author: TAYLOR, J.

text:
    Imran HUSSAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4591.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied Aug. 24, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant, Imran Hussain, raises several points in this appeal of his convictions and sentences for two counts of first degree murder, two counts of robbery, and arson. We affirm on all issues, except his claim that his two convictions for robbery violate his constitutional right to double jeopardy protection.

The defendant was convicted of the premeditated murder and robbery of Mohammed Abdul Kalam and Joynab Chow-dhury, owners of a Dollar Store in Bro-ward County, Florida. The defendant was a former employee of the store. He was terminated because the owners suspected him of stealing from the store and using drugs. He unsuccessfully sought to get his job back. On November 29, 2001, firefighters were dispatched to the store around 9:30 a.m. When they arrived, they discovered the bodies of Kalam and Chowdhury in the back of the store under debris. Both victims had been brutally beaten with a blunt object. A fire had been intentionally set by placing an open flame on flammable objects. The cash registers were found open, with only small change inside, and a check had been taken from Kalam’s checkbook.

Count III of the indictment charged the defendant with armed robbery of Kalam, by depriving Kalam of money and/or a company checkbook on November 29, 2001, and using a heavy blunt object. Count IV contained the same armed robbery allegations, but named Chowdhury as the victim. The defendant asserts that his convictions for both counts of armed robbery violate double jeopardy, because, even if the state presented sufficient evidence that the checkbook and/or money was taken from either victim on November 29, there was insufficient evidence to find that more than one single taking occurred; there was no evidence that there was a “successive and distinct” taking.

“ ‘The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.’ ” McKinney v. State, 51 So.3d 645, 647 (Fla. 1st DCA 2011) (quoting Gordon v. State, 780 So.2d 17, 19 (Fla.2001)). See U.S. Const. Amend. V & XIV; art. I, § 9, Fla. Const.

In Brown v. State, 480 So.2d 446, 446 (Fla.1983), the defendant pointed a gun at one cashier and told her to put the register’s money in a bag, then ordered her to open the second register. The cashier did not have a key, so she called her fellow employee to open it; the second employee finally did so after the defendant pointed the gun at her. Id. The second employee put the money from the second register in the bag containing the money from the first register. Id. The defendant was convicted of two counts of robbery. Id. The Florida Supreme Court affirmed the two convictions, finding that even though the money belonged to a single owner, it was taken by force, violence, assault, or putting in fear of two employees, the taking was from two separate registers, and the two events were separate in time and required separate criminal intent. Id. at 447. Further, the court explained that “[a]ctual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.” Id.

Here, the defendant was charged with taking “money and/or a company checkbook” from Kalam (Count III) and Chowdhury (Count IV). The evidence did not establish, however, that there was more than a single taking. It did not show that there were “successive and distinct forceful takings with a separate and independent intent for each transaction.” No witness was present at the scene to testify to what occurred in the store. Both victims were found in the same room. The registers and checkbook were in the same general location. The cash registers were open, and only small change was found inside, although testimony revealed that Kalam brought in between $150 and $160 per day. A check was also taken from the checkbook, and the defendant, later on the day of the murder, tried to cash a check with Kalam’s forged signature.

Even though there were two separate items taken (money and a check) and two victims, the evidence could support several different factual scenarios. Thus, we cannot say for certain whether the “taking” was one transaction or two. These items may not have been within both victims’ possession and control. Further, there may not have been two events that were separate in time and that required separate criminal intent. Simply put, the evidence does not sufficiently establish that more than one single taking occurred.

Accordingly, we reverse and remand for the trial court to vacate one of the judgments of conviction and sentence for robbery. We affirm as to all other issues raised in this appeal.

Affirmed in part, Reversed in part and Remanded.

WARNER and CONNER, JJ., concur.

      . More specifically, the indictment charged the defendant with (III) armed robbery, by “unlawfully [taking] from the person or custody of [Kalam], certain property of value, to-wit: money and/or a company checkbook, with the intent to permanently or temporarily deprive [Kalam] of a right to the property or a benefit from it, by the use of force, violence, assault or putting the said [Kalam] in fear, and in the course thereof, there was carried a deadly weapon, to-wit: a heavy object or objects with features that were blunt and/or sharp-edged and/or cylindrical and were sufficient to cause laceration and deep bruising and skull fracture, contrary to Sections 812.13(1) and (2)(a) and 775.087.” Count IV was identical, except Chowdhury was the named victim.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Guilloux BLANCHARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2841.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied Sept. 7, 2011.

      Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Guilloux Blanchard appeals his judgment, convicting him of trafficking in cocaine, possession of cannabis, and possession of drug paraphernalia. We affirm.

While driving, Blanchard and his passenger, General Graham, were stopped by Detective Wooddell. At trial, Wooddell testified that he initiated the stop because he recognized Graham as a known drug dealer, who had an outstanding warrant and a history of possession with intent to deliver narcotics; Wooddell did not know Blanchard. Wooddell further testified that as he approached the car from the rear, he noticed Blanchard “manipulate” the center console. He did not see Blanchard lift open the console or put anything in it; he only saw Blanchard slam the console shut. According to Wooddell, Graham did not touch the center console. When Wooddell approached the vehicle, he noticed two small baggies of marijuana in the driver side door. Wooddell escorted Blanchard out of the vehicle and retrieved the marijuana. Wooddell then searched the vehicle and found a bag of cocaine in the center console, along with a sock containing smaller baggies and a digital scale. Photographs of the center console were admitted into evidence. The photographs show a sock on top of a large bag of cocaine; however, the sock did not cover the entire bag. Thus, the cocaine was visible upon opening the center console. Blanchard was the registered owner of the vehicle.

After the defense rested, Blanchard renewed his previous motion for judgment of acquittal, arguing that the drugs in the console could have been put there by Graham, a known drug dealer. The trial court denied the motion.

The denial of a motion for judgment of acquittal is reviewed de novo. Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006). A jury’s verdict may be overturned on appeal if no rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Jackson v. State, 995 So.2d 535, 538 (Fla. 2d DCA 2008). Where a conviction is based wholly on circumstantial evidence, a motion for judgment of acquittal should be granted if the State fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. Reynolds, 934 So.2d at 1146. However, “[t]he state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Id. (quoting Darling v. State, 808 So.2d 145, 156 (Fla.2002)).

“To convict a defendant for possession of a controlled substance under a constructive possession theory, the State must prove that ‘the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.” Brown v. State, 8 So.3d 1187, 1188 (Fla. 4th DCA 2009) (quoting Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007)). Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband, which may consist of “evidence of incriminating statements or actions, or other circumstances from which a jury might lawfully infer the defendant’s actual knowledge of the presence of contraband.” Id. at 1189 (quoting Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999)).

Blanchard relies on Brown and argues that the trial court reversibly erred in denying his motion for judgment of acquittal because his closing of the center console is insufficient evidence to prove that he had knowledge of, and dominion and control over, the drugs and paraphernalia found in the center console. The State argues that Brown is distinguishable because in Brown, the seized drugs were located inside of a closed jewelry box which was inside the center console and because the vehicle in Brown was a rental car and Brown was not listed on the rental agreement. We agree with the State that Brown is distinguishable from the facts of the present case and affirm.

In Brown, after a stop of Brown’s vehicle, an officer approached the passenger side of Brown’s car and observed Brown make a move towards, and close, the car’s center console. Id. at 1188. When the car was searched, police found, among other incriminating items, a black jewelry box in the car’s center console. Id. Inside the jewelry box, the police found Xanax. Id. Brown was convicted of possession of cocaine with intent to sell and possession of Xanax. Id. at 1187. Brown moved for a judgment of acquittal on the possession of Xanax charge, arguing that the evidence was insufficient to establish that Brown had knowledge of the jewelry box and its contents or the ability to exercise dominion and control over the same; the trial court denied the motion. Id. at 1188. On appeal, this court reversed Brown’s conviction for possession of Xanax, holding that the officer’s testimony suggesting that Brown was closing the console was insufficient to demonstrate that he had knowledge of the contents of a jewelry box contained therein, let alone the ability to exercise dominion and control over the same. Id.

Brown is distinguishable to the facts of this case. In Brown, the car was rented and Brown’s name did not appear on the rental agreement; here, Blanchard owned the vehicle. More importantly, however, in Brown, the evidence was found inside of a closed black jewelry box, which was inside the center console.' As such, it can be reasonably inferred that Brown was not aware of the contents of the jewelry box even if he was aware that the jewelry box was in the center console. Here, the cocaine was not similarly situated; instead, it was found partially underneath a sock, with some of the bag not being covered by the sock. Thus, unlike Brown, the evidence was immediately visible upon opening the center console. In other words, the cocaine was in plain view before the top of the console was closed by Blanchard. Thus, it can be inferred that Blanchard had knowledge of the cocaine. See Corker v. State, 31 So.3d 958, 961 (Fla. 1st DCA 2010) (holding that “[t]he fact that drugs were openly within appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the [drugs] may be inferred.”). Because Blanchard was seen manipulating the center console, under the facts of this case, it can be reasonably inferred that Blanchard was exercising control over the cocaine by concealing it from the plain view of the officer. Thus, the evidence presented by the State was sufficient to overcome Blanchard’s reasonable hypothesis of innocence. Consequently, the trial court correctly denied Blanchard’s motion for judgment of acquittal.

Affirmed.

WARNER and CONNER, JJ., concur.


text:
    CAPROC THIRD AVENUE, LLC, Appellant, v. DONISI INSURANCE, INC. and Charles Donisi, Appellees.
    No. 4D09-4792.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied Aug. 24, 2011.

      Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant.
    Keith T. Grumer and Jason N. Goldman of Grumer & Macaluso, P.A., Fort Lauder-dale, for appellees.
   TAYLOR, J.

Caproc Third Avenue, LLC (Caproc) obtained a final judgment holding Scott Gor-ton, Charles Donisi, and Donisi Insurance Company, Inc. jointly and severally liable for damages under a lease agreement and guarantee. After a writ of garnishment was issued against Charles Donisi’s personal bank accounts, Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting that his accounts were exempt from garnishment under the “wages exception” and the “head of household” exemption. In response, Caproc’s attorney filed an “attorney’s affidavit,” wherein he denied under oath the facts set forth in- Donisi’s affidavit for exemption. The trial court dissolved the writ after determining that the affidavit filed by Caproc’s attorney was legally insufficient to satisfy Caproc’s burden, under section 222.12, Florida Statutes, to deny under oath the facts set forth in the judgment debtor’s affidavit for exemption. We affirm.

To support his emergency motion to dissolve the writ of garnishment, Donisi, the judgment debtor, filed an affidavit in which he claimed the “head of family wages” exception and swore that he “provide[s] more than one-half of the support for a child or other dependent,” “has net earnings of more than $500 per week,” and “has not agreed in writing to have his wages garnished.” Following a brief telephonic hearing, the trial court entered an Order Denying Emergency Hearing and Dissolution of Writ, Without Prejudice for Parties to Follow Statutory Procedure for Sworn Denial and Trial.

Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiffs Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12.” The attorney’s affidavit stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), “Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.” The judgment debtor moved to strike the attorney’s affidavit oh the grounds that: (1) the attorney lacked any personal knowledge of the facts set forth in the affidavit; (2) the attorney lacked authority to execute the affidavit on behalf of the Plaintiff; and (3) the affidavit amounted to hearsay, thereby making it insufficient under section 222.12. Following a hearing on the motion to strike the affidavit, the trial court entered an order striking the attorney’s affidavit and dissolving the writ of garnishment. The court explained that there was “no denial ‘by the party who sued out the process within the time above set forth and under oath,’ as req[uire]d by F.S. § 222.12, but rather only a denial under oath of an attorney who is not the person req[uired] by the statute to make the denial under oath.” Following the dissolution of the writ and denial of Caproc’s motion for rehearing, Bank of America released all of the judgment debtor’s previously garnished funds. Caproc then filed this appeal.

Caproc contends that the trial court erred in dissolving the writ of garnishment, arguing that it was proper under the statute for its attorney, rather than Caproc itself, to execute a sworn denial of the judgment debtor’s claim of head of household exemption. The judgment debtor counters that the trial court correctly followed the plain language of section 222.12 and applicable case law in finding that the attorney’s affidavit was legally insufficient to satisfy Caproc’s burden. He maintains that the statute requires that the “facts set forth” in a judgment debtor’s affidavit for exemption must be “denied by the party who sued out the process, within the time set forth and under oath.” Thus, he argues, the statute precludes the party’s attorney from making the denial.

Section 222.12, Florida Statutes (2009), establishes the procedure regarding a claim of exemption from garnishment. It provides the following:

Whenever any money or other thing due for labor or services as aforesaid is attached by such process, the person to whom the same is due and owing may make oath before the officer who issued the process or before a notary public that the money attached is due for the personal labor and services of such person, and she or he is the head of a family residing in such state. When such an affidavit is made, notice of same shall be forthwith given to the party, or her or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 business days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit [of exemption] are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue,

(emphasis added).

If “ ‘the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). We agree with the trial court that the above statute is clear and unambiguous. It requires the party, and not the attorney, to deny under oath the facts set forth by the debtor. The court thus properly ended the garnishment proceedings, as there was no denial under oath ‘by the party who sued out the process,” as required by F.S. § 222.12, but rather only a denial under oath of an attorney.

“[Ujnder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” S. Attractions, Inc. v. Grau, 93 So.2d 120, 125 (Fla.1956). Moreover, as our court has previously stated, when “affidavits contain no other information than that which ha[s] been furnished to the affiants by the petitioner, they would obviously be legally insufficient.” Gieseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA 1982) (citing Hahn v. Frederick, 66 So.2d 823 (Fla.1953)).

We find no merit in Caproc’s argument that the trial court’s interpretation of the statute violates due process and renders the statute unconstitutional as applied.

Affirmed.

STEVENSON and GERBER, JJ., concur.

      . The judgment debtor contends that this matter is now moot as the garnishee no longer possesses any funds belonging to the judgment debtor; thus Caproc cannot obtain affirmative relief. However, “mootness does not destroy a court’s jurisdiction if the question raised is of great public importance or is likely to recur, or if the error is capable of repetition yet evading review.” McLaughlin v. Dep't of Highway Safety and Motor Vehicles, 2 So.3d 988, 990 (Fla. 2d DCA 2008) (quoting Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001)).


author: BLACK, Judge.

text:
    JOHNSON, POPE, BOKOR, RUPPEL & BURNS, LLP, and Roger Larson, Appellants, v. John FORIER, an individual; Paradise Lakes Resort, LLC, a Florida limited liability company; PLR Management, LLC, a Florida limited liability company; Paradise Lakes Resort Realty, LLC, a Florida limited liability company; and Cabana at Paradise, LLC, a Florida limited liability company, Appellees.
    No. 2D10-3432.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    Rehearing Denied Aug. 17, 2011.

      Brandon S. Vesely and Michael J. Keane of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellants.
    J. Davis Connor and Andrea Teves Smith of Peterson & Myers, P.A., Lake-land, for Appellees.
   BLACK, Judge.

Johnson, Pope, Bokor, Ruppel & Burns, LLP (“Johnson Pope”) and Roger Larson appeal the trial court’s nonfinal order denying their motion to compel arbitration. Johnson Pope argues that the trial court erroneously concluded that enforcement of the arbitration clause, which was part of the legal services contract and required arbitration of malpractice claims, violates public policy. Because there is no authority in Florida stating that it is against public policy for legal services contracts to contain clauses requiring arbitration of legal malpractice claims, we reverse.

I. Background Facts

This case arose out of a real estate closing that took place for the sale of Paradise Lakes. The seller of Paradise Lakes was a long-time client of Johnson Pope. At some point in the late spring of 2007, the seller approached Roger Larson, an attorney with Johnson Pope, and asked Mr. Larson to represent him in the real estate transaction. The seller wanted to close in June 2007, but Mr. Larson told him there were multiple parcels of land and liquor licenses involved in the sale, and it would take him four months and at least two lawyers to complete the work. Because the seller needed to close quickly, he asked Mr. Larson to prepare a form so that he and the buyer, John Forier, could negotiate the deal themselves.

During the negotiations, the seller contacted Mr. Larson and requested that he create legal entities for Mr. Forier because Mr. Forier wanted to transfer the property to the entities at the closing. Mr. Larson agreed to do so. There is some discrepancy in the record as to the extent of Mr. Larson’s representation from this point forward; however, the record does indicate that on the closing date, the seller and Mr. Forier were pressuring Mr. Larson to represent Mr. Forier. The seller agreed to voluntarily waive the conflict of interest, and he encouraged Mr. Larson to represent Mr. Forier so that the parties could close the deal. Thereafter, Mr. Larson quickly created a representation letter that included the following arbitration clause:

You agree that any controversy, dispute, or claim between us, whether based on this agreement, on the timely payment of fees, on a claim of inadequate representation, or on any other grounds, shall be resolved exclusively through binding arbitration before a board of arbiters consisting of three attorneys, all of whom shall be members of the Clearwater Bar Association or Hillsborough Bar Association. One of the three attorneys shall be appointed by our firm, another attorney shall be appointed by you, and the two appointed attorneys shall appoint a third attorney. The arbitration shall be governed by Florida law as provided in Chapter 682 of the Florida Statutes.

Mr. Forier signed the agreement, but pri- or to signing, he insisted that Mr. Larson type up an addendum that stated he had paid Mr. Larson in full for the documentation that was created for the entities. Mr. Larson signed the addendum, acknowledging payment, and the parties proceeded with the closing.

II. Procedural History

Following the closing, Mr. Forier filed a malpractice complaint alleging, among other grounds, that Johnson Pope failed to include all of the parcels of land in the closing documents. Johnson Pope then filed the motion to compel arbitration. After a nonevidentiary hearing on the motion, the trial court issued an order denying Johnson Pope’s motion to compel arbitration and directing the law firm to respond to Mr. Forier’s complaint. The trial court reasoned that there were factual disputes concerning the signing of the arbitration clause, and the court’s order stated it was “not prepared to grant [the motion] right now under the circumstances with the factual disputes.” On October 28, 2009, this court issued a per curiam opinion reversing the trial court’s order denying Johnson Pope’s motion to compel arbitration. See Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, 19 So.3d 452 (Fla. 2d DCA 2009). The Forier court held: “The circuit court’s order denying the motion to compel arbitration expressly acknowledged the existence of disputed issues of fact concerning the making of the agreement to arbitrate. Accordingly, the circuit court was required to conduct an expedited hearing in order to resolve the matter.” Id. at 452 (citing Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532-33 (Fla. 2d DCA 2005)).

On remand, the trial court conducted an evidentiary hearing. Following the hearing, the court made several findings of fact. The court found that Mr. Forier was not unsophisticated in any manner; that he probably read the representation agreement because it was presented to him separate from the other documents; and that the representation agreement was not procedurally or substantively unconscionable, based on Mr. Forier’s business sophistication and insistence that Mr. Larson represent him. The court also found that considering all the circumstances, even given Mr. Larson’s limited scope of representation, Mr. Larson should have pointed out the arbitration clause to Mr. Forier. The court then made two conclusions of law: (1) the arbitration clause is neither substantively nor procedurally unconscionable and (2) enforcement of the arbitration clause on the facts of this case violates public policy of the State of Florida.

III. Analysis

The issue presented in this case is whether an arbitration clause that is part of a legal services contract between an attorney and a client and which requires arbitration of legal malpractice claims violates Florida’s public policy. An order denying a motion to compel arbitration is reviewed de novo. Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla.2003). “In determining whether a dispute is subject to arbitration, courts consider at least 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.

Johnson Pope argues, and we agree, that there is no dispute that an arbitrable issue exists and that Johnson Pope did not waive its right to arbitration. Instead, Johnson Pope asserts that the only issue is whether there is a valid arbitration agreement. The trial court did not cite to any authority for its ruling that the arbitration clause violated public policy, and we are aware of no authority supporting this position.

When determining whether a contract violates public policy, it is necessary to carefully balance the public interest with the right to freely contract. Bituminous Cas. Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944). When a contract “is not prohibited under [a] constitutional or statutory provision, or prior judicial decision, it should not be struck down on the ground that it is contrary to public policy, except it be clearly injurious to the public good or contravene some established interest of society.” Id. at 101 (citing Atl. Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761, 786 (1907)). Therefore, courts

should be guided by the rule of extreme caution when called upon to declare transactions void as contrary to public policy and should refuse to strike down contracts involving private relationships on this ground, unless it be made clearly to appear that there has been some great prejudice to the dominant public interest sufficient to overthrow the fundamental public policy of the right to freedom of contract....

Id. at 101-02. In Florida, courts have long held that one is bound by a contract, “[u]n-less one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract.” Kinko’s, Inc. v. Payne, 901 So.2d 354, 356 (Fla. 2d DCA 2005) (quoting Estate of Etting v. Regents Park at Aventura, Inc., 891 So.2d 558, 558 (Fla. 3d DCA 2004)). It is also well-established that arbitration clauses are generally favored in the State of Florida. See Raymond James Fin. Serv., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). “Arbitration is a valuable right that is inserted into contracts for the purpose of enhancing the effective and efficient resolution of disputes.” Saldukas, 896 So.2d at 711.

We are not aware of any Florida cases holding that it is against public policy for an attorney to include a clause in a legal services contract requiring arbitration of legal malpractice disputes. We are also not aware of any constitutional or statutory provisions prohibiting these agreements on public policy grounds. Although Mr. Forier argues that we should affirm the trial court’s decision because Mr. Larson breached his ethical duties to provide full disclosure, give candid advice, and avoid conflict when he submitted the arbitration clause to Mr. Forier without first explaining the waiver of rights or recommending review by independent counsel, we do not agree. While there are arguably ethical issues that arise in this type of contract, there is currently no Florida Bar Rule which prohibits this sort of agreement. See generally Brian Spector, Predispute Agreements to Arbitrate Legal Malpractice Claims: Skating on Thin Ice in Florida’s Ethical Twilight Zone?, 82 Fla. B.J. 50, 50 (2008) (examining the ethical issues in agreements to arbitrate legal malpractice claims).

Here, the trial court found that the representation agreement and the arbitration clause were neither substantively nor procedurally unconscionable. The court also found that Mr. Forier was a sophisticated businessman who read the agreement and that Mr. Forier’s signature was at the bottom of the agreement. The court’s sole reason for invalidating the arbitration agreement on public policy grounds was Mr. Larson’s failure to point out the arbitration clause to Mr. Forier; however, we find no legal support for this position.

Reversed and remanded for further proceedings consistent with this opinion.

WHATLEY and WALLACE, JJ., Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

      . Because the parties do not raise an issue regarding the trial court's authority to make the public policy determination, we consider this argument waived. See Cuevas v. Kelly, 873 So.2d 367, 373 (Fla. 2d DCA 2004) (stating that failure to raise an issue before the trial court constitutes waiver and precludes the party from raising the issue for the first time on appeal (citing Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002))).


author: PER CURIAM.

text:
    Chauncey Dwayne ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-230.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    Rehearing Denied Aug. 12, 2011.
    James Marion Moorman, Public Defender, and Joseph M. Bernstein, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed. See Rosa v. State, 58 So.3d 900, 902 (Fla. 2d DCA 2011) (declining to apply merger rule as set forth in Brooks v. State, 918 So.2d 181 (Fla.2005), because the evidence showed that the child victim suffered several acts of violence); Dorsey v. State, 942 So.2d 983, 985 (Fla. 5th DCA 2006) (holding that Brooks did not apply because the evidence suggested the child had suffered multiple acts of abuse during the eight-hour period he was with the defendant).

SILBERMAN, KELLY, and LaROSE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Manuel A. BENITEZ-SALDANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5408.
    District Court of Appeal of Florida, Second District.
    June 22, 2011.

      Michelle Walsh of Law Offices of Michael Walsh, P.A., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Manuel A. Benitez-Saldana seeks review of his judgment and sentence for robbery and burglary with assault or battery. Benitez-Saldana argues that trial counsel provided ineffective assistance by making factual concessions that essentially admitted his guilt on both charges. Benitez-Saldana also argues that the trial court abused its discretion by admitting a recording of a call Benitez-Saldana made to his mother from jail. We agree that trial counsel’s factual concessions constituted ineffective assistance of counsel and reverse on this basis.

The charges in this case arose when Benitez-Saldana entered the victim’s home, took money from her purse in her presence, and ran off. The victim and her husband rented the home from Benitez-Saldana’s mother, and Benitez-Saldana had done some work on the home for his mother. At the time of the entry, the victim was visibly pregnant and her husband was at work. The details surrounding Benitez-Saldana’s entry into the victim’s home and theft therein are disputed.

In the victim’s version of events, Beni-tez-Saldana knocked on her door and, when no one answered, entered her home with a key he must have obtained from his mother. Benitez-Saldana went to the victim’s bedroom and the victim, who had been hiding in a guest room, confronted him there. Benitez-Saldana told the victim that he only wanted ten dollars. The victim responded that she did not have any money. Benitez-Saldana grabbed the victim’s purse from its location in the bedroom, and the victim tried to take the purse back. During the struggle, Benitez-Saldana grabbed the victim’s arm and then raised his hand at her while looking at her pregnant belly. The victim let go of the purse, and Benitez-Saldana grabbed her wallet from the purse and ran off with $800.

In Benitez-Saldana’s version of events, he did not enter the victim’s home with a key; she let him inside the front room. He asked the victim if he could borrow ten dollars, and the victim said no. He then saw the victim’s purse on the sofa, grabbed money from inside it, and ran off. He denied touching the victim or struggling with the victim.

Prior to trial, defense counsel informed the court that Benitez-Saldana had agreed to the trial strategy of admitting to the commission of a grand theft but denying responsibility for a robbery or burglary with an assault or battery. Defense counsel began his opening statement by admitting the facts as set forth in Benitez-Saldana’s version of events. Counsel asserted that, because the victim invited him inside and Benitez-Saldana did not use or threaten violence, he was responsible for a grand theft but not a burglary with an assault or battery. Counsel then conceded the part of the victim’s version of events in which Benitez-Saldana struggled with the victim over her purse. However, he argued that this struggle did not establish a robbery because it was not done using violence or the threat of violence.

The victim’s testimony set forth her version of events as described above. After the victim testified about the struggle over her purse, the State introduced a photograph of an abrasion on the victim’s arm without further explanation. On cross-examination, defense counsel asked the victim about the struggle, which counsel described as a “tug-of-war.” Defense counsel stated, “And it was during that tug-of-war that you got the little scrape mark or burn mark on your arm, isn’t it?” The victim answered in the affirmative, adding that Benitez-Saldana had also grabbed her arm.

Benitez-Saldana did not testify at trial, but his version of events was presented in the form of his statement to the police. Again, Benitez-Saldana claimed that the victim let him in her home and that he merely grabbed money from her purse and ran. He denied touching the victim or struggling with the victim.

During closing argument, defense counsel asserted that, while Benitez-Saldana committed a theft, he was overcharged. In arguing that a robbery did not occur, counsel again conceded that there was a tug-of-war over the victim’s purse. But counsel argued that this struggle did not constitute sufficient force to sustain a finding of guilt as to robbery.

Defense counsel went on to address the charge of burglary with an assault or battery, asserting that a burglary did not occur because Benitez-Saldana was invited into the victim’s home and had no intent to commit a crime therein. This was consistent with Benitez-Saldana’s statement. But when defense counsel was summarizing his argument, he essentially conceded that a burglary occurred. Counsel summarized, “We have a theft, not a robbery. And we have perhaps a burglary without an assault and battery, just a snatching basically.”

The jury found Benitez-Saldana guilty as charged on both counts, and the court sentenced Benitez-Saldana to a term of natural life for burglary with an assault or battery and to a concurrent term of fifteen years for robbery. On appeal, Ben-itez-Saldana argues that counsel’s actions in opening statement, cross-examination of the victim, and closing argument went far beyond conceding that he committed a grand theft and amounted to an admission that he committed the crimes charged. Benitez-Saldana argues that these actions constitute ineffective assistance and require reversal because this ineffective assistance is apparent from the face of the record.

Defendants are generally precluded from raising a claim of ineffective assistance of counsel on direct appeal. Hicks v. State, 41 So.3d 327, 329 (Fla. 2d DCA 2010). However, such a claim is cognizable “ ‘when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.’ ” Id. (quoting Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)).

A defendant seeking to establish that his counsel was ineffective must establish that counsel’s performance was deficient and the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining whether trial counsel’s performance was deficient for conceding a defendant’s guilt to the charged crime, the reviewing court must determine whether this strategy was “unreasonable.” Florida v. Nixon, 548 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); Sage v. State, 905 So.2d 1039, 1041 (Fla. 2d DCA 2005).

While defense counsel argued to the jury that Benitez-Saldana was not guilty of the charged crimes, he made factual concessions that amounted to admissions to the charges. First, defense counsel conceded that the victim and Benitez-Sal-dana got into a tug-of-war over the victim’s purse, but he then asserted it was not a robbery because the taking was not done with violence or the threat of violence. However, although snatching without resistance by the victim constitutes a theft, the use of force to overcome the victim’s resistance converts a theft into a robbery. Robinson v. State, 692 So.2d 883, 886-87 (Fla.1997). Thus, a conviction for robbery may be based on a defendant’s act of engaging in a tug-of-war over the victim’s purse. See McCloud v. State, 335 So.2d 257, 258-59 (Fla.1976) (stating that “[a]ny degree of force suffices to convert larceny into a robbery”).

Second, defense counsel admitted that the evidence supported the conclusion that a burglary had occurred. Counsel then asserted that it was not a burglary with an assault or battery because Benitez-Salda-na did not commit any acts of violence or threaten violence. “The offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.” See § 784.03(1)(a), Fla. Stat. (2007). The victim’s “person” includes “something intimately connected with the victim’s body,” including a bag or purse the victim is holding. Malczewski v. State, 444 So.2d 1096, 1099 (Fla. 2d DCA 1984); see also Nash v. State, 766 So.2d 310, 310 (Fla. 4th DCA 2000). Thus, a conviction for burglary with a battery may be based on a defendant’s act of engaging in a tug-of-war over the victim’s purse during a burglary.

Although counsel essentially conceded Benitez-Saldana’s guilt, counsel’s actions must have been unreasonable to support a finding of deficient performance. The State argues that the admissions constituted a reasonable trial strategy of developing credibility with the jury to convince the jury to either misapply the law or pardon Benitez-Saldana. However, counsel’s pretrial statements to the court suggest that defense counsel’s admissions were unintentional and not a matter of trial strategy. Prior to trial, counsel had explained that he intended to admit that Benitez-Saldana was guilty of grand theft but deny responsibility for a robbery or a burglary with an assault or battery. While counsel attempted to pursue this trial strategy by making assertions to this effect, counsel’s factual concessions inadvertently established Ben-itez-Saldana’s responsibility for the charged crimes.

Furthermore, we do not agree that admitting guilt in an attempt to convince the jury to misapply the law or pardon Beni-tez-Saldana would have been a reasonable trial strategy. This is especially so when there is a conflict in the evidence which could have resulted in an acquittal of the charged crimes if the jury believed Beni-tez-Saldana’s statement. Cf. Kormondy v. State, 983 So.2d 418, 431 (Fla.2007) (holding that it was reasonable trial strategy to admit defendant’s guilt to some of the charged crimes because he had continually admitted his participation in those crimes and counsel was attempting to establish credibility so the jury would believe he did not commit the other charged crimes).

Accordingly, Benitez-Saldana has established the first prong of his ineffective assistance claim, that counsel’s performance was deficient. As to the second prong, the State argues that Benitez-Sal-dana did not establish prejudice from counsel’s concessions due to the strength of the State’s case. In order to establish prejudice from counsel’s deficient performance, Benitez-Saldana must show that there is a reasonable probability that, but for the deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

As stated previously, this case boiled down to a credibility contest between Beni-tez-Saldana and the victim. While Beni-tez-Saldana admitted to the police that he had committed a theft by taking the victim’s money from her purse, he denied committing a robbery or burglary with an assault or battery. He maintained that he had been invited inside and denied that he had touched the victim or struggled over her purse. The only physical evidence that was inconsistent with this theory was the abrasion on the victim’s arm. However, it was defense counsel who elicited the testimony that the abrasion was caused by the tug-of-war.

Because the evidence against Benitez-Saldana was not overwhelming and he was deprived of a viable defense, we conclude that he has established prejudice. Cf. Harvey v. State, 946 So.2d 937, 944 (Fla.2006) (holding that defendant failed to establish prejudice from counsel’s admission to facts that established charged crime of first-degree murder because the facts conceded were all included in the defendant’s confession which provided “overwhelming” evidence); Patton v. State, 784 So.2d 380, 390 (Fla.2000) (holding that defendant failed to establish prejudice from counsel’s concession to facts which “were supported by overwhelming evidence.”).

We conclude that defense counsel’s ineffective assistance is apparent from the face of the appellate record, the resulting prejudice is indisputable, and there is no conceivable strategic explanation for counsel’s conduct. Accordingly, Benitez-Saldana’s claim of ineffective assistance is cognizable on direct appeal. We therefore reverse and remand for further proceedings in this case.

While this disposition renders Ben-itez-Saldana’s second argument moot, we briefly address it to provide guidance in the event Benitez-Saldana is retried on remand. At trial, the State played a recording of a telephone call Benitez-Salda-na made to his mother from jail. During the conversation, Benitez-Saldana asked his mother to persuade the victim not to pursue the charges against him. However, Benitez-Saldana’s mother also made the following statements to him: (1) “That girl was pregnant. And any — any day— and she could have had a miscarriage.”; (2) “I am not going to stick my neck out for you anymore.”; (3) “I will not put my hands in the fire for you anymore.” Defense counsel had objected that these statements made the telephone call more prejudicial than probative. See § 90.403, Fla. Stat. (2007); Brown v. State, 719 So.2d 882, 885 (Fla.1998).

We agree. These statements were not necessary to establish that Benitez-Salda-na committed the charged crimes or that he asked his mother to persuade the victim not to pursue the charges. Instead, the statements served to evoke sympathy for the victim and suggested that Benitez-Saldana had committed prior bad acts. These statements should have been redacted from the recording.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ„ Concur.

      . Benitez-Saldana’s appellate counsel is not the same counsel who represented him at trial.

      . There is an exception to this rule that does not apply here for cases in which counsel wholly failed to subject the case to a meaningful adversarial testing. See Chavez v. State, 12 So.3d 199, 211 (Fla.2009). In those cases, “the law will presume prejudice and deem counsel ineffective per se.” Id. The failure to subject the case to meaningful adversarial testing occurs only in rare circumstances such as when counsel was totally absent, was prevented from assisting the defendant during a critical stage of the proceeding, or had a conflict of interest that impeded adequate representation. Id.


author: PEGG, ROBERT L., Associate Judge.

text:
    Jenny VALENCIA and Galo Valencia, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 4D09-3297.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied Aug. 24, 2011.
    Marcy S. Resnik of Kahn, Chenkin & Resnik, P.L., Dania, and Mark L. Pomer-anz of Pomeranz & Associates, P.A., Hal-landale, for appellants.
    Nancy M. Wallace and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.
   PEGG, ROBERT L., Associate Judge.

Appellants seek reversal of a summary final judgment of foreclosure. The complaint alleges that Jenny and Galo Valencia were delinquent in making the required loan payments due on December 1, 2003. The mortgage contained a written requirement that the borrowers be given written notice specifying the default, the action needed to cure the default, and the time period of thirty days to do so.

For some reason, the lender had not retained a hard copy of the letter notifying the borrowers of the default, but instead produced two possible letters that could have been sent. Both letters contained a cure date of October 8, 2003. Although the original letter was found by appellants after the summary judgment hearing, it contained a different date and different amount owed.

Before a court may grant summary judgment, the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, must “conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (citing Fla. R. Civ. P. 1.510(c)). The burden is on the moving party for summary judgment to show conclusively the complete absence of any genuine issue of a material fact. Id. The date of default alleged in the complaint and the dates referred to in the “cure letters” are not identical. This creates, by definition, a genuine issue of a material fact.

The order of summary final judgment is reversed and the case remanded for further proceedings.

Reversed and Remanded.

TAYLOR and GERBER, JJ., concur.


author: RAMIREZ, J.

text:
    Eric RODRIGUEZ and Kris Rodriguez, Appellants, v. The STATE of Florida, Appellee.
    No. 3D08-3249.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.

      Paul Morris, Miami; Emmanuel Perez, for appellants.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, for appellee.
    Before RAMIREZ, SHEPHERD and SUAREZ, JJ.
   RAMIREZ, J.

Erik and Kris Rodriguez appeal their conviction and sentence. They claim that there was insufficient evidence produced at trial to justify their convictions. Because we find there was substantial, competent evidence to support the jury’s verdict, we affirm.

Abel Rodriguez is the owner of several pharmacies located in Miami-Dade, as well as an internet pharmacy. The names of the local pharmacies are Nuria’s and Santa Clara. The internet pharmacy was known as Rxhotdeals. Erik and Kris Rodriguez are Abel’s sons. On occasion, Erik and Kris would work in their father’s pharmacy as part-time pharmacy technicians.

On October 22, 2004, police observed Michael Hernandez, a Nuria’s employee, load some parcels into his vehicle and drive to a building adjacent to the Santa Clara pharmacy, referred to in the briefs and during trial as the 2290 building. On October 25, 2004, police stopped another employee, Gus Rodriguez, as he drove away from the same building. He informed the officers that he was transporting medication to a local parcel service for shipment. The officers seized the medication. After interrogating Hernandez and another employee, the officers obtained a search warrant. That same day, the officers executed the warrant at the 2290 building. There they photographed and seized several items including pill bottles, pill counting machines, labels, and medications. None of the items seized were connected directly to Erik and Kris, nor were they present when the police conducted the search.

Officers subsequently arrested Erik and Kris, and questioned them as to their involvement in the pharmacy’s activities. They were later charged on numerous counts including: (1) conspiracy to commit trafficking in illegal drugs; (2) racketeering; (3) dispensing drugs without a pharmacist’s license; (4) dispensing drugs without a prescription; (5) forgery of prescription or legend drug labels; and (6) adulterating or misbranding prescription drugs.

Erik and Kris went to trial where several former pharmacy employees testified as to the brothers’ involvement in the pharmacy’s operations. The jury ultimately found them not guilty on every count except the adulteration and misbranding charges.

On appeal, we review a motion for judgment of acquittal de novo and determine whether it contains substantial competent evidence which, if believed, will support the trial court’s finding of guilt. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Dawson v. State, 338 So.2d 242, 243 (Fla. 3d DCA 1976). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Pagan, 830 So.2d at 803. Our concern on appeal is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the [ruling] on appeal, there is substantial, competent evidence to support the [ruling].” Banks v. State, 732 So.2d 1065, 1067 n. 5 (Fla.1999). We believe there is.

The State charged the appellants with violating sections 499.0691(3)(a) and (3)(b), Florida Statutes (2005). The relevant portions of these sections make it a second degree felony to knowingly manufacture, repackage, sell, deliver, or hold or offer for sale any drug that is adulterated or mis-branded or has otherwise been rendered unfit for human or animal use. See § 499.0691(3)(a), Fla. Stat. (2005). Erik and Kris argue that the misbranding conviction cannot be sustained because the State failed to produce evidence that either of them “misbranded any drugs.” However, the statute criminalizes more than direct misbranding.

Misbranding is a term of art and is statutorily defined. According to section 499.007(12), Florida Statutes (2005), a drug is misbranded:

(12) If it is a drug intended for use by humans which is a habit forming drug or which, because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drugs; or which is limited by an effective application under s. 505 of the federal act to use under the professional supervision of a practitioner licensed by law to prescribe such drug, unless it is dispensed only:
(a) Upon the written prescription of a practitioner licensed by law to prescribe such drug;
(b) Upon an oral prescription of such practitioner, which is reduced promptly to writing and filled by the pharmacist; or
(c) By refilling any such written or oral prescription, if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filled by the pharmacist.

Like the word misbranded, the word “dispense” is also a term of art.

“Dispense” means the transfer of possession of one or more doses of a medicinal drug by a pharmacist to the ultimate consumer or her or his agent. As an element of dispensing, the pharmacist shall, prior to the actual physical transfer, interpret and assess the prescription order for potential adverse reactions, interactions, and dosage regimen she or he deems appropriate in the exercise of her or his professional judgment, and the pharmacist shall certify that the medicinal drug called for by the prescription is ready for transfer. The pharmacist shall also provide counseling on proper drug usage, either orally or in writing, if in the exercise of her or his professional judgment counseling is necessary. The actual sales transaction and delivery of such drug shall not be considered dispensing.

§ 465.003(6), Fla. Stat. (2005) # (emphasis added).

Hydrocodone, one of the drugs discovered during the raid of the internet pharmacy, is a Schedule II and III narcotic, and a controlled substance. See § 893.03, Fla. Stat. (2010). “A substance listed in Schedule II has ‘a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.’ ” Hayes v. State, 750 So.2d 1, 4 (Fla.1999). Under section 499.007(12), hydrocodone would be mis-branded unless it is correctly dispensed.

At trial, the State produced several witnesses who testified as to the internet pharmacy’s procedures. The witnesses testified that, although there was a pharmacist who oversaw the prescriptions dispensed from the Nuria’s location, no pharmacist was present to review the prescriptions dispensed from the internet pharmacy. One witness, Michel Hernandez-Rivero, testified that he saw Erik and Kris working in the internet pharmacy.

STATE: And who else was there?
HERNANDEZ-RIVERO: In the early afternoons, I’d say about 1 o’clock or so, Kris and Eric would come and, basically, fill prescriptions also.
STATE: Did they fill them in the internet section?
HERNANDEZ-RIVERO: Yeah.
STATE: Okay. So you saw Kris and Eric working over in the internet section? Did you ever see a pharmacist in the internet section?
HERNANDEZ-RIVERO: No.

At one point, the internet pharmacy operation was moved from the Nuria’s location to a nearby building. This abandoned storefront was referred to at trial as “2290”. Hernandez-Rivero testified that there was never a pharmacist present at the 2290 address.

STATE: Was there a pharmacist at 2290 Southwest 8th Street?
HERNANDEZ-RIVERO: No.
STATE: Ever?
HERNANDEZ-RIVERO: No.
STATE: Are you a pharmacist?
HERNANDEZ-RIVERO: Absolutely not.

This lack of oversight is sufficient to render the pharmaceuticals statutorily mis-branded. Because a pharmacist did not review the prescription drugs being shipped from the internet pharmacy, the drugs were not dispensed. There was merely a transfer of possession by unsupervised pharmacy techs to the consumer. This blatantly ignores the language of section 465.003(6) which requires that a pharmacist transfer the drugs to the consumer.

The essence of section 499.007(12) is that drugs not properly “dispensed” are, per se, misbranded. It is our opinion that the shipping of the drugs in the manner described by Hernandez-Rivero rendered the drugs misbranded.

Additionally, we find that there is sufficient evidence in the record to show that at the very least, Erik and Kris knowingly repackaged and delivered the mis-branded drugs.

STATE: Did you ever see Erik and Kris at 2290?
HERNANDEZ-RIVERO: Yes.
STATE: And what were they doing there?
HERNANDEZ-RIVERO: Filling prescriptions.
STATE: How many times did you see them there?
HERNANDEZ-RIVERO: I’d say about 3 to 4 times a week. They would show up about 1 o’clock or so — 1:30, and stay until they were done.

Another witness, Hector Barquín, also testified that Erik and Kris worked at the 2290 location.

STATE: And when you worked at 2290, did you ever see your cousins there, Kris and Erik?
BARQUIN: Yes.
STATE: What did you see them doing? BARQUIN: Whatever needed to be done. Pretty much the same thing I would do.
STATE: Fill the bottles?
BARQUIN: If that needed to be done.
STATE: Place labels on them?
BARQUIN: If that needed to be done.
STATE: Put them in packages?
BARQUIN: Yes, sir.
STATE: And did they take them to UPS and FedEx?
BARQUIN: Yes, sir. I don’t know if every time, but I know they have.

Both Erik and Kris testified at trial that they have a history of working alongside their father. Erik, for example, testified that he began working in his father’s pharmacy at age fifteen and continued to do so until his arrest nine years later.

Furthermore, Erik’s hands-on working knowledge of the operations of the pharmacy rendered him well aware of what was legally impermissible. He admitted that he knew what actions constituted a violation of the law.

DEFENSE: And if you ever saw people counting pills without a licensed pharmacist present, you would know that was illegal correct?
ERIK RODRIGUEZ: Yes.

We thus conclude that the record before us contains substantial, competent evidence to support the jury’s verdict that Erik and Kris knowingly packaged and delivered misbranded drugs. Therefore, we affirm the judgment of conviction and sentence.

Affirmed.


author: CLAEK, J.

text:
    Christopher Alan AYOTTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0423.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Rehearing Denied Aug. 24, 2011.

      Nancy A. Daniels, Public Defender and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   CLAEK, J.

Appellant challenges his conviction, after jury trial, for trafficking in hydrocodone in violation of section 893.135(l)(c)l., Florida Statutes. Because the Standard Criminal Jury Instructions were not sufficient to inform the jury of the statutory exception raised by .the evidence, because the state argued to the jury that “knowing possession” was sufficient to support a conviction, and because the statutory exception for lawfully prescribed hydrocodone was Appellant’s only defense, we reverse.

The charge of trafficking in hydrocodone stemmed from an evening spent by Appellant with his girlfriend at a bar in Pensacola. The arresting officer testified that he had observed Appellant showing some pills to another patron and possibly exchanging them, and that Appellant confessed to the officer that he was selling the pills to pay for drinks. Appellant denied these actions and explained that the pills only left his pocket accidentally, when they fell out as he was reaching for his cigarettes in the same pocket. Whether or not the jury believed any transaction took place, there was no factual dispute that 6.6 grams of hydrocodone pills were found on Appellant’s person, an amount constituting “trafficking in illegal drugs” under section 893.135(l)(c)l., Florida Statutes.

Appellant’s sole theory of innocence was that he was holding the pills for his girlfriend, who had a valid prescription for the pills but no pockets in her evening’s attire in which to carry them herself during the couple’s outing. Both Appellant and his girlfriend (who were married at the time of the trial), told the jury that Appellant was carrying the pills at the girlfriend’s request, providing some evidence that Appellant was acting as his girlfriend’s agent. The validity of the companion’s prescription was not challenged by the state and in fact was conceded in both closing argument and rebuttal.

Section 893.135(1) introduces the prohibitions on selling, purchasing, and actually or constructively possessing the various controlled substances listed thereafter with the phrase: “Except as authorized in this chapter or in chapter 499, and notwithstanding the provisions of s. 893.13.” Sections 499.03 and 893.13(6), Florida Statutes, each provide exceptions to the prohibition on possession of certain controlled substances when such substance was obtained by a valid prescription. The standard jury instructions given at trial (25.11 — “Trafficking in Illegal Drugs” and 25.7 — “Drug Abuse — Possession”) contained no reference to the statutory prescription exceptions to section 893.135.

The state’s closing argument emphasized to the jury the four elements of the trafficking charge, as described in the standard jury instruction, and stated: “The law is those four elements right there” and later, “The evidence shows that he possessed a certain substance; it was hydrocodone. It was four grams or more, and he knew the substance was hydroco-done. That’s it.” On rebuttal, the state reiterated the four elements and reminded the jury that they had sworn to uphold the law. As was the case in McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010), “there is no way of knowing if the jury would have acquitted appellant had it known there existed a prescription defense and it had the option to accept [his] affirmative defense.” McCoy v. State, 56 So.3d at 40-41.

This ease is analogous to McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010) and Glovacz v. State; 60 So.3d 423 (Fla. 1st DCA 2011). As in those cases, there was conflicting evidence regarding a transaction of the controlled substance, failure by all participants and the standard jury instructions to acknowledge the statutory exceptions for possession pursuant to a valid prescription, failure by the state to refute Appellant’s role as his girlfriend’s agent, and the prosecutor’s argument that possession alone was sufficient to convict. For the reasons expressed in McCoy and Glovacz, and in light of the evidence presented in this case, the failure to instruct the jury on the prescription exceptions to section 893.135 was fundamental error.

Accordingly, the conviction is REVERSED and the sentence VACATED.

LEWIS and ROWE, JJ., Concur.


text:
    Rhoderick Lewis LEWIS, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3240.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    Rehearing Denied Aug. 25, 2011.
    Rhoderick Lewis Lewis, II, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and CLARK, JJ., concur.


author: LEVINE, J.

text:
    Eric LUCAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-3906, 4D09-3907.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Rehearing Denied Sept. 6, 2011.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his convictions for burglary of a dwelling with a battery and aggravated battery. We find that the trial court did not err in admitting the statements of appellant’s girlfriend to the police or the recorded telephone calls between appellant and his girlfriend. Finally, we find that the prosecutor’s remarks in opening and closing statements did not constitute reversible error.

At trial, a witness, Lewisha Freeman, testified to hearing a woman banging on doors and screaming, “[S]omebody help me, he is going to kill me.” Freeman stepped outside her apartment and saw appellant yelling at a woman and grabbing the woman by her throat. Appellant released the woman, later identified as appellant’s girlfriend Lauren Glushko, who then went into Freeman’s apartment.

Appellant yelled through the door of Freeman’s apartment and threatened, “I will fight you like a man.” Freeman called the police, but before they could arrive, appellant broke into Freeman’s apartment by “busting” through the door. Appellant then hit Freeman on her face and body. Appellant ceased hitting Freeman only when the apartment manager entered the apartment, and appellant then fled.

When the police arrived, they spoke with Glushko. Officer Stenger testified, over defense objection, that Glushko told the officer that she was arguing with appellant when appellant started pushing and slapping her. Appellant became angry and grabbed her by the neck and said he was going to kill her. Glushko got away from appellant when Freeman let her into the apartment. Appellant pursued Glush-ko and started yelling and banging on the door. Freeman sustained two fractures around her eye and was hospitalized for three days.

The court also admitted, over the defense’s objection, telephone calls between appellant and Glushko made while appellant was in the county jail. During these calls, appellant was angry with Glushko for going to the authorities and telling them “what really happened.” Appellant questioned Glushko, asking how her cooperation was “gonna benefit” him. Appellant told Glushko to “plead the Fifth Amendment.” Glushko later told appellant that she was already doing things for appellant with the “P” word, later understood to refer to perjury. Ultimately, Glushko declined to press charges or cooperate in the case, claiming she had no memory of the events from that date.

The state filed a notice of intent to offer evidence of other crimes, wrongs or acts pursuant to section 90.404(2)(a), Florida Statutes, regarding appellant’s threats to injure Glushko. The trial court admitted evidence of appellant’s assault on Glushko, finding it inextricably intertwined with the charged offense. The trial court also admitted Glushko’s statements to the police, finding that appellant had procured Glush-ko’s absence from trial and that the statements were admissible under the excited utterance exception to the hearsay rule.

At trial, the state made several arguments in opening and closing statements that prompted objections and motions for mistrial from appellant. In opening statement, the state told the jury that “[wjhat brought us all here is to find out about the truth of what that man, the defendant — .” The state concluded its opening remarks by stating that “I know you will do the right thing.”

During closing argument, the state argued, “Five minutes after Officer Stenger was dispatched, he was on scene. Ms. Glushko met him and told him what happened and who did it. And those phone calls tell you who did it as well. And tells the truth that came out.” The state also argued that “[wje’re coming to the close” of the trial and that the jury “no longer” has “to presume him innocent.” The state continued, “If you believe the evidence has shown that he is not presumed innocent does not mean he’s actually innocent and the time for that is over.” To both statements, the trial court overruled appellant’s objections. Finally, the state concluded that “I know that you will do the right thing.”

The jury found appellant guilty, the court sentenced him as a prison releasee reoffender to life in prison, and this appeal ensues.

“The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009). “[W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006). We find the trial court did not err in allowing the admission of testimony regarding appellant’s assault on Glushko since it was “inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged.” Griffin v. State, 639 So.2d 966, 968 (Fla.1994).

We also find that the trial court did not err in admitting Glushko’s statements to the police, which were made immediately after the stress and excitement of appellant’s attack on Glushko and Freeman. Glushko’s statement took place within five to ten minutes of the police officer’s dispatch to the scene. The officer testified to finding Glushko crying, bruised, and missing a tooth. As the supreme court has explained:

In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2), Florida Statutes (2007), the statement must be. made (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.

Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (citation and internal quotation marks omitted). In Rivera v. State, 718 So.2d 856, 858 (Fla. 4th DCA 1998), this court found that the “victim did not have time for reflective thought” where “only fifteen minutes had elapsed between the time of the altercation and the victim’s emotional statements to the officer” and the victim appeared “visibly shaken” when police arrived. In the present case, appellant’s girlfriend clearly had been party to a startling event which could cause nervous excitement, without time for “reflective thought” to contrive or misrepresent.

The trial court also properly admitted the jailhouse telephone conversation between appellant and Glushko. “[E]vidence that an accused ‘in any manner endeavors to evade a threatened prosecution ... is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.’” Knotts v. State, 533 So.2d 826, 827 (Fla. 1st DCA 1988) (citation omitted).

Finally, as to the statements made by the state in opening and closing arguments, we find no reversible error. Improper prosecutorial arguments are reviewed under an abuse of discretion standard. Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007). As this court has explained:

A trial court’s decision as to whether to grant a motion for mistrial is reviewed for abuse of discretion. The power to declare a mistrial should be exercised with care and caution and only in cases of absolute necessity. [A] mistrial should only be declared if the error is so prejudicial and fundamental that it denies the accused a fair trial.

Dunlap v. State, 21 So.3d 873, 876 (Fla. 4th DCA 2009) (citations and quotation marks omitted).

As to the prosecutor’s references to “the truth,” this court in Dunlap found no abuse of discretion in denying a motion for mistrial where the prosecutor instructed the jury to “make a collective decision on what the truth is.” Id. at 875. The Dunlap court held that “neither the word ‘truth’ nor the topic of witness credibility is prohibited in a criminal trial in proper context.” Id. at 877. The prosecutor’s statements in the instant case are analogous to those in Dunlap. Further, like in Dunlap, the prosecutor “neither insinuated that [the] defendant needed to prove anything, nor invited the jury to convict the defendant for a reason other than the State proving [the] defendant’s guilt by evidence beyond a reasonable doubt.” Id. at 876.

As to the comments on appellant’s presumption of innocence, the supreme court found no error where the prosecutor in closing arguments stated, “There is no longer a presumption of innocence as evidence has been presented.... ” Taylor v. State, 62 So.3d 1101 (Fla.2011). The court explained, “[WJhen read in context, the comments appear to be a statement by the prosecutor of her belief that the State satisfied its burden of proof.” Id. (quoting Dailey v. State, 965 So.2d 38, 44 (Fla.2007)). The comments in the instant case are similar to Taylor. When viewed in context, the comments reflected the prosecutor’s belief that the state satisfied its burden of proof and thus were not improper.

We find that the prosecutor’s “do the right thing” remarks were improper. See Rimmer v. State, 825 So.2d 304, 324 (Fla.2002). However, the trial court’s error in overruling appellant’s objections was harmless, as there is no reasonable probability that the improper remarks contributed to the jury’s guilty verdict. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); see also State v. Johnson, 775 So.2d 670 (La.Ct.App.2000) (finding improper but harmless the prosecutor’s exhortation to the jury to “do the right thing” as citizens of Baton Rouge); Kirtsey v. State, 649 So.2d 946 (Fla. 3d DCA 1995) (finding harmless the prosecutor’s improper statements that the victims were citizens of Florida and that the prosecutor’s job was to keep the streets safe). We further find that the trial court did not abuse its discretion in denying the motion for mistrial, as it cannot be said that the error was “so prejudicial and fundamental” as to deny appellant a fair trial. Dunlap, 21 So.3d at 876.

Thus, in conclusion, we affirm the convictions and sentence of appellant.

Affirmed.

WARNER and POLEN, JJ., concur.

      . We also find that the trial court's admission of Glushko’s statement did not violate the Confrontation Clause, as Glushko's unavailability at trial was at appellant’s behest. See Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). The doctrine of forfeiture by wrongdoing permits the introduction of statements where a witness is "detained” or “kept away” by the procurement of the defendant. Id. at 359, 128 S.Ct. 2678. The tapes of jail conversations between appellant and Glushko corroborate that appellant wrongfully procured the unavailability of the witness.


text:
    Albert SKIBA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3810.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Rehearing Denied Aug. 24, 2011.
    Albert Skiba, Okeechobee, pro' se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the denial of his motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. However, we remand the case to the trial court to correct a scrivener’s error. The trial court announced that the defendant’s sentences would run concurrent, but the sentence on Count IV fails to reflect that information.

Affirmed, but remanded to correct a scrivener’s error.

MAY, C.J., GERBER and LEVINE, JJ., concur.


text:
    Christopher FREEMAN, Appellant, v. Joanne VELEZ, Appellee.
    No. 4D11-788.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Rehearing Denied Aug. 24, 2011.
    Christopher Freeman, Plantation, pro se.
    No appearance for appellee, Joanne Velez.
    Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Department of Revenue.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

GROSS, DAMOORGIAN and GERBER, JJ., concur.