author: PER CURIAM.

text:
    Francisco Gerardo DIAZ, Appellant, v. Frank E. ASHWORTH, Appellee.
    No. 3D06-2150.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Rehearing Denied July 10, 2007.

      Arthur J. Morburger and Peter A. Cohen; Osvaldo N. Soto, Miami, for appellant.
    Arnaldo Velez, Coral Gables, for appel-lee.
    Before COPE, C J., and FLETCHER and LAGOA, JJ.
   PER CURIAM.

Francisco Gerardo Diaz appeals from a final judgment dismissing his complaint in this will contest. Diaz challenged the probate of the will of Jorge Mesa dated July 10, 2003 which named Frank Ashworth as his sole beneficiary. Diaz argued that at the time of execution Mesa lacked testamentary capacity and was under Ash-worth’s undue influence. A bench trial on the claims revealed the following facts.

Mesa, and his partner, Silvio Segarra, lived in a home owned by Segarra. Both Segarra and Mesa suffered from AIDS. Segarra transferred title to the home, which was their only significant asset, to himself and Mesa with rights of survivor-ship. Thereafter, Mesa consulted his attorney to have a will prepared. Having no blood relatives in the United States, Mesa named Hipólita Benetiz (his father’s sister-in-law) as his beneficiary, with her daughter as alternate.

Prior to Segarra’s death, Mesa and Se-garra were referred to Diaz for spiritual counseling in his role as a Catholic priest. Diaz became more involved in Mesa’s life after Segarra died in July 1999. He drove Mesa to medical appointments, took him food, paid for some of his expenses and visited him. Mesa changed his will in favor of Diaz at this time. He told Diaz about the new will at Christmas referring to it as his gift.

For unknown reasons, the Diaz-Mesa relationship subsequently cooled. Mesa’s neighbors, Ivan Rodriguez and his sister, Anibel, and Frank Ashworth, and his wife, Cecilia, testified that as good neighbors they did chores for Mesa, including taking him to medical appointments.

By the spring of 2003, Mesa’s condition worsened. On June 26, 2003 he was taken by ambulance to Coral Gables Hospital. The hospital records described an advanced state of HIV disease, but consistently described the patient as awake, alert and oriented. According to Mrs. Ashworth, on July 9, 2003 while visiting him at the nursing center to which he was transferred after his hospitalization, Mesa indicated his desire to make a new will. Mrs. Ashworth contacted her husband, who suggested Attorney Pilafian. (Ash-worth had been represented by Pilafian in the past and had worked for the attorney as a driver for a time.) Mesa spoke by phone with Pilafian, and the following morning, Mesa, against medical advice, left the nursing center. The Ashworths drove Mesa to his long-term physician, Dr. Stein-hart. The doctor’s examination notes of this visit show that Mesa knew he was going to die shortly, he wanted to go home for his final days, and he agreed to receive hospice care there.

From Dr. Steinhart’s office, Mesa was taken by the Ashworths to Attorney Pilafi-an’s office. Attorney Pilafian, his secretary, and the Ashworths were present at the execution of the will at issue. Mrs. Ashworth and the secretary signed the will as witnesses. The witnesses testified that the will was prepared in accordance with information obtained from the testator and that the will was read to Mesa prior to his signing it. The secretary described Mesa as weak, but able to walk unaided and having his wits about him. From the attorney’s office, Mesa was returned to his home where he remained more or less isolated until he died on July 28, 2003.

After a careful review of the record, we adopt the trial court’s thorough and well-written order which states in pertinent part:

In Raimi v. Furlong, 702 So.2d 1273, 1286 (Fla. 3d DCA 1998), our Third District concisely set out the applicable standards for a determination of testamentary incompetence, stating:
It has long been emphasized that the right to dispose of one’s property by will is highly valuable and it is the policy of the law to hold a last will and testament good wherever possible. See In re Weihe’s Estate, 268 So.2d 446, 451 (Fla. 4th DCA 1972), quashed on existing facts, 275 So.2d 244 (Fla.1973); In re Dunson’s Estate, 141 So.2d [601] at 604 [(Fla. 2d DCA 1962) ]. To execute a valid will, the testator need only have testamentary capacity (i.e. be of “sound mind”) which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed. See In re Wilmott’s Estate, 66 So.2d 465, 467 (Fla.1953); In re Weihe’s Estate, 268 So.2d at 448; In re Dunson’s Estate, 141 So.2d at 604. “A testator may still have testamentary capacity to execute a valid will even though he may frequently be intoxicated, use narcotics, have an enfeebled mind, failing memory, [or] vacillating judgment.” In re Weihe’s Estate, 268 So.2d at 448. Moreover, an insane individual or one who exhibits “queer conduct” may execute a valid will as long as it is done during a lucid interval. See Id.; see also Coppock v. Carlson, 547 So.2d 946, 947 (Fla. 3d DCA 1989) (whether testator had the required testamentary capacity is determined solely by his mental state at the time he executed the instrument), rev. denied, 558 So.2d 17 (Fla.1990).
Applying these standards, I find that Mr. Mesa was competent to make the July 10, 2003, Ashworth will. He understood the nature and extent of his property, he knew those who would naturally claim a substantial benefit from his will, and it is clear that he was aware of the practical effect of the will he signed. He knew that he was going to die. He made an informed decision to accept hospice care instead of further treatment just prior to making the Ashworth will. Dr. Steinhart believed Mr. Mesa was competent to make such an obviously important decision.
Petitioner’s second claim is that Mr. and Mrs. Ashworth unduly influenced Mr. Mesa to make the July 10, 2003 will. Father Diaz argues that the evidence shows the Ashworths never had a prior close relationship with Mr. Mesa, that their deep involvement in the making of the will, together with their attempts to insulate Mr. Mesa from contact with others after the will was made, all done at a time when Mr. Mesa was in the final stages of. the AIDS illness, prove that the Ashworths obtained the will in question by unduly influencing Mr. Mesa’s decision.
The starting point to determine whether a will has been procured by the exercise of undue influence is the analysis required by In re: Estate of Carpenter, 253 So.2d 697 (Fla.1971). Under Carpenter, once it is established by the proponent that the will was properly executed, the contestant then must show, prima facie, the existence of a confidential relationship between the testator and the active procurement of the will by the proponent. Carpenter discusses those factual circumstances which may give rise to such a determination which, once made, results in a presumption that the will is the product of undue influence. Using the Carpenter test, I find that a presumption of undue influence was established by the evidence. Mr. Ashworth is the sole beneficiary under the July 10, 2003 will; he was present at its execution; Mrs. Ash-worth was present on July 9, 2003, when Mrs. Mesa stated that he wished to make a will; Mr. Ashworth recommended that his attorney, Mr. Pilafian, draw the will; while disputed as to whether he learned of it on July 9 or July 10, 2003, Mr. Ashworth was aware of the contents of the will before it was signed;, and Mrs. Ashworth was one of the subscribing witnesses. Add to this fact that Mr. Ashworth brought Mr. Mesa to Mr. Pilafian’s office to sign the will and that he and his wife were active in caring for him after the will was signed, and it is clear the Ashworths occupied a confidential relationship with Mr. Mesa.
Carpenter provides that once evidence of such a presumption of undue influence has been made, it does not shift the burden of proof to the proponent of the will to prove the will was not the product of undue influence. Rather, it merely shifts to the proponent “the burden of coming forward with a reasonable explanation for [the beneficiary’s] active role in the decedent’s affairs, and specifically, in the preparation of the will ... ”. 253 So.2d at 704. Carpenter holds that it then becomes the responsibility of the trial court to determine whether the proponent has, prima facie, satisfied this burden of reasonable explanation. Finally, once all these presumptions and burdens are met, the decision rests on the traditional evidentiary test of who has proven their case by a preponderance of the evidence.
Subsequent to Carpenter, however, the legislature enacted an amendment to § 733.107, Fla. Stat., to prohibit the shifting of the burden of proof in presumption of undue influences cases. See, e.g., Hack v. Janes, 878 So.2d 440, 443 (Fla. 5th DCA 2004). As it now stands, in those cases where the proponent of a will satisfies, prima facie, the will is facially proper, and the contestant thereafter satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.
Using these standards, I find that the Petitioner [sic] has proven by a preponderance of the evidence that the will was not the product of undue influence by Mr. and Mrs. Ashworth. Mr. Mesa was capable of making his own decision about who would receive his property when he signed the Ashworth will. The will he signed on July 10, 2003, and the two previous wills he made in the two years prior to 2003, each named non-relatives as beneficiaries. Each will was very basic. On July 10, 2003, Mr. Mesa knew what a will was and he was clear about his. wishes as to who should inherit his property. On the same day as the Ashworth will, Mr. Mesa also made another significant decision to reject further medical treatment and to enter hospice care at his home rather than spend his last days in an institution. Dr. Steinhart’s records and testimony are clear that Mr. Mesa was competent to make these decisions. I find the preponderance of the evidence in this case is that Mr. Mesa was competent and not unduly influenced in making the will dated July 10, 2003.

Based on the facts in this case as found by the trial court, we hold that the trial court’s order is supported by clear and convincing evidence and affirm.

Affirmed.

      . The reason for his isolation was one of the disputed issues at trial. Diaz claimed it was a result of manipulation by the Ashworths to deny access to Mesa. The Ashworths, on the other hand, maintained that visitation was restricted at Mesa’s request. The trial court found the latter to be the more credible evidence.


source: Caselaw Access Project

author: COPE, C.J.

license: Public Domain

text:
    Edna Marisela PERDOMO, Appellant, v. Alex A. CABRERA, Appellee.
    No. 3D07-359.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 11, 2007.
    Lawrence R. Metsch, Miami, for appellant.
    Nicole I. Sieb and Joseph Jack; Peter J. Yanowitch, Coral Gables, for appellee.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   COPE, C.J.

Edna Marisela Perdomo appeals an order dissolving her lis pendens. The condominium which is the subject of the litigation is owned by Pelotera, Inc., a corporation which holds title to the real estate. The appellant maintains that she is entitled to partition under the rule of Kay v. Key West Development Co., 72 So.2d 786 (Fla.1954), but her reliance on that case is misplaced because she is not a shareholder of Pelotera, Inc. The rule announced in Kay does not extend to corporate officers or directors, but is confined to shareholders.

The appellant also argues that the trial court was not allowed to look outside the complaint in making its decision on lis pendens. That is not so. By statute, “[w]hen the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.” § 48.23(3), Fla. Stat. (2006). In the present case the action is not founded on a duly recorded instrument or a chapter 713, part I, lien. That being so, the court was authorized to take evidence as would be so in a hearing on a motion to dissolve an injunction. The trial court conducted an evidentiary hearing which revealed that the appellant is not a shareholder in the corporation, and that fact is fatal to her reliance on Kay.

The appellant argues that in Laroche v. Nehama, 948 So.2d 850 (Fla. 3d DCA 2007), this court made reference to the pleadings in the case. The appellant maintains that this means the pleadings are controlling. The appellant’s argument is without merit. In Laroche the claim and counterclaim were based on a duly recorded instrument. “If the initial pleading in a lawsuit is based upon a duly recorded instrument, the petitioner is entitled to maintain a lis pendens on the property in question as a matter of right.” Id. at 851.. In the present case the lis pen-dens was not based on a duly recorded instrument and therefore, as already stated, by statute “the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.” § 48.23(8), Fla. Stat. (2006). The eviden-tiary hearing was proper under the circumstances of this case and the trial court’s ruling is correct.

Affirmed.


author: GREEN, J.

text:
    Andre Elton ADKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1583.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 18, 2007.

      Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   GREEN, J.

Andre Elton Adkins appeals his conviction and sentence for the second degree murder of his friend, Theron Gaskin, pursuant to a jury verdict. He raises two arguments on this appeal. First, he asserts that the trial court improperly denied his peremptory challenge to a Hispanic juror. He next maintains that the trial court improperly denied his motion for a new trial on the grounds that the State’s suppression of certain Brady material, which could have impeached or undermined the credibility of the state’s sole eyewitness, prejudiced his right to a fair trial. We reverse based upon our conclusion that the second issue warrants a new trial; it is unnecessary for us to address the first issue.

BACKGROUND

The day of the incident began as a day of leisure activities for Adkins and two of his life-long close friends, Carl Glover, and Theron Gaskin, the victim. By the day’s end, however, the men had been drinking heavily, an argument broke out, and Gas-kin was shot to death. Adkins would be charged as the shooter; Glover would serve as the State’s sole eyewitness. Because there was no independent physical evidence tying Adkins to the murder, the State’s case rested solely upon the testimony and credibility of Glover.

Prior to putting Glover on the stand, the State moved in limine to exclude evidence that Glover had been arrested. The State disclosed that nine months after the murder, Glover was arrested for throwing a deadly missile into a vehicle. The State argued that the arrest was not an appropriate topic for cross-examination because the incident was too remote (fourteen months before trial), and the case against Glover had been no-actioned.

The defense argued that evidence of the arrest should not be excluded because the case was no-actioned solely to protect Glover’s credibility in this murder case. Hence, the defendant was entitled to question Glover on cross-examination regarding this matter. The defense additionally noted that three months after the murder, Glover was the aggressor in an aggravated assault complaint involving a gun matching the same description as the weapon used to kill Gaskin. These incidents, the defense argued, would be relevant to impeach the credibility of the State’s sole eyewitness — the only source of evidence against Adkins. Moreover, the defense urged that Glover’s subsequent use of a weapon similar to the one utilized in this case would tend to suggest that Glover, not Adkins, possessed the murder weapon.

The court decided to defer ruling on these matters until after Glover’s direct testimony. Thereafter, the court announced that the defense could question Glover outside of the jury’s presence about these two incidents. The court would then determine whether they could be introduced on cross-examination.

TRIAL EVIDENCE

State’s Case

Glover took the stand and acknowledged that he was a convicted felon. He testified that he had known Adkins for twenty years and the victim, Gaskin, for 15 years. On the day in question, the three men ran errands together in the morning. They picked up Adkins’ co-worker, Roy, and went shopping at the flea market. Later, the group bought some gin and drove to a pool hall.

Roy, Glover, and Gaskin went into the pool hall. Adkins remained in the car talking on his cellular phone and drinking gin. Gaskin drank beer inside the pool hall. Glover testified that he would periodically return to the car to drink gin. Glover testified the he was “tipsy,” but not drunk. He testified, however, that Gaskin drank too much beer, became drunk, and started acting a “little crazy.” The pool hall owner came over and told the men to quiet down. Glover went out to the car and warned Adkins that Gaskin “look[ed] like trouble.”

Gaskin then emerged from the pool hall. He was angry and arguing with Glover. At that time, Glover’s brother drove up. Glover told Gaskin to get in Adkin’s car; Glover drove away with his brother. They went to a gas station; Adkins and Gaskin met up with them there. Roy remained at the pool hall.

Glover testified that Gaskin was very drunk at the gas station. Gaskin vomited and tripped over himself. Glover also testified that there was a white, Hispanic girl at the gas station who was there to meet Adkins. Everyone remained at the gas station for twenty to thirty minutes. Glover testified that he calmed Gaskin down and told him he wasn’t mad at him. Glover took Gaskin back to Adkins’ car. Gas-kin passed out in Adkins’ car. Glover’s brother left, and Glover got in the car with Adkins and Gaskin. The three men drove away to take Gaskin home. The woman Glover described as Hispanic followed them in her own car.

Gaskin awakened on the ride home and was very upset with Adkins about something. When they arrived at Gaskin’s home, Gaskin became angry at Glover. Gaskin took off his shirt and challenged Glover to a fight. Glover testified that he refused.

Glover testified that Gaskin went over to Adkins who was sitting in the car. Adkins got out of the car. Gaskin pushed Adkins and slapped his face. According to Glover, Adkins then took out a chrome .45 caliber pistol and shot Gaskin. According to Glover, Adkins kept firing in quick succession as Gaskin put up his hands in a defensive posture. Gaskin turned and fled and Adkins chased him and continued shooting Gaskin in the back.

Gaskin died from a bullet wound to the back. He also sustained four other nonlethal bullet wounds. The police found five .45 caliber casings, fired from the same semi-automatic pistol, on the sidewalk in front of Gaskin’s house.

Glover testified that he ran from the scene of the shooting to Adkins’ home down the street because someone was also shooting at him. However, no physical evidence, such as ejected shells, was recovered to corroborate this testimony. When Glover arrived at Adkins’ home, Glover told Adkins’ brother, McMullen, what had transpired. Glover and McMullen then drove away together. While the two of them were together, Adkins called Glover’s cellular phone. Glover handed the phone to McMullen who spoke to Adkins. Glover and McMullen drove to a girl’s house where they found Adkins.

According to Glover, they found Adkins covered in blood with the .45 caliber pistol still in his hand. Adkins was crying and asking why the victim had to slap him. Adkins took off his clothes and showered. After his shower, Adkins joined Glover and started asking what he should do next. At that point, a decision was made to get rid of the murder weapon. Glover, McMullen, and Adkins drove to a canal. When they reached the canal, Glover testified that McMullen was ill and Adkins did not want to look at the gun; Glover tossed the gun into the canal. Glover then got back into the car and drove home.

The next day, Glover spoke to Adkins. According to Glover, Adkins stated that he “didn’t know what came over him.” He could not explain why he had killed his friend. Glover later told his wife and parents what had happened and then told Adkins that he was going to report the matter to the police. Glover gave two statements to the police — the first statement described the events which lead to the shooting; the second statement concerned events after the shooting, including his disposal of the murder weapon. The State then tendered Glover for cross-examination.

Prior to cross-examination, the trial court revisited the State’s pre-trial motion in limine to exclude evidence of Glover’s arrest for throwing a deadly missile and evidence of an incident involving an aggravated assault, both of which occurred after the murder and prior to the trial. The trial court permitted the defense to voir dire Glover outside of the presence of the jury about these incidents.

Glover admitted that he had been arrested in April 2003 for throwing a deadly missile but he did not remember being arrested on October 30, 2002, for the aggravated assault. He also confirmed that he had recently been arrested for driving with a suspended license but that the case had been dismissed.

The trial court found the April 2003 arrest for throwing a deadly missile was too remote in time to form a basis for a bias and granted the state’s motion in li-mine as to the arrest. As to the October 2002 incident involving the aggravated assault, the trial judge concluded that there was nothing of record to indicate that Glover had ever been arrested for this charge. The court, therefore, granted the state’s motion in limine as to this incident as well.

During cross-examination of Glover, defense counsel drew out the myriad of inconsistencies between Glover’s deposition testimony, his statements to police, and his trial testimony. The defense’s theory was that Glover had committed the murder. The defense particularly highlighted the inconsistencies in Glover’s description of the woman who had met Adkins at the gas station. Glover described her as Hispanic at some points, then as white. Her testimony for the defense would reveal that she was African-American.

Additionally, the defense drew out prior inconsistent statements Glover gave about how he disposed of the .45 caliber gun. Originally Glover told the police that Adkins had thrown the gun in a canal. He admitted lying about this to the police, and that he had thrown the gun in the canal. Although the police dragged the canal twice, no gun was ever recovered.

Ms. Millicent Dove then testified for the State. She lived on the street where the murder took place. She testified that after hearing “one shot,” she looked outside and saw an unidentified man running from Gaskin’s yard to the house “across from” hers.

Cameron Williams, another neighbor, testified that after hearing many gunshots, he walked outside and saw a white Millenia traveling away from Gaskin’s house. Although he knew both Adkins and the victim, he could not identify Adkins as the driver.

Detective Burke, a uniformed patrol officer, testified that he was dispatched to the scene of the murder. He found the victim conscious, laying on the porch of a house. The victim appeared to have been shot numerous times. Detective Burke secured the crime scene, but did not retrieve any evidence.

Criminal technologist Gilbert processed the crime scene and collected blood samples, five expended .45 caliber casings, and some bloody clothing. The casings were submitted for analysis.

A firearms examiner, Hurtell, testified next. He examined the five .45 caliber casings found at the scene. All five casings were fired from the same semiautomatic pistol.

The state’s next witness was Gonzalez, a latent fingerprint examiner. She evaluated the five casings for fingerprints. Her results, however, were negative for latent fingerprints of comparison value.

Detective Fletcher testified that she went to the Ryder Trauma Center to photograph the victim and test for gunshot residue. The victim had gunshot wounds to his upper right arm, right side, right chest under the nipple, the back of the hand and index finder, and back.

Dr. Motte, an Associate Medical Examiner, performed the autopsy on the victim. He testified that the victim had six gunshot wounds. The victim’s wounds were consistent with the victim running and the cause of death was a gunshot wound to the chest.

Defense’s Case

The defense called two witnesses. The first, Jackson Kouamin, lived across the street from the victim. According to Kouamin, he was home on the night of the murder when he heard gunshots. He turned on his front lights, opened the door and saw the victim running towards his house. The victim was bleeding. Koua-min also saw the shadow of a person who disappeared when Kouamin began to yell. That “shadowy” person ran northbound. Kouamin could not identify the “shadowy” person -he saw running and he testified that the person could have been anyone.

The victim was hysterical; Kouamin attempted to calm him down. Kouamin asked who had shot him. The victim stated that “one of his home boys shot him.” Kouamin asked the victim which one shot him, but the victim could not say. The victim was hysterical and attempting to get inside of the front door. Kouamin called the police while holding the victim.

The defense also called Keisha Cauley, Adkins’ friend, to testify. She testified that on the night of the murder, Adkins called her and asked her to meet him at the pool hall where he, Glover, Roy, and the victim were playing. By the time that she was ready to leave for the pool hall, however, Adkins told her to meet him at the gas station instead. She testified that Adkins arrived at the gas station with some other men. He directed her to follow him to a house nearby where he was dropping off one of his friends.

Ms. Cauley followed Adkins to a residential neighborhood. When Adkins’ car stopped, she put her car in park behind it, but left it running. Adkins walked from his car to Ms. Cauley’s car and stood at the driver’s window. The two discussed their plans for the evening. While they talked, gunshots rang out. Ms. Cauley immediately drove away in fear. She did not see who fired the gun, but testified it could not have been Adkins because he was standing right next to her at the time. She could not say where Adkins was after she drove off or what he did. She finally testified that she did not see a White Hispanic female at the scene and that she, an African American, was the only woman there.

On cross-examination, Ms. Cauley acknowledged that she doesn’t have good vision and wasn’t wearing her glasses that night. She also acknowledged that she never telephoned the police about the shooting after she left the scene. Nor did she come forward with her story after she learned that Adkins had been charged with the crime. After the shooting, Ms. Cauley visited Adkins more than 20 times and spoke with him by phone numerous times.

After this testimony, the defense rested. The state put on a brief rebuttal witness, then rested.

The jury found Adkins guilty of second degree murder. The trial court sentenced him to life in prison with a twenty-five year minimum mandatory for discharge of a firearm.

MOTION FOR NEW TRIAL

After trial, defense counsel moved for a new trial based on, among other things, newly discovered evidence that Glover had been the subject of twelve separate criminal complaints to the police involving violent acts during the year after the murder in this case. All the offenses took place in the same neighborhood as the murder, were reported to the same police station that investigated the murder, and involved violent acts. The police cleared Glover of all the charges, in most cases within the same day that they were reported. Glover was only arrested on one of the charges, the no-actioned deadly missile case which was the subject matter of the State’s pretrial motion in limine. Two of the incidents, occurring three and four months after the murder involved a chrome .45 firearm, matching the description of the weapon used in Gaskin’s murder — the weapon Glover testified that he threw into the canal after the murder, and that he never possessed.

The murder in this case took place June 15, 2002. The defense introduced an incident log that in the year that followed, Glover was the aggressor in the following incidents reported to the police:

1. September 24, 2002 — Aggravated Assault — Glover, while driving his car, fired a bullet from a chrome .45 into a car driven by a Kevin Bain. Police investigated; two persons heard the gunshot. Glover told police that his friend could clear him. The friend was never located. On November 15, 2002, police detective was informed by an Assistant State Attorney that due to lack of independent witnesses, no charges would be filed against Glover.

2. October 30, 2002 — Aggravated Assault — Glover drove up to Kevin Bain and threatened to shoot him, and lifted his shirt to reveal to Kevin a chrome gun. Kevin’s brother, Jeffrey, who was with him, heard the threat, but ducked as Glover reached under his shirt for a gun. Police investigator closes the case on November 20, 2002.

3. November 21, 2002 — Simple Battery — Glover walked up to Jeffrey Bain, verbally threatened him, struck him and grabbed him. Kevin Bain witnesses incident. Glover was “exceptionally cleared” the same day.

4. November 27, 2002 — Throwing Deadly Missile — While Kevin Bain was driving, Glover threw two rocks at the car. The case was closed on January 2003.

5. November 27, 2002 — Glover verbally threatens Cleveland Bain. Glover was “exceptionally cleared” the same day.

6. December 25, 2002 — Assault—Glover threatened to kill Kevin Bain that evening. Bain declined to press charges. The case was closed January 4, 2003.

7. March 28, 2003 — Throwing Deadly Missile — Violation of Injunction — Glover threw a rock and bottle at Kevin Bain’s car, breaking the window and cutting Bain’s arm. Glover was arrested on April 24, the State no-actioned the case on May 15, 2003 for insufficient evidence to proceed. The victim failed to appear.

8. April 22, 2003 — Battery—Glover struck Akilah Martin, his child’s mother, in the face and throws her to the ground. Glover was “exceptionally cleared” the same day.

9. July 8, 2003 — verbal threat — Glover threatened to kill Kevin and Linda Bain that night. Glover was “exceptionally cleared” the same day.

10. July 13, 2003 — verbal dispute — Glover engages in a verbal dispute with Kevin Bain., Glover was “exceptionally cleared” the same day.

11. August 12, 2003 — Simple Battery— Glover pushes Akilah Martin to the ground and chokes her. Glover was “exceptionally cleared” on August 22, due to conflicting statements.

12. September 8, 2003 — Simple Battery — Glover and his brother punch Akilah Martin, pull her out of her vehicle and punch and kick her causing bruises and abrasions. Glover was “exceptionally cleared” the same day.

The defense argued that the State had suppressed this evidence; that the evidence and disposition of all these cases was in Glover’s favor. The defense argued the evidence was relevant to establish Glover’s bias and motivation to testify favorably for the State in this case; that the evidence impeached Glover’s credibility, particularly as he claimed that he disposed of the murder weapon; and that Glover, who possessed the weapon and was the only other viable suspect in the murder, was the person who killed Gaskin. In response, the State conceded it did not reveal this evidence, but asserted that it was not admissible to show bias or motive. Moreover, it argued that these incidents were too remote or dissimilar from the murder case to be admissible to impeach Glover’s credibility, or to show Glover was the perpetrator in this case. The trial court agreed with the State and concluded that the incidents were too remote in time from the trial to be admissible. This appeal followed.

ANALYSIS

We agree with the Appellant that his motion for a new trial should have been granted based upon the State’s failure to disclose fully these criminal incidents accusing Glover, the chief and sole eyewitness in this ease, and the resulting dispositions in his favor by the police and/or the State. In a close cáse such as this, where the outcome depended solely upon the credibility of this eyewitness, we hold that the defense should have been permitted to question this witness about these incidents during cross-examination and that the cumulative effect of this newly discovered evidence was sufficient to create a reasonable probability that disclosure would have produced a different result at trial. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

When the prosecution withholds evidence favorable to the accused, and the evidence is material either to guilt or to punishment, the accused’s due process rights are violated. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Florida Supreme Court, applying Brady, has held that in order to establish a Brady violation, a defendant has to prove: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Floyd v. State, 902 So.2d 775, 779 (Fla.2005) (citing Carroll v. State, 815 So.2d 601, 619 (Fla.2002)); Cardona v. State, 826 So.2d 968, 973 (Fla.2002)(citing Way v. State, 760 So.2d 903, 910 (Fla.2000)).

Addressing the first inquiry, we find that the evidence was favorable to the Appellant and, contrary to the trial court’s conclusion, it was not so remote in time to remove the motivation for the witness to want to curry favor with the State. Evidence is deemed favorable to the accused “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The undisclosed evidence would have seriously undermined Glover’s credibility. See Floyd, 902 So.2d at 786. The myriad of criminal complaints lodged against Glover, some of which involved a weapon similar to the one used in this case, are clearly favorable to the appellant for impeachment purposes. Glover was the only witness who testified against Adkins. There was absolutely no physical evidence linking Adkins to the shooting. The only other person who could have committed the shooting was Glover. This evidence would have made it more difficult for the jury to rely on Glover’s testimony. We cannot help but conclude that had the jury been apprised of these other criminal incidents, Glover’s credibility would have been seriously undermined, casting doubt on our confidence in this verdict.

Moreover, the defense had an absolute right to cross-examine Glover on these threatened or potential criminal charges resolved in his favor so that the jury would be fully apprised as to his possible motive or self-interest with respect to the testimony he gave. See Morrell v. State, 297 So.2d 579, 580 (Fla. 1st DCA 1974).

The constitutional right to confront one’s accuser is meaningless if a person charged with wrongdoing is not afforded the opportunity to make a record from which he could argue to the jury that the evidence against him comes from witnesses whose credibility is suspect because they themselves may be subjected to criminal charges if they fail to cooperate with the authorities.

Id. (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)).

As to the second prong, there is no question that this evidence was suppressed by the State, whether inadvertently or willfully. Although the State asserts that the prosecutor was unaware of some of the police reports against Glover, the State concedes that the police is an agent of the State and therefore any knowledge attributable to the police must also be attributable to the State. Floyd v. State, 902 So.2d 775, 778 (Fla.2005) (Brady applies also to evidence “known only to police and not to prosecutor.”); Henderson v. State, 745 So.2d 319 (Fla.1999); Jones v. State, 709 So.2d 512 (Fla.1998); Gorham v. State, 597 So.2d 782 (Fla.1992); see State v. Coney, 294 So.2d 82 (Fla.1973)(state responsible for documents in its actual or constructive possession).

Finally, as to the third prong of Brady, we find that the defense was prejudiced in this case because the suppressed evidence was material to the credibility of the State’s sole eyewitness to the crime.

As the defendant suggests, the jury could also have questioned the extent of police’s efforts in investigating the charges against the defendant. Additionally, the jury would also have seriously questioned Glover’s motivation for testifying as he did in view of the many complaints against him that have been no-actioned, particularly those involving a similar weapon and those in violation of a valid restraining order and against his child’s mother. Thus, given the fact that the defendant was not allowed the opportunity to cross-examine either Glover’s motivation for his testimony or law enforcement’s possible bias, the jury was presented with an incomplete picture that undermines confidence in the jury’s verdict. Any other conclusion is illogical.

The Supreme Court, in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), reasoned that the phrase “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” in Bagley, was not so narrow as to mean “that the suppressed evidence would have resulted ultimately in the defendant’s acquittal. ...” 514 U.S. at 434-35, 115 S.Ct. 1555. Rather, the Court stated, the defendant need only show that the evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” 514 U.S. at 435, 115 S.Ct. 1555; Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Riechmann v. State, 32 Fla. L. Weekly S135, S137, — So.2d -, 2007 WL 1074938 (Fla. Apr. 12, 2007)(evidence would have put whole case in different light undermining confidence in verdict); Young v. State, 739 So.2d 553 (Fla.1999).

In view of the fact that Glover was the only eyewitness against the defendant, and there was no other evidence linking defendant to the crime, non-disclosure of this evidence certainly undermines our confidence in the verdict. We, therefore, reverse the defendant’s conviction and remand for a new trial.

This disposition makes it unnecessary to reach the remaining issue on appeal.

Reversed and remanded for a new trial.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . In fact, Adkins’ mother is Glover’s godmother.

      . Adkins has no prior convictions. He did not testify.

      . The girl was not the white Hispanic girl who Glover testified was with Adkins at the gas station.

      . She testified that Adkins stated that the victim was inebriated and making trouble at the pool hall.

      . An incident log was introduced into evidence demonstrating 22 incidents of complaints against Glover, 12 of which were assaults.

      . The police reports reveal that there was a long-standing valid restraining order prohibiting Glover from going near Bain.

      . Neither party to this appeal could explain to the court what this means.

      . There is no question in this case that these uncharged criminal incidents were not equally accessible to the defense. See Provenzano v. State, 616 So.2d 428, 430 (Fla.1993)(with regards to Brady's second prong, there is no violation where the information is equally accessible to both the defense and prosecution, or where the defense actually has the information).


text:
    D.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellees.
    No. 3D06-975.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 18, 2007.
    Michael R. Barnes, Key West, for appellant.
    Karla Perkins, Miami; Mercedes E. Scopetta; Thomas Wade Young, Tallahassee; Thomas E. Woods, Miami; Alan I. Mishael, Miami Beach, for appellees.
    Before COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

J.B. is a ten-year-old child whose maternal aunt appeals from judgments denying her application for adoption of the child and instead permanently placing J.B. with his long-time foster caregivers pursuant to sections 39.621, 39.812, Florida Statutes (2005). After a careful review of the voluminous record and taking into account only those issues which may properly guide our decision as to whether the trial court’s determinations are based on a proper interpretation of the law, see Dep’t of Children & Family Servs., v. P.S., 932 So.2d 1195 (Fla. 1st DCA 2006), and substantial, competent evidence as to the best interests of the child, see §§ 39.621(3), 39.812(4)-(5), 63.022(2), 63.142(4), Fla. Stat. (2005); B.Y. v. Dep’t of Children & Families, 887 So.2d 1253 (Fla.2004), we find neither error nor abuse of discretion.

Affirmed.


text:
    Luis RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1343.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Rehearing Denied Aug. 28, 2007.
    Abe Bailey, Private Court-Appointed Counsel, for appellant.
    Bill McCollum., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GREEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 890 So.2d 280 (Fla. 3d DCA 2004).


text:
    Clarence FREEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1479.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Rehearing Denied Sept. 10, 2007.
    Clarence Freeman, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

BENTON, PADOVANO, and THOMAS, JJ., concur.


author: SCHWARTZ, Senior Judge. COPE, C.J.

text:
    The STATE of Florida, Appellant, v. Paul ROBERTS, Appellee.
    No. 3D06-2810.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 21, 2007.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As in State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006), State v. Brownell, 922 So.2d 244 (Fla. 3d DCA 2006), and State v. Mendez, 835 So.2d 375 (Fla. 3d DCA 2003), we reverse the downward departure sentence entered pursuant to a court-initiated agreement with the defendant in which the state did not participate, because it was (of course) unaccompanied by oral or written reasons justifying the departure. See State v. Barr, 947 So.2d 1277 (Fla. 3d DCA 2007); State v. Ahua, 947 So.2d 637 (Fla. 3d DCA 2007); State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002); State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002), review denied, 832 So.2d 105 (Fla.2002).

Roberts’s only position for affirmance is that the so-called general objection to the sentence was insufficient to preserve the point. We do not agree. The statement to this effect in State v. Merriweather, 875 So.2d 1283 (Fla. 3d DCA 2004), applies, as indicated by the cases cited in support of the proposition, State v. Leggett, 792 So.2d 646 (Fla. 3d DCA 2001); State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998), to situations, unlike this one, in which the state has actually made an offer of a less-than-guidelines sentence but later claims error in the extent of the departure adopted by the trial court. In a case like this one, in which no state offer is involved, the applicable rule is the one which provides that a “general objection” is sufficient when the basis for that objection clearly appears from the context. See State v. Walker, 923 So.2d 1262 (Fla. 1st DCA 2006); State v. Jordan, 867 So.2d 635 (Fla. 5th DCA 2004); Layman v. State, 728 So.2d 814, 817 (Fla. 5th DCA 1999); Smith v. State, 606 So.2d 641, 643 n. 1 (Fla. 1st DCA 1992); Reyes v. State, 580 So.2d 309, 310 n. 4 (Fla. 3d DCA 1991); Anderson v. State, 546 So.2d 65, 67 (Fla. 5th DCA 1989); see also § 90.104(1)(a), (b), Fla. Stat. (2006); cf. Perera v. State, 873 So.2d 389 (Fla. 3d DCA 2004). In this case, and at this stage in the development of the law and practice in this district, it was, and is, perfectly obvious that the state did not agree to the plain, indeed admitted, error in entering a downward departure sentence supported only by a bargain struck between the defendant and the trial judge alone. See Green, 932 So.2d at 365; Brownell, 922 So.2d at 245; Mendez, 835 So.2d at 375. While the facts are stronger than those here, Walker is telling:

Despite appellee’s contention to the contrary, we hold that the state’s general objection to the downward departure, in this case, sufficiently preserved the matter for appellate review. An appeal may not be taken from a trial court judgment or order unless a prejudicial error is properly preserved, or the error amounts to fundamental error. See § 924.051(3), Fla. Stat. (2005). To satisfy this preservation requirement, “an issue, legal argument, or objection to evidence” must be “timely raised before, and ruled on by, the trial court, and ... the issue, legal argument, or objection to evidence” must have been “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(1)(b), Fla. Stat. (2005). “The purpose of this rule is to ‘placet] the trial judge on notice that error may have been committed, and providet ] him an opportunity to correct it at an early stage of the proceedings.’ ” Harrell v. State, 894 So.2d 935, 940 (Fla.2005)(citing Castor v. State, 365 So.2d 701, 703 (Fla.1978)).
In the context of the instant proceeding, it is clear from the hearing transcript that the trial court was aware of the legal errors associated with its ruling. The trial court only provided one reason in support of its downward departure, and the validity of that reason was clearly being challenged by the general objection. The trial court was on notice of its error, and had the opportunity to correct it. Rather than correcting the error, the trial court acknowledged that its actions constituted error, and nevertheless, proceeded down the path of error. The trial court plainly states that it will be reversed on appeal if the matter is taken up for review. This statement clearly evidences that the court was aware of its error. A more specific objection on this point would have been futile and the law does not require futile acts. See Howard v. State, 616 So.2d 484, 485 (Fla. 1st DCA 1993).

Walker, 923 So.2d at 1265.

The sentence is therefore reversed with directions to enter sentence within the guidelines or to permit the defendant to withdraw his plea.

Reversed and remanded.

LAGOA, J., concurs.

COPE, C.J.

(dissenting).

I would affirm the judgment and sentence on authority of paragraph 924.051(l)(b), Florida Statutes (2006) (“ ‘Preserved’ means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”), and State v. Merriweather, 875 So.2d 1283 (Fla. 3d DCA 2004) (“The State’s general objection was insufficient to call the trial court’s attention to the need for downward departure reasons.”).

      . THE COURT: That being the case, sir, I find the plea is freely and intelligently made and there is a factual basis for entry of the plea, having reviewed the affidavit.
      Sir, I'm going to find you guilty, adjudicate you guilty, and sentence you to the time served in custody.
      THE STATE: And that’s over the State’s objection, Your Honor.

      . Sections 90.104(l)(a) and (l)(b) provide, in pertinent part:
      A court may predicate error ... on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
      (a) When the ruling is one admitting evidence, a timely objection ... appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
      (b) When the ruling is one excluding evidence, the substance of the evidence ... was apparent from the context within which the questions were asked.
      (Emphasis supplied).


author: WARNER, J. WARNER, J.

text:
    Jacqueline M. LEDEA-GENARO, Appellant, v. James W. GENARO, Appellee.
    No. 4D04-3322.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Opinion Denying Rehearing Sept. 26, 2007.

      Tracy Belinda Newmark of Fixel & LaRoeco & Newmark, Hollywood, for appellant.
    Richard H. Gaines and Todd M. Feld-man of Greenspoon Marder, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The former wife appeals a final judgment of dissolution of marriage in which the trial court enforced the provisions of the parties’ pre-nuptial agreement. She contends that the court did not follow its terms and also failed to award her temporary or rehabilitative alimony. We conclude that the trial court abided by the terms of the pre-nuptial agreement and affirm.

Before their marriage, the parties purchased a home, taking title as joint tenants with rights of survivorship. In 2000 the parties married, but they separated sometime in 2002.

The wife worked in the finance industry and had a substantial income. However, her income dropped considerably after the parties separated. During the marriage she deposited her income into the parties’ joint checking account. By contrast, the husband had retired from business and derived income from his investment portfolio, which decreased by about 25% during the marriage. He kept a separate checking account.

The parties entered into a pre-nuptial agreement prior to their marriage. Paragraph 13 of the agreement contained the following language with respect to the disposition of the marital home upon divorce:

In the event of a divorce initiated by either party, [the wife] shall vacate the marital home and deliver a Quitclaim Deed to the subject property, to [the husband] in exchange for a complete, absolute release of her obligation under the mortgage note and mortgage and an indemnification from [the husband] for any and all obligations.

The agreement also contained provisions: 1) that each party waived claims against the other party’s separate property, except that the wife would be entitled to half of the appreciation in the value of the husband’s investment account; 2) that both parties waived their rights to support and alimony; and 3) that “[a]ny personalty that does not normally and ordinarily have title or ownership certificate (i.e., consumer appliances, furniture, and furnishings) shall be considered as owned by the party who purchased same.”

Before the marriage, the parties entered into a contract with an interior designer to furnish their home. Under this contract, they purchased furnishings, most of which were paid for by checks from the husband’s accounts. They also established a wedding registry at a store, and at the time of the final hearing the registry had a credit balance remaining The balance reflected gifts to both the husband and wife, although the wife’s name was on the account. Both the furnishings and the wedding account figured prominently in the divorce proceedings.

After the parties filed for divorce, the trial court ordered the wife to convey her interest in the home to the husband. The husband later sold it for a profit. The court also required the wife to reinstate the husband’s health insurance, with the husband responsible to reimburse the wife for its cost until the marriage was dissolved.

In the final judgment, the trial court ruled that: 1) under the pre-nuptial agreement, the wife was not entitled to any of the proceeds from the sale of the marital home; 2) under the pre-nuptial agreement, all items purchased under the design contract using the husband’s separate account belonged solely to the husband; 3) the wife was not entitled to alimony; 4) the husband was entitled to half of the wedding registry credit; and 5) the wife “failed to meet her burden of proof’ on her claim for reimbursement of the health insurance premiums she paid on her husband’s behalf. The former wife appeals these rulings.

The court refused to award the wife any interest in the proceeds of the sale of the home, citing to the provisions of the agreement and concluding that the wife waived her interest in the home under Paragraph 13. The wife argues that the trial court erroneously interpreted this provision as waiving her interest in a share of the equity of the home, which she claims she did not waive.

Pre-nuptial agreements should be construed and interpreted in the same manner as other contracts. Mulhern v. Mulhern, 446 So.2d 1124, 1126 (Fla. 4th DCA 1984). “[T]he applicable standard of contract interpretation is one which is realistic, based upon the contract’s plain meaning, unless the context of the contract demonstrates the parties’ intention that a different meaning be given.” Id. The court may resort to rules of construction and extrinsic evidence only where the contractual language is ambiguous. Miller v. Kase, 789 So.2d 1095, 1098 (Fla. 4th DCA 2001).

The provision in the pre-nuptial agreement requiring the wife to quitclaim her interest in the marital home to the husband is completely clear, and the trial court’s interpretation is correct. The agreement unambiguously required that the wife quitclaim her entire interest in the home to the husband in the event that a petition for dissolution was filed, and in exchange she would be relieved of any responsibility to pay the mortgage note. A “quitclaim deed” is a deed that conveys a grantor’s complete interest or claim in certain real property but that neither warrants nor professes that the title is valid. See Black’s Law Dictionary 446 (8th ed.2004); see also Pierson v. Bill, 133 Fla. 81, 182 So. 631, 634 (1938) (defining a quitclaim deed as “a deed of conveyance operating by way of release intended to pass any title, interest or claim which the grantor may have in the premises but not professing that such title is valid nor containing any warranty or covenants for title”). Under the plain meaning of the agreement, the wife conveyed her entire interest in the marital home, and there was no need for a separate provision dealing with “equity” in the home.

In its ruling, the trial court also awarded to the husband all furnishings paid for from the husband’s funds. It relied on the language of the pre-nuptial agreement in which the parties agreed to divide their property by providing that any personalty not having a title certificate would be owned by the party who purchased the property. The court found that payment constituted purchase of the property within the meaning of the pre-nuptial agreement.

The wife claims that furnishings bought under the design contract should be considered jointly owned. The design contract was signed by both parties prior to entering into the pre-nuptial agreement, and the furnishings were delivered to their jointly-owned residence. The wife argues that sales orders provided documentary evidence that the parties jointly owned the furnishings, as the invoices were sent to them jointly. However, the wife’s argument that the invoices for purchase can be considered “ownership certificates” is refuted by the pre-nuptial agreement itself, which specifically lists “furniture and furnishings” as items that do not “normally and ordinarily” have a title or ownership certificate.

The trial court equated “purchase” with paying for the furniture, as the husband paid for the furnishings with checks from his individual accounts. The pre-nuptial agreement provides that untitled personalty “shall be considered as owned by the party who purchased same.” The most natural interpretation of the provision is that the party who actually pays for the property is the party who is deemed to have purchased it. We do not think that the trial court erred in giving the language its plain and ordinary meaning. Had the purchases been made out of the joint account, then both parties would have “purchased” the property. But, here, the husband paid for the purchases, and under the agreement that the wife entered into, he is the declared owner of the personalty.

As to the wedding registry, even though the wife’s name was the only name on the store’s account, that account is not a “title certificate,” as contemplated by the pre-nuptial agreement. The wife admitted that it was funded by wedding gifts to both of them. Therefore, the credit may be said to be “purchased” with joint gifts, thus establishing joint ownership which the trial court divided.

The wife also contends that the trial court erred in failing to award her temporary or rehabilitative alimony. In the pre-nuptial agreement, however, “[e]ach party acknowledges that he or she is self-supporting and hereby waives any and all rights for support, maintenance or alimony or similar proceeding initiated under the laws of any jurisdiction.... ” While the parties cannot waive pre-judgment support through pre-nuptial agreements, pre-nuptial agreements concerning post-dissolution support are enforceable. See Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 (Fla.2005); Fernandez v. Fernandez, 710 So.2d 223, 225 (Fla. 2d DCA 1998) (prevailing law “still requires one spouse, who has the ability, to support the other more needy spouse until a final judgment of dissolution is entered even in the face of an antenuptial agreement to the contrary”). Here, however, the wife did not request any temporary alimony during the proceedings, but only at the final hearing. The trial court found that she did not prove a need for such alimony, and we conclude that it did not abuse its discretion. Further, the trial court correctly denied rehabilitative alimony, because the pre-nuptial agreement waived any support.

Finally, the wife claims that the court erred by failing to require the husband to reimburse his medical insurance costs. The trial court found that the wife failed to meet her burden of proof. We agree, as we can find no evidence in the record, nor has the wife cited to any, which provides the amount. While she says that the amount is a mathematical calculation which can be made from her pay stubs by dividing the amount charged for health insurance in half, we cannot find pay stubs in the record, nor is there any testimony to verify that half of the premium should be attributed to the husband. As the trial court said, the wife simply failed to prove the amount.

We thus affirm the final judgment in its entirety.

GROSS and TAYLOR, JJ., concur.

On Motion for Rehearing

WARNER, J.

We deny the appellant’s motion for rehearing. However, we address two issues to clarify our ruling.

First, although we noted that the wife did not request temporary alimony until the final hearing, we did not hold that she was required to request it prior to the hearing. The trial court also noted that the request did not come until the final hearing. However, the court denied relief, because the wife failed to prove her need for such alimony. We affirmed the trial court’s ruling on that basis.

Second, with respect to the reimbursement of insurance payments, although the wife has now pointed us to a pay stub which shows what was deducted from her pay for medical insurance, it does not show the portion allocated to the husband’s insurance. Furthermore, we note that in the proposed final judgment submitted by the wife, she did not include an amount owed but required an accounting and for the husband to pay within fifteen days of receiving the accounting from the wife. Of course, the wife had testified that she thought she had given the husband a statement of what he owed her, but she did not remember what that amount was. The trial court denied recovery because of a failure of proof, and the wife has not pointed to any competent evidence from which that amount can be determined. If the wife sought recovery for the amount of premiums, she should have presented that amount at the final hearing. There is no requirement that the court continue a trial or have additional hearings when one of the parties does not present or forgets to present evidence at the final hearing without excuse.

GROSS and TAYLOR, JJ., concur.

      . While the court indicated that this result might seem unfair, the agreement also required the husband to share half of the appreciation on his stock portfolio with the wife. Unfortunately for the wife, the value of the house went up, while the value of the stock portfolio went down.

      . The wife cites to Snow v. Lake's Administrator, 20 Fla. 656 (1884), for the proposition that a quitclaim deed operates only to transfer possession of the property, but an examination of the Snow opinion reveals that Snow does not support that proposition.


text:
    CITY OF HIALEAH, Appellant, v. Reinaldo DELGADO, Jr., Appellee.
    No. 3D06-2765.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2007.
    William M. Grodnick, City Attorney; Akerman, Senterfitt, and Michael Fertig and Jennifer Cohen Glasser, Miami, for appellant.

      Stanley H. Beck, Hallandale Beach; Langbein & Langbein, and Evan J. Lang-bein, Miami, for appellee.
    Before, COPE, C.J., and FLETCHER and LAGOA, JJ.
   COPE, C.J.

This is an appeal from an order of the trial court invalidating a straw ballot question which appeared on the 2006 general election ballot. We agree with the trial court that appellee Reinaldo Delgado had standing to bring this lawsuit but we respectfully disagree with the court’s ruling that the ballot question was fatally flawed. Accordingly, the votes may be counted.

I

The City of Hialeah placed on the November 7, 2006 ballot the following question:

OFFICIAL SPECIAL ELECTION BALLOT
HIALEAH, FLORIDA NOVEMBER 7, 2006
Straw Ballot Question
Support for voter petition on whether to elect County Property Appraiser.
Would you support a voter petition requesting the Board of Miami-Dade County Commissioners to adopt an ordinance that would submit a proposal to county voters to vote on whether or not to amend the County Charter to provide for the election of the County Property Appraiser, instead of the County Manager appointing the County Property Appraiser?
Yes ...
No

Prior to the election date, Delgado brought this suit. Delgado maintained that the ballot question failed the statutory requirement that “the substance of such ... public measure ... be presented in clear and unambiguous language on the ballot....” § 101.161(1), Fla. Stat. (2006).

The trial court found that Delgado had standing to bring the action as a citizen and voter of the City of Hialeah. Relying on this court’s decision in City of Miami v. Staats, 919 So.2d 485 (Fla. 3d DCA 2005), the court found that the proposed ballot did not impart its purpose in clear and unambiguous language, as is required by the statute. The court concluded that the “straw ballot ... fails to adequately inform the voting public that their response has no official effect, i.e. that the ballot question is simply a nonbinding opinion poll.” (citation omitted).

Because it was too late to remove the straw ballot question from the ballot, the court granted injunctive relief:

2. The Court orders the defendant, Lester Sola, the Supervisor of Elections for Miami-Dade County, Florida, not to count, tabulate, or release any votes cast in connection with the City of Hialeah’s “Straw Ballot” question.
3. The Court orders that all votes on this issue be preserved until appellate review, if any, of this Court’s order.

STANDING

A voter has standing to challenge ballot language on a claim that the language fails to comply with subsection 101.161(1), Florida Statutes. The First District Court of Appeal has squarely so held. Sancho v. Smith, 830 So.2d 856, 864 (Fla. 1st DCA 2002)(“Citizens who are adversely affected by the exemption in section 101.161(1), Florida Statutes (2000) can make the argument for themselves.”). See also Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967 (1912)(recognizing standing of Governor as citizen and elector, inter alia, in suit challenging proposed constitutional amendment).

The City argues that Delgado does not have standing to bring this suit against it because he does not allege any special injury to himself as a result of the straw ballot. The City is referring to the taxpayer standing doctrine: “[t]he principle that a taxpayer has no standing to sue the government for allegedly misspending the public’s tax money unless that taxpayer can demonstrate a personal stake and show some direct injury.” Black’s Law Dictionary 1475 (7th Ed.1999).

The City misapprehends the difference between taxpayer standing and standing in election law cases. The present ease is a challenge by a voter to ballot language, not a challenge by a taxpayer to a governmental spending decision. The trial court was entirely correct in ruling that Delgado had standing as a citizen and voter.

THE STRAW BALLOT LANGUAGE

As set out above, subsection 101.161(1) requires that the substance of the public measure be printed in clear and unambiguous language on the ballot. “The purpose of this requirement is to provide the voter with fair notice of the content of the proposed measure so that he or she will not be misled as to its purpose and may intelligently cast his or her vote.” City of Miami v. Staats, 919 So.2d at 487.

The trial court concluded that the straw ballot measure had to be invalidated on account of this court’s decision in Staats. However, the language of the Hialeah ballot measure is quite different than the language involved in Staats. The straw ballot measure in Staats asked:

Shall the voters of Miami-Dade elect the Tax Assessor instead of the County Manager of Miami-Dade County appointing the Tax Assessor?

Id. at 486.

The wording of the Staats ballot measure made it appear that the vote would actually have binding effect. This court ruled that the ballot language “fails to adequately inform the voting public that their response has no official effect, i.e. that the ballot question is simply a nonbinding opinion poll.” Id. at 487. The ballot language also incorrectly used the title tax assessor instead of property appraiser. Id.

The Hialeah ballot language avoids those problems. It asks the voters whether they would support a petition which would ask the county commissioners to propose a charter change to provide for an elected property appraiser. We conclude that the ballot language sufficiently complied with the statute. That being said, the votes may be counted and the results may be publicly released.

For the stated reasons, we affirm on the issue of standing, reverse on the merits, and remand for further proceedings consistent herewith.

      . Subsection 101.161(1) provides:
      (1) Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word "yes” and also by the word "no”, and shall be styled in such a manner that a "yes" vote will indicate approval of the proposal and a "no” vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatoiy statement, not exceeding 75 words in length, of the chief purpose of the measure.
      (Emphasis added).

      . Florida’s leading case on the taxpayer standing doctrine is Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). See also N. Broward Hosp. Dist. v. Forms, 476 So.2d 154, 155 (Fla.1985).


author: GREEN, J. COPE, C.J.

text:
    Alfred ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2495.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Opinion Granting Clarification Sept. 5, 2007.

      Bennett H. Brummer, Public Defender and Anthony C. Musto, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Meredith L. Balo, and Douglas Glaid, Assistant Attorneys General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

Alfred Alvarez appeals his convictions and sentences for first degree murder, burglary of an occupied dwelling with an assault (without a deadly weapon), kidnapping without a deadly weapon, robbery/carjacking without a deadly weapon, robbery without a weapon, and burglary of an unoccupied conveyance (car). For the reasons which follow, we reverse the conviction and sentence for robbery/carjacking without a deadly weapon, and affirm the remaining convictions and sentences.

The evidence at trial, in the light most favorable to the State, revealed the following: Mr. Eduardo Hernandez, the victim’s partner, left for work on the day of the murder at around 7:10 a.m. He testified that when he left his apartment it was clean and organized. The victim, Fernando Gonzalez, beeped Mr. Hernandez around 11:00 a.m., but when Hernandez attempted to contact the victim, he received no answer. He attempted to contact the victim numerous times throughout the day. When Hernandez returned home that evening, he found a broken bottle on the apartment floor. The victim’s body was on the master bedroom floor with his hands and feet bound with duct tape and a handkerchief in his mouth. Mr. Hernandez noticed that victim’s car was not in the garage, and that the victim’s car keys and cell phone were missing. He also later realized that the victim’s wallet and some jewelry were missing. Fire-Rescue responded to the scene and declared the victim dead.

Officer Ramos testified that he was dispatched to the scene, and arrived shortly after 9:00 p.m. Detective Alfonso, Sergeant Martinez and Detective Allen were assigned to investigate the murder. When Officer Ramos entered the apartment, he noticed that the apartment generally appeared to be very neat, but he started observing vases and other items lying on the floor. Both Officer Ramos and Detective Alfonso testified that it appeared that there had been a struggle. Officer Ramos then proceeded to the master bedroom which he found to be in shambles. The closet and dresser drawers were open, and it looked like someone had gone through them. Officer Ramos then saw the victim on the floor. He was tied up with phone cords and duct tape with something stuffed into his mouth. Officer Ramos noticed the cords around the victim’s neck were very tight. The victim already had signs of rigormortis; he was purple and not breathing. Officer Ramos then secured the scene, and both Officer Ramos and Detective Alfonso canvassed for witnesses.

Through their investigations, they determined that the victim’s wallet, including his credit cards, cell phone, and car were missing. Detective Alfonso put out a BOLO for the victim’s car, and started tracking the cell phone usage. The State, pursuant to stipulation, then introduced the phone records for the victim’s cell phone. The cell phone activity revealed that the phone was traveling north from Dade County up to Fayetteville, North Carolina. After the third day, the police ascertained that most of the cell phone activity occurred in North Carolina.

Detective Alfonso also testified that while they were at the apartment processing the scene, the victim’s home phone continued to ring, but no messages were left. The next morning, Sergeant Martinez picked up the phone, and from that point forward, the calls ceased. Police later learned that the calls came from the victim’s cell phone.

Detectives Alfonso and Allen went to Fayetteville, North Carolina, where they located the victim’s cell phone, radio, pager, and later the victim’s organizer and car. The car was located in a lot in Fay-etteville.

The detectives obtained a video surveillance of the suspects using the victim’s credit card at a gas station in Orlando. With that picture, the detectives went to a Greyhound bus station where three people recognized the men in the picture. Detective Alfonso spoke with a Dina Agers who described one of the suspects as Hispanic, about 5'7" tall, weighing 190 pounds. He wore a white shirt with stripes and dark pants or jeans. He had black hair and emerald green eyes. Detective Alfonso then showed Ms. Agers the photograph made from the gas station’s video camera. Ms. Agers identified the suspect, saying “this is the gentleman with the green eyes. This is the person who purchased two one way tickets to New York on April 24th at 12:17 p.m., 1996.” Ms. Agers said the name of the man who purchased the tickets was “A. Alvarez.” Another witness, Tanisha Coleman, corroborated Ms. Agers description and the suspects’ destination.

After returning to Miami, Detective Alfonso obtained Alvarez’s driver license photograph and prepared a photographic lineup. The detectives went to the Dade-land Mall with the photographic lineup. Eddie Fusa and Odra Aguilar, two store clerks at the mall, identified appellant Alvarez as someone to whom they sold merchandise. Detective Alfonso then prepared a warrant for Alfred Alvarez’s arrest. Alvarez was finally located in New York in February 1998.

The State presented the testimony of Audrey Stevens, the manager of 11 Orlando area Amoco stores, including one referred to as the “airport store.” Ms. Stevens testified that the airport store was equipped with a surveillance camera that records what the cashier was registering along with the taping. The system would record the person’s name, credit card number, and the total sale amount. Ms. Stevens testified that the video camera ran continuously, and the images went to a VHS cassette. These videos were kept locked up in her office cabinet as a matter of business, and only she had access to the keys of the machine. The defense objected on the grounds of a lack of predicate for the introduction of the video tape. After some further clarification as to where the tape was kept and who had access to it, the judge overruled the objection, and the still photographs were admitted into evidence.

Detective F. Castillo testified that as a result of the investigation, he went to the Amoco station in Orlando and spoke with Ms. Stevens. Ms. Stevens described the subjects as two dark-complexioned Latin males. Detective Castillo obtained the video tape of the transaction. The tape showed the suspects and their clothing. They took still photos of the video depicting the appellant and co-defendant. The detective was also able to recover the receipt of the credit card transaction. These receipts were then introduced into evidence pursuant to stipulation.

Detective Mike Narganes testified that he was assigned to go to Dadeland Mall to “check out some sales receipts.” Detective Narganes visited several stores including: Stewart Cantor, Kids, Champs, and Jean West. The State introduced receipts from: Stewart Cantor, totaling $127.27; Kids store, for $74.80; Champs, for $218.30; and Jeans West, totaling $169.87. The clerks at the stores were able to give similar descriptions of the appellant, and identified him from the photographic lineup.

Dina Agers testified that she sold tickets for Greyhound on the date in question. Ms. Agers sold two, one-way tickets to the appellant. She testified that the person who purchased the tickets provided the name “Alvarez.”

Technician Theresa Collins testified that she processed the victim’s body at the scene. Technician Collins observed that the victim’s front pockets were turned out, and he had the curly part of a telephone cord wrapped around his neck along with a pen cap and a little metal clip. There was a dish rag nearby with blood on it. The victim’s wrists were bound by the telephone cord and duct tape, and he had a brown belt around his arms that was secured in the back of his body. Technician Collins collected the evidence and placed it into the property unit. After transporting the evidence, Technician Collins processed the items for fingerprints. She was unable to collect any fingerprints from the duct tape or phone cord binding the victim’s body. She was able to retrieve a fingerprint from a roll of duct tape that was found on the kitchen table.

At the scene, Technician Collins noticed that the mini-blinds from the spare bedroom were on the floor. She also processed what appeared to be a shoe print on the floor. After receiving the receipts of the appellant’s purchases, Technician Collins processed them for fingerprints. She retrieved fingerprints from a cardboard paper and receipts sent to her by the detectives in North Carolina. She was unable to lift any prints from the victim’s credit card. Additionally, Officers Hector Infonte and Andre Bettineourt lifted prints from the bedrooms, kitchen, and living room. Prints were lifted from the telephone base, vertical blinds found on the north bedroom’s floor, and the handle of a water pitcher found on the kitchen counter.

Guillermo Martin, the latent print examiner, testified that he found the appellant’s prints on various receipts, a roll of duct tape from the dining room table, a piece of cardboard, the telephone base from the floor in the south bedroom, a vertical blind found on the floor of the north bedroom, and the handle of the water pitcher found on the kitchen counter. Mr. Martin also found ten prints from the victim and thirty prints from Herber Frias the co-defendant in this case. Mr. Frias’s prints were located on the telephone base, a mirrored closet door in the south bedroom, a business card from a chest of drawers in the master bedroom, and a telephone handset found in the south bedroom. Mr. Martin acknowledged that there is no way to determine when the prints were left. Mr. Martin explained that he examined prints for two suspects, but that the prints found on the duct tape belonged to Alfred Alvarez, not Herber Frias. Additionally, the prints found on the telephone base came from both the appellant and Mr. Frias.

Dr. Emma Lew testified that when she arrived at the scene, she noticed that the victim’s face and neck were dark purple with multiple tiny hemorrhages on the skin and eyes, including multiple hemorrhages on the muscle of the neck. There were small abrasions on his left cheek, the left side of his chin, as well as bruises on his lips, tongue, and neck. Dr. Lew testified that the bruising on the tongue was consistent with something being force deeply into his mouth. The victim also suffered four broken ribs. Dr. Lew determined that the death was caused by asphyxiation. Dr. Lew also took swabs from the victim’s penis, mouth, and anus to check for DNA, sperm, and semen fluid.

The State then rested, and the defense moved for a judgment of acquittal. The judge denied the motion as to first degree murder, burglary, and kidnapping with a weapon, and reserved ruling on the charges of carjacking, armed robbery, and burglary of a conveyance.

The defense then sought to present the testimony of Mrs. Corrosco, who would have testified that Mr. Frias admitted to her that he murdered a man in Miami, then stole the man’s credit cards and car. The defense argued that her testimony was admissible as a statement offered against a party to exonerate the appellant. The State argued that the witness’s testimony was going to be used to impeach the co-defendant, who had not testified, and that the statement would be hearsay. The Court ruled that her testimony was not admissible because the defense could not anticipatorily impeach a witness before that witness testified. The defense argued that the statement was an admission against interest, and the co-defendant was a party to the litigation. The Court prohibited the defense from calling the witness, reasoning that the co-defendant was no longer a party to the case since his case was severed and tried separately. The court also ruled that the statement was not admissible as an admission against interest where the co-defendant was not unavailable.

The Court then read to the jury a stipulation by the parties that the oral, rectal and esophagus swabs tested negative for semen; that the penile swabs tested positive for semen; that the oral and rectal smears tested negative for sperm; that the penile smear tested positive for sperm; and that hair strands and blood sample were not tested.

The defense’s first witness, Teresa Collins, testified that she was the lead crime scene technician in this case. Ms. Collins testified that she lifted a footwear impression from the mini-blinds that were on the floor of the apartment. Ms. Collins sent the impression, along with shoes she received from the medical examiner’s office that were worn by the victim, to the Metro Dade lab for analysis. She also sent a pair of size 10 Reebok tennis shoes that she received from North Carolina to the lab for analysis.

Robert Hart, a criminalist at the Miami Dade Police Department, testified that he compared the footwear impressions to the two pairs of shoes. Mr. Hart testified that all of the print impressions he received could have been made by the two pairs of shoes.

The appellant testified that he came to Miami in 1996 and ended up in a homeless shelter after someone stole his money at the airport. He met the victim at the shelter, and the victim offered to help the appellant get a job. The victim helped the appellant get a social security number, bought him shoes, and took the appellant to his apartment to eat and listen to music about five or six times. The appellant testified that he entered both bedrooms to try on clothing. In return for his generosity, the victim wanted to have sex with the appellant, but the appellant turned down his request. Despite this, their friendship did not end.

The appellant testified that he met his co-defendant, Frias, at the shelter. The appellant told Frias about the victim, and eventually introduced Frias to the victim so they could engage in sexual activity. On the date of the murder, the victim went to the shelter to pick up both appellant and Frias. They all arrived at the victim’s apartment and ate. The appellant further testified that he remained in the living room while the victim and Frias went to the bedroom. The appellant further testified that he asked for the car keys and waited downstairs in the car.

After 30 or 45 minutes, the appellant testified that he went back upstairs because he was hot and irritated, and he wanted to see if they were finished. The appellant knocked on the door, and Frias answered. Frias was only wearing pants. The appellant went in and asked if they were finished. Frias said that they were not finished yet. The appellant asked for something to drink, and went to the refrigerator and took out a malt drink. He sat at the table to drink the malt.

The appellant testified that he could not see inside any of the bedrooms, and he heard no noises or screaming. He saw a broken bottle, but he was not overly concerned about it. He also played with a roll of tape while he drank his malt. The appellant did not take the roll of tape to the apartment that day, and he had not seen it before then. Frias was with the appellant the entire time he drank his malt. The appellant never saw the victim come out of the bedroom. The appellant then went back downstairs, and about fifteen or twenty minutes later Frias emerged from the apartment with a backpack. Frias handed the appellant a credit card from the victim’s wallet, and said that they had the victim’s permission to buy some clothing.

The two then went to Dadeland Mall. Since the appellant was dressed better, Frias told him to use the credit cards. The appellant bought clothes and shoes for himself and Frias. The appellant also bought some baby clothes for his daughter. The appellant returned to the car, showed Frias what he purchased, and said “let’s go back to where Gonzalez is.” Frias became irritable and said they were not going back to the apartment. Frias then told the appellant what had happened to the victim and why they could not go back to the apartment. The appellant testified that he felt very uncomfortable. The appellant did not leave Frias because Frias threatened him and the appellant was fearful of him.

Frias told the appellant to drive north because he wanted to go to New York. The appellant decided to go along, and then inform someone in New York what happened. While en route to New York, Fri-as made, phone calls to the victim’s apartment to see if anyone had discovered the victim. Eventually someone answered the phone at the victim’s apartment. Frias then told the appellant that they had to exit the car.

Frias removed the radio and sold it to purchase two bus tickets to New York. When they arrived in New York, Frias had no place to stay, so he stayed with the appellant. When Frias finally left, the appellant did not contact his DEA friends about what happened in Florida because he feared that he was involved and thought he would end up going to jail. According to his testimony, he “didn’t give it a lot of importance.” The appellant testified that although he wears a size 8½ shoe, and did not recognize and never wore, the shoes introduced into evidence. The appellant further denied kidnapping, robbing, carjacking, or tying up the victim.

On cross examination, the appellant acknowledged that the victim’s apartment was ordinarily very neat, and that everything was always kept in its place. The State had the appellant demonstrate how he played with the duct tape on the date of the murder as opposed to how he would have pulled a piece of tape from the roll. The State attempted to demonstrate that if the appellant had just played with the tape, his fingers would smudge, but if he took a piece of tape from the roll, his fingers would not smudge. ’ The Appellant testified that his prints were on the water pitcher because he touched it while making sandwiches. He also stated that he touched the mini-blinds on prior visits, and used the phone about three or four days earlier.

The appellant further testified that when he was robbed and in trouble upon his first arrival in Miami, it was his gut instinct to call his DEA friend, but not when he was in trouble this second time. He also figured that someone simply dropped the bottle that was broken in the victim’s apartment. The appellant denied telling New York detectives that he took the victim’s keys from the floor of the first bedroom, but told the detectives the same story he just told the jury.

Although Frias was arrested prior to the appellant and the appellant was aware of Frias’ arrest, the appellant never came forward as a witness against Frias. The appellant admitted to a previous conviction of a crime involving dishonesty.

The defense rested. The defense renewed all previous objections and made its second motion -for judgment of acquittal, which the court denied. The jury found the appellant guilty of First Degree Murder, as charged, in Count One; Burglary with an assault, without a deadly weapon, of an occupied dwelling in Count Two; Kidnapping Without a Weapon in Count Three; Robbery/Carjacking Without a Deadly Weapon in Count Four; Robbery, without a deadly weapon and without a weapon in Count Five; and Burglary of an Unoccupied Conveyance in Count Six. The court adjudicated the appellant guilty of the charges, and sentenced him to life in prison on Counts One, Two and Three, to thirty years in prison in Count Four, to fifteen years in prison in Count Five, and five years in prison as to Count Six, with credit for time served. The court further ordered the sentences in Counts One through Three to run concurrent with each other; Count Four to run consecutive to Count Three; Count Five to run consecutive to Count Four; and Count Six to run consecutive to Count Five.

On September 2, 2003, the appellant filed a Motion for New Trial arguing that the trial court erred in sustaining the State’s objection to the proposed testimony as to what and when the co-defendant told him about the victim. The appellant filed a Notice of Appeal on September 17, 2003, however, this Court relinquished jurisdiction to the trial court for thirty days to allow the trial court to hear and rule on the motion for new trial.

In its response to appellant’s motion for new trial, the State argued that the statements sought to be admitted by appellant were hearsay because they were elicited only for the truth of the matter asserted therein. The court denied the motion.

On November 30, 2004, the appellant filed a Motion to Correct Sentencing Error, and argued that the trial court erred in departing upwards from the guidelines based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The trial court never ruled on the motion.

The appellant raises several issues on appeal. Only two warrant discussion because the remainder have not been properly preserved for our appellate review.

The appellant first asserts as error the trial court’s denial of his motion for judgment of acquittal. He argues that the State did not refute the reasonable hypothesis of innocence which was that he was outside the apartment when Frias committed the crimes inside the victim’s apartment. We disagree as we conclude that the State adduced evidence that was inconsistent with the appellant’s theory of events. See Beasley v. State, 774 So.2d 649 (Fla.2000). The state presented evidence that the appellant was on the scene, and that his fingerprints were on the tape used to bind the victim, as well as on the base of the telephone whose cord was used to bind the victim. This court has held that when fingerprints are the sole evidence on which the State relies to convict a defendant the State must demonstrate that “the print could have been made only at the time the crime was committed.” Sorey v. State, 419 So.2d 810, 812 (Fla. 3d DCA 1982)(quoting Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962)). However, the State met this burden in this case. The State introduced evidence that the prints found in the apartment were of such a nature that they were recent and could reasonably have been placed there on the day of the crimes. The appellant testified that he was in the apartment and demonstrated to the jury how he played with the roll of tape on that day. Based on his demonstration, the jury was entitled to infer that had he only played with the roll in the manner he demonstrated, his prints should have been blurred; they were not. Additionally, the co-perpetrator’s prints were not found on the tape.

The prints of both the appellant and the co-defendant were found on the phone base. This permitted an inference by the jury that the prints were placed there by the persons who used the cord to tie the victim. Thus, because the State introduced enough evidence to contradict the appellant’s hypothesis of innocence, we find no error in the court’s denial of the motion for judgment of acquittal. Lynch v. State, 293 So.2d 44, 45 (Fla.1974); State v. Law, 559 So.2d 187, 189 (Fla.1989)(when state introduces evidence to exclude reasonable hypothesis of innocence beyond reasonable doubt jury is entitled to determine if innocence is refuted).

We are, however, persuaded by appellant’s argument that his conviction for robbery/carjacking without a deadly weapon cannot stand. We agree that the evidence introduced at trial, viewed in the light most favorable to the State, demonstrates that the victim could not have been subjected to “the use of force, violence, assault, or putting in fear during the course of the taking of the motor vehicle.” Flores v. State, 853 So.2d 566, 569 (Fla. 3d DCA 2003)(citing § 812.133(1), Fla. Stat. (1999)). Here, as in Flores, the victim was unaware of the theft. We conclude, as we did in that case, that under these circumstances the legislature did not intend for a carjacking conviction to lie. Hence, we reverse the carjacking conviction and remand with instructions to reduce the conviction to grand theft of an automobile.

Affirmed in part; reversed in part and remanded.

SCHWARTZ, Senior Judge, concurs.

COPE, C.J.

(specially concurring).

I agree with the result and agree with almost all of the majority opinion.

My reasoning differs regarding Point II of the appeal of defendant-appellant Alvarez. The defendant asserts that the trial court erred by sustaining a state hearsay objection. The majority opinion finds the point inadequately preserved for appellate review. I believe that defense counsel’s reference to a sidebar which had occurred a few minutes previously was sufficient for preservation purposes, and the trial court erred by sustaining the hearsay objection.

However, I am convinced that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The erroneous ruling occurred during the defendant’s testimony. The defendant’s other testimony in the case made abundantly clear his claim that he had nothing to do with the murder and learned of it only after the fact. Since the point was covered by the defendant’s other testimony, the error was harmless.

On Motion for Clarification

We grant the appellant’s motion for clarification and add the following to our opinion in the cause, filed July 5, 2007.

We affirm defendant’s sentences as we are not persuaded by the argument that the court erred in departing upwards from the guidelines. Luton v. State, 934 So.2d 7 (Fla. 3d DCA 2007), review granted, 944 So.2d 345 (Fla.2007)(oral argument held 6/7/07).

      . We find that this case falls under the rule that "an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved.” Such complete failure of the evidence meets the requirements of fundamental error[.] F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003).