “physically helpless to resist” during the sexual encounter with Clark. See § 794.011(4)(a), Fla. Stat. (2001). “Physically helpless” means “unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.” § 794.011(l)(e), Fla. Stat. (2001). As is true of many cases where the State proves guilt solely with circumstantial evidence, reasonable jurors may well have differed on the determinative question here: whether T.D. was, in fact, physically helpless to resist appellant’s and his roommates’ sexual overtures. See § 794.011(4)(a), Fla. Stat. (2001). For that reason, we must regard with caution any discretionary act excluding otherwise-admissible evidence that would support a viable defense theory of the case.

We hold that the trial court erred in excluding Dr. Chaeko’s testimony. The trial judge excluded much of it when he partially granted the State’s motion in li-mine and ruled that the doctor’s conclusion as to an ultimate issue — whether T.D. was physically unable to resist — was a matter that jurors were “fully capable of analyzing ... and making their same determination. ...” That basis alone for exclusion, however, does not fit with the Florida Evidence Code, which provides that expert testimony is admissible even though it reaches a conclusion on an ultimate issue. See § 90.703, Fla. Stat. (2003) (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.”). Although defense counsel should have reintroduced Dr. Chacko’s testimony regarding T.D.’s faculties during the proffer at trial, we decline to apply strictly the general rule that the proponent of proposed testimony must proffer the testimony at trial in order to obtain appellate review of the exclusion of that testimony. See, e.g., Finney v. State, 660 So.2d 674, 684 (Fla.1995) (declining to review allegedly improper exclusion of testimony because defendant “never proffered the testimony he sought to elicit from the witness and the substance of that testimony is not apparent from the record. Without a proffer it is impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error -may have had on the result.”). We regard appellant’s claim of error with respect to the doctor’s opinion of the victim’s consciousness as well provisioned for review because the record contains both a transcript of Dr. Chacko’s deposition and a detailed, transcribed discussion of his proposed testimony among the judge, the prosecutor, and the defense counsel during the hearing on the State’s motion in limine. The substance of that testimony is thus apparent on the face of the record.

The court excluded the doctor’s testimony that T.D. was an alcoholic because the judge believed it was unfairly prejudicial to the State and was not based on a scientific opinion. Inasmuch as the excluded evidence merely expressed the doctor’s opinion that, based on T.D.’s history of alcoholic blackouts, she likely experienced a similar episode the night she encountered Clark, the exclusion of this evidence, too, was error.

Our law favors admission of relevant and admissible evidence that might create reasonable doubt. The supreme court instructs us that “where [relevant] evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Rivera v. State, 561 So.2d 536, 539 (Fla.1990). In State v. Clements, this court recently revisited the constitutional importance of the right of an accused to present relevant expert testimony “that tends to establish reasonable doubt” and held that a trial court committed error by preventing an expert witness from testifying that the DUI defendant probably would not have been impaired in light of the amount of spirits he consumed. 968 So.2d 59, 60 (Fla. 1st DCA 2007). We must be equally sensitive to the hazard presented by the exclusion of evidence establishing reasonable doubt in a case where, as here, the State has proven guilt by largely circumstantial evidence and, as to the critical issue, has relied entirely upon circumstantial evidence. In such a case, after all, the State meets its threshold burden by introducing evidence inconsistent with a defendant’s alternative hypothesis of innocence and “it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” State v. Law, 559 So.2d 187, 189 (Fla.1989). For that task, jurors should consider any relevant and admissible evidence that would support such a hypothesis.

Because the trial court prevented Dr. Chacko from testifying that, in his opinion, T.D. was physically able to resist and was not unconscious, and because the doctor likewise was barred from expressing his opinion that T.D. had a history of alcoholic blackouts during which she did not lose consciousness, jurors never heard relevant, admissible testimony that might have refined and clarified their view of the State’s circumstantial evidence. For that reason, we cannot conclude beyond a reasonable doubt that the error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

We REVERSE appellant’s conviction for sexual battery and REMAND for a new trial consistent with this opinion.

WOLF, KAHN, and WEBSTER, JJ., concur.


text:
    Ronald STRICKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1994.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2007.
    James T. Miller, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.


author: HAZOURI, J.

text:
    Leo JEAN-GILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2739.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Jean-Gillis appeals from an order entered by the trial court on remand from a prior appeal of an order of revocation of probation and sentence. We affirm.

On May 17, 2002, in L.T. case no. 01-2552, Jean-Gillis entered a nolo contendere plea to possession of cannabis with intent to sell or deliver, adjudication was withheld and he was placed on probation for one year.

On May 8, 2003, a corrected affidavit and warrant were filed with respect to three violations of conditions of probation (VOP): (1) failing to pay costs of supervision; (2) refusing to sign/accept a traffic citation on March 8, 2003; and (3) failing to pay court costs. Thereafter, an amended affidavit and warrant were filed September 29, 2008, adding two new violations concerning an incident occurring on or about July 11, 2003:(4) attempted second degree murder with a firearm; and (5) being a felon in unlawful possession of a firearm.

On January 13, 2004, Jean-Gillis executed a written admission to VOP “as charged” at a change-of-plea and revocation of probation hearing.

Finally, on February 18, 2004, a second amended affidavit of VOP was filed against Jean-Gillis, charging him with two new violations: (6) unlawfully entering or remaining in a structure or conveyance with the intent to commit burglary while armed therein, on January 7, 2004, and (7) failing to remain at his residence on January 22, 2004.

On April 29, 2004, the trial court found Jean-Gillis had admitted violating his probation, revoked his probation, adjudicated him guilty of the underlying offense, and sentenced him to thirty-six months in prison. The order of revocation of probation found that Jean-Gillis had committed all seven violations. Jean-Gillis appealed.

This court reversed. First, there was a jurisdictional issue. In order for the trial court to have jurisdiction and to toll the period of probation, an affidavit of VOP has to be filed during the probationary term. In the instant case, the clerk certified that the record did not contain one filed by May 17, 2003, the end of the probationary term in this case. Thus, this court remanded for the trial court to make a factual determination as to whether an affidavit actually was filed within the requisite period, and if not, to vacate the order of revocation. Second, if the court determined any of the affidavits were timely filed, the state having admitted that evidence was presented at the VOP hearing of only two of the violations, this court remanded for the trial court to conform its findings to the evidence and then to determine whether such findings supported revoking probation. Jean-Gilles [sic] v. State, 921 So.2d 860 (Fla. 4th DCA 2006).

On remand, the trial court found by a preponderance of the evidence that there was a timely-filed affidavit because court computer records so indicated, and the trial court took into consideration that no judge would issue a warrant without first looking at the affidavit. Thus, the trial court determined that the Department of Corrections timely filed an affidavit of violation of probation. Jean-Gillis does not challenge this determination on appeal.

With respect to the second issue on remand, sufficiency of the grounds for revocation, the trial court commented that this court may not have had the benefit of a full record, as the court’s files reflected that on January 13, 2004, Jean-Gillis entered a plea admitting YOP as charged to the first five violations. The trial court also noted that Jean-Gillis stipulated to and it found a factual basis for the plea with regard to the violations for attempted murder and possession of a firearm by a convicted felon. The trial court clarified that its decision to revoke probation was based on its finding that Jean-Gillis’s refusal to sign a traffic citation and possession of a firearm were willful and substantial.

We note that the trial court’s continued conclusion that Jean-Gillis admitted to the first five violations is incorrect. The record shows, and the parties agree, that at the January 13, 2004 hearing, Jean-Gillis admitted only to refusing to sign a traffic citation. However, in light of the trial court’s clarification of the basis for revocation, and the fact that Jean-Gillis admitted to the violation of refusing to sign a traffic citation and stipulated to a factual basis for the possession of a firearm violation, we affirm.

Affirmed.

STONE and STEVENSON, JJ., concur.

      . The state conceded in its answer brief in the prior appeal that the only violations addressed at the hearing were Jean-Gillis’s possession of a firearm and his refusal to sign the traffic citation. It argued that these two nontechnical violations were sufficient to support the revocation of probation.


author: STEVENSON, J.

text:
    Richard J. CONIGLIO, Appellant, v. Valerie CONIGLIO, Appellee.
    No. 4D06-1485.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellant.
    D. Fred Dedrick of Fixel & La Rocco, Hollywood, for appellee.
   STEVENSON, J.

Richard J. Coniglio, the former husband, appeals a final judgment of dissolution of marriage, arguing (1) that the trial court failed to account for a $90,000 line of credit associated with the husband’s business and (2) that the $4,000 monthly alimony award must be reversed because the “need” used to justify such award included expenses associated with the children that had otherwise been addressed or accounted for in the judgment. We affirm as to the husband’s argument concerning the line of credit without further comment. We find merit, however, in the argument concerning the alimony award and write to address this issue.

The Coniglios have two children, a son and a daughter. At the time of the divorce, only the son was still a minor. The husband, who owns a business installing holiday decorations, earns $275,000 annually. The wife, a laboratory administrator, earns $98,000 annually and has a net monthly income of $5,502.40. Her amended financial affidavit lists her monthly expenses at $9,838.00. The trial court awarded the wife $4,000 per month in alimony, citing the parties’ twenty-five-year marriage and the “luxurious” lifestyle enjoyed during the marriage.

The former wife’s $9,838 in monthly expenses includes $1,611 in expenses associated with the couple’s children. The listed expenses include $415 for the son’s private school tuition, $143 for school supplies, books, and fees, $218 for the son’s health insurance, $137 for the son’s medical expenses, $250 for the son’s allowance, entertainment and other expenses, and $227 for medical and dental expenses associated with the couple’s grown daughter. The former husband argues that these expenses associated with the children should not have been considered in assessing the wife’s “need” for alimony.

As to the son, the judgment of dissolution includes a $1,398 child support award and provisions requiring the husband to bear the cost of the son’s private school and to pay sixty percent of the son’s health insurance and uncovered medical expenses. The husband contends that considering these expenses again for purposes of assessing the wife’s “need” for alimony results in the wife receiving money for such expenses twice, i.e., once in the form of child support and the judgment’s provisions requiring the husband to pay the son’s school expenses and sixty percent of his health-related expenses and again via an increased alimony award. We agree. See Levine v. Levine, 964 So.2d 741, 742 (Fla. 4th DCA 2007) (reversing $23,000 monthly alimony award where evidence was that wife’s needs plus children’s needs totaled $23,000, but trial court awarded $11,111 per month in child support and thus “[t]he alimony ... duplicates the child support and should be reduced at least to that extent”). As for the expenses associated with the couple’s grown daughter, since a parent has no obligation to support a grown child, any expenses associated with that child are not properly considered in awarding alimony. See Wolfe v. Wolfe, 953 So.2d 632, 636-37 (Fla. 4th DCA 2007).

We recognize the broad discretion given trial judge’s in making alimony awards. See Lakin v. Lakin, 901 So.2d 186, 192 (Fla. 4th DCA 2005). Here, though, the expenses attributable to the children represent a significant portion of the $4,000 monthly alimony award. Accordingly, we reverse the alimony award and remand the matter with directions that the trial court recalculate the wife’s alimony award taking into account the monies which the final judgment already obligates the husband to pay towards the expenses related to the minor child and excluding those expenses which are related to the adult child.

Affirmed in part, Reversed in part, and Remanded.

STONE and HAZOURI, JJ., concur.

      . We have considered the other expenses challenged by the former husband and con-elude that none compel reversal of the alimony award.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Bobby BYRD, Jr., Appellee.
    No. 4D06-2043.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Neil M. Nameroff, Miami, for appellee.
   WARNER, J.

The state appeals an order granting a judgment of acquittal to the defendant who was charged with driving while his license was revoked pursuant to section 322.34(5), Florida Statutes. We affirm, as the state, without an order requiring it to do so, presented only a redacted version of appellant’s driving record which did not show that he was a habitual traffic offender as defined in section 322.264, Florida Statutes. See State v. Phillips, 852 So.2d 922 (Fla. 1st DCA 2003) (for purposes of section 322.34(5), making it a felony for a person to drive with a license “revoked pursuant to s. 322.264 (habitual offender),” the phrase “pursuant to” means “as defined by” section 322.264). Section 322.34(5) provides that “[a]ny person whose driver’s license has been revoked pursuant to [as defined by] s. 322.264 (habitual offender) and who drives any motor vehicle ... while such license is revoked” is guilty of a third degree felony.

Section 322.264 defines a habitual traffic offender as:

any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period....

(emphasis supplied). The record submitted by the state did not show the accumulation of the specified number of convictions. Instead the redacted record showed only a notation that the license had been revoked and notice pursuant to section 322.351 had been given.

Failing to include a driving record showing that appellant met the definition of a habitual offender under the statute is insufficient as a matter of law to prove a prima facie case. See Patterson v. State, 938 So.2d 625, 630 (Fla. 2d DCA 2006) (“A conviction under section 322.34(5) simply requires competent evidence showing that the DHSMV maintained a record on the motorist, that the record reflected three prior moving violation convictions, and that the motorist received notice of his designation as a habitual traffic offender and the resulting suspension of his license.”); State v. James, 928 So.2d 1269, 1271 (Fla. 2d DCA 2006) (same); Kallelis v. State, 909 So.2d 544, 545 (Fla. 4th DCA 2005) (same).

Affirmed.

SHAHOOD, C.J., and STEVENSON, J., concur.

      . Although the state sought to substitute the redacted version with another redacted version, both were deficient and failed to support the charge. Section 322.201, Florida Statutes, authorizes the admission of "the complete driving record” maintained by the Department of Motor Vehicles with the machine imprint of the DMV or the court clerk. The statute does not address the admissibility of a redacted version. Redaction should occur only where a court orders it upon a motion by the defendant (such as to prevent undue prejudice where the record is more extensive and has notations of other criminal acts) or where the parties agree to submit the redacted version. In those instances the defendant would necessarily have waived his right to insist on the complete record coming into evidence. On this ground we distinguish Weathers v. State, 937 So.2d 1132 (Fla. 4th DCA 2006), where the driving record was redacted as a result of a court order on a motion in limine to omit the offenses which resulted in Weathers being declared a habitual offender.


author: STONE, J.

text:
    Scott Bernard TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4478.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STONE, J.

A jury found Taylor guilty of selling cocaine within 1,000 feet of a place of worship. Taylor contends that the trial court erred in denying him the first and rebuttal closing arguments during his October 19, 2006, trial. He asserts that section 918.19, Florida Statutes, that became effective October 1, 2006, violates the separation of powers provided in article II, section 3 of Florida’s constitution. Although we recognize that section 918.19 is constitutionally infirm because its provision adopting a new procedural rule constituted invalid rulemaking by the legislature, we, nevertheless, affirm. See Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007).

At common law, the state was entitled to present first and last arguments. In re Amendments to the Florida Rules of Criminal Procedure — Final Arguments, 957 So.2d 1164, 1166 (Fla.2007) (citing Faulk v. State, 104 So.2d 519, 521 (Fla. 1958)). In 1853, “Florida rejected the common law rule ... when it enacted the statutory precursor to [Florida] [R]ule [of Criminal Procedure] 3.250.” Id. (citing Heffron v. State, 8 Fla. 73 (1858)). Rule 3.250 entitled the defendant “to the concluding argument before the jury” where the defendant offered no testimony, “except the defendant’s own.” By enacting section 918.19 in 2006, the legislature repealed this long standing criminal procedure rule. The legislature then created a substitute rule, allowing the state to present the first and last closing arguments. § 918.19, Fla. Stat.

In May 2007, the supreme court adopted the procedure supplied in section 918.19 by amending Rule 3.250 and creating Rule 3.381, Florida Rules of Criminal Procedure. The rules change became effective upon release of In re Final Arguments, 957 So.2d at 1164.

Indisputably, the supreme court has exclusive authority to enact rules of practice and procedure in the courts. Art. V, § 2(a), Fla. Const. The legislature, however, has the constitutional right to repeal any existing rule of procedure by a two-thirds vote. Johnson v. State, 336 So.2d 93 (Fla.1976); In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973).

The trial in this case occurred after adoption of the statute, but prior to the supreme court promulgating the rule amendment. As a general principle, the repeal of a rule which modifies the common law operates to reinstate the common law rule, absent contrary legislative intent. See State ex rel. Boyd v. Green, 355 So.2d 789, 794-95 (Fla.1978); Grice, 967 So.2d at 961. This is in accord with generally accepted principles. See Beavan v. Went, 155 Ill. 592, 41 N.E. 91, 93-94 (1895) (“It is a rule of the common law that, where one statute is repealed by another, the repeal of the repealing statute revives the statute repealed; and the same rule is held to extend to the common law, so that, where an act which supersedes in any particular the common law rule previously applicable is itself repealed, the rule is held to be revived.”); State v. Gen. Daniel Morgan Post No. 518, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353, 357 (1959) (‘When a statute repeals the common law and the statute itself is subsequently repealed, the common law is revived and when a statute which is declaratory of the common law is repealed the common law remains in force for the reason that the statute was an affirmance of the common law.”). Here, legislative intent is clear, as the new statute follows the common law procedure.

In Green, the legislature passed an act, section 1 of which created a two trial system for adjudicating guilt and insanity, and section 10 of which repealed rule 3.210 that dealt with the insanity defense. Green, 355 So.2d at 791. The trial court found section 1 unconstitutional but upheld section 10. The trial court then “concluded that, as a result of [its] rulings ... the defense of insanity no longer exists in Florida and ordered the case to proceed to trial without benefit of that defense.” Id. The supreme court found that the trial court committed reversible error because the court failed to recognize the common law defense of insanity. Id. In doing so, the supreme court effectively recognized that where the legislature repeals a rule under one section of an act, and then enacts an unconstitutional law under another section, no vacuum is created, and the common law is applied.

We recognize that the supreme court has also found that a predecessor statute may be revived where a statute that repealed another statute is found to be unconstitutional. B.H. v. State, 645 So.2d 987, 995 (Fla.1994). The court recognized the statutory revival necessary “only where the loss of the invalid statutory language will result in a ‘hiatus in the law that would be intolerable to society.’ ” Id. at 995, 997 (sustaining B.H.’s adjudication “on the basis of the revived statute”).

We note that, in this case, House Bill 147, adopting section 918.19, contemplates that the repealing provision of the statute may be severed from section 1, enacting the new procedure for closing arguments. Specifically, the bill states that section 2, the repeal provision, will take effect only if passed by a two-thirds vote. As section 2 is severable, it survives the invalidity of section 1.

We are, therefore, confronted with a repealed rule 3.250, without a replacement rule. In such a situation, the common law, as suggested by Green, applies. See 355 So.2d at 795 (noting that the common law would apply where a section enacting a new law was unconstitutional but a repealing section was saved and remained effective). As the First District specifically explained in Grice:

[Wjhile the legislature’s repeal of the portion of rule 3.250 relating to first and last closing arguments was effective, having been passed by the necessary two-thirds majority of each house, its attempt to substitute a different procedure was not. As a result, one must look to the common law to ascertain whether appellant was entitled to first and last closing arguments.

Grice, 967 So.2d at 961.

We also note that, here, unlike in B.H., the loss of the invalid legislative enactment did not result in a “hiatus” in the law. Unlike the statutory framework in B.H., no intolerable hiatus resulted in the instant case because the common law supplies the order of closing arguments. Further, the subsequent-adoption of the amended rule undermines the position that a “hiatus” was created, as both the amended rule and the common law conform precisely to what the legislature passed in section 918.17.

We conclude that the trial court properly decided the order of final arguments.

Therefore, the conviction and sentence are affirmed.

STEVENSON and HAZOURI, JJ., concur.

      . Cf. State v. Raymond, 906 So.2d 1045, 1051 (Fla.2005) (describing a vacuum that existed where the legislature repealed two criminal procedure rules and the court held the statute imposing a replacement procedure unconstitutional; as a result, the court temporarily readopted the two rules).


author: FARMER, J. MAY, J.

text:
    Betty LEWIS, Petitioner, v. Jack WEAVER, Jr., Respondent.
    No. 4D07-2544.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Hinda Klein of Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Shefer, P.A., Hollywood, for petitioner.
    Daniel R. Maier of Daniel R. Maier, P.A., Fort Lauderdale, for respondent.
   FARMER, J.

Before filing a civil action for damages, respondent Weaver filed a petition for a “pure bill of discovery” relating to catastrophic injuries resulting when his father fell from a dock. He explained that, owing to his condition, the father is himself unable to provide details about the fall. Contending that defects in the dock apparently caused the fall, he sought an order preserving the dock in its present condition long enough for an order allowing him or his agents to enter upon the property to inspect, photograph and test the dock before it can be repaired and changed. He alleged that the failure to preserve the improvement or to allow testing before it is demolished and rebuilt would seriously impair his ability to prosecute an action for damages.

The dock’s owner moved to dismiss the petition on the basis that respondent had adequate discovery remedies at his disposal if and when he should file an action for damages. At a hearing, the trial court wondered if the owner would waive any claim to attorneys fees for filing a frivolous action if the court denied the petition. The owner declined to state any position on frivolous action attorneys fees. The court ultimately granted the petition, allowing claimant’s experts the access to inspect, photograph and test the dock without destruction. The order also purported to allow access to municipal and county records of the improvement on the property. Owner seeks certiorari review of the order.

The trial court did not necessarily depart from the essential requirements of law in allowing a pure bill of discovery. It is true that, along with other courts, we have observed that this kind of relief ought to be rarely needed. E.g., JM Family Enter. Inc. v. Freeman, 758 So.2d 1175 (Fla. 4th DCA 2000). Maybe so, but rare does not mean dead. It is still an authorized proceeding.

Under the current state of the law, a pure bill of discovery should be granted if there is some reasonable basis to believe that discovery in a later damages action would be inadequate or too late to vindicate the litigant’s right to evidence. When that has been made to appear, the pure bill allows a putative plaintiff to “obtain the disclosure of facts within the defendant’s knowledge, or deeds or writings or other things in [the defendant’s] custody, in aid of the prosecution or defense of an action pending or about to be commenced.” First National Bank of Miami v. Dade-Broward Co., 125 Fla. 594, 171 So. 510, 510-11 (1936). It may also avoid a spoliation claim later. See St. Mary’s Hosp. v, Brinson, 685 So.2d 33 (Fla. 4th DCA 1996), rev. denied, 695 So.2d 701 (Fla.1997) (prospective action for damages is valuable ‘probable expectancy’ that court must protect from interference).

This case is distinguishable from Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369 (Fla. 4th DCA 1997). The issue in that case was whether the preservation and inspection of the fork lift could be carried out under a pure bill of discovery before any damages action had been filed. Judge Stevenson there pointed out that the defect in the case was in pleading the claim for a pure bill of discovery, not that the merits conclusively cut against it. As he explained in his concurring opinion:

“the fact that respondent in the instant case would be entitled to the information he seeks through routine discovery if he were to file a civil lawsuit does not automatically preclude relief by way of the still viable common law true bill of discovery. ...
“One of the purposes of a true bill of discovery is to allow the injured party to ascertain whether a lawsuit may properly be asserted and under what theory or theories. There must of course be some basis for targeting a particular defendant, and where a plaintiff is truly on nothing more than a ‘fishing expedition,’ the court, in equity, will not supply the rod and reel.”

696 So.2d at 1372 (Stevenson, J., concurring specially).

The issue in any prospective claim for negligence here will be straightforward. Was the dock negligently designed, or was it negligently maintained, or both? In this case, the victim has been so incapacitated from the incident that he cannot assist in narrowing the claim to the appropriate defendant. Thus, it cannot be said that the resort to a pure bill of discovery has no foundation. Preservation and inspection of the dock in its current condition is essential to identifying a factual basis for suit against specific defendant(s).

We cannot say that the trial court made any legal error in allowing the bill — let alone that he “departed from the essential requirements of law.” Even less can we say that the owner of the dock will be “irreparably injured” by allowing the pre-suit discovery. He may well be inconvenienced, but he will not suffer harm in any legal sense. Discovering the truth about the condition of the dock is not the kind of “irreparable harm” contemplated by the cases on this subject.

Petition for certiorari denied.

STEVENSON, J., concurs.

MAY, J., dissents with opinion.

MAY, J.

dissenting.

I respectfully dissent. If case law from our court had not repeatedly frowned on the use of the pure bill of discovery, I would concur with the majority. My reading of our precedent however convinces me that this petition should be granted.

Here, the petitioner argues the trial court departed from the essential requirements of law in two ways. First, it required the petitioner to “preserve the dock and seawall for an indefinite time.” Second, the court improperly conditioned its ruling on the petitioner’s willingness to waive fees under section 57.105, Florida Statutes (2007). The respondent suggests that the pure bill was necessary to “ascertain who the potential defendants are and under what theory or theories a lawsuit may be filed.”

This court has consistently held that a pure bill of discovery should rarely be permitted. JM Family, 758 So.2d at 1176 (citing First Nat’l Bank of Miami v. Dade-Broward Co., 125 Fla. 594, 171 So. 510 (1936)). In Mendez v. Cochran, 700 So.2d 46 (Fla. 4th DCA 1997), we wrote a “pure bill of discovery is available as an aid in bringing or defending an action about to be commenced. It may be used to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.” Id. at 47 (citations omitted). However, it “may not be used ‘as a fishing expedition to see if causes of action exist.’ Neither is it available simply to obtain a preview of discovery obtainable once suit is filed. Such a use of the bill places an undue burden on the court system.” JM Family, 758 So.2d at 1176 (citations omitted).

In Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369 (Fla. 4th DCA 1997), this court quashed an order granting a pure bill of discovery under similar circumstances. There, a person filed a petition to preserve evidence for examination and inspection, a forklift the injured person was using while working at Publix. This court found the petition’s allegations insufficient to warrant relief. Id. at 1371 (citing First Nat’l Bank of Miami, 171 So. at 510-11).

The Florida Rules of Civil Procedure provide for liberal discovery once a cause of action is filed. While these rules did not eliminate the pure bill of discovery, they rendered its use rare indeed. See JM Family; Publix Supermarkets; First Nat’l Bank. Although the injured party in this case is apparently unable to provide factual detail about the accident, this fact alone does not provide that rare exception to resort to a pure bill of discovery. Once a complaint is filed, the respondent can obtain nearly unlimited discovery, far more than would be allowed under a pure bill of discovery. I would reserve the use of the pure bill of discovery to those extraordinary circumstances such as demonstrated in Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990) (allowing pure bill of discovery to comply with condition precedent of expert witness affidavit in medical malpractice action).

I would grant the petition for writ of certiorari.


author: GROSS, J.

text:
    OPEN MRI OF OKEECHOBEE, LLC, Andrew S. Gallant, Andrew T. Walker, and Henry R. Zayas, Appellants, v. Peter ALDANA, Iqbal Ahmed, and John Chang, Appellees.
    No. 4D07-3532.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    James A. Farrell, Temple Fett Kearns, and Matthew R. Chait of Shutts & Bowen LLP, West Palm Beach, for appellants.
    George K. Brew of Brew & Harper PL, Jacksonville, for appellees.
   ON MOTION FOR REVIEW OF STAY ORDER

GROSS, J.

This is a motion for review of an order denying a stay of circuit court proceedings filed pursuant to Florida Rule of Appellate Procedure 9.310(f).

The appellants moved to compel arbitration in the circuit court. The trial judge denied their motion and later denied their motion to stay the circuit court action pending this appeal.

We reject appellants’ argument that section 682.03(3), Florida Statutes (2006), mandates that a stay be granted in this case. That section provides that “[a]ny action or proceeding involving an issue subject to arbitration ... shall be stayed if an order for arbitration or an application therefor has been made under this section .... ” The Arbitration Code uses the term “application” as a synonym for “motion.” See § 682.03(1), Fla. Stat. (2006) (providing that a “party to an agreement or provision for arbitration ... may make application to the court for an order directing the parties to proceed with arbitration”); § 682.12, Fla. Stat. (2006) (stating that “[u]pon application of a party to the arbitration, the court shall confirm an award ... ”). It is clear that the statute mandates a stay while a motion for arbitration is pending. We decline to expand the statutory language to require a stay after a motion for arbitration has been denied and that denial is on appeal. The portion of the Arbitration Code explicitly dealing with appeals, section 682.20(1)(a), Florida Statutes (2006), states that an appeal may be taken from “[a]n order denying an application to compel arbitration made under s. 682.03.” Section 682.20(2) provides that “[t]he appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” A stay of a final or non-final order is a discretionary decision of the trial court. See Fla. R.App. P. 9.310(a). To read section 682.03(3) as broadly as appellants urge would be to nullify the legislative direction given in section 682.20(2).

Appellants urge us to adopt the rationale of Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249 (11th Cir.2004). Without deciding the persuasiveness of this authority in light of Chapter 682, we note that we agree with the approach of Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir.2004) and Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990).

The motion for review of stay order is denied.

GUNTHER and TAYLOR, JJ., concur.