author: BROWNING, C.J.

text:
    Tommy Lee GAINES, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-5534.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Tommy Lee Gaines, pro se, Petitioner.
    Bill McCollum, Attorney General; and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   BROWNING, C.J.

Petitioner, who is a prison inmate, seeks a writ of certiorari to challenge the order of the circuit court (acting in its appellate capacity) denying mandamus relief. Additionally, he filed a motion for review of the circuit court’s imposition of a lien on Petitioner’s inmate trust account for costs incurred in filing his mandamus petition. In the mandamus proceeding, Petitioner obtained review of disciplinary actions taken by the Department of Corrections, but ultimately he showed no grounds for relief. That part of this case is here for second-tier review pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). The record demonstrates that Petitioner has not met his extraordinary burden to obtain relief on the denial of mandamus. See Hay v. Moore, 728 So.2d 806 (Fla. 1st DCA 1999).

We treat Petitioner’s motion for review as if Petitioner had sought the proper remedy and had argued the issue in his petition for writ of certiorari. See Fla. R.App. P. 9.040(c). The circuit court should not have ordered the imposition of a section 57.085, Florida Statutes, lien for the payment of court costs and fees for the mandamus proceeding. Respondent correctly concedes that as Petitioner’s action is a “collateral criminal proceeding,” it is specifically exempted from section 57.085, so that “indigency determinations are to be made” according to section 57.081, Florida Statutes. See Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006). We have held that section 57.081 does not contain specific language authorizing imposition of a lien on a prisoner’s trust account. See Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005). The circuit court determined that a lien on Petitioner’s prison trust account was authorized under section 57.082, Florida Statutes. However, in Wagner, 927 So.2d at 217, we stated that this statute does not contain language authorizing imposition of a lien, and that a lien cannot be used to recover fees and costs in an action governed by section 57.081. Accordingly, the circuit court’s order is erroneous insofar as it instructs the imposition of a lien on Petitioner’s prison trust account, and Petitioner is entitled to relief on this issue. See Simpkins v. McDonough, 967 So.2d 950 (Fla. 1st DCA 2007); Clark v. McDonough, 964 So.2d 798 (Fla. 1st DCA 2007); Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept. 5, 2006); Cason, 892 So.2d at 537.

We DENY the petition for writ of cer-tiorari insofar as it challenges the circuit court’s denial of mandamus relief, GRANT the petition in part, VACATE the circuit court’s order to the extent it imposed and upheld the lien for the mandamus proceeding, and REMAND with instructions to the circuit court to direct the reimbursement of any funds that have been withdrawn from Petitioner’s account to satisfy the improper lien.

ALLEN and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: KLEIN, J. HAZOURI, J.,

license: Public Domain

text:
    James E. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3021.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Carey Haughwout, Public Defender, and Allen A. Ambrosino, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

As a result of a fire in his jail cell, appellant was convicted of first degree arson in an institution. He argues that the trial court erroneously admitted as Williams Rule evidence the fact that a similar fire occurred in a nearby cell at the same time. We affirm.

The fire started in appellant’s cell while he was the sole occupant. The first officer who responded saw a homemade cigarette on the floor near the burning mattress and burned papers in the mattress. An investigator for the state fire marshal testified that this type of mattress does not easily ignite without receiving help from something combustible, and he ruled out causes of the fire which would not have been connected to appellant.

Over appellant’s objection the court admitted evidence that another fire had started at the same time in another inmate’s cell two cells away from appellant. The fires were similar in that the mattress and papers were burned. A lighter which, under the configuration of the two cells, could have been passed from one to the other, was found in the cell of the other inmate. The court admitted the evidence as evidence of a plan which refuted appellant’s defense that the fire in his cell had started accidentally.

Appellant argues that this was evidence admissible under Williams v. State, 110 So.2d 654 (Fla.1959), for which notice must be given under section 90.404(2)(c)l, Florida Statutes (2002), which provides:

When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a) or paragraph (b), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

Appellant argues that the state did not give the ten day’s notice, but the state responds that the appellant waived this issue because there was no objection on that ground in the trial court. We agree with the state.

Appellant was aware of the other fire because its existence had been brought out in discovery depositions and, before voir dire, appellant objected to any evidence of the other fire. The trial court responded that it would address the issue during the trial, if necessary, and the state agreed to not mention it in jury selection or opening statement.

During the trial the state proffered the testimony pertaining to the other fire and argued it was relevant to refute appellant’s position that the fire was an accident. Appellant responded that the evidence was not relevant and was highly prejudicial. He also argued that the evidence of the other fire had not been disclosed in discovery; however, the trial court overruled that objection because the other fire had been addressed in depositions and it was the appellant who had raised it before trial. The court then found that the relevancy of the other fire to refute the absence of an accident was not outweighed by the prejudice.

Because appellant was fully aware of the other fire from the discovery depositions this was no discovery violation. Although we agree that the evidence of the other fire was Williams rule evidence, and governed by the notice requirement of section 90.404(2)(c)(l), that objection was not raised in the trial court and was therefore waived. As these fires occurred at the same time, with the same materials, in two cells which were close to each other, and expert testimony indicated they were not accidental, the trial court did not abuse its discretion in admitting the evidence. We also conclude that the trial court was correct in finding no discovery violation.

Affirmed.

TAYLOR, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. Although I concur that Bailey’s Williams Rule argument was waived, I would reverse and find that the trial court abused its discretion in admitting testimony concerning the fire in the cell two cells away. In my judgment it is too speculative that there was a relationship between the two fires to warrant its admission.


author: WARNER, J.

text:
    Coleman Fred SULE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2194.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appealing his multiple convictions arising from the murder of his ex-girlfriend as well as solicitation to murder her neighbor whom he attempted to frame for the murder, appellant makes multiple claims of trial court error. We affirm as to all issues and address two in detail. In the first, we hold that the trial court did not err in denying a motion to sever the murder charges from charges of solicitation to murder. As to the second, we hold' that the trial court did not abuse its discretion in excluding a defense witness, because the witness sought to invoke his Fifth Amendment privilege on material issues.

Appellant Coleman Fred Sule and the victim Doreen Domato dated for approximately two-and-a-half years. During that time they lived together in Domato’s house for approximately six months. Domato eventually ended the relationship.

On August 19, 2003, Domato received flowers at work from Sule. When she read the note that came with the flowers, she became pale, jittery, upset, and teary. She refused the flowers and told the delivery person never to bring her anything from that gentleman. Later that day, she asked a co-worker how to get a restraining order as she had ended her relationship with Sule. She left work around 5:30 p.m.

Around 4:30 p.m. two teenagers in the house next door to Domato saw a man wearing a blue t-shirt and jeans emerging from the bushes whom they identified as Sule, as they had seen him at Domato’s before. He rapidly walked towards Doma-to’s carport. They thought he was acting suspiciously. About two hours later, they heard a noise and observed him leaving from Domato’s house and running towards the woods. They went outside to check out what was going on.

. While they were outside, Domato’s next door neighbor Xavier Heredia saw them on the road. He asked what was going on, and the teenagers told him that they had seen a man running towards the woods. While they were talking, a gray Mitsubishi Lancer came around the corner. Sule was driving the car, and he was now wearing a white t-shirt. He looked frightened. Heredia recognized Sule, because he had seen him many times and knew that at one point he lived with Domato.

Later that evening when Sule picked up his current girlfriend, he was wearing a white shirt and driving a Lancer rental car.

On August 20, 2003, the day after the neighbors observed Sule at Domato’s home, Domato’s best friend became concerned when Domato did not answer her phone. She called the police, because she was worried as Domato had recently ended her relationship with Sule. An officer came, and he observed a body in the back of the house. Entering the home, he found Domato’s badly burned body with a dog leash around her neck. All of the doors and windows in the house were locked. Upon interrogating the neighbors they found out about Sule’s presence at the house the day before.

The police brought Sule in for an interview that day. He told them he had rented a Mitsubishi vehicle the day before the murder, because his own vehicle was in the shop. On the day of the murder, he spent the afternoon with his business partner. When the officers told' him that witnesses had identified him at the house, he became irate and insisted they were either mistaken or lying.

When the police called the business partner, he told them that Sule was with him doing paperwork between 5:00 and 7:30 p.m. on the day of the murder. However, when the police showed up at his house and told him they were investigating a murder, the business partner told them that Sule was not with him on that day. The partner told them that Sule had called and asked him to tell anyone who called that they were together on that date and time.

The medical examiner determined that Domato had died of asphyxiation and her body was burned after she was dead. The fire investigator determined that an accel-erant, such as gasoline or lighter fluid, was used to start the fire. Later, an accelerant K-9 alerted to some areas of the scene, Sule’s rental vehicle, and to Sule’s shoes.

Sule was arrested on August 28th and taken to jail. He was charged by indictment with first-degree murder, arson of, a dwelling, and burglary of a dwelling with an assault or battery. The state also gave notice that it would seek the death penalty.

While Sule was awaiting trial at the St. Lucie County Jail, he approached two other inmates, Robert Becraft and Michael Bittle, and asked them to help him mastermind a plan to set up Domato’s neighbor, Heredia, as the perpetrator of the murder. Both Becraft and Bittle' testified at trial without any promises of leniency for their testimony.

Sule made a detailed statement to Bittle about how he entered Domato’s home through the attic. When she came home, he confronted her about rejecting his flowers. She tried to run, but he caught her, and they fought. He slammed her head into the ground, rendering her unconscious. He then choked her to death with the dog leash. To cover up his crime, he dragged her body into the bedroom and poured gasoline on it. He set it afire in the hopes that it would destroy any DNA evidence. Because he had put a towel under the door, the fire went out. When Sule left the house, he changed his clothes, walked back to his car, and drove back around the block. He saw some neighbors out in the yard, and they looked right at him.

To establish an alibi, he drove as fast as he could to Jupiter to make a call on his cell phone so that there would be a record of him being in Jupiter at a certain time. He went to his girlfriend’s house and picked her up. They stopped by Wal-Mart on the way back to his house, and he picked up some cleaning supplies so he could clean out the car. When Sule got a phone call from his daughter informing him that Domato was dead, he had to act like he was upset.

Sule asked Bittle and Becraft for their help in setting up Domato’s neighbor, Heredia, to make it look like Heredia killed Domato. If Becraft was found not guilty in his upcoming trial, Becraft would make it look like Heredia broke into Do-mato’s house for money and that he killed her when she came home and caught him. Becraft and someone else would hang out with Heredia and then go to law enforcement and tell them that they were out drinking and drugging with Heredia the night before, and that Heredia admitted to killing Domato. Becraft would plant a telephone, jewelry, and a .22 caliber pistol in Heredia’s house. Heredia would be killed, and they would make it look like Heredia committed suicide or overdosed.

Becraft was convicted, so the plan changed. Becraft’s brother Marvin would take Becraft’s place in the befriending and then framing of Heredia. In exchange, Marvin would get a large sum of money, and Becraft would get an attorney to represent him on appeal.

Sule wrote his plans to Becraft in notes, using Bittle as a go-between to pass the notes. At some point, Bittle went to Detective Burkhardt and told him that he had information about Sule possibly killing another person and told him he was passing notes. Burkhardt asked Bittle to copy the notes, pass the copies on, and give the originals to Burkhardt, which he did. Originals and copies of the notes were introduced into evidence and read in open court. The notes included diagrams, phone numbers, and directions. One of the notes detailed Heredia’s “confession.” Bittle eventually wore a wire to record conversations with Sule.

As part of the plan, Sule’s son, Christopher, would meet with Marvin and Bittle’s friend “Bryon” and give them a phone from Domato’s house and $200. Sule communicated the plan to Christopher by holding a letter up to the glass when Christopher visited with him in jail. After the visitation, Becraft saw Sule walking back, and Sule smiled at him, waved, and gave the thumbs up. A minute or two later, officers ran up behind Sule, and he came out in handcuffs with the officers. The officers retrieved the letter from Sule.

Christopher left the jail, and helicopter surveillance followed him to an ATM machine and eventually to the Flying J truck stop, where he was to meet with Marvin and “Bryon,” who was actually an undercover detective. When they met, Christopher gave the undercover detective a phone and $200 cash in a plastic bag. At that point, he was arrested.

The state charged Sule by information with solicitation to commit first-degree murder of Heredia, solicitation to tamper with and/or fabricate evidence, and solicitation to commit burglary of a dwelling. Pursuant to Rule of Criminal Procedure 3.151(a) the state moved to consolidate the cases for trial on the grounds that the cases were related and based on the same acts or transactions. The trial court granted the motion to consolidate.

Subsequently, Sule moved to sever the offenses pursuant to rule 3.152(a)(2)(A), noting that the motion had been granted during a period when he was unrepresented by counsel. He claimed that a sever-anee was appropriate to promote a fair. determination of his guilt or innocence. The state objected, and the trial court denied severance.

Prior to trial, Sule moved to exclude statements by Domato regarding her fear of Sule. He claimed they were inadmissible hearsay. The trial court denied the motion.

Sule also sought to have his son Christopher testify at trial. However, when the state asked Christopher questions during his deposition, he invoked his Fifth Amendment right against self-incrimination. The trial court ultimately ruled that the defense was seeking to use Christopher’s testimony to establish an inference that someone else, namely Christopher, killed Domato. Because the state had a right to cross-examine Christopher on the entire event and theory — how Christopher got into the house, what he did there, and how he got out — the testimony involved a material issue in the case. ■ Christopher would lose his Fifth Amendment privilege if he took the stand. Christopher elected not to testify.

The case proceeded through a lengthy trial. The jury found Sule guilty of first-degree murder, with a special finding of both premeditated and felony murder; arson; burglary of a dwelling with an assault or battery; solicitation to commit first-degree murder; solicitation to tamper with and/or fabricate evidence; and solicitation to commit burglary of a dwelling. The jury recommended against imposing the death penalty.

Sule was sentenced to life without parole for the first-degree murder, thirty years for arson, life for burglary with a battery, thirty years for solicitation to commit murder, five years for solicitation to tamper with evidence, and five years for solicitation to commit burglary, with all sentences to be served consecutively. He appeals.

I. Denial of Motion to Sever

Prior to trial, Sule moved to sever the first-degree murder, arson, and burglary charges from the solicitation to commit murder and burglary charges as well as the tampering with evidence charges. Whether a trial court errs in granting appellant’s motion to sever is reviewed for an abuse of discretion. See Fotopoulos v. State, 608 So.2d 784, 790 (Fla.1992) (“granting a severance is largely a matter within the trial court’s discretion”); Dupree v. State, 705 So.2d 90, 95 (Fla. 4th DCA 1998). Sule claims that the court abused its' discretion, while the state disagrees, because there was a causal link between all the crimes charged. We agree with the state.'

Florida Rule of Criminal Procedure 3.151(b) provides: “Two or more indictments or informations charging related- offenses shall be consolidated for trial on a timely motion....” Offenses are related “if they are triable in the same court and are based on the same act or transaction or on 2 or more.connected acts or transactions.” Fla. R.Crim. P. 3.151(a). However, rule 3.152(a)(2) provides:

In case 2 or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the state or of a defendant:
(A) before trial on a showing that the severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense....

The supreme court has explained:

“[T]he rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” Courts may consider “the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.” However, interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.

Wright v. State, 586 So.2d 1024, 1029-30 (Fla.1991) (alteration in original) (citations omitted). Before permitting charges of separate crimes to be tried together, the court must be careful that there is a meaningful relationship between the charges. Crossley v. State, 596 So.2d 447, 450 (Fla.1992). The danger of improper consolidation lies in the fact that evidence relating to one crime may have the effect of bolstering the proof of the other. Id.

In Fotopoulos v. State, 608 So.2d 784 (Fla.1992), the supreme court approved the consolidation of two murder charges, one of which arose from the solicitation of the other, similar to the facts of this case. Fotopoulos threatened a woman into shooting and killing Ramsey while he videotaped her. He then used the videotape to blackmail her into hiring someone to murder Fotopoulos’s wife. The hired hit man, entered the Fotopoulos home and fired a non-fatal shot to the wife’s head. Fotopoulos then shot and killed the hit man to make it appear that the hit man was killed during a burglary. Fotopoulos was eventually charged and found guilty of two counts of first-degree murder, two counts of attempted first-degree murder, two counts of solicitation to commit first-degree murder, one count of conspiracy to commit first-degree murder, and one count of burglary of a dwelling while armed.

Prior to trial, Fotopoulos filed a motion for severance of offenses, alleging that there was no connection between the Ramsey murder and the other offenses. In denying the motion for severance, the trial court found that the offenses were connected in an episodic and temporal sense. Further, shortly after the Ramsey killing, the plots to kill Fotopoulos’s wife were set in motion and were “well connected.”

The supreme court found no abuse of discretion in the trial court’s denial of severance:

[Sjeverance was not required under rule 3.152(a)(1) because the offenses were clearly connected in an episodic sense. Moreover, on this record, there was no showing that severance of the properly joined offenses was necessary to promote a fair determination of Fotopoulos’ guilt or innocence. Even if there had been separate trials, evidence of each offense would have been admissible at the trial of the other to show common scheme and motive, as well as the entire context out of which the criminal action ■ occurred.

Id. at 790 (citations omitted).

Similarly, the murder of Domato and solicitation to murder Heredia and the related charges were connected in the episodic sense. The murder of Domato resulted in the plot to burglarize and kill Heredia. Evidence of the Domato murder would be admissible in the trial of the solicitation. Likewise, evidence of the solicitation to murder Heredia and pin the blame for the Domato murder on him would be admissible in the Domato murder trial. See, e.g., Heath v. State, 648 So.2d 660, 664 (Fla.1994) (“Evidence that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post facto indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.”); Jenkins v. State, 697 So.2d 228, 229 (Fla. 4th DCA 1997) (“a defendant’s direct threat against a witness is relevant and may be admitted into evidence because it could be indicative of the defendant’s guilt of the underlying offense”). The trial court did not err in denying the motion for severance.

II. Exclusion of Witness Who Exercised Fifth Amendment Privilege

Sule argues that the trial court abused its discretion and violated his constitutional rights when it excluded the trial testimony of his son, Christopher, because Christopher invoked his Fifth Amendment privilege against self-incrimination. Apfel v. State, 429 So.2d 85 (Fla. 5th DCA 1983); Combs v. Commonwealth, 74 S.W.3d 738 (Ky.2002). The state counters that since Christopher refused to waive his Fifth Amendment privilege, the court correctly ruled that he would not be permitted to testify at trial. Because Christopher’s testimony was materially related to the offense, the trial court did not abuse its discretion in refusing to allow him to assert his Fifth Amendment privilege if he testified.

Prior to trial, Christopher refused to answer questions during deposition. When the trial judge became aware of the issue, he appointed counsel for Christopher and conducted a hearing at which Christopher testified. During the hearing, Christopher testified that he went to Do-mato’s house on August 19th after work to steal something to support his crack habit. He came in through the backyard and went into the house through the attic access in the carport. While he was in the crawl space, he heard what sounded like a person coming into the house, taking the dog out for a walk, and then returning the dog back to the house. He came down into the bedroom and he saw Domato pull in so he went back up in the attic. When asked if she came into the house, he raised his Fifth Amendment privilege.

At first the court ruled that Christopher could testify up until the point of invocation with the understanding that he could not invoke the privilege before the jury. The state moved for reconsideration. The trial court determined that Christopher’s testimony related to a material issue, because Sule wanted to use it to infer that Christopher, not Sule, committed the murder. The court ruled that if Christopher took the stand, he could not assert his Fifth Amendment privilege should the state ask what he did after Domato pulled into driveway. After explaining this, Christopher elected not to testify.

An accused has a right to present his own witnesses to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”). The Sixth Amendment guarantees the accused the right “to have compulsory process for obtaining witnesses in his favor....” U.S. Const, amend. VI. However, the right to compulsory process does not transcend the adversarial system:

The defendant’s right to present witnesses in his own defense, however, does not carry with it the right to immunize the witness from reasonable and appropriate cross-examination.... The fifth amendment provides no immunity from cross-examination for a witness who elects to testify; it is not a “positive invitation to mutilate the truth a party offers to tell.” Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).
Striking the testimony of a witness is a drastic remedy. It is not to be lightly done. Any action by the court may be inappropriate when a witness invokes the fifth amendment privilege to avoid cross-examination on purely collateral matters. Even when the witness refuses to answer questions relevant to matters at issue, striking only portions of the testimony may be the more reasonable remedy if that can avoid the unfairness created by the avoidance of full cross-examination, but the purpose of cross-examination is to test the credibility of the witness and the truthfulness of his earlier testimony. Striking all of the testimony of the witness may be the only appropriate remedy when refusal to answer the questions of the cross-examiner frustrates the purpose of the process. United States v. Lord, 711 F.2d 887, 892 (9th Cir.1983).

Lawson v. Murray, 837 F.2d 653, 655-56 (4th Cir.1988) (emphasis added). Consistent with this understanding, the trial court originally agreed to permit Christopher to testify that he came to the Domato house and hid in the attic. When the court ruled on reconsideration that Christopher could not testify and invoke the Fifth, the court was persuaded by the fact that he would not be testifying to collateral matters but rather would be testifying to material issues.

Sule relies on Combs v. Commonwealth, 74 S.W.3d 738 (Ky.2002), where the Kentucky Supreme Court found that the trial court erred in excluding a defense alibi witness who invoked the Fifth Amendment in response to certain questions. The witness, however, testified to facts collateral to the charges against the defendant.

In Combs, the state prosecuted the defendant on two charges of trafficking in cocaine. The defendant asserted an alibi with respect to the offenses. At the time of one of the incidents, she claimed she was shoplifting. She presented an alibi witness, who first testified on a proffer. The witness stated that she was shopping with the defendant at a K-Mart on the date in question, and the defendant was detained at the store. When asked whether she saw the defendant shoplift any items and her involvement in the matter, the witness took the Fifth. The trial court concluded that if the witness asserted the Fifth Amendment as to any questions, she could not testify at all.

The Kentucky Supreme Court disagreed, explaining that the witness’s testimony as to collateral issues to the charge would not require exclusion of all of the witness’s testimony and stated:

When cross-examination is precluded only with respect to collateral issues, the Sixth Amendment does not require the court to strike the witness’s testimony.
When cross-examination on material issues raised on direct examination is curtailed because of a witness’s valid claim of privilege, however, the trial court, in its discretion, may refuse to permit that witness’s testimony....
In striking the appropriate balance between a defendant’s Sixth Amendment rights and the government’s interest in cross-examination, a “trial judge may or even must limit the government’s cross-examination on collateral matters if this can be done without unduly limiting the government and if doing so will preserve the defendant’s ability to call a material witness who would otherwise claim the privilege.[”]
Where ... a defense witness’s claim of privilege shields material testimony from cross-examination, however, this balance weighs against the defendant.

Id. at 744 (emphasis added) (quoting United States v. Gary, 74 F.3d 304, 310 (1st Cir.1996)). The questions for which the witness asserted a Fifth Amendment privilege involved a completely collateral matter- — -the witness’s own involvement in a shoplifting incident. The court found that excluding all of the witness’s testimony, which undercut the defendant’s alibi, was improper.

Combs actually supports the trial court’s exclusion of Christopher’s testimony in this case. Christopher’s testimony involved material issues — who was at Doma-to’s house and who may have killed Doma-to. Christopher sought to invoke his Fifth Amendment privilege to prevent the state from fully interrogating on these crucial points. It did not involve collateral matters. A court does not abuse its discretion in excluding testimony when cross-examination on material issues raised on direct examination is curtailed because of a witness’s valid claim of privilege.

In an analogous situation to this case, we have held that the trial court did not abuse its discretion in excluding a witness who, through the invocation of the privilege, would imply that someone other than the defendant committed the crime. In Maul v. State, 528 So.2d 1384 (Fla. 4th DCA 1988), the trial court excluded the entire testimony of a defense witness who, during a proffer, invoked the Fifth Amendment privilege as to critical questions involving the hit and run accident with which appellant was charged and convicted. During the proffer, the defense -witness testified that he was the owner of the vehicle involved in an accident. On cross-examination, the witness stated that he did not see the defendant drive his car on the date of the accident, but he invoked the Fifth when asked how he knew that the defendant was not involved in an accident on that date and again invoked the Fifth when asked who was in possession of the car. The trial court refused to permit the witness to testify because the witness refused to subject himself to full and fair cross-examination on the issue. This court affirmed, and in a concurring opinion Judge Glickstein explained that no abuse of discretion was shown where the witness’s “invocation of the privilege would have raised the inference that he, rather than appellant, was the driver of the vehicle involved in the hit and run accident, such inference being in a form not subject to cross examination.” Id. at 1386. The same may be said of Christopher’s proposed testimony in this case.

Sule also relies on Apfel v. State, 429 So.2d 85 (Fla. 5th DCA 1983) to support his position. We agree with the trial court that there are insufficient facts in that opinion to apply it to the facts in this case.

Because Christopher’s invocation of the privilege shielded material matters from full and fair cross-examination, the trial court did not abuse its discretion in excluding his testimony.

Sule raises three other issues, none of which require reversal. He claims that the trial court erred in allowing a witness to testify to the victim’s state of mind regarding her fear of Sule. Even if it was error to admit the testimony, we conclude that it was harmless beyond a reasonable doubt. He also claimed that the trial court erred in permitting the state’s peremptory challenge to an African-American juror. We have examined the record and conclude that the state offered a race-neutral reason for the peremptory challenge. See Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996). Finally, Sule argues that the jurors should not have been instructed on the arson alternative for felony murder, as there was no evidence to support felony murder with arson as a requisite underlying forceful felony in this case. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Because Sule did not object to the jury instructions during trial, this claim was not preserved for appellate review. Gnnsby v. State, 574 So.2d 1085, 1089 (Fla.1991).

For the foregoing reasons we affirm the convictions and sentences.

GUNTHER and GROSS, JJ„ concur.

      . Despite the length of the statement of facts in this opinion, it does not contain all of the evidence presented by the state against Sule.


author: GROSS, J.

text:
    Raylando SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4622.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Thomas A. Palmer and Richard Valuntas, Assistant Attorneys General, West Palm Beach, for appellee.
   GROSS, J.

In this case, we find no due process violations in the trial court’s failure (1) to make a specific, on-the-record finding as to the voluntariness of the defendant’s statement and (2) to conduct a voluntariness hearing outside the presence of the jury. Under the facts of this case, we also hold that no due process violation occurred when the trial judge scheduled jury selection on 24-hours notice, four days before a Monday trial date that had been set six weeks before.

By a two count information, Raylando Smith was charged with lewd or lascivious molestation in violation of section 800.04(5)(a), and lewd or lascivious conduct in violation of sections 800.04(6)(a) and (b), Florida Statutes (2004).

On July 12, 2004, the public defender’s office was appointed to represent Smith. On February 1, 2005, the assistant public defender handling the case filed a motion to suppress Smith’s statements. The motion alleged that the Miranda warnings were inadequate because they failed to tell Smith of his right to stop answering questions at any time. The motion also claimed that (1) the statements were not voluntary, but were the result of physical and psychological force and the use of threats, tricks, and promises; (2) the defendant had invoked his right to counsel, and (3) Smith was not mentally capable of resisting the coercive interrogation techniques used by the police.

While the public defender’s office was guiding the defense, the case was continued or reset three times. The assistant public defender did not request a hearing on the motion to suppress because he anticipated that the case would be resolved by an open plea to the court.

Smith’s family hired a private lawyer, Michael Minardi, and he substituted into the case on May 23, 2005. At a May 31 hearing, Minardi told the court that he could not be ready by the June 13 trial date. The judge granted a continuance and reset the case for July 5. The week of July 5, Minardi moved for a continuance to review deposition transcripts of the victim and her mother. The judge granted the motion and set the trial for a two-week trial docket beginning August 22. From May 23 until the time the trial began, Minardi did not call the motion to suppress up for a hearing.

On August 17 at noon, the trial judge notified the parties to be in court the next day at 9:00 a.m. to select a jury for a trial to begin on Monday, August 22. On August 18, Minardi told the court that he was not prepared to conduct jury selection, because he “had planned on working on jury selection and things of that nature [over] this weekend.” Minardi said “it would be prejudicial for Defendant if I’m not prepared.” The judge responded that Minardi had been counsel of record since May 23, the case was previously set for trial on July 7, and that he was “hard pressed to understand” why a lawyer as “qualified” and “experienced” as Minardi would have “difficulty in selecting a jury.” The judge determined that jury selection would begin as scheduled that day.

The court reconvened after a 90-minute recess, and the judge explained the voir dire process to the venire. The trial court and the prosecutor questioned the panel members in the morning. After a one hour and forty-five minute luncheon recess, the prosecutor continued with his questions. After a short break, Minardi began to question the jurors. His performance was far more than competent; he exercised peremptory and cause challenges which were granted by the court.

At trial, the state called Detective Juanita Reid as a witness. The state questioned Detective Reid about the statements she obtained from Smith. Reid testified that before speaking with Smith, she gave him his Miranda warnings. After Reid read each warning, Smith placed his initials on the area of the form card left blank for that purpose. Smith’s mother witnessed the Miranda ceremony between the detective and her son. After Smith signed the Miranda form waiving his rights, the detective began to speak with him; the interview was digitally recorded. Smith’s mother was in the room during the interview.. When the state moved to admit the DVD into evidence, Minardi objected.

The-Court: Any objection or voir dire? Mr. Minardi: Judge, just object. I don’t think it’s a freely and voluntarily given statement.
The Court: The Court admits State’s B in evidence as State’s 3.

Smith first argues that the trial court committed a due process violation under Article I, Section 9 of the Florida Constitution by calling his case for jury selection four days before the previously scheduled trial date. This ground was not preserved by a proper objection, nor did it amount to a constitutional violation.

Minardi’s complaint that it would be “prejudicial” to the defendant to proceed with voir dire on August 18 was insufficiently specific to preserve the due process objection. A legal argument or objection is “preserved” when it is “sufficiently precise” to “fairly apprise[] the trial court of the relief sought and the grounds therefor.” § 924.051(l)(b), Fla. Stat. (2006); Williams v. State, 414 So.2d 509, 511 (Fla.1982); Phillips v. State, 877 So.2d 912 (Fla. 4th DCA 2004). A complaint that a ruling is- “prejudicial” lacks the necessary precision to preserve an objection; many things in a trial are “prejudicial” to a defendant without being unconstitutional. For example, properly admitted evidence of criminal conduct is prejudicial to a defendant, but not improper. A non-preserved, non-fundamental error may not be the basis of a reversal on appeal. See § 924.051(3), Fla. Stat. (2006).

Addressing the merits of this due process claim, we find no reversible error. As Smith points out, procedural due process requires adequate notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Due process requires that notice “be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.’” N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004) (citing Mullane v. Cen. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

This case fits within these parameters of fair notice. The trial was set over a year after a lawyer was originally appointed. The case was continued or reset three times before Minardi filed his appearance and two times afterwards. The court gave Minardi 24 hours notice before requiring him to begin his part of the voir dire. After two continuances and three months on the case, that was sufficient time for Minardi to prepare for jury selection. Managing a busy docket in an urban area requires trial judges to efficiently use court time. Conducting jury selection at the end of a week for a trial to commence the following Monday is effective case management. This was not a situation where the court violated a specific rule of criminal procedure, see Albritton v. White, 948 So.2d 852 (Fla. 2d DCA 2007), or did not allow sufficient time for compliance with a court order to appear. See Cruz v. State, 822 So.2d 595 (Fla. 3d DCA 2002). Both Smith and his attorney were able to appear for jury selection. Due process is not measured by what is most convenient for defense counsel.

Smith’s second point on appeal is that the trial court violated due process when it failed “to specifically find on the record that the defendant’s confessions were voluntarily made before admitting them.” He also argues that the trial court erred by failing to “stop the proceedings” to conduct a hearing where Smith and his mother would have been allowed to testify about the claims of coercion raised in the motion to suppress.

Florida has “modified the strict requirement” that an express finding of vol-untariness of a defendant’s statement must appear in the record. Johnson v. State, 696 So.2d 326, 331 (Fla.1997) (quoting Antone v. State, 382 So.2d 1205, 1212 (Fla.1980)). Ideally, the “trial judge should specify his conclusions concerning the vol-untariness of a disputed confession or in-culpatory statement.” Id. And, “it is the better practice for the trial court to exclude the jury on the court’s own motion when it perceives that the state is about to put on testimony of a confession.” Morris v. State, 310 So.2d 757, 760 (Fla. 1st DCA 1975). But, “due process is not offended when the issue of voluntariness is specifically before the judge and he determines that the statements are admissible without using the magic word ‘voluntary.’ ” Johnson, 696 So.2d at 331, (quoting Antone, 382 So.2d at 1213).

This case is controlled by Morris. Similar to this case, Morris involved a motion to suppress a confession that was not heard prior to the trial. At trial, in the presence of the jury, a deputy testified to the defendant’s statement. 310 So.2d at 758. Before playing the recorded confession, there was an unreported bench conference, followed by the court ruling that the statement was “admissible in evidence.” Id. On appeal, the defendant complained that the judge failed to determine the voluntariness of his confession outside the jury’s presence and that he was neither given a chance to cross-examine the deputy nor allowed to present evidence bearing on voluntariness. Id.

On rehearing, the first district rejected both of the defendant’s arguments. Id. at 758-59. Relying on Wilson v. State, 304 So.2d 119 (Fla.1974), the court held that the absence of a specific ruling on volun-tariness was not required when “there was no evidence presented which reflected that the confession was anything other than voluntary.” Morris, 310 So.2d at 759. Next, the first district found no error in the trial court’s failure to hold a voluntariness hearing outside the presence- of the jury, where defense counsel did not request such a hearing. Id. at 760. The court recognized that if a court finds a confession to have been involuntarily given, and the jury has heard the confession, then a new trial will “in all probability be required.” Id.

In this case, Attorney Minardi made a perfunctory objection as to voluntariness before the DVD was admitted into evidence. Although the trial judge offered him the chance to question the detective about the confession (“Any objection or voir dire?”), the defense attorney did not cross-examine the detective, did' not request a hearing outside the presence of the jury, and did not seek to call Smith or Smith’s mother to pursue a claim of coercion. The only evidence before the court was that the statement was voluntary— Smith came to the police station for questioning, he was not under arrest, his mother was present during the interview, and he acknowledged receiving Miranda warnings. Nothing in the video recording suggested that the statement was coerced. Applying Morris and Johnson, we find no due process violation in the trial judge simply overruling Minardi’s objection and failing to hold a voluntariness hearing outside the jury’s presence prior to admission of the DVD.

Affirmed.

WARNER and KLEIN, JJ„ concur.


text:
    Luis Ivanhoe SORIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4514.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Luis Soriano, appeals from a restitution order entered pursuant to his conviction for grand retail theft. The trial court ordered him to pay $10,000 after hearing testimony of a loss prevention officer who viewed a security video of the appellant leaving an Albertson’s grocery store with five shopping carts of merchandise. We conclude that the court erred in awarding the amount of restitution as the evidence was legally insufficient to support the award.

Soriano and a co-defendant were both employees at Albertson’s when they were seen after hours taking carts of merchandise from the store. They were subsequently charged by information with grand retail theft of a value of $300 or more. In accordance with a plea agreement, Soriano pled guilty and was sentenced to twenty-four months of probation and ordered to pay restitution.

An evidentiary hearing was held to determine the amount of the restitution. The state’s sole witness was Joseph Manderine, the District Loss Prevention Manager for Albertson’s in South Florida. Manderine testified to the gross loss of the store during the third quarter of the year in which the theft took place, which was $90,000 more than the prior year’s loss and $198,314 more than the anticipated loss, a part of which Manderine attributed to So-riano’s theft. However, the court sustained hearsay objections to the introduction of business records supporting this testimony, in light of the state’s objections that he was not the records custodian as well as the fact that the thefts for which Soriano was charged happened in the fourth quarter. Thus, this evidence provided no support for the amount of restitution.

Manderine also testified to viewing part of a surveillance video of Soriano taking shopping carts from the store filled with goods. He did not view all five of the shopping carts that Soriano took. From these surveillance videos, Manderine determined the value of the items that were visible, and estimated the value of the items remaining in the carts. He did not testify what those items were. Based on what Manderine “saw going on in the video and so forth,” he estimated that Soriano took over $10,000 in product. Although Soriano might have taken a lot more, Manderine could only attribute $10,000 to Soriano based on what he saw in the video.

On cross-examination, he viewed several photographs taken from the video and admitted that the carts contained a lot of paper goods. He conceded that the $10,000 was an estimate, albeit what he contended was a low one based upon what he saw in the video. Then, on redirect he stated that the $10,000 was not an estimate: “Oh, we estimate — well, we couldn’t estimate. But we do know that by what we saw the product going out that it would be over $10,000 worth of merchandise.” Manderine explained that Albertson’s thought it would be fairest to ask for the low ball figure.

While admitting that the evidence submitted by Albertson’s was an estimate, the trial court nevertheless found that the state met its burden and ordered $10,000 in restitution. Soriano appeals.

The trial court’s determination of the amount of restitution is subject to an abuse of discretion standard of review. See State v. Hawthorne, 573 So.2d 330 (Fla.1991); Yarn v. State, 898 So.2d 1016 (Fla. 4th DCA 2005). “Restitution must be proved by substantial competent evidence.” Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005).

Absent clear and compelling reasons not to order restitution, a court shall order restitution to the victim for damage or loss caused directly or indirectly by the defendant’s offense. § 775.089(l)(a), Fla. Stat. Where the proper amount of restitution is in dispute, the burden is on the state to prove the amount of the loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. “Such evidence must be established through more than mere speculation; it must be based on competent evidence.” Glaubius v. State, 688 So.2d 913, 916 (Fla.1997). “The mere speculation or opinion of a victim as to the amount of their loss is insufficient to sustain a restitution order.” Rodriguez v. State, 956 So.2d 1226, 1231 (Fla. 4th DCA 2007).

The state presented no evidence of the specific items taken or their value. At a minimum, owners of stolen property should be required to identify what items were stolen in order to obtain restitution. Fisher v. State, 722 So.2d 873, 874 (Fla. 1st DCA 1998). Although some merchandise was visible in photographs the state never offered evidence of a list of what was stolen other than what was seen in the videos. The loss prevention manager admitted that he did not see all five shopping carts in the surveillance video. Without even seeing the merchandise in the carts, we fail to understand how he could possibly establish what was stolen, let alone its value.

Even as to value, the state presented legally insufficient proof for a $10,000 award of restitution. Generally, the amount of restitution is established through evidence of fair market value at the time of the theft. Hawthorne, 573 So.2d at 333; Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993). “Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation.” Domaceti, 616 So.2d at 1149. However, restitution cannot exceed the amount of actual damages suffered by the victim. See Fresneda v. State, 347 So.2d 1021, 1022 (Fla.1977) (“[A] condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime cannot require payment in excess of the amount of damage the criminal conduct caused the victim.”).

The loss prevention officer offered only an estimate of value not based upon the specific items stolen and their cost. The mere opinion of a victim as to the value of its stolen property is insufficient to establish that value, absent a sufficient predicate showing a basis for the opinion. Peters v. State, 555 So.2d 450, 451 (Fla. 4th DCA 1990). Here, the loss prevention manager did not provide a basis for his opinion.

Because the state produced no legally sufficient evidence to support the amount of restitution ordered, the trial court abused its discretion. We reverse and remand for the court to redetermine the amount of restitution in accordance with this opinion.

HAZOURI, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Antonio MANCHADO, Appellee.
    No. 4D07-30.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals an order of dismissal under Florida Rule of Criminal Procedure 3.190(c)(4) of the charge of felony driving while license revoked as a habitual offender in violation of section 322.34(5), Florida Statutes. The charge arose when appel-lee, Antonio Manchado, was stopped by law enforcement for operating a gas powered mini motorcycle with no license tag. He claimed that a driver’s license was not required to drive the motorcycle. We reverse, because the motorcycle came within the definition of a motor vehicle and required a license to operate'.

Manchado claimed that the mini pocket motorcycle had “an engine displacement that does not exceed 50 cubic centimeters” and “a top speed that does not exceed 30 miles per hours on level ground.” Thus, it was not a motor vehicle within the meaning of section 322.01, and he was riot required to have a driver’s license while operating it. The state filed a motion to strike and/or traverse contesting the motion to dismiss on several grounds, including Manchado’s claim that the motorcycle was not a motor vehicle and that a driver’s license was not required to operate it.

This issue may be resolved simply by referring to the statutes, as they are not ambiguous. See Soto v. State, 711 So.2d 1275 (Fla. 4th DCA 1998).

Section 322.03(1) states, “[Ejxcept as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under the provisions of this chapter.” Section 322.01(26) defines a “motor vehicle” as “any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles as defined in s. 316.003.” A motorized bicycle is defined, in part, as a vehicle not capable of exceeding a speed of twenty miles per hour. § 316.003(2), Fla. Stat. A motorcycle is defined, in part, as “a motor vehicle powered by a motor with a displacement of more than 50 cubic centimeters.... ” § 322.01(25), Fla. Stat.

The vehicle at issue falls within the definition of a motor vehicle in chapter 322 as it is self-propelled, not operated upon rails or guideway, and does not fall within any of the éxclusions as it is not moved solely by human power nor is it a motorized wheelchair. § 322.01(26), Fla. Stat. Man-chado did not allege that the vehicle fell within the exception for motorized bicycles. A motorized bicycle by definition is not capable of exceeding a speed of twenty miles per hour, whereas here it was alleged that the vehicle could not exceed thirty miles per hour. § 316.003(2), Fla. Stat. Because the vehicle is self-propelled and not excluded from the definition of a motor vehicle, Manchado was required to have a license in order to operate it. The court erred in granting the motion to dismiss.

Reversed.

GUNTHER and GROSS, JJ., concur.


author: STEVENSON, J.

text:
    HOSPICECARE OF SOUTHEAST FLORIDA, INC., Appellant, v. Malcolm MAJOR, M.D., Appellee.
    No. 4D07-442.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Joseph R. Fazio, III, of Fazio, Disalvo, Cannon, Abers, Podrecca, Fazio & Carroll, Fort Lauderdale, for appellant.
    Stuart A. Rosenfeldt, Shawn L. Birken and Matthew S. Sackel of Rothstein Ro-senfeldt Adler, Fort Lauderdale, for appel-lee.
   STEVENSON, J.

This case arises out of an employment dispute between Malcolm Major, M.D. and Hospicecare of Southeast Florida, Inc. PlaintifiyAppellee, Malcolm Major, M.D., brought an action for breach of employment contract and a claim under the Florida Whistle-blower’s Act. Defendant/Appellant, Hospicecare of Southeast Florida, Inc., filed a motion to compel arbitration and stay the action. The trial judge held that the breach of contract claim was arbi-trable, while the Whistle-blower’s claim was not. Hospicecare appeals the trial judge’s denial of its motion to compel arbitration with respect to the Whistle-blower’s claim. We reverse and hold that the Florida Whistle-blower’s Act claim is subject to arbitration under the parties’ agreement.

“An order denying a motion to compel arbitration is reviewed de novo.” Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773, 774 (Fla. 4th DCA 2007) (citing King Motor Co. of Ft. Lauderdale v. Jones, 901 So.2d 1017 (Fla. 4th DCA 2005)). “ ‘In determining whether a dispute is subject to arbitration, courts must consider three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’ ” Id. (quoting King Motor Co., 901 So.2d at 1018); see also Fla. Power & Light Co. v. Road Rock, Inc., 920 So.2d 201, 203 (Fla. 4th DCA 2006). The question of whether a dispute is within the scope of arbitration is a matter of contract interpretation. O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 183 (Fla.2006); Fla. Envtl. Servs., Inc. v. Rentoumis, 950 So.2d 466, 470 (Fla. 4th DCA 2007). Courts must look to the intent of the parties as manifested in the contract to determine whether or not an arbitration clause compels arbitration of a particular dispute. O’Keefe Architects, Inc., 944 So.2d at 185. Doubts concerning the scope of arbitration agreements should be resolved in favor of arbitration on all issues related to the contract. Id.

Dr. Major was hired as Hospiceeare’s medical director. The employment agreement entered into by the parties contains an arbitration clause that states, subject to certain exceptions that are not relevant here, “any controversy or claim arising out of or related to this Agreement, or any breach thereof, shall be settled by arbitration.” At issue in the present case is whether the Florida Whistle-blower’s Act claim brought by Dr. Major against Hos-picecare is arbitrable.

Clauses that use the words “arising under” are typically interpreted narrowly, while clauses that use the words “arising out of or relating to” are typically interpreted broadly. Fla. Envtl. Servs., Inc., 950 So.2d at 470; see also O’Keefe Architects, Inc., 944 So.2d at 185 (interpreting “ ‘arising out of or relating to’ the contract” as a “broad provision”).

Several courts in Florida have held that claims under the Florida Whistle-blower’s Act may be subject to arbitration. See, e.g., Brasington v. EMC Corp., 855 So.2d 1212, 1214 (Fla. 1st DCA 2003) (compelling arbitration of a Whistle-blower’s claim where arbitration clause applied to disputes “arising out of or relating to your employment by the company”); Prudential Sec., Inc. v. Katz, 807 So.2d 173, 174 (Fla. 3d DCA 2002) (compelling arbitration of a Whistle-blower’s claim where arbitration clause applied to disputes “relating to his employment or termination of [his] employment”). In the present case, the trial judge reasoned that since the instant arbitration provision contained the terms, “any controversy or claim arising out of or relating to this Agreement ” as opposed to “arising out of or relating to the employment relationship,” the arbitration clause did not apply to a statutory Whistle-blower’s claim because Major’s rights under the Florida Whistle-blower’s Act exist irrespective of his rights under the employment agreement. We believe that the trial court’s interpretation was too narrow.

In Delaurier v. American Welding Society, Inc., 881 So.2d 613, 614 (Fla. 3d DCA 2004), the Third District compelled arbitration of a Whistle-blower’s claim where the arbitration clause was virtually identical to that at issue here. Chief Judge Schwartz wrote:

It is clear that the appellant’s claim against his former employer under the Whistle Blower Act, sections 448.101-.105, Florida Statutes (2002), is encompassed by the arbitration clause in the parties’ employment contract which provides that “[a]ny controversy or claim between the Executive and the Corporation arising out of or relating to this Agreement shall be submitted to arbitration in Dade County, Florida in accordance with the rules of the American Arbitration Association.”

Id. We agree with the holding of Delaurier.

In addition, the language of the Florida Whistle-blower’s Act expressly protects and preserves the rights of parties to an employment contract where those rights are not inconsistent with the Act itself. Pursuant to section 448.105, Existing Rights, the Act states:

This act does not diminish the rights, privileges, or remedies of an employee or employer under any other law or rule or under any collective bargaining agreement or employment contract.

When read together, both the plain language of the employment agreement and the express statutory language of the Florida Whistle-blower’s Act direct the conclusion that Major’s Whistle-blower’s claim is arbitrable. While mindful of the public interest that is served by litigating statutory rights of action, we are persuaded by the express language of the contract and the capacity of the arbitration forum to provide adequate redress for the statutory Whistle-blower’s claim.

Major also argues that the order denying the motion to compel arbitration of the Whistle-blower’s claim was proper because the costs of arbitration would be unduly burdensome and he will not be able to fully recover his statutory remedies in arbitration. These arguments were not argued below and the record before this court does not support either claim.

Reversed.

STONE and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Walter CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1440.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Walter Cunningham appeals the denial of a rule 3.800(a) motion in which he sought the reinstatement of jail credit originally awarded at sentencing. This was his second rule 3.800(a) motion seeking this credit. The first motion was denied, and on appeal, this court affirmed without prejudice for appellant to exhaust his administrative remedies with the Department of Corrections (DOC) and then petition the circuit court for a writ of mandamus. Cunningham v. State, 932 So.2d 1202 (Fla. 4th DCA 2006). We again affirm because the trial court did not enter an order changing the original sentence.

On April 1, 2004, Cunningham was sentenced to five years in prison for grand theft and to a consecutive term of four years in prison for burglary of a structure. The transcript reflects that, at the prosecutor’s request, the trial court awarded appellant 261 days credit for time served on each count, and the written sentence is consistent with the oral pronouncement.

After he began serving his prison sentence, DOC contacted the trial court and asked for clarification regarding the credit for tíme served. In response, the predecessor judge wrote a short letter stating that the sentences were consecutive and Cunningham was entitled to have the 261 days credit deducted from his total sentence only once. The letter was written more than two months after the sentence was imposed.

Cunningham has since filed two motions to correct an illegal sentence arguing that the trial court no longer had jurisdiction to change his sentence and that the revocation of this jail credit constitutes a double jeopardy violation. See Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004). He acknowledges that if the judge did not originally give him credit for time served on both counts, he would have no grounds to argue that he was entitled to this credit based on Hodgdon v. State, 789 So.2d 958 (Fla.2001). But, even if the original award was improper, the judge could no longer change the amount of credit. Wheeler, supra at 1261. In response to this court’s previous opinion, Cunningham argued that pursuing administrative remedies with DOC is not a realistic option because DOC is following the trial court’s letter which instructed DOC to take away this credit.

Although the state takes a contrary position on appeal, the transcript reflects that the prosecutor agreed to have the credit granted on each count at sentencing.

We agree with appellant that the trial court had no jurisdiction to sua sponte reduce the amount of jail credit more than two months after sentencing. However, no new order was entered in this case. The judge’s letter to DOC was a nullity and it had no legal affect on appellant’s sentence. The letter was contrary to the oral and the written sentence, and appellant was not given notice or an opportunity to be heard. DOC cannot treat the letter as a modification of appellant’s sentence. If DOC refuses to give effect to the original sentencing order, then appellant can file a petition for writ of mandamus in the Second Judicial Circuit in Leon County. Bush v. State, 945 So.2d 1207 (Fla.2006); Pugh v. State, 954 So.2d 1254 (Fla. 4th DCA 2007); Ruiz v. Crosby, 888 So.2d 154 (Fla. 5th DCA 2004); see also Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001) (recognizing that DOC does not have authority to reject credit specifically ordered by the trial court as part of the sentence).

Affirmed as Modified.

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


author: STONE, J.

text:
    C.J., the father, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D07-1496.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Sean Conway, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   STONE, J.

We reverse an order adjudicating C.J. dependent and remand for a new final hearing. Appellant is the child’s father.

The department alleges that C.J. is at substantial risk of imminent threat of harm, as defined in section 39.01(30), Florida Statutes, or imminent neglect, as defined in section 39.01(43), Florida Statutes, arising out of Appellant’s history of domestic violence against the mother.

The department concedes that the trial court erred in making a “blanket ruling” admitting hearsay under the assumption that hearsay “is permitted in dependency matters.” We recognize that a trial court has broad evidentiary discretion to rely upon hearsay in numerous dependency proceedings, such as shelter hearings. Nevertheless, section 39.507(l)(b), Florida Statutes, provides that “[ajdjudicatory hearing shall be conducted by the judge ... applying the rules of evidence in use in civil cases.” See also In the Interest of S.J.T., 475 So.2d 951, 953 (Fla. 1st DCA 1985). Thus, the trial court erred in admitting, and relying upon, inadmissible hearsay testimony at the adjudicatory hearing.

Appellant requests reversal without a new hearing because the record does not show that C.J. saw or was aware of the violence in the home. We conclude, however, that the trial court did not have to determine whether C.J. saw or was aware of the violence because such a finding is not required in deciding whether a child is neglected. The child was approximately one month old at the time of the first of several incidents.

On remand, a new adjudicatory hearing is required, as there is sufficient evidence for a prima facie showing, excluding the hearsay evidence, (1) that C.J. is at imminent risk of neglect or that Appellant had neglected C.J., or (2) that the department sufficiently established an imminent threat.

At the adjudicatory hearing, the department presented evidence of three separate incidents of domestic violence between Appellant and the mother within a span of four months. Taking the facts in the light most favorable to the decision, the following transpired.

In the first incident, Appellant forcibly put the mother out of the house and shut down the power to the house. The mother applied for a restraining order, but subsequently dismissed that action.

The second incident resulted in the mother being hospitalized. According to the department’s interpretation of the evidence, Appellant hit the mother on the head and cut her arm with a knife. The mother, however, subsequently testified on behalf of Appellant, with whom she continued to reside, that her head injury and a significant knife wound to her arm were caused by a common kitchen accident. The mother did acknowledge that the wound occurred in the course of an argument with Appellant. The trial court did not believe the mother’s explanation that an ambulance was required to take her to the hospital because she cut herself while cooking. Appellant was arrested following that incident for violating parole. This second incident occurred in the presence of another child, L.B., C.J.’s sister, who told investigators that she saw Appellant cut the mother with the knife and heard the mother screaming.

The third incident occurred a month later, when Appellant struck and physically-held down K.B., C-J.’s sister. There was a statement by K.B., later withdrawn, that Appellant pulled out a gun and pointed it at the mother and K.B. during that incident. Evidence also showed that Appellant broke a window and smashed a glass coffee table, cutting the mother’s hand and foot, and “smashed the windows” of the. mother’s car. Although out of the room, the children were present during this incident, and one of the children called the police.

At the time of the hearing, Appellant was in custody on two charges, one stemming from the instant case for domestic violence with a deadly weapon, and another for a felony battery. When the department’s counsel asked Appellant about the facts surrounding the charges, the trial court sustained Appellant’s counsel’s objection based on the Fifth Amendment.

At the conclusion of all testimony, the court found that Appellant placed C.J. at risk because she “was exposed to some kind of violence.” The court ruled that C.J. was subject to imminent neglect and that Appellant had neglected C.J., pursuant to sections 39.01(43) and 39.01(14), Florida Statutes. See also §§ 39.01(2), 39.01(30), Fla. Stat. (2006).

Dependency analysis begins with section 39.01(14), Florida Statutes, which states, in relevant part, that a child may be found “dependent” if the child (1) has “been abandoned, abused, or neglected by the child’s parent,” or (2) is “at substantial risk of imminent abuse, abandonment, or neglect by the parent.” § 39.01(14)(a),(f), Fla. Stat. (2006). “Abuse” means “any willful act or threatened act that results in any. physical, mental or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (emphasis added). “Harm,” in turn, includes' “engagepng] in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” § 39.01(30)(i), Fla. Stat. (emphasis added).

The statutory definition of “neglect” states that:

“Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to he significantly impaired or to be in danger of being significantly impaired.

§ 39.01(43), Fla. Stat. (emphasis added).

It is not always necessary that a child be physically present in the room in which an incident occurs to demonstrate neglect or risk of neglect. In J.C. v. Department of Children and Family Services, 937 So.2d 184, 187 (Fla. 3d DCA 2006), the department alleged, and the trial court found, “neglect and/or risk of imminent neglect ... based on the environment that the children were permitted to live in.” In affirming, the court explained that the totality of the circumstances surrounding the father’s numerous drug transactions at their house evidenced an imminent risk of harm to the children’s health, notwithstanding that the children were not present or even aware of the illegal activities. This court agreed in C.A. v. Department of Children and Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007), reasoning that where “the totality of the circumstances ... show an imminent risk of harm[,] ... it is not necessary to show [the child] was present for the parents’ alleged drug use.”

On the other hand, for domestic violence to constitute abuse to the child, the child must be present. In D.H. v. Department of Children and Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000), this court explained that domestic violence may amount to “harm” under the definition of “abuse,” “where the child sees or is aware of the violence occurring.” Id. (explaining the “for the presence of a child” wording in the statutory definition of “harm”). In D.H., id. at 425, this court reversed a dependency order based on probability of prospective abuse to D.H.’s daughter, where D.H. abused his daughter’s half-sister. Generally, a trial court may find that a child is “abused” based on abuse inflicted upon the child’s siblings. O.S. v. Dep’t of Children & Families, 821 So.2d 1145, 1148 (Fla. 4th DCA 2002) (“The evidence ... must support a nexus between the act of abuse and any prospective abuse to another sibling.”). In D.H., however, the evidence of abuse consisted of one isolated incident of physical abuse on the sibling and acts of domestic violence between D.H. and the mother where the children were not present.

In this case, police were called to investigate three separate incidents of domestic violence. The first incident resulted in the mother seeking a restraining order; the second involved cuts and bruises and the mother being hospitalized; and the third incident involved, even without the gun, grabbing and holding C.J.’s sister, smashing car windows, and breaking a glass coffee table, all with the children in the same or adjacent rooms. These incidents included serious injury to the mother and, in one incident, C.J.’s sister called police. Recognizing that some of the evidence of these incidents is hearsay, we do not mean to indicate, here, our view of the ultimate resolution. That is an issue to be addressed by the trial court on remand.

We recognize that, although the court simply stated that C.J. was placed at risk, the court’s overall finding appears to be founded, in part, on risk of imminent neglect. Although the record lacks evidence of direct abuse to C.J., the trial court could properly have found that Appellant’s conduct supports a finding of neglect or imminent neglect of C.J. and that Appellant’s conduct caused her, under the totality of the circumstances, to be at significant risk.

Unlike the D.H. dependency order, which was based on prospective abuse, neglect or imminent neglect do not require that the child personally observe the acts. Compare § 39.01(2), Fla. Stat. (defining “abuse” to include an act that results in harm that causes or may cause significant impairment to a child’s health), and § 39.01(31)(i), Fla. Stat. (defining “harm” to “occur when any person ... [e]ngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child”), with § 39.01(43), Fla. Stat. (defining “neglect,” in relevant part, to occur “when a child is ... permitted to live in an environment when such ... environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired”).

Appellant’s reliance on this court’s decision in R.S. v. Department of Children and Families, 881 So.2d 1130 (Fla. 4th DCA 2004), is misplaced. First, one of the bases for the R.S. dependency order was “the probability of prospective harm.” Id. at 1132. Second, this court reversed the dependency order because the father’s poor parenting skills and past substance abuse did not create a risk of harm or neglect to the child. Id. at 1133-34. In this case, the trial court based its order on neglect and imminent risk of neglect and, more significantly, the trial court heard evidence of multiple incidents of ongoing and substantial domestic violence with children present in the home and within a relatively short period of time, creating a risk of imminent neglect.

We note that a history of domestic violence has been recognized as supporting a finding of a threat of prospective harm. See, e.g., J.C. v. Dep’t of Children & Family Servs., 947 So.2d 1246, 1249 (Fla. 2d DCA 2007); T.R. v. Dep’t of Children & Families, 864 So.2d 1278 (Fla. 5th DCA 2004) (affirming a dependency order where (1) the record showed prior incidents of domestic violence, (2) the incident at issue involved a deadly weapon, and (3) evidence indicated that the parents continued their relationship).

Further, although the trial court accepted the sister’s changed testimony concerning the presence of a gun, the facts surrounding Appellant’s current charge of domestic violence with a deadly weapon are unclear.

We remand for a new final hearing to allow the trial court to consider whether properly admitted evidence supports a dependency finding based on neglect or imminent neglect or a recent history of domestic violence constituting an imminent threat to C.J.

STEVENSON and HAZOURI, JJ., concur.

      . The mother subsequently claimed that "the table wasn’t secure when [Appellant] walked passed it quickly. The tabletop flipped and dropped and broke and hit [the mother’s] foot, and caused the cut.” The mother also denied the presence of a gun and stated that only Appellant’s car windows were broken. She explained that she broke his car window, and he mistook her mother’s car for hers and broke her mother’s car window.


author: PER CURIAM. GROSS, J.,

text:
    Mary WEBSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-3307.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Gregg S. Lerman, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

In this petition for writ of prohibition, petitioner seeks to prohibit her further prosecution on the charge of first degree murder in the case pending against her. The court below declared a mistrial at the initial trial and then denied petitioner’s written motion to dismiss on double jeopardy grounds. Because we conclude that there was no manifest necessity to declare a mistrial, double jeopardy bars further prosecution. Accordingly, we grant the petition.

Petitioner was charged with first degree murder (count one), robbery with a deadly weapon (count two), and grand theft (count three). The case went to trial on April 20, 2007. On May 7, 2007, at 3:30 p.m., the jury retired to begin deliberations. Two notes were sent out by the jury. At 5:10 p.m., the jury was sent home without reaching a verdict. Deliberations recommenced at 8:30 a.m. the following day. The jury sent out a third note at approximately 10:30 a.m. This note indicated that a few of the jurors were not willing to compromise to a lesser charge in count one and sought guidance as to how to proceed. The court met with both parties, with Webster present, and determined that a jury deadlock instruction would be appropriate. An Allen charge was read to the jury. At 11:04 a.m., the jury resumed its deliberations. The jury then submitted a fourth note which requested a break.

As the jury was about to begin its break, the court was led to believe that a verdict had been reached. The judge had the jury enter the courtroom and inquired with the foreman as to whether a verdict had been reached. The foreman stated that a verdict had not been reached. The jury took its break and then continued its deliberations. At 1:50 p.m., a fifth note was submitted to the judge. The note contained the following request and question:

1) Please give a better explanation of principals.
2) Juror wants to know what happens to Mary Webster if there is a mistrial (hung jury) on the first count.

After conversing with the parties, the judge decided to inform the jury that he had given all the guidance he could as to the definition of “principal.”

On the question about what happens in the case of a mistrial, the judge conversed with the parties in depth as to how to respond. The prosecutor wanted the judge to inform the jury that it should not consider the consequences of a mistrial in making its decision. The judge then noted that this court had recently decided Rubi v. State, 952 So.2d 630 (Fla. 4th DCA 2007), wherein we.interpreted an ambiguous jury note submitted after an Allen charge as a second deadlock note even though the jury did not specifically state that it was deadlocked. The judge was concerned that, as in Rubi the note sent in the instant case could be interpreted as a second deadlock note. The judge inquired of the parties as to whether they thought the note could be interpreted as a deadlock note. The prosecutor said yes and defense counsel was not given a chance to complete his answer. However, the prosecutor then told the judge that he did not believe the jury was at an impasse and again asked the judge to simply instruct the jury not to be concerned about what happens if a mistrial were to occur. Defense counsel did not consent to a mistrial being declared. Relying on Rubi the court below, sua sponte, declared a mistrial as to count one.

On June 18, 2007, petitioner filed a motion to dismiss count one on double jeopardy grounds. A hearing was held on the motion. The motion was denied.

Discussion of Rubi

The court below relied primarily on Rubi as justification for its decision to order’ the mistrial and to deny petitioner’s motion to dismiss count one. Thus, a synopsis of Rubi is necessary. In Rubi the jury sent a note indicating deadlock. An Allen charge was read. The jury then sent another note which stated, “One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is [sic] being said to not be factual and/or-and/or [sic] not conceivable:” Rubi 952 So.2d at 632. During a discussion about the meaning of the note between the judge and the parties, the'judge stated that he did not believe the note should be read as a statement of impasse. The prosecutor suggested dismissing the jury for the night and reconvening the following morning. Defense counsel suggested merely instructing the "jurors to follow the law they had previously been given. The prosecutor also later stated that the note implied that the jury was at an impasse. After much discussion with the parties, the judge decided to instruct the jury about their duty to follow the law. A few minutes after this instruction was given, the jury returned a guilty verdict.

In Rubi, we found the note stating that a juror was not following the law to be an “announcement of a second deadlock.” Id. at 634. We stated this because the note clearly implied that there was an irresolvable disagreement within the jury as to the facts of the case. We also emphasized that the note had singled out one member of the jury for not following the law. Because the majority of the jurors were pitted against a single member, the judge’s instruction to follow the law implied that the judge agreed with the majority of the jurors that the holdout juror was not following the law. For this reason, we found the instructions given after the second note to be coercive even though the judge had merely repeated the standard instruction to follow the law as found in Florida Standard Jury Instruction (Criminal) 3.10(1).

In the instant matter, the court below was placed in an awkward situation where it was given an ambiguous jury note after the jury had already been given an Allen charge. The court below believed the question — “Juror wants to know what happens to Mary Webster if there is a mistrial (hung jury) on the first count” — was a reference to a single juror and that any instruction to the jury would, be unduly coercive to that single juror. The court also believed the fifth note could be interpreted as a second deadlock note. Thus, the lower court deemed Rubi to be on point and declared a mistrial as to count I.

However, the lower court misapplied Rubi in two crucial aspects. First, the note in Rubi unambiguously indicated that there was a single holdout juror. The note in the instant case, as acknowledged by the lower court, is vague in indicating the number of holdout jurors. Second, the holdout juror in Rubi was questioning the evidence against the accused. This uncertainty on the behalf of the holdout juror was central to the issue of guilt and innocence. The question in the instant case concerned the consequences of a mistrial. This inquiry was not of the magnitude of the inquiry in Rubi. The instant query concerned a matter which was not within the province of the jury to contemplate. Thus, these critical differences should have been taken into consideration by the lower court when the court dealt with the jury’s fifth note. As discussed below, the lower court had more options than it realized.

Discussion of Manifest Necessity

Our supreme court stated many years ago that if a jury is discharged, before reaching a verdict, for a legally insufficient reason and without the defendant’s consent, such discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense. State ex rel. Williams v. Grayson, 90 So.2d 710, 713 (Fla.1956); see also Jackson v. State, 855 So.2d 178 (Fla. 4th DCA 2003) (stating that the discharge of a jury for a legally insufficient reason, and without the defendant’s consent and without manifest necessity, is equivalent to an acquittal). In other words, a trial judge should exercise the power to discharge a jury only in cases of manifest necessity. Spaziano v. State, 429 So.2d 1344, 1345 (Fla. 2d DCA 1983). As the Spaziano court stated:

[A] valid reason for declaring a mistrial must be predicated on either of two bases: (1) On some misfortune which, although the fault of neither party, renders continuation of the trial impossible or unreasonably prejudicial to the substantial interest of either the judicial process itself, the defendant, the state, or both, or (2) upon some unfair or wrongful tactic, action or conduct on the part of the defendant, by which a substantial interest in the state is unfairly frustrated or embarrassed.

Spaziano, 429 So.2d at 1346 (citing State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla. 2d DCA 1974)) (footnote omitted).

The record clearly demonstrates that the trial judge made a good faith attempt to follow the law. Nonetheless, he erred in sua sponte declaring a mistrial before there was a necessity to do so. The error had its genesis in the judge’s attempt to divine meaning from an ambiguous jury note and as a result, he created for himself a false dilemma. The judge believed that any instruction to the jury concerning the question about a mistrial would result in undue coercion upon a holdout juror. He assumed that there was a single holdout juror based upon the poorly worded and indefinite fifth note. He also determined the ambiguous note to be a second deadlock note.

There was no reason for the judge to speculate as to how many holdout jurors remained or for him to make assumptions about the meaning of the fifth note. The simplest solution in the instant matter would have been to seek clarification from the jury regarding the ambiguous note. Potter v. United, States, 534 A.2d 943, 946 (D.C.App.1987) (stating that a trial court is not required to answer an ambiguous jury note without seeking clarification); Sharkey v. Lasmo, 55 F.Supp.2d 279, 293 (S.D.N.Y.1999) (stating that it is well-established that questioning the jury about an ambiguous jury note is permissible and clearly preferable to merely guessing at the meaning); State v. Whittaker, 326 N.J.Super. 252, 741 A.2d 114, 120 (1999) (stating that where a jury note is ambiguous, the trial judge should not assume any meaning from the note but should seek clarification).

Alternatively, the trial judge could have simply stated to the jury that it should not concern itself with the ramifications of a mistrial. See Conley v. Very, 450 F.3d 786, 788 (8th Cir.2006) (stating that if the jury appears to be focused on an irrelevant matter, then the court’s response should disabuse the jury of its mistaken belief that an irrelevant matter is important to its decision). The court below should have taken one or both of these options before deciding to declare a mistrial. As these options show, the trial court certainly did not consider all practicable alternatives before making its decision. Thus, by declaring a mistrial, the lower court improvidently interrupted the natural progression of the trial before it had reached a point where the continuation of the trial was impossible.

Because the court below declared a mistrial without there being a manifest necessity to do so, the declaration had the effect of an ácquittal. As such, we grant petitioner’s petition for writ of prohibition and order count one against her be dismissed.

TAYLOR and HAZOURI, JJ., concur.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in the majority opinion and write separately to emphasize my reasons and to discuss a 51 year old case which I find to be controlling.

In State v. Grayson, 90 So.2d 710, 713 (Fla.1956), the supreme court wrote that after a jury has been sworn in a criminal case, a trial judge “should exercise the power to discharge the jury only in cases of manifestly urgent and absolute necessity.” I agree with the majority that to answer the jury’s questions would not have presented the impermissibly coercive situation present in Rubi v. State, 952 So.2d 630 (Fla. 4th DCA 2007); see Scoggins v. State, 691 So.2d 1185, 1189 (Fla. 4th DCA 1997), approved, 726 So.2d 762 (Fla.1999) (setting out factors indicating improper coercion of jurors to reach verdict).

This area of the law does not require a defendant to timely voice an objection to a mistrial in order to raise a double jeopardy argument in a petition for writ of prohibition. In Grayson, one lawyer for the defendants did not object to the state’s motion for mistrial; co-counsel for the defendants seemed to agree with the court’s expressed belief that there would be no double jeopardy issue, but said he would not “bind himself on the point.” Grayson, 90 So.2d at 712. Nonetheless, the supreme court held that the defense attorneys had not “affirmatively consented to the granting of the State’s motion,” so that the “State made the motion at its peril.” Id. at 714. The supreme court imposed the requirement that a mistrial must be granted with “the expressed consent” of a defendant when it is ordered for a legally, insufficient reason. Id. This case presents weaker facts for “expressed consent” than Grayson.

      . A petition for writ of prohibition is the proper vehicle by which to challenge a ruling that permits the prosecution of a defendant in violation of her federal and Florida constitutional protections against double' jeopardy. Jackson v. State, 855 So.2d 178, 179 (Fla. 4th DCA 2003).

      . The standard Allen charge is set forth in Florida Standard Jury Instruction (Criminal) 3.06 and derived from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Defense counsel did not explicitly object to the mistrial being declared either. However, as noted in Spaziano v. State, 429 So.2d 1344, 1346 (Fla. 2d DCA 1983), "A defendant’s silence or his failure to object or protest against an illegal discharge of the jury before a verdict, does not constitute a consent, and is not á waiver of the constitutional prohibition against a subsequent trial for the same offense if the jury has been improperly discharged.”

      . In its order on the motion to dismiss, the lower court left open the possibility that the fifth note could be interpreted to mean that more than one juror wanted to know what happened to petitioner if a mistrial was declared. However, the court performed its analysis primarily on the assumption that there was a single holdout juror.