author: LaROSE, Judge.

text:
    GRIFFIN, INC., f/u/b/o Gulf Insurance Company, Appellant, v. LOOMIS, FARGO & COMPANY, as successor in interest to Wells Fargo Armored Service Corporation, Appel-lee.
    No. 2D07-2535.
    District Court of Appeal of Florida, Second District.
    April 23, 2008.

      Scott S. Katz and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellant.
    Tracy Raffles Gunn and Mark C. Greene of Fowler White Boggs Banker, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Griffin, Inc. (Griffin), for the benefit of Gulf Insurance Company, appeals the trial court’s final summary judgment in favor of Loomis, Fargo & Company (Loomis) as successor in interest to Wells Fargo Armored Service Corporation (Wells Fargo). The trial court concluded that Loomis was entitled to workers’ compensation immunity as a matter of law; it rejected Griffin’s argument that the dual persona doctrine exposed Loomis to tort liability. We affirm.

The underlying facts are straightforward. Wells Fargo engaged Griffin to convert a van into an armored vehicle. Two years later, Wells Fargo merged into Loomis. One year later, a Loomis employee sustained injuries when the van crashed. The employee had worked for Wells Fargo prior to the merger. Apparently, there was no break in his service. The employee received workers’ compensation benefits through Loomis.

The employee then sued Griffin for negligence and strict liability based on defective design of the van. The employee and Griffin settled. In its third party action, Griffin sought equitable subrogation and contribution from Loomis for amounts paid to the employee. Griffin claimed that Wells Fargo, Loomis’s predecessor, was partially responsible for the van’s defective design. Loomis claimed workers’ compensation immunity. See § 440.11(1), Fla. Stat. (1997). Seaboard Coast Line R.R. Co. v. Smith, 359 So.2d 427, 429-30 (Fla.1978) (upholding constitutionality of section 440.11(1) and holding that a third-party tortfeasor is not entitled to contribution from an injured person’s employer); Welch v. Complete Care Corp., 818 So.2d 645, 648-49 (Fla. 2d DCA 2002) (holding equitable subrogation inapplicable where employer has paid workers’ compensation benefits for accident and is immune from suit under section 440.11).

Apparently recognizing that its claims, essentially, can be no better than those held by Loomis’s employee, Griffin argued below and asserts here that the dual persona doctrine removes the shield of workers’ compensation immunity. Generally, “the dual persona doctrine requires that the employer possess ‘a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.’ ” Herbolsheimer v. SMS Holding Co., 239 Mich.App. 236, 608 N.W.2d 487, 491-92 (2000) (quoting 6 Arthur Larson, Larson’s Workers’ Compensation Law, § 113.011 (1999)). As the doctrine is sought to be applied here, Griffin claims that Loomis’s liability is based on its status as the successor in interest, through merger, of Wells Fargo. That status, according to Griffin, is distinct from any employment relationship between Loomis and the injured employee and, thus, does not implicate the immunity Loomis might otherwise enjoy under Florida’s Workers’ Compensation Law. See § 440.01. Griffin views Wells Fargo — which, through merger, no longer exists — as a third-party tortfeasor. Its liabilities, however, allegedly passed to Loomis.

The dual persona doctrine is not a statutorily recognized exception to the immunity enjoyed by employers under Florida’s Workers’ Compensation Law; several states, by court decision, recognize the doctrine. See Percy v. Falcon Fabricators, Inc., 584 So.2d 17, 18 (Fla. 3d DCA 1991).

Percy was the first Florida case to address the dual persona doctrine. In Percy, our sister district held that an injured employee could sue her employer in tort when that employer merged with the manufacturer of a defective product that caused her injury, and the product was made before the corporate merger. Id. at 18. Significantly, the injured employee never worked for the manufacturer. Under those circumstances, her employer, as successor through merger, could not claim workers’ compensation immunity. Id. at 19.

We are aware of no other Florida case addressing the doctrine directly. The parties’ comprehensive briefs and our own independent research reveal no case where the dual persona doctrine has been extended to a situation where the injured employee worked for both merger partners. Griffin urges us to extend the doctrine to this uncharted area. We will not do so.

We cannot ignore the fact that the legislature has designed a workers’ compensation system that allows for few exceptions from coverage. Accordingly, we must apply the dual persona exception, if at all, narrowly. See Percy, 584 So.2d at 18 (describing the dual persona theory as a narrow exception to the workers’ compensation rule of exclusivity); Caraccioli v. KFC Mfg. Corp., 761 F.Supp. 119, 122 (M.D.Fla.1991) (refusing to adopt the dual persona doctrine, which had not been adopted by Florida, and explaining that the doctrine would “substantially effect [sic] the exclusivity of the worker’s compensation scheme the state has created”); see also Herbolsheimer, 608 N.W.2d at 493 (noting that, as a judicially created exception to the workers’ compensation statute, the dual persona exception must be applied narrowly). And, we must also acknowledge that the dual persona exception is designed to prevent injustice; the fortuity of a tortfeasor merging with the plaintiffs employer should not bar an otherwise valid claim against the tortfeasor. See Percy, 584 So.2d at 19. A merger cannot extinguish a claim that the plaintiff would have had absent the merger. Conversely, a merger cannot create tort liability where none previously existed. On this point, it is important to note that but for the merger, the employee’s exclusive remedy for his injuries would have been a workers’ compensation claim against Wells Fargo.

Decisions from other jurisdictions amply illustrate that the dual persona doctrine does not apply where the injured worker was employed by the predecessor party to a merger. See, e.g., Thomeier v. Rhone-Poulenc, Inc., 928 F.Supp. 548 (W.D.Pa.1996) (emphasizing this factor in discussing cases applying the dual persona exception); Herbolsheimer, 608 N.W.2d at 496 (stating that successor company “cannot inherit the liabilities without the defenses” of the predecessor). Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 550 N.E.2d 127 (1990), starkly explains the principle. The court held that an injured employee could sue his current employer in its capacity as successor to a company for which he never worked, but could not sue his employer as successor to a company for which he had worked prior to the merger. Id. at 131. The court explained that the postmerger company succeeded to all the rights and liabilities of its predecessors, including the one company’s workers’ compensation immunity. Id. at 130.

Similarly, in Green v. Sun Oil Co. of Pennsylvania, 11 Pa. D. & C.3d 239 (Pa. Ct.Com.Pl.1977), the plaintiffs employer merged with another corporation, and the employee became an employee of the surviving corporation. The court held that the surviving corporation was entitled to workers’ compensation immunity not only in its own right but as successor by merger to the initial employer. Id. at 241. The court emphasized that the predecessor employer was not a “third party” subject to suit, and the successor corporation assumed all rights and liabilities of the predecessor, including its immunities. Id.

Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934 (N.Y.1980), a case upon which Griffin relies heavily, is not to the contrary. There, the court explained that the dual persona exception allows recovery only for the liability of “third parties” who “never had an employer-employee relationship with the injured party.” 432 N.Y.S.2d 879, 412 N.E.2d at 940 (emphasis added). The exception allowed a suit where the predecessor was not the plaintiffs employer. The court emphasized that, but for the merger, the employee would be able to sue the third-party predecessor; the merger should not affect that existing liability of a third-party tortfeasor. Id. Billy does not invite application of the dual persona doctrine to a situation where the injured employee also worked for the predecessor company. See also Braga v. Genlyte Group, Inc., 420 F.3d 35, 41 (1st Cir.2005) (holding that a successor corporation can inherit a predecessor’s liability “only if such liability would have existed absent the merger” and only if the predecessor “ “would have been susceptible to a third-party claim as a tortfeasor outside of the protection of workers’ compensation’ if not for the merger”) (emphasis omitted); Robinson v. KFC Nat’l Mgmt. Co., 171 Ill.App.3d 867, 121 Ill.Dec. 721, 525 N.E.2d 1028, 1033 (1988) (explaining that employee can sue employer under dual persona theory for equipment manufactured by predecessor “by whom he was never employed”) (emphasis added).

The policy underlying the dual persona doctrine carries no weight where, as here, the injured employee worked for both the predecessor and successor companies. Under these circumstances, the trial court properly granted final summary judgment in favor of Loomis.

Affirmed.

FULMER and WALLACE, JJ., Concur.

      . In relevant part, the statute provides:
      The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Howard HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2776.
    District Court of Appeal of Florida, Second District.
    April 23, 2008.
   DAVIS, Judge.

Howard Hamilton appeals the postcon-viction court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Hamilton raised nineteen claims of ineffective assistance of counsel, we find no merit in sixteen of those claims, which we affirm without discussion. We reverse the summary denial of the three remaining claims and remand to the postconvietion court for reconsideration of those claims.

Hamilton was found guilty by a jury of first-degree murder, and the trial court sentenced him to life in prison. This court issued a per curiam affirmance of Hamilton’s judgment and sentence. Hamilton v. State, 907 So.2d 526 (Fla. 2d DCA 2005) (table decision).

In order for a defendant to prevail on a claim of ineffective assistance of counsel, he must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced him to such an extent as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In his motion, Hamilton claimed that his trial counsel’s performance was deficient in that he failed to challenge the State’s introduction of evidence of other crimes or bad acts. Specifically, the State presented evidence that Hamilton had attempted to rob someone just a few hours before the murder. The postconviction court found that counsel’s failure to object did not constitute deficient performance because the evidence of the prior attempted robbery had been properly introduced to establish motive and identity pursuant to Schwab v. State, 636 So.2d 3, 7 (Fla.1994), which states:

Similar fact evidence that reveals other crimes is relevant and admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality and should be admitted if relevant for any purpose save that of showing bad character or propensity.

(Citations and internal quotation marks omitted.)

In support, the court attached the State’s Notice of Intent to Introduce Similar Crime Evidence, in which the State alleged that the evidence was being offered to prove motive and identity, along with that portion of the transcript that contained defense counsel’s closing argument in which he emphasized the trial court’s instruction to the jury that the evidence related to the robbery was only to be considered to establish motive. However, these attachments do not conclusively refute Hamilton’s claim. The State’s Notice of Intent only established the State’s proffered reason for introducing the evidence. Neither the State’s notice nor defense counsel’s closing argument serves as conclusive proof that the evidence was proper motive evidence. Based on the record before us, we cannot say that had counsel properly challenged the State’s assertion that the evidence went to prove motive, the trial court would not have excluded the evidence. Furthermore, in view of the circumstantial nature of the case against Hamilton, there is a reasonable probability that the outcome of the trial would have been different had the evidence been excluded. Because the documents that the court attached to support its denial of Hamilton’s claim did not conclusively refute that claim, we must remand this claim to the postconviction court for an evidentiary hearing or for the attachment of appropriate documents that do refute the claim.

Hamilton also claimed in his rule 3.850 motion that his counsel improperly advised him to sign a waiver of speedy trial. According to Hamilton, he had asked his counsel to file a demand for speedy trial because the State did not have its witnesses together and because the State’s entire case against him was based on circumstantial evidence. Hamilton asserted that his counsel refused, stating, “There is no way I’ll be rushed and file a demand for speedy trial on a first-degree murder charge.” Hamilton also claimed that his counsel threatened to withdraw if Hamilton insisted on the demand for speedy trial. Moreover, Hamilton stated that it was this threat that led him to sign the waiver of speedy trial.

The postconviction court denied Hamilton’s claim, stating that “counsel had a duty to prepare for trial and it is reasonable to waive speedy trial in order to do so.” In so ruling, the postconviction court essentially made a factual finding that under the circumstances of this case counsel’s refusal to demand speedy trial was a reasonable trial strategy.

Although “ ‘[to] conclude that an action or inaction taken by a trial attorney was a strategic decision generally requires an ev-identiary hearing,’ ” Hamilton v. State, 915 So.2d 1228, 1231 (Fla. 2d DCA 2005) (quoting Sampson v. State, 751 So.2d 602, 602 (Fla. 2d DCA 1998)), “an evidentiary hearing is not required when it is obvious from the record that counsel’s decision was strategic,” Jackson v. State, 975 So.2d 485, 486 (Fla. 2d DCA 2007). It must be noted, however, that “[w]here an evidentiary hearing has not been held, a movant’s allegations in a motion for postconviction relief must be accepted as true except to the extent that the allegations are conclusively rebutted by the record.” Murphy v. State, 638 So.2d 975, 976 (Fla. 1st DCA 1994) (citing Harich v. State, 484 So.2d 1239 (Fla.1986)).

Here, in his postconviction motion, Hamilton alleged the following:

[T]he State had extra time to secure, depose, and coach new witnesses for the prosecution. In a circumstantial evidence case such as this one, the State’s extra time allowed them to add cumulative witnesses to compound the circumstantial evidence. If the State had to bring the case to trial at the time defendant requested counsel to file the demand [for speedy trial], the State would not have been prepared to present their case properly.... All of the State’s witnesses were not ready for trial, some of them weren’t even deposed or interviewed as of that date.

In summarily denying this claim, the postconviction court merely concluded that counsel’s actions were reasonable; however, the court included no record attachments to support this conclusion. Accordingly, we conclude that the postconviction court erred in finding counsel’s actions were based on a reasonable strategy without either conducting an evidentiary hearing or providing attachments conclusively refuting Hamilton’s claim. We remand for the trial court to provide such attachments or, if such documents are not available, to hold an evidentiary hearing where relevant facts may be developed that would aid the postconviction court in determining “whether counsel’s decisions were the product of strategy or ineptitude.” Jackson, 975 So.2d at 486 (citing Hamilton v. State, 860 So.2d 1028, 1031 (Fla. 5th DCA 2003)).

Finally, Hamilton also claimed that his trial counsel failed to make an adequate argument when he moved for a judgment of acquittal. In requesting a judgment of acquittal at trial, counsel merely stated, “We would like at this time to move for judgment of acquittal and I present no argument on that.” The post-conviction court denied Hamilton’s claim on the ground that this issue had been raised on direct appeal and was therefore waived. Although Hamilton did argue on direct appeal that the trial court erred in denying his motion for a judgment of acquittal, it cannot be determined from this court’s per curiam affirmance whether this court addressed Hamilton’s claim on the merits or simply affirmed it as unpre-served based on trial counsel’s lack of specificity in arguing the motion. See Sapio v. State, 643 So.2d 68, 69 (Fla. 5th DCA 1994) (“It is difficult, of course, to state with certainty the reasoning behind a per curiam opinion.”). Moreover, “ ‘unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an af-firmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.’ ” Acosta v. State, 884 So.2d 278, 279 (Fla. 2d DCA 2004) (quoting Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)). Because the postconviction court’s determination on this issue did not conclusively refute Hamilton’s claim, we remand to the postconviction court for reconsideration of Hamilton’s claim that his counsel’s motion for judgment of acquittal was inadequate.

In conclusion, we remand these three claims to the postconviction court. Upon remand, if the postconviction court should again summarily deny any of these claims, it must attach record support conclusively refuting Hamilton’s allegations. Otherwise, the court must hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

FULMER and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Sallie BOWE, etc., et al., Appellants, v. WORLDWIDE FLIGHT SERVICES, INC., et al., Appellees.
    No. 3D06-3188.
    District Court of Appeal of Florida, Third District.
    April 23, 2008.

      Louis Thaler, Miami, for appellants.
    Wilson, Elser, Moskowitz, Edelman & Dicker and Clifford L. Rostin and Michael Sastre, Miami; Wilson, Elser, Moskowitz, Edelman & Dicker and Richard E. Lerner and Gary Gardner, NY; Rumberger, Kirk & Caldwell and Joshua D. Lerner and Rossana Navarro Mena, Miami, for appel-lees.
    Before COPE, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

The question presented on this appeal from a final summary judgment rendered in favor of the defendants below, Worldwide Flight Services, Inc., American Airlines, Inc., and Miami-Dade County, is whether the Warsaw Convention preempts state law claims made by the plaintiffs, Sallie Bowe and Virginia Dele-veaux, individually and as personal representative of the Estate of Maude Ferguson, for injuries suffered as a result of an escalator accident at Miami International Airport. If so, the two-year statute of limitations contained in the Convention bars them from any recovery for their losses. Concluding on de novo review the defendants failed to satisfy the burden to be awarded a final summary judgment, we reverse the judgment on appeal and remand the case for further proceedings. A brief recitation of the facts, as found in the record, is necessary to our decision.

Factual Background

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux’s eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Dele-veaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area.

I. The Warsaw Convention

As well-explained in many federal and state court decisions, the Warsaw Convention was signed in 1929 to aid and assist the then-fledgling commercial airline industry. See Marotte v. Am. Airlines, Inc., 296 F.3d 1255 (11th Cir.2002). To achieve this aim, the Convention sets forth uniform rules for claims arising out of incidents that occur during international air transportation. E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991). Where it applies, the Convention is the exclusive mechanism of recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (“[R]ecovery for a personal injury suffered ‘on board [an] aircraft or in the course of any of the operations of embarking or disembarking,’ if not allowed under the Convention, is not available at all.” (citation omitted)).

Article 17 of the Convention governs the liability of a “carrier” for personal injury suffered during the course of international air travel. It provides:

The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Warsaw Convention, art. 17. Where this provision applies, the “carrier” is strictly liable for damages up to the limits set forth in the Convention. Warsaw Convention, arts. 22, ¶ 1; 24, ¶ 1; Marotte, 296 F.3d at 1259; see also E. Airlines, Inc., 499 U.S. at 552, 111 S.Ct. 1489.

Finally, “any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.” Warsaw Convention, art. 24, ¶ 1. Among these “conditions and limits” is a statute of limitations found in Article 29, which provides, in pertinent part: “The right to damages shall be extinguished if an action is not brought -within 2 (two) years, reckoned from the date of arrival at the destination, or the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.” Warsaw Convention, art. 29, ¶ 1. The July 14, 2005 complaint filed by the plaintiffs in this case alleges, on behalf of each, a single state law cause of action sounding in common law negligence. Thus, if the Convention applies, their claims are time-barred.

Analysis

The preemptive effect of the Convention on local law extends no further than the Convention’s own substantive scope. El Al Israel Airlines, Ltd,., 525 U.S. at 172, 119 S.Ct. 662. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here. If the Convention applies (and local law thereby is preempted), the next question is whether the carrier is liable under the Convention. Acevedo-Reinoso v. Iberia Lineas Aereas de España, S.A., 449 F.3d 7, 12 (1st Cir.2006) (“This [latter] inquiry involves a determination of whether there was an ‘accident,’ ... whether the passenger suffered a com-pensable injury, i.e., ‘death, physical injury, or a physical manifestation of injury,’ and whether the accident was a proximate cause of the passenger’s injury[.]” (citations omitted)). We do not reach this question.

The Warsaw Convention does not define “carrier.” American clearly falls within the scope of the Convention insofar as it was engaged in this case in the “international carriage of persons, baggage, or cargo performed by aircraft” for compensation. Warsaw Convention, art. 1, ¶ 1. Worldwide argues it also acted as a carrier. Worldwide relies upon a line of cases holding that the term may include, in certain cases, the agent of an international airline. See Johnson v. Allied E. States Maint. Corp., 488 A.2d 1341, 1345 (D.C.1985) (holding that the test to determine the applicability of the Warsaw Convention to agents or independent contractors is “whether the particular activity of the agent which resulted in injury was in furtherance of the contract of carriage”). Because it is conceded Worldwide operated as an agent of American for purposes of assisting American’s passengers, see Dick v. Am. Airlines, Inc., 476 F.Supp.2d 61 (D.Mass.2007) (noting the existence of a contractual relationship between the two entities for providing wheelchair services to passengers at Miami International Airport), Worldwide will be considered a “carrier” as well for purposes of this appeal. The County admits it is not a “carrier” within the meaning of the Convention, but argues the services it provided the plaintiffs as operator of the airport entitle it to seek the benefit of the Convention. We disagree. We find no interpretive authority supporting the County’s position, and decline to extend the reasoning of Johnson and its progeny, see Compania Panamena De Aviacion, S.A. v. Gerstein, 645 So.2d 55, 56 (Fla. 3d DCA 1994); see also Kabbani v. Int’l Total Servs., 805 F.Supp. 1033 (D.D.C.1992); In re Air Disaster, 776 F.Supp. 710 (E.D.N.Y.1991), to airport operators.

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 (2d Cir.1975) (holding that airline passengers, victims of a terrorist attack inside restricted area of air terminal, were entitled to compensation under the Convention); accord Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir.1977). Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger’s activity at the time of the accident; (2) the passenger’s whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. Acevedo-Reinoso, 449 F.3d at 12; Marotte, 296 F.3d at 1260; Evangelinos, 550 F.2d at 155; Day, 528 F.2d at 33. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Marotte, 296 F.3d at 1260. Instead, “the three factors form a ‘single, unitary [analytical] base.’” Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 317 (1st Cir.1995)). See also Evangelinos, 550 F.2d at 155 (observing that control “is an integral factor in evaluating both location and activity”).

In this case, we conclude the defendants, American Airlines and Worldwide Flight Services, failed to meet their burden of demonstrating the absence of any genuine issue of material fact concerning American’s control over the area where the plaintiffs fell. See Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”). The only evidence we have found in the record concerning this factor is located in the plaintiffs’ depositions and in the few photographic exhibits attached thereto. These depositions and exhibits strongly suggest, if not actually depict, the presence of two escalators and an elevator available to serve the bus depot. The plaintiffs understandably are not in a position to definitively account for their use. Indeed, the record is unsettlingly sketchy concerning ingress, egress, and the extent to which the general passenger populace on the concourses are free to enter, leave, or roam within the bus depot. Cf. Day, 528 F.2d at 31 (finding significant that the passengers in the Transit Lounge in question were in a restricted area and not free to “roam[ ] at will through the terminal”). Curiously, none of the movant-defendants, American Airlines, Worldwide Flight Services, or Miami-Dade County, offered evidence by affidavit or otherwise on this issue.

For these reasons, and without expressing any opinion on the merits, we reverse the summary judgment entered in this case and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 137 U.N.T.S. 11, reprinted in 49 U.S.C. § 40105 hist. n. (2007) [hereinafter the Warsaw Convention or the Convention],

      . Mrs. Ferguson passed away in February 2004 for reasons unrelated to the alleged accident. Thus, her claim in this case is being prosecuted by her daughter, Mrs. Delevaux, as the personal representative of Mrs. Ferguson’s estate.


author: ROTHENBERG, J.

text:
    Calvin STREETER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1114.
    District Court of Appeal of Florida, Third District.
    April 23, 2008.
    Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lisa A. Davis and Jill Kramer, Assistant Attorneys General, for appellee.

      Before RAMIREZ, C0RTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Calvin Streeter, contends that the trial court reversibly erred by allowing the State to use peremptory challenges on two black female jurors, Ms. Dorsey and Ms. Bostwick, without requiring the State to articulate race-neutral reasons for those challenges, as required by Melbourne v. State, 679 So.2d 759 (Fla. 1996). In response, the State argues that it was not required to proffer race-neutral reasons because defense counsel’s statements regarding Ms. Dorsey and Ms. Bostwick did not constitute proper Melbourne objections.

Based on our review of the voir dire transcript, there is no doubt that the trial court understood that defense counsel was objecting to the State’s use of a peremptory challenge on Ms. Bostwick based on racial grounds. See State v. Holiday, 682 So.2d 1092, 1093 (Fla.1996) (“[A]ny doubt concerning whether the objecting party has met its initial burden must be resolved in that party’s favor.”); Murray v. Haley, 833 So.2d 877, 879 (Fla. 1st DCA 2003) (rejecting appellee’s argument that appellant failed to satisfy step one of Melbourne where it was “apparent that the trial court understood the nature of the objection”). Therefore, as defense counsel satisfied step one of Melbourne as to Ms. Bostwick, we conclude that the trial court reversibly erred by not asking the State to articulate a race-neutral reason for the peremptory challenge of Ms. Bostwick. Accordingly, we reverse the defendant’s convictions and sentences, and remand for a new trial.

Reversed and remanded.

      . Melbourne provides:
      A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
      At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
      679 So.2d at 764 (footnotes omitted).


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    FLORIDA MARLINS BASEBALL CLUB, LLC, a Delaware Limited Liability Company d/b/a Florida Marlins, Appellant, v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON SUBSCRIBING TO POLICY NO. 893/HC/97/9096, Appellee.
    No. 3D07-5.
    District Court of Appeal of Florida, Third District.
    April 23, 2008.

      Ruden, McClosky, Smith, Schuster & Russell and John J. Pelzer, Ft. Lauder-dale, for appellant.
    Joel S. Perwin; Wicker, Smith, O’Hara, Graham & Ford and Frederick E. Hasty, III, Miami, and Michael A. Holtman; Nelson, Levine de Luca, Horst, and George J. Vogrin, and Thomas J. Brackin, for appel-lee.
    Before GREEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The Florida Marlins Baseball Club, LLC, appeals a final summary judgment in its action for breach of contract and declaratory judgment seeking disability insurance coverage. We reverse.

We hold that the record demonstrates that genuine issues of material fact remain unresolved precluding summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). There are still factual issues as to whether the insurer assented or waived compliance with the condition precedent in the policy, and whether the insurer’s authorized representative’s knowledge about the transfer in the team’s ownership constitutes knowledge by the insurer. See Hardy v. Am. So. Life Ins. Co., 211 So.2d 559 (Fla.1968); Essex Ins. Co. v. Universal Envm’t & Skating Ctr., Inc., 665 So.2d 360 (Fla. 5th DCA 1995). These issues should be resolved by a jury; summary judgment was improper.

Reversed and remanded.

SCHWARTZ, Senior Judge

(concurring).

I entirely agree with reversal. I would point out, moreover, that there is nothing to preclude the trial court, after remand, from entering a summary judgment on the pertinent issue in favor of the Marlins if, as I do, it deems it appropriate. See Avis Rent-A-Car Sys., Inc. v. Garmas, 440 So.2d 1311, 1313 n. 4 (Fla. 3d DCA 1983), review denied, 451 So.2d 848 (Fla.1984).


author: GERSTEN, C.J.

text:
    The STATE of Florida, Appellant, v. Daniel BROCCA, Appellee.
    No. 3D02-2652.
    District Court of Appeal of Florida, Third District.
    April 23, 2008.

      Bill McCollum, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellant.
    Richard G. Dunberg, South Miami, for appellee.
    Before GERSTEN, C.J., and COPE and CORTIÑAS, JJ.
   ON REMAND FROM THE FLORIDA SUPREME COURT

GERSTEN, C.J.

This case is before us on remand from the Florida Supreme Court, which quashed this Court’s opinion in State v. Brocca, 842 So.2d 291 (Fla. 3d DCA 2003), and remanded for reconsideration in light of State v. Hosty, 944 So.2d 255 (Fla.2006). We reverse.

I. Background on Brocea and Hosty

The State charged Daniel Brocea (“Brocea”) with sexual battery of a thirty-two-year-old, mentally disabled adult after the victim told his mother about the incident, and she reported it to the police. The State filed its notice of intent to introduce the statements the victim made to his mother and to an interviewer at the Children and Special Needs Center of the State Attorney’s office (“State Attorney interviewer”). The State sought to introduce the statements under section 90.803(24), Florida Statutes (2001), which provides a hearsay exception for out-of-court statements of a disabled adult under certain circumstances.

In Hosty, the Florida Supreme Court dealt with a remarkably similar situation. Hosty was charged with sexual battery of a mentally disabled person. The victim had described the assault to her teacher and a law enforcement officer, and the State sought to introduce the statements under section 90.803(24). 944 So.2d at 258-59.

In both this case and Hosty, the trial courts determined that section 90.803(24) was unconstitutional. Both this Court and the Fourth District certified the question of the statute’s constitutionality to the Florida Supreme Court. In Hosty, the Florida Supreme Court held the statute unconstitutional as applied to testimonial hearsay, but not as applied to nontestimo-nial hearsay. The Florida Supreme Court’s ruling conformed to the United States Supreme Court’s changes in confrontation law.

II. Changes in Confrontation Law

A. Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004), the United States Supreme Court found that the constitutional protection provided to defendants under its prior decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), was insufficient in the context of testimonial statements. The Court stated:

Where nontestimonial testimony is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Thus, the Court held that the admission of testimonial hearsay complies with the Confrontation Clause only if the declarant testifies at trial, or is unavailable and the accused had a prior opportunity for cross-examination.

Therefore, the first step is to determine whether a statement should be classified as testimonial or nontestimonial. The Crawford court explicitly declined to define “testimonial” statements. Instead, the Court stated: “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 541 U.S. at 68,124 S.Ct. 1354 (footnote omitted).

Because the Court did not define “testimonial,” thereafter courts across the nation struggled with the application of Crawford. See, e.g., Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549 (2005) (holding a victim’s out-of-court statement to police officer per se testimonial, but those made to her mother nontes-timonial); State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005) (finding a domestic violence victim’s statements to police officers nontestimonial because made to assist in securing the scene and apprehending the suspect); State v. Maclin, 183 S.W.3d 335 (Tenn.2006) (rejecting an automatic hearsay exception for all excited utterances, and finding statements given to police in one case testimonial, and in another nontestimonial).

B. Davis v. Washington

In the context of police interrogations, the United States Supreme Court subsequently provided further guidance in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Davis involved two consolidated domestic violence cases, Davis v. Washington and Hammon v. Indiana. In Davis, the victim made statements in response to a 911 operator’s questioning. In Hammon, the victim gave written statements in an affidavit to a police officer. The issue, of course, was whether the statements were nontestimonial or testimonial, and whether admitting them violated the Confrontation Clause.

The Court explained the difference between testimonial and nontestimonial statements that arise from police interrogations:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. at 822, 126 S.Ct. 2266 (footnote omitted) (emphasis added).

Under this “primary purpose” analysis, the Court found the 911 statements in Davis admissible because the interrogation took place while the events were actually happening to meet an ongoing emergency. In contrast, the Court found the affidavit statements in Hammon inadmissible because they described past conduct, and were obtained while the police officer was investigating a completed crime rather than an ongoing emergency.

C. Other Caselaw on Ascertaining “Testimonial" Statements

In Hosty, the Florida Supreme Court found that the statements made to the police officer were testimonial because Crawford specifically included “police interrogations” in its limited list of statements that clearly apply. The Court found the statements made to the teacher to be nontestimonial. Hosty, 944 So.2d at 261.

Recently, the Florida Supreme Court found a victim’s statements, to his friend and co-worker made immediately after being shot, nontestimonial. Franklin v. State, 965 So.2d 79 (Fla.2007). In Franklin, the Court considered the relationship between the declarant and the witness, and the spontaneity and purpose of the statements.

Other courts have considered similar factors in determining when statements made to persons who are not government agents are nontestimonial. See, e.g., State v. Slater, 285 Conn. 162, 939 A.2d 1105, 1111 (2008) (focusing on reasonable expectation of the declarant that, under the circumstances, her words later could be used for prosecutorial purposes); State v. Shafer, 156 Wash.2d 381, 128 P.3d 87, 92 (2006) (taking into account that statement was made in response to natural questioning of a concerned parent); State v. Miller, 95 Conn.App. 362, 896 A.2d 844, 859 (2006) (considering that the statement was made to a friend in an unofficial setting).

After determining whether the statement is testimonial or nontestimonial, the second step is deciding whether admission of the statement is constitutional under the Confrontation Clause. Pursuant to Crawford, admitting testimonial statements violates a defendant’s right to confront his or her accuser, unless (1) the declarant testifies at trial or (2) is found to be unavailable, and the accused had an opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354. If the declarant testifies at trial, there is no confrontation problem. Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; see also State v. Pinault, 933 So.2d 1287 (Fla. 4th DCA 2006).

With regard to nontestimonial statements, Crawford left each state to determine their admissibility. 541 U.S. at 68, 124 S.Ct. 1354. In Hosty, the Florida Supreme Court used a traditional hearsay analysis for a victim’s nontestimonial statement to her teacher. 944 So.2d at 260. Under such an analysis, “hearsay must either fall under a firmly rooted exception to the hearsay rule” or “[t]he circumstances must be considered ‘so trustworthy that adversarial testing would add little to its reliability.’ ” 944 So.2d at 259 (citing Idaho v. Wright, 497 U.S. 805, 821, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

The Florida Supreme Court first determined that the mentally disabled adult hearsay exception was not a firmly rooted exception to the hearsay rule. Hosty, 944 So.2d at 262. The Florida Supreme Court then found that the same reliability factors applied in child hearsay exception cases can also be applied in mentally disabled declarant cases. The Florida Supreme Court stated that, in addition to factors set out in the statute, in determining whether to admit hearsay statements of a mentally disabled declarant, the courts should consider:

(1) the spontaneity of the statement; (2) how the statement was elicited; (3) the mental state of the declarant when the abuse was reported; (4) how the declar-ant described the act; (5) whether the declarant used terminology unexpected of a similarly situated mentally disabled adult; (6) the motive or lack thereof to fabricate the statement; (7) the ability of the declarant to distinguish between reality and fantasy; (8) the vagueness of the accusations; (9) the possibility of any improper influence on the declarant; and (10) any contradictions in the accusation.

944 So.2d at 263.

The Court concluded that the statements the victim made to her teacher were admissible under section 90.803(24). However, the State must establish a proper predicate, and the witness must either testify or be found unavailable in accordance with the statute. 944 So.2d at 263.

III. Applying Confrontation Law to Brocea

In the present case, we must examine the victim’s statements under Crawford and Davis to first determine whether they are testimonial or nontestimonial. Then, applying Crawford, Davis, and Hosty, we must decide whether the statements are admissible.

Turning first to the statements the victim made to his mother, we conclude that they are nontestimonial. The statements were not made to a government agent or under police interrogation. The private conversation between the victim and his mother arose naturally under the circumstances. The victim’s statements to the mother, therefore, must be evaluated under the hearsay analysis stated in Hosty.

As stated in Hosty, the State must establish a proper factual predicate, and the witness must either testify or be determined to be unavailable under the statute. § 90.803(24)(a), Fla. Stat. (2007). The trial court must also make specific findings on the record indicating the basis for determining the reliability of the victim’s statement to his mother. Hosty, 944 So.2d at 263.

Turning next to the victim’s statements to the State Attorney interviewer, we conclude that these statements are testimonial because: (1) they were made to a government agent; (2) while there was no ongoing emergency; and (3) the primary purpose of the interrogation was to establish or prove past events in connection with the criminal prosecution. Admission of the victim’s statements to the State Attorney interviewer, therefore, would violate the defendant’s right to confront his accuser, unless the victim (1) testifies at trial, or (2) is determined to be unavailable, and the accused has an opportunity for cross-examination.

Here, the State’s notice of intent to rely on the hearsay statements to the State Attorney interviewer does not specify whether it intends to call the victim as a witness. On remand, therefore, the trial court must determine whether the victim will testify. If the victim testifies, unavailability is not an issue. If the trial court determines that the victim is unavailable, before these statements may be admitted at trial, Brocea must have an opportunity to cross-examine the victim.

Accordingly, based on Hosty, we reverse the trial court’s order finding that section 90.803(24) is unconstitutional. We remand to the trial court to conduct appropriate inquiries as to the admissibility of the victim’s statements consistent with this opinion.

Reversed and remanded.


text:
    Jon Schuyler BROOKS, Attorney and Counselor-at-Iaw, Karin Bronner, Monica Bronner Kranepool, Peter Bronner, and Robert Bronner, Petitioners, v. AMP SERVICES LIMITED, Trustee for the Walter and Anna Bronner Trust, Thomas Myers, as Personal Representative of the Estates of Walter Bronner Patrias and Anna Bronner, deceased, The Walanpatrias Foundation, Gislhaine Whyte, Mario Simmen, Paul Marie Jacques, Elizabeth Schwartz, and Mombach, Boyle & Hardin, P.A., Respondents.
    No. 4D07-3801.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.

      Jon Schuyler Brooks of Phillips Nizer LLP, New York, NY, pro se, and Alan J. Fisher, Boca Raton, for petitioners the Bronner family.
    Michael P. Hamaway of Mombach, Boyle & Hardin, P.A., Fort Lauderdale, for respondents.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant the motion for clarification filed by respondent Mombach, Boyle & Hardin, P.A., withdraw our prior opinion dated February 13, 2008, and substitute the following in its place.

Jon Schuyler Brooks (Brooks), a New York attorney representing himself, and petitioners Karin Bronner, Monica Bron-ner Kranepool, Peter Bronner, and Robert Bronner (collectively, the Bronners), represented in this court by other counsel, seek certiorari review of a Broward County circuit court order dated August 29, 2007, vacating its prior order admitting Brooks pro hac vice. We grant the petition.

The law firm of Mombach, Boyle & Hardin, P.A. (MB & H) formerly represented the Bronners in the underlying litigation; thereafter, the Bronners retained Brooks and his firm, Phillips Nizer LLP, in connection with related matters. Brooks is admitted to all the courts in the state of New York and to various federal courts across the country, but is not a member of The Florida Bar.

In the underlying litigation, MB & H moved to determine the amount of and to enforce a charging lien against the Bronners, and a hearing was set for July 11, 2007. On July 10, Brooks served his verified motion for admission to appear pro hac vice, pursuant to Florida Rule of Judicial Administration 2.510, which included a statement that he was an active member in good standing and currently eligible to practice law in a number of jurisdictions, including the state of New York. At the July 11 hearing, the trial court accepted Brooks’ application and set an evidentiary hearing on MB & H’s motion.

Thereafter, a hearing on other related motions was set for August 29, 2007. However, on August 28, by letter, MB & H brought to the court’s attention that, at the time Brooks moved to be admitted pro hac vice, he actually was not in good standing as a member of the New York State bar; the firm had obtained a form, completed on July 25, 2007, by the clerk of the New York Supreme Court, Appellate Division, Second Department, which indicated that Brooks’ registration fee, which was due March 2007, had not been paid.

On receipt of this letter, Brooks immediately contacted the New York State Office of Court Administration (OCA) about his registration status and learned that office had not received or processed his registration renewal dated March 7, 2007. He rectified the matter immediately and on August 29, the deputy clerk of the New York Supreme Court’s appellate division sent a letter verifying that Brooks was in good standing as an attorney and that there was no record of any public censure, suspension, or disbarment in that court.

At the August 29 hearing, MB & H pointed out that, at the time of Brook’s pro hac vice application, his registration fee had not been paid; Brooks conceded that it was not, but he had no reason to know that; he had certified his good standing in good faith. The trial court noted that Brooks did not do anything to verify that he was in good standing when he applied, but only assumed he was. Brooks explained that he recently had been admitted to two other courts, and therefore had no reason to suspect he might not be in good standing. He also suggested that the question was whether his filing was considered by the OCA as retroactive, nunc pro tunc.

Although the judge admitted he was impressed with Brooks’ skills as an advocate, and did not believe there was any affirmative or intentional misrepresentation to the court or fraud on the court, he felt that Brooks had an obligation to make sure all his i’s were dotted and t’s were crossed when he said he was a member in good standing, and decided to retroactively revoke the order admitting him pro hac vice. Brooks asked the court to be allowed to renew his application, as the statements in it now were completely accurate but the court found that was not appropriate because of the necessity of strict adherence to the requirements of the application. Brooks asked the court to sanction him for the previous application and entertain a new one; having to secure a new attorney after he had familiarized himself with the issues for three months would be a hardship for his clients. But the court did not wish to sanction him; the court stated it respected his abilities and a fine would send the wrong message.

In an order dated and entered August 29, 2007, the trial court vacated its prior order granting Brooks admission to practice before it pro hac vice. This order is the subject of the instant petition for writ of certiorari.

Afterwards, Brooks obtained a letter dated September 18, 2007, from the Appellate Division of the New York Supreme Court, explaining that it had no record of receiving the registration which Brooks represented he had mailed in March 2007, but because the OCA often experiences delays in receiving attorney re-registrations, it does not mark an attorney as delinquent until six months after the form and check were due. While it cannot issue a certificate of good standing if its records indicate that the statement and fee were not received within thirty days after the attorney’s birthday, at no time was Brooks not entitled to practice law in the courts of that state, and he was never marked delinquent.

Certiorari is available to review orders denying a motion to appear pro hac vice. See, e.g., Clare v. Coleman (Parent) Holdings, Inc., 928 So.2d 1246 (Fla. 4th DCA 2006); Pepsico, Inc. v. Roque, 743 So.2d 160 (Fla. 3d DCA 1999); Keller Indus., Inc. v. Yoder, 625 So.2d 82 (Fla. 3d DCA 1993). The order on review will have an adverse impact on Brooks’ ability to seek pro hac vice status in the future in this and in other jurisdictions. Clare, 928 So.2d at 1249; Fla. R. Jud. Admin. 2.510(b)(3) (requiring attorneys who apply for admission pro hac vice in Florida to disclose all jurisdictions in which the attorney has been disciplined during the previous five years).

When pro hac vice admission is revoked, it ordinarily is the result of a motion alleging intentional and egregious misconduct, explicitly requesting this sanction. But Brooks’ verified representation that he was in good standing in New York, when his renewal actually had not been timely received, was not alleged to be intentional misconduct. Nor did MB & H actually move for revocation; it merely furnished the court, the day before the hearing, with information that had been in its possession for over a month. Compare State Indus., Inc. v. Jernigan, 751 So.2d 680 (Fla. 5th DCA 2000) (denying certiorari relief from removal of out-of-state attorney who, at deposition, repeatedly called opposing counsel a liar). In Jemigan, the court commented that “A trial court may revoke the status of pro hac vice whenever it appears that counsel’s conduct during any stage of the proceeding, including the taking of depositions, adversely impacts the administration of justice.” Id. at 682 (emphasis added). See also Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir.1997) (vacating denial of pro hac vice admission and commenting that great deference is given to trial court’s decision to revoke pro hac vice status if counsel’s conduct threatens to disrupt court proceedings or deliberately challenges court’s authority; but if the conduct is allegedly unethical, appellate court insists that disqualification decision rest on violation of specific Rules of Professional Conduct rather than court’s subjective opinion).

Here, the judge revoked Brooks’ admission based only on his failure to corroborate his good standing before applying, an act which did not affect the administration of justice or disrupt any proceedings. Furthermore, unlike in Florida, where an attorney who is delinquent in paying bar dues automatically loses the status of good standing and cannot practice law until reinstated, noncompliance with the requirement to re-register does not result in automatic suspension or preclude an attorney from practicing law in New York. While the form and fee are due biennially within thirty days after a member’s birthday, because a number of renewals are delayed, the OCA does not consider an attorney to be delinquent until six months have passed from the date the form and check were due. (Ex. R) See Austria v. Shaw, 150 Mise.2d 541, 576 N.Y.S.2d 786 (N.Y.Sup.1991) (denying motion to dismiss action on ground plaintiffs counsel was precluded from practicing law when action was commenced for failure to pay biennial registration fee; § 468-a of Judiciary Law, which- imposes requirement, does not indicate that violation is cause for automatic suspension), aff'd sub nom. Austria v. Babineaux, 188 A.D.2d 271, 590 N.Y.S.2d 467 (N.Y.A.D. 1st Dep’t. 1992). The period of six months had not yet elapsed from March 2007, either when Brooks was admitted pro hac vice, or even when his admission was vacated.

Petitioners point out that the current approved form for applying for admission pro hac vice must be verified based on the attorney’s “knowledge and belief,” Fla. R. Jud. Admin. 2.510(b), whereas the former rule 2.061(a), requiring the motion show that the attorney is in good standing in another state, was interpreted to require the submission of a certificate of good standing. Had this rule not been changed, Brooks would have sought a certificate of good standing prior to applying, would have discovered the problem, and the harm from the challenged order would have been averted.

“The right of an attorney of another state to practice is permissive and subject to the sound discretion of the court to which he applies for the permission. The right to revoke this permission is inherent in the right to grant it.” Parker v. Parker, 97 So.2d 136, 137 (Fla. 3d DCA 1957). Certainly a trial court’s discretion to deny a motion to appear pro hac vice, or to revoke such admission, is quite broad. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990); Jernigan, 751 So.2d at 681. Nevertheless, it is not absolute, and must be balanced by a party’s right to representation by counsel of choice. If foreign attorneys are obligated, immediately before moving for admission pro hac vice, to verify their good standing with every jurisdiction in which they are admitted, even if they have no reason to believe otherwise, then perhaps the rule should expressly require that applicants for pro hac vice status submit certificates of good standing.

The trial court apparently accepted Brooks’ explanation that he had no reason to believe he did not continue to be in good standing; it did not find he had committed any intentional misconduct, refusing to sanction him even with the imposition of a fine. Its vacation of his status was merely for a technical reason which in no way adversely impacted the administration of justice. Even if it was appropriate technically to vacate Brooks’ prior admission due to his lack of good standing on July 11, the trial court should have accepted his ore tenus motion to appear pro hac vice on August 29, when that deficiency no longer applied. The trial court’s refusal to do so did not serve the ends of justice and we conclude that it constituted a departure from the essential requirements of law under the facts of this case.

For the foregoing reasons, we grant the petition and quash the August 29 order.

Granted.

WARNER, POLEN and FARMER, JJ., concur.

      . The Rules Regulating the Florida Bar provide registration and fees are due July 1, R. Regulating Fla. Bar 1-7.3(a); if not postmarked by August 15, a late fee is imposed and written notice is sent by registered or certified mail, and the member is “delinquent” if fees are not paid by September 30, R. Regulating Fla. Bar l-7(3)(e), a delinquent member is not in good standing, R. Regulating Fla. Bar 1-3.2(a), and "shall not engage in the practice of law in Florida,” R. Regulating Fla. Bar 1-3.6, until reinstated, R. Regulating Fla. Bar 1-7.5. Flowever, if a membership fee delinquency is resolved by reinstatement within sixty days, it relates back to the date before delinquency and there is no sanction for practicing during the period of delinquency. R. Regulating Fla. Bar 1-3.7(e).

        . In re Amendments to the Rules Regulating the Florida Bar and The Florida Rules of Judicial Administration, 907 So.2d 1138, 1145 (Fla.2005).


author: WARNER, J.

text:
    Leighton BINNS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-181.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.

      Leighton Binns, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

Petitioner claims ineffective assistance of appellate counsel in failing to raise as fundamental error a violation of double jeopardy in his multiple convictions for lewd and lascivious conduct. Because two of the charges occurred during a single episode, we grant the petition in part and direct the dismissal of one count of lewd and lascivious molestation. In all other respects, we deny the petition.

Binns was charged in five counts for sexual battery and lewd and lascivious acts against his daughter which occurred between October 10, 1998 and November 30, 1999. Count one alleged sexual battery; count two alleged a lewd and lascivious act of touching or rubbing the victim’s vaginal area; count three alleged a lewd and lascivious act by touching the victim’s breast; count four alleged the lewd and lascivious act of touching the victim’s breast with defendant’s mouth; and count five alleged touching the victim’s buttocks in a lewd and lascivious manner.

The charges arose out of two main incidents and casual touching throughout the time period alleged in the information. In the first incident, the victim testified that Binns penetrated her vagina with his penis. During this incident he also touched her breast. In the second incident, he also penetrated her with his penis, and during this incident he placed his mouth and hands on her breasts. As he did not use a condom during this incident, he wiped her off with a cloth after it was over. The victim also testified that he would frequently grab her breasts and buttocks in a sexual manner during the time she lived with him.

Binns was convicted of all charges and sentenced to life in prison for the sexual battery charge and concurrent fifteen-year terms on each of the lewd and lascivious act counts. No double jeopardy objection to his convictions and sentences was registered at trial, and appellate counsel did not raise the issue on appeal. He brought this petition for habeas corpus alleging ineffective assistance for failure to raise as fundamental error a double jeopardy violation.

Claims for ineffective assistance of appellate counsel are judged on the same criteria as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our supreme court has explained:

[W]hen evaluating a claim for ineffective assistance of appellate counsel, this Court must determine: (1) whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance, and (2) whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Kormondy v. State, 32 Fla. L. Weekly S627, *16, — So.2d -, -, 2007 WL 2947870 (Fla. Oct. 11, 2007).

Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005). The issue could have been raised by appellate counsel for the first time on appeal despite the lack of an objection on this ground below. Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003) (reversing convictions for both sexual battery and lewd and lascivious battery based on the same act as violating double jeopardy and explaining that double jeopardy violation is fundamental error that can be raised for the first time on appeal). Therefore, it may constitute ineffective assistance of counsel, depending upon the state of the record.

As explained by the supreme court in State v. Paul, 934 So.2d 1167, 1171-72 (Fla.2006), “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). Before determining legislative intent, a court must first determine whether the charges arose from a single episode. Then, in the absence of a specific legislative intent to impose two punishments for crimes arising out of the same episode, courts generally apply the Blockburger test, codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist. Based upon a Blockburger analysis, the crimes of lewd and lascivious acts and sexual battery each contain an element that the other does not; therefore a conviction for sexual battery and lewd and lascivious act arising out of the same episode would not violate double jeopardy.

There were, however, four counts of lewd and lascivious conduct alleged against Binns, charged pursuant to an earlier version of section 800.04, Florida Statutes. As the elements of these crimes are all the same, the question becomes whether the record shows that any of them were part of the same episode. If they were, then Binns may be convicted of only one offense for each episode.

This court has explained, “In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.” Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001).

The charges in this case resulted from two separate vaginal penetrations of the victim and other generalized conduct. Count one of sexual battery and count three of lewd conduct by touching the victim’s breast occurred during the first incident. Count five, involving the touching of the buttocks, did not occur during either specific episode but during other times when the victim was at home with the defendant. Therefore, the convictions and sentences on these charges do not violate double jeopardy.

That leaves counts two and four. Count two involves Binns touching or rubbing the victim’s vaginal area with his hands. Count four charges touching the victim’s breast with his mouth. From the facts involving the second incident, these occurred in one single episode, and the prosecutor argued as much in the closing argument. These are both lewd and lascivious acts, containing the same statutory elements and occurring in a single criminal episode. Binns should not have been convicted and sentenced for both of them, and appellate counsel should have argued this on direct appeal.

We grant the petition to the extent that the double jeopardy bar prevents conviction and sentencing on both counts two and count four. We direct that the trial court vacate the conviction and sentence on one of those counts. Resentencing on the other counts is not required. We deny all further relief requested in the petition as to all other grounds raised.

STEVENSON and MAY, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 302-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: SHAHOOD, C.J.

text:
    Clifford JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3207.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Appellant, Clifford Jackson, appeals his conviction of one count of sale of cocaine within 1000 feet of a place of worship. We reverse because the trial court erred in denying appellant’s request to discharge his privately retained counsel.

After appellant was charged by way of information, his privately retained counsel entered a notice of appearance and demand for jury trial. On the day scheduled for trial just prior to the jury voir dire, appellant’s counsel announced he was ready to proceed with trial but that appellant had asked that day that counsel be discharged.

At that point, the court conducted a Nelson inquiry and asked appellant why he wished to discharge his counsel. Appellant stated that his counsel had not taken depositions and had not investigated the case by measuring the distance between the church and place of the alleged cocaine sale. Appellant also complained that his counsel had advised him to accept the plea agreement offered by the State, which provided for an eight-year sentence. Appellant stated that he had met with counsel the previous month and told counsel he wanted him off the case. Appellant also stated that he believed a personal problem existed between him and his counsel because appellant’s counsel had asked appellant about a prior case in which appellant was found not guilty of manslaughter for killing an attorney.

Appellant’s counsel responded to appellant’s complaints, saying he had discussed the possibility of depositions with appellant but did not recall it being decided that he take them. Counsel admitted he had not taken measurements of the distance to the church. Counsel also stated that he had advised appellant to take the State’s offer because the State had a good case that included a videotape of the drug transaction, and appellant had no real defense other than to make the State prove every element of its case. The prosecutor asserted that there was no legitimate question the alleged sale took place within 1000 feet of the church.

-The trial court ruled that appellant’s stated reasons were not valid grounds to discharge counsel. The court rejected appellant’s request and the trial went forward with appellant represented by the same counsel. The jury found appellant guilty as charged in the information. The trial court later adjudicated appellant guilty and sentenced him to twenty years in prison. This appeal followed.

Appellant argues that the trial court made the wrong inquiry by holding a Nelson hearing and the record does not support a determination that his right to new privately hired counsel was overcome by public interest in the fair and orderly administration of justice.

[2] We begin by noting that the trial court was mistaken in holding a Nelson inquiry in this situation. “A Nelson inquiry is appropriate when an indigent defendant attempts to discharge current, and obtain new, court-appointed, counsel prior to trial due to ineffectiveness.” Branch v. State, 685 So.2d 1250, 1252 (Fla.1996)(em-phasis added). When the defendant is not seeking different court-appointed counsel, the quality of representation of court-appointed counsel is not at issue and the effectiveness inquiry of Nelson is not implicated. Foster v. State, 704 So.2d 169, 172-73 (Fla. 4th DCA 1997).

In cases such as the present, where Nelson is not applicable, the appropriate focus is on balancing the defendant’s right to discharge his attorney and obtain another against the court’s interest in judicial administration and avoiding unreasonable delay. See Evans v. State, 741 So.2d 1190, 1191 (Fla. 4th DCA 1999). “A criminal defendant has a right to select his own private counsel, so long as he is not seeking to delay or otherwise subvert judicial proceedings.” Fratcher v. State, 842 So.2d 1044, 1046 (Fla. 4th DCA 2003). However, “where ‘considerations of judicial administration’ supervene, the presumption in favor of counsel of choice is rebutted and the right must give way.” Foster, 704 So.2d at 173 (citation omitted).

Fratcher is similar to the present case and involved a defendant who sought to discharge privately retained counsel. In Fratcher, the defendant informed the trial court three weeks prior to trial that he wished to discharge his privately retained counsel due to dissatisfaction with her performance. 842 So.2d at 1045. The trial court made an inquiry, found appellant’s counsel prepared for trial and not ineffective, and advised appellant that he could discharge his counsel but could not have a continuance of the trial set to begin in twenty days. Id. at 1045-46. On the day of trial, the trial court advised the defendant he could discharge his counsel but could not have court-appointed counsel. Id. The defendant proceeded unrepresented and was convicted. Id.

On appeal, this court noted that (as here) the trial court had mistakenly conducted a Nelson inquiry where there was no reason for one. Id. We found it significant that the trial court made no finding that appellant’s request to discharge counsel was made in bad faith or to delay the proceedings. Id. We held that the trial court correctly allowed the appellant to discharge his privately retained counsel, but erred by not giving him the opportunity to obtain new private counsel or court-appointed counsel. Id.

We are sympathetic to the difficult situation a trial court faces in balancing the defendant’s right to discharge his attorney and obtain another against the court’s interest in judicial administration and avoiding unreasonable delay when a defendant seeks to discharge counsel on the day of trial. “Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.” Tyler v. State, 945 So.2d 662, 664 (Fla. 4th DCA 2007) (quoting Foster, 704 So.2d at 173 (citation omitted)). This court has shown an unwillingness to reverse a trial court’s denial of a defendant’s request to discharge counsel when that request comes for the first time on the eve of trial and the trial court finds the request motivated by a desire to delay the proceedings. See Hurtado v. State, 760 So.2d 279, 280 (Fla. 4th DCA 2000). Likewise, we have reversed and remanded for new trial where a trial court’s stated concern of avoiding further delay was clearly arbitrary and unsupported as a reason to deny the defendant’s request. Foster, 704 So.2d at 174.

Here, the trial court’s findings and the discussion preceding them on the discharge of counsel issue were done in a Nelson context and therefore focused solely on the quality of counsel’s representation and preparedness for trial. The trial court made no finding that appellant’s request was made in bad faith or for purposes of delay, that the State’s case would suffer prejudice, or that the court’s schedule would not permit a continuance. The record does not support a conclusion that any of these scenarios existed and, even if it did, the trial court should have given appellant the option to proceed to trial with current counsel or discharge counsel and represent himself.

We reverse and remand for new trial.

Reversed and Remanded.

TAYLOR, J., and LEVIN, STEVEN J., Associate Judge, concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: FARMER, J.

text:
    Daniel STEADLY, Appellant, v. Lance WEINBERG, Appellee.
    No. 4D06-4082.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.

      Charles Wender, Boca Raton, for appellant.
    Scott A. Weires of Hodgson, Russ, LLP., Boca Raton, for appellee.
   FARMER, J.

The issue involves specific performance of a contract to sell real property which, at the time of contracting, was seller’s homestead. Seller decided not to close the sale because of a lien affecting the property. Seller then married. Several weeks later, buyer filed this action for specific performance but did not join seller’s new spouse. Seller moved to dismiss for failure to join an indispensable party. The trial court denied the motion and granted buyer’s motion for summary judgment. We reverse.

Organic law requires the spouse of the owner of homestead to join in any conveyance. See Art. X, § 4(c), Fla. Const. (“The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by ... sale.... ”). Buyer argues that when the seller contracts and defaults before marriage, joinder of an intervening spouse is not necessary in a suit for specific performance. Buyer argues that the contract made before marriage represented a “conveyance” of seller’s “beneficial interest” in the property and therefore the subsequent marriage has no effect for purposes of the homestead law.

In In re Estate of Skuro, 487 So.2d 1065 (Fla.1986), the seller contracted to sell the homestead but died before closing. Buyer argued he had acquired a beneficial interest by the execution of the contract for sale. Seller’s children claimed that when the seller died before closing, title passed to them under the homestead law. The Supreme Court held that the property remained homestead, which was not impaired by the contract. The court explained:

“Skuro had not abandoned the property, but actually resided there at his death. While he had signed a contract to sell, he had not alienated the property as that term is generally defined. Alienate means to convey; to transfer title to property. The simple fact remains that at the time of his death, Skuro’s home was still his homestead. He lived there and still had legal title to it, subject to whatever rights the contracting party had. While we recognize the doctrine of equitable conversion, because of the unique treatment of the law of homestead property, we find that doctrine inapplicable when the potential vendor is physically residing on the property as his home at the time of his death.” [c.o.]

487 So.2d at 1066. The Supreme Court also noted that it was not presented with the question whether specific performance of the contract would be available upon the death of the seller before closing. We understand the essential holding of the Supreme Court to be that the mere execution of the contract did not impair the homestead status.

We think Skuro controls this case. Here the property was homestead when seller entered into the contract. His marriage occurred before a closing could be held. The property remained homestead, but with a pretermitted spouse now having a beneficial interest in the property. By virtue of the marriage, she became a party whose rights would be affected by a decree ordering specific performance of the contract of sale.

Because reversal is necessary, we point out that buyer will have to offer evidence of his ability to close on the contract, should specific performance be indicated in any future proceedings. See Taylor v. Richards, 971 So.2d 127 (Fla. 4th DCA 2007) (holding that, to prove that prospective buyer of property is ready, willing and able to buy, so as to be entitled to specific performance of the sales contract, buyer must show that he is able to command the necessary money to close the deal on reasonable notice or within the time stipulated by the parties). The record does not show any evidence meeting that requirement to support a summary judgment in that regard.

Reversed.

TAYLOR, J., and DAVIDSON, LISA, Associate Judge, concur.


text:
    Albert COON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3020.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction and sentence in this Anders appeal. However, our review of the record indicates an error in sentencing.

After entering a plea, the defendant was convicted of manufacturing or possessing cannabis in an amount greater than 25, but less than 2,000 pounds, and using or possessing drug paraphernalia. See §§ 893.135(l)(a)l„ 893.147(1), Fla. Stat. (2006). The fine for a violation of section 893.135(l)(a)l. is $25,000. See § 893.135(l)(a)l. The trial court imposed a fine of $50,000. However, an unpreserved sentencing error cannot be corrected in an Anders appeal. We therefore affirm without prejudice to the defendant’s filing of an appropriate post-conviction motion.

Affirmed.

POLEN, GROSS and MAY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: POLEN, J.

text:
    Walter A. ALMENDARES, Appellant, v. STATE of Florida and Ruth Martinez-Estes, Esquire, Appellees.
    No. 4D07-3672.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2008.
    Walter A. Almendares, South Bay, pro se.
    No appearance for appellees.
   POLEN, J.

Petitioner Walter A. Almendares petitions this court for a writ of certiorari to quash the trial court’s order denying his motion for reconsideration of his indigent status. The trial court denied the motion as the issue was not addressed in his original petition for writ of mandamus. We disagree with the trial court’s denial and reverse and remand for the reasons detailed below.

The trial court’s denial of a motion for rehearing is reviewed using an abuse of discretion standard. Brink v. Bank of America, N.A., 811 So.2d 751 (Fla. 1st DCA 2002). In this case, Almendares filed a petition for writ of mandamus in this court seeking to have his court appointed appellate counsel surrender his record on appeal. This court transferred the petition to the circuit court and ordered it to proceed. Almendares then filed a request for indigent status and the trial court granted the request. In addition to granting the request, the order required Almen-dares to make monthly payments towards court costs and fees and imposed a lien on Almendares’ inmate trust account until the court costs and fees were paid in full.

The trial court ordered court-appointed appellate counsel, Ruth Martinez-Estes, to show cause why the writ should not be granted. Martinez-Estes’ represented she had provided Almendares with the entire record on appeal. The trial court issued an order dismissing Almendares’ petition for writ of mandamus as moot.

Almendares filed a motion for rehearing, asserting the record he received did not include appellate briefs. Almendares also asked the trial court to reconsider:

[T]he matter of petitioners’ indigence status and remove the lien on his inmate bank account for the following reason. The issue before this court is a collateral proceeding concerning petitioner’s right to obtain a copy of his trial transcripts free of charge, and should not be made to pay the filing fee and costs due to counsel’s failure to send the requested documents.

The trial court granted the motion in part, ordering Martinez-Estes to provide Al-mendares with the appellate briefs. The trial court denied the portion of Almen-dares’ motion asking for reconsideration of indigent status as “[t]his issue was not addressed in the original Petition for Writ of Mandamus.”

The trial court abused its discretion in failing to consider the correctness of the court-imposed lien on Almendares’ inmate account. While it is true this issue was not included in his original petition for writ of mandamus, the lien was not imposed until after this court transferred the petition for writ of mandamus back to the circuit court, making it impossible for Al-mendares to have raised it in his original petition.

We reverse the trial court’s order denying Almendares’ motion for reconsideration of imposition of the lien and remand for reconsideration. We are not suggesting the trial court rule in a certain way, merely that it consider Almendares’ motion rather than summarily dismissing it.

GROSS and MAY, JJ., concur.


author: CASANUEVA, Judge.

text:
    Scott Adrian WALDRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2007.
    District Court of Appeal of Florida, Second District.
    April 25, 2008.

      James Marion Moorman, Public Defender, and Dan Hallenberg, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Scott Adrian Waldron appeals his conviction for burglary of a structure and petit theft, contending that the trial court erred by instructing the jury on the inference arising from the unexplained possession of recently stolen property. Because there was insufficient evidence produced by the State at trial to merit this instruction, we reverse and remand for a new trial.

EVIDENCE BEFORE THE JURY

On February 1, 2006, the building that once housed Walker Memorial Hospital was empty and closed to the public. Its windows were boarded up and some of its doors were welded shut. Its caretaker was checking up on the building and, after entering it, he heard suspicious sounds. He called law enforcement and several officers arrived about fifteen minutes later. When some officers and the caretaker investigated further, they found inside the building two bags of tools, including cutters for bolts and wire, and rolled copper wire and tubing on the floor. The caretaker had been inside the building the day before and had not seen any tools or copper items pulled from the walls at that time.

One of the officers was checking the rear of the building and came upon Mr. Waldron walking on a sidewalk that separated the building from the nearby lake only about a hundred yards away. Mr. Waldron was carrying two fishing poles that the officer noticed were broken and that had lines that were not properly attached. Mr. Waldron’s hands were dirty and he had what appeared to be a fresh cut on one. In response to questioning, Mr. Waldron looked nervous and said he had been fishing in the nearby lake, and his hands were dirty because he had been digging for worms. Mr. Waldron admitted to the officer that he had been inside the building and looked around but denied that he had attempted to steal anything.

The copper wiring that was pulled from the walls and ceiling of the building had been encased in a black material that, when handled, left a black, sticky, grimy substance on one’s hand. The officer interviewing Mr. Waldron also noticed a similar substance on Mr. Waldron’s hands. At trial, Mr. Waldron denied that he had such substance on his hands. There was undisputed evidence at trial that copper was a valuable commodity, then selling for several dollars a pound.

Over objection from defense counsel, the trial court gave the jury the standard instruction on proof of possession of stolen property, which is based on section 812.022(2), Florida Statutes (2005). The instruction tells the jury:

Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of burglary with intent to steal that property if the circumstances of the burglary and of the possession of the stolen property, when considered in the light of all evidence in the case, convince you beyond a reasonable doubt that the defendant committed the burglary.

Fla. Std. Jury Insto. (Crim.) 13.1. At the jury charge conference, the State convinced the trial court to give the instruction by arguing that the evidence showed that Mr. Waldron was in constructive possession of the recently stolen property. The State relied on Holcomb v. State, 946 So.2d 633 (Fla. 4th DCA 2007) (rejecting the defendant’s argument that only actual possession and not constructive possession warrants the instruction).

DISCUSSION

Our supreme court has held that this instruction is permissible and not a comment on the evidence. Walker v. State, 896 So.2d 712 (Fla.2005). Because a person’s possession of the recently stolen property involves the fruits of the burglary, the possession is “inextricably intertwined with the crime itself.” Id. at 719. Unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to theft. Francis v. State, 808 So.2d 110, 134 (Fla.2001).

Because it was advanced by the State and relied upon by the trial court, we review Holcomb, 946 So.2d 633. It is, however, distinguishable on its facts, and the trial court ought not to have relied upon it. Mr. Holcomb was found seated behind the steering wheel of a pickup truck in a part of a marina that was not open to the public. When a security guard tried to confront a second man seen exiting a boat, the second man got into the cab of Mr. Holcomb’s truck. The two attempted to flee but their flight ended when a locked gate barred their exit from the marina. The second man fled, leaving Mr. Holcomb to be arrested and ultimately charged with burglary and the theft of the recently stolen items located in the bed of his pickup truck. Id. at 633-34.

Here, the evidence is materially different from that in Holcomb. Unlike Mr. Holcomb, who had the stolen items in the bed of the pickup truck he was driving, Mr. Waldron only had fishing poles in his possession, poles that were not claimed to be stolen. Mr. Waldron was outside the building in which the stolen items were discovered, but no evidence was presented that he could exercise dominion and control over those items so far from his reach. Neither did the evidence suggest that Mr. Waldron had dominion and control over the building where the items were located. Although the State correctly relied on Holcomb for the proposition that evidence of constructive possession as well as of actual possession warrants the challenged instruction, the trial court erred in acceding to the State’s request for the instruction in the face of the deficiency in the State’s evidence.

Approximately one year before Mr. Waldron’s trial, in Bronson v. State, 926 So.2d 480 (Fla. 2d DCA 2006), this court discussed when the instruction regarding the inference arising from the possession of recently stolen property should be given. Our record does not disclose that either party brought this case to the trial court’s attention.

“To receive the benefit of the statutory inference, the State must establish, pursuant to section 812.022(2), that a defendant had ‘possession of property recently stolen.’ ” Id. at 483. Bronson makes clear that to establish the requisite possession, the State must carry the burden of a two-prong evidentiary predicate. Id. In Mr. Waldron’s ease, the first prong was met because the evidence showed that the copper items were removed from the walls and ceiling of the building without permission. Second, the State must also establish that the defendant had either actual or constructive possession of the property. Id. It is this second predicate that the State failed to lay to warrant the instruction in Mr. Waldron’s case.

The evidence that the State presented against Mr. Waldron is insufficient to establish that he had either actual or constructive possession of the copper wire and tubing that was removed from the walls of the former hospital and left on the floor in the building. Although removed from the walls and ceiling, the property had not been removed from the building when the officer discovered Mr. Waldron. Because it was clearly not on his person or in his nearby vehicle, unlike in Holcomb, 946 So.2d at 634, he did not have actual possession of the property. Additionally, because Mr. Waldron was discovered outside the building, there is no record evidence to establish that he had the present ability to exercise dominion and control over the items that remained inside the building. Without proof of this critical element, there can be no support for constructive possession.

In Adams v. State, 693 So.2d 1031 (Fla. 2d DCA 1997), this court reversed a conviction for grand theft by a jury that had been given the instruction on the inference arising from possession of recently stolen property. We noted:

The state did not present competent, substantial evidence to support Adams’ conviction for grand theft. Although the circumstantial evidence strongly suggests guilt, the state did not prove that Adams took the truck from the service department’s parking lot. The state proved that the pickup truck was parked “nearby” when Adams and her husband were arrested at a motor home six months after the truck was stolen from the lot. However, the state did not prove that Adams or her husband were in possession of the truck. Thus, the state cannot rely on the inference arising from the possession of recently-stolen property.

Id. at 1032 (citation omitted). “The state must demonstrate that the possession was personal, i.e., involved a distinct and conscious assertion of possession by the accused, and that the possession was exclusive.” Bozeman v. State, 931 So.2d 1006, 1008 (Fla. 4th DCA 2006) (affirming conviction for grand theft of a Chevrolet that was being pushed by a Mazda driven by defendant); see also KC.B. v. State, 715 So.2d 1083, 1083-84 (Fla. 3d DCA 1998) (finding insufficient evidence to support dominion and control element of constructive possession of contraband found in an apartment into which the defendant ran when he was chased by police, but for which he did not have a key and did not own or occupy; such evidence “establishes nothing more than mere presence”). Because the State’s evidence did not meet the requirements of the predicate’s second prong — to show that the defendant had actual or constructive possession of the recently stolen property — it was error to give the challenged instruction.

CONCLUSION

This case presented a highly contested, heavily factual scenario. Without the benefit of the inference provided by the challenged instruction, we are unable to conclude that there is no reasonable probability that the error contributed to this conviction. Thus, the State has not met its burden to establish that the error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (holding that harmless error is found only when there is no reasonable possibility that the error contributed to verdict).

Reversed and remanded for a new trial.

SALCINES and VILLANTI, JJ., Concur.

      . When the caretaker again checked the building a few days later, he noticed that the board covering a glass entrance door had been pried loose at the bottom and the glass panel of the door was knocked down, thus allowing access to the building but concealing the point of entry.

      . Section 812.022(2) provides in relevant part: "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.”