author: SAWAYA, J.

text:
    Roberta FERNANDEZ-FOX, Appellant, v. Mark REYES as Personal Representative, etc., Appellee.
    No. 5D10-4034.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    Thomas R. Peppier of Hochman and Peppier, LLC, Oviedo, for Appellant.

      James B. Byrne, Jr., Longwood for Ap-pellee, Vivian Titus, a/k/a Vivienne Titus.
    Mark Reyes of Howard <& Reyes, Chartered, Sanford, pro se.
   SAWAYA, J.

Roberta Fernandez-Fox (Fox) appeals the final judgment in favor of Mark Reyes, personal representative for the Estate of David Lindsay, and Vivian Titus, Lindsay’s step-daughter-in-law. Of the issues raised in this appeal, the only issue we will discuss is whether the trial court erred in failing to award attorney’s fees to Fox for her participation in the partition action that resulted in the final judgment we review. We reverse that part of the judgment awarding attorney’s fees only to Reyes. In all other respects, the judgment is affirmed.

Fox and the decedent, David Lindsay, owned property together. The deed specified their ownership as tenants in common. After the decedent died, Fox filed a multi-count complaint for, inter alia, reformation of the deed, imposition of a constructive trust, and to quiet title to the property. The trial court entered summary judgment in favor of Reyes on those counts. Regarding the issues Fox raises as to those counts, we affirm without further discussion.

Fox’s complaint also contained two counts pled in the alternative — one seeking imposition of an equitable lien for the amount Fox had expended in the maintenance, taxes, and mortgage on the property and the other asking for partition and an accounting and contribution for expenses she was forced to pay for the property. The case proceeded to final hearing on those counts and on Reyes’ counterclaim for partition and accounting. Each party agreed that partition of the property was appropriate, thus leaving the monetary claims to be resolved by the trial court. Partition was ordered and, because the property could not be properly divided, the court further ordered that the property be sold. Fox was awarded a certain amount pursuant to her equitable lien count and, after setoffs were calculated, she received a lien in the amount of $2,721.37. Her lien was made inferior to payment of the attorney’s fee award to Reyes for his participation in the partition action. The trial court held that Fox was not entitled to attorney’s fees for the partition action. Fox contends that it was error not to award her attorney’s fees as well. We agree.

The amount of attorney’s fees to be awarded in a partition action is within the discretion of the trial court. Hasle v. Maasbrock, 120 So.2d 794 (Fla. 3d DCA 1960). The award is based upon “ ‘[t]he service performed, the responsibility incurred, the nature of the service, the skill required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the ability of litigants to respond....’” Adler v. Schekter, 197 So.2d 46, 49 (Fla. 3d DCA 1967) (quoting Munroe v. Birdsey, 102 Fla. 544, 136 So. 886, 887 (1931)). After a trial court establishes the amount of fees, a trial court is to award fees based on section 64.081, Florida Statutes, which governs fees in partition actions. That statute provides:

Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest. Such judgment is binding on all his or her goods and chattels, lands, or tenements. In case of sale the court may order the costs and fees to be paid or retained out of the moneys arising from the sale and due to the parties who ought to pay the same. All taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.

§ 64.081, Fla. Stat. (2010) (emphasis added).

Pursuant to this statute, each party to a partition action must pay a share of the attorney’s fees to the plaintiffs attorney, the defendant’s attorney, or to each of them. The share is to be set with reference to the services rendered by the attorney(s) that are of benefit to the partition— “to be determined on equitable principles in proportion to the party’s interest.” Id.; see also Deshommes v. Bazin, 421 So.2d 806, 807 (Fla. 3d DCA 1982) (“This ‘apportionment’ under the statute has been interpreted to mean that the majority interest should bear the greater proportion of the fees awarded to his own attorney, as well as to the attorney for the minority interest, and the minority interest similarly should bear a share of fees in proportion to his interest.”).

Here, the court reasoned that because Fox’s first three counts essentially sought full title in herself and she had sought partition only in the alternative, it was Reyes who was the impetus for the partition action because he had sought only partition. The trial court concluded, therefore, that only Reyes was entitled to fees. We disagree.

Reyes was not the “impetus” for the partition, contrary to the trial court’s con-elusion, but rather it was Fox who first pled for partition, albeit in the alternative. After Fox suffered the partial summary judgment on her first three counts, all that was left was a trial to take evidence on the monetary claims each side was making for maintenance, etc., because, after the accounting, both sides were in agreement that partition was appropriate. Hence, we believe that both Fox’s attorney and Reyes rendered services of benefit to the partition portion of the suit. Reyes would have provided greater services because he had to defend and overcome Fox’s first three counts to even get the case into partition posture, but that fact does not preclude Fox’s attorney from receiving some award of fees based solely on the acts he or she took towards partition. We, therefore, conclude that the court erred by failing to make any determination regarding the amount of attorney’s fees Fox’s attorney earned advancing her partition count.

Accordingly, we reverse the award of attorney’s fees and remand with directions to the trial court to take evidence on the fees earned by Fox’s attorney for the partition count and apportion that amount in making the final fee award. In all other respects, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER and JACOBUS, JJ„ concur.

      . See Diaz v. Sec. Union Title Ins. Co., 639 So.2d 1004, 1006 (Fla. 3d DCA) (holding that attorney’s fees for work done in actions prior to the partition action, i.e., work performed to defeat a reformation suit, were compensable in partition action because these prior actions to establish or protect title to the property are properly deemed "of benefit to the partition"), review denied, 649 So.2d 232 (Fla.1994). Under Diaz, Reyes' work done in defense of Fox's first three counts is recognizable in the fee award for work done in the partition portion of the suit. This does not abrogate Fox’s right to have a set-off of the value of her attorney’s services in the partition portion.


source: Caselaw Access Project

author: ORFINGER, C.J.

license: Public Domain

text:
    Jon Michael CELESTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3607.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

Jon M. Celeste appeals his conviction of trafficking in oxycodone. He contends that the trial court erred in denying his motions for judgment of acquittal. We agree and reverse.

Mr. Celeste was charged with trafficking in oxycodone, possession of a controlled substance without a prescription and possession with intent to sell. After the State dismissed both possession charges, the case proceeded to trial solely on the trafficking charge. The State introduced evidence that Sheriffs Deputy Steven Jenny observed Mr. Celeste riding his bicycle at night without lights in violation of Florida law. Deputy Jenny radioed Deputy Brian Figueroa and asked him to stop Mr. Celeste. Deputy Figueroa found Mr. Celeste at a gas station with his bicycle, speaking to someone pumping gas. As Deputy Figueroa approached, Mr. Celeste turned and appeared to put something in his front pocket. When Deputy Figueroa asked Mr. Celeste what he had put in his pocket, he responded that it was his pills and produced a pill container containing twenty-eight oxycodone tablets. The label on the container was illegible. Mr. Celeste claimed to have a prescription for the oxy-codone, but was unable to produce it at the time. An ensuing search revealed that Mr. Celeste had $260 in twenty dollar bills, an additional twenty oxycodone pills separately packaged in a plastic wrapper and a list of names and numbers in his back pocket. Mr. Celeste testified that as a result of a serious job-related injury, he had been prescribed painkillers, the most recent prescription authorizing 180 oxyco-done pills per month. He introduced evidence from a pharmacy showing that he had a valid prescription for oxycodone at the time of his arrest. The trial court denied Mr. Celeste’s motions for a judgment of acquittal, finding that in view of the separately packaged pills, the money and the list of names, there was sufficient evidence for the jury to consider. The jury found Mr. Celeste guilty of trafficking and this appeal followed.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). A judgment of acquittal should be granted if the State does not prove each and every element of the offense charged beyond a reasonable doubt. Baugh v. State, 961 So.2d 198, 203-04 (Fla.2007); McHolder v. State, 917 So.2d 1043, 1046 (Fla. 5th DCA 2006). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of all the elements of the crime beyond a reasonable doubt. Banks v. State, 732 So.2d 1065, 1069 (Fla.1999). In addition, when the State relies on circumstantial evidence to support a conviction, 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. State v. Law, 559 So.2d 187, 188 (Fla.1989). Once the State meets its threshold burden, it then becomes the jury’s duty to determine whether the evidence excludes all reasonable hypotheses of innocence, and where there is substantial, competent evidence to support the jury’s verdict, the reviewing court will not reverse. Reynolds v. State, 934 So.2d 1128, 1146 (Fla.2006).

Mr. Celeste claims that there was insufficient evidence to support a verdict that he was guilty of trafficking in oxyco-done. The trafficking statute provides, in relevant part:

(c) 1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of ... oxycodone ... commits a felony of the first degree....

§ 893.135(l)(c)l., Fla. Stat. (2009). The plain language of the statute requires the State to prove that an accused knowingly sold, purchased, delivered, brought into Florida or possessed four or more grams of one of the specified controlled substances. However, section 893.13(6)(a), Florida Statutes (2009), permits an individual to legally possess a controlled substance when the controlled substance was obtained pursuant to a valid prescription. See State v. Latona, 75 So.3d 394, 394 (Fla. 5th DCA 2011); O’Hara v. State, 964 So.2d 839, 841 (Fla. 2d DCA 2007). Here, Mr. Celeste presented the trial court with evidence that he had a valid prescription for his pills, a fact that the State does not dispute. Consequently, under these circumstances, in order to survive a judgment of acquittal, the State had to prove that Mr. Celeste either knowingly sold or delivered oxycodone.

We conclude the State failed to meet its burden in this circumstantial evidence case. While the evidence presented may have been sufficient to prove that Mr. Celeste intended to sell some of his prescribed oxycodone, there is insufficient evidence that he actually did so. In denying the motion for judgment of acquittal, the trial court relied on this Court’s decision in Barnes v. State, 838 So.2d 641 (Fla. 5th DCA 2003). Barnes was one of two passengers in the back seat of a car. He was observed by officers placing clear baggies of a green leafy substance into a cigar box, which he threw into the back of the car when confronted by officers. The box contained marijuana in baggies and over $4,000 in cash. We held that the evidence was sufficient to support the inference that Barnes intended to sell the drugs. Here, unlike the defendant in Barnes, who was charged with possession with intent to sell, Mr. Celeste was charged with trafficking. Therefore, under the facts of this case, it was the State’s burden to prove that he actually sold or delivered the prescribed pills, not that he merely intended to do so. The State failed to carry that burden. Mr. Celeste’s motion for judgment of acquittal should have been granted. For that reason, we reverse his conviction.

REVERSED.

MONACO and EVANDER, JJ., concur.

      . The exhibit is not a part of the record before this Court. However, the parties seem to agree that it is "a piece of paper listing some names and numbers.”

      . ” ‘Sell’ means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.” Fla. Std. Jury Instr. (Crim.) 25.2.

      . “ 'Deliver' or 'delivery' means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” § 893.02(6), Fla. Stat. (2009).


author: MORRIS, Judge.

text:
    Joseph SULLIVAN, as Personal Representative of the Estate of Sammy Sullivan, Appellant, v. Mark David KANAREK, M.D., and Nadal Pediatrics, P.A., Appellees.
    No. 2D08-6242.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      George A. Vaka of Vaka Law Group, P.L., Tampa, and C. Steven Yerrid and Tammy J. Judge of The Yerrid Law Firm, Tampa, for Appellant.
    Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Ronald Josepher and Edwin P. Gale of Josepher & Batteese, P.A., Tampa, for Ap-pellees.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

MORRIS, Judge.

In Kanarek v. Sullivan, 64 So.3d 1227, 1228 (Fla.2011), the Florida Supreme Court quashed our decision in Sullivan v. Kanarek, 34 So.3d 808 (Fla. 2d DCA 2010), and remanded for reconsideration in light of the Florida Supreme Court’s decision in Companioni v. City of Tampa, 51 So.3d 452, 453 (Fla.2010). On remand, we have reconsidered the case and have concluded that a new trial is required for the reasons expressed below.

I. Background

As set forth in our prior opinion, Sullivan, 34 So.3d 808, this case involves a medical malpractice claim by a deceased child’s estate (the Estate) against the doctor who treated him before his death. After the jury returned a verdict in favor of the defense, the Estate filed a motion for new trial based on improper conduct by the defense counsel, some of which was apparent from the record and some of which was not reflected in the record. We concluded that it was an extraordinary case in which a successor judge should grant a new trial on the ground that he cannot fairly rule upon the specific motion for new trial in light of particular credibility issues, relying on National Healthcorp Ltd. Partnership v. Cascio, 725 So.2d 1190, 1193-94 (Fla. 2d DCA 1998).

In reaching the ground for reversal in Sullivan, we treated the issue as properly preserved, relying on this court’s decision in City of Tampa v. Companioni, 26 So.3d 598, 599 (Fla. 2d DCA 2009), which has since been quashed by the supreme court. See Companioni, 51 So.3d 452. In its Companioni decision, the supreme court held that “when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for new trial.” Id. at 456. “If the issue is not preserved in this manner, then the conduct is subject to fundamental error analysis under” Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000). Companioni, 51 So.3d at 456. Thereafter, the Florida Supreme Court quashed our Sullivan decision and remanded it to this court “for reconsideration in light of this Court’s decision in Companioni.” Kanarek, 64 So.3d at 1228.

II. Analysis of the case on remand

Because the Estate did not move for a mistrial during the course of the trial, we must consider the fundamental error analysis in Murphy. Under Murphy, the party moving for a new trial “must first establish that the argument being challenged is, in fact, improper.” 766 So.2d at 1028. The party must then establish that the argument is harmful, which requires that “the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. at 1029. “In sum, the improper closing argument comments must be of such a nature that [they] reach[ ] into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at 1030. Third, the improper comment must be incurable, meaning that the sustaining of a timely objection and a curative instruction “could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Id. Last, the party must “establish that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. The court recognized that this “category necessarily must be narrow in scope,” citing, for example, “appeals to racial, ethnic, or religious prejudices.” Id.

Once a party has demonstrated all four requirements, that party is entitled to a new trial on the basis that the errors amount to fundamental error. Id. On appeal of the trial court’s decision to grant or deny a new trial,

the appellate court must then apply an abuse of discretion standard in reviewing either the trial court’s grant or denial of a new trial ... because applying such standard sufficiently recognizes that the trial judge is in the best position to determine the propriety and potential impact of allegedly improper closing argument.

Id. at 1030-31 (footnote omitted) (citation omitted).

We first address the abuse of discretion standard discussed in Murphy. Murphy’s holding that an abuse of discretion standard should be applied to the trial court’s ruling on the motion for new trial is based on the presumption that the trial judge ruling on the motion for new trial was the one who presided over the case and is therefore in the best position to determine the propriety and potential impact of the conduct. But the presiding judge in this case was not able to rule on the motion for new trial, and as this court pointed out in Sullivan, the successor judge in this ease was not in as good of a position to assess the issue as the judge who presided over the case. See Wolkowsky v. Goodkind, 153 Fla. 267, 14 So.2d 398, 402 (1943) (en banc) (“[W]hen a judge who did not try the case acts upon a motion for new trial, he has to rely upon the written record, just as much so as the appellate court which later has his ruling under review, and the latter court, with the same record before it, is in just as good a position to determine the question of the weight and legal effect of the evidence and its sufficiency to sustain the verdict as was the judge of the lower court who granted or denied the motion.”); Cascio, 725 So.2d at 1193 (holding that a successor judge’s ruling on a motion for new trial “is not entitled to the same deference on appeal as the ruling of a presiding judge”). Therefore, we do not afford the successor judge the same deference we would afford if he had presided over the trial.

In analyzing whether a new trial is warranted under the standard announced in Murphy, we conclude that the instances of alleged misconduct apparent from the record do not by themselves or together amount to fundamental error. However, the instances of misconduct reflected in the record must be considered in light of the fact that certain misconduct or behavior of defense counsel was not reflected in the record but was noted by the presiding trial judge. As noted in our prior opinion, “[t]he trial transcript reflects a highly contentious and raucous five-day jury trial, fraught with objections and bench conferences.” Sullivan, 34 So.3d at 810. Defense counsel made several attempts to engage in questioning that was improper for various reasons, causing the Estate to object. While most of these objections were sustained, the behavior often brought the trial to a halt and demonstrated to the jury a contentious atmosphere. One example was when the defense repeatedly violated a pretrial order in limine that prevented the defense from questioning witnesses outside the scope of direct examination. This order in limine was intended to avoid the Estate’s having to constantly object in front of the jury. The trial judge commented that the scope of direct was very narrow and that the jury and the court were tired of this behavior.

The record also indicates that on at least two separate occasions, the trial court sustained objections by the Estate and restricted the defense’s questioning of the witness. The defense immediately attempted to ask the witness similar questions, causing the Estate to again object and obtain sustaining rulings by the trial court.

The Estate points to other instances of alleged misconduct which we conclude do not constitute misconduct. But as noted above, we do believe that the record shows some misconduct on the part of defense counsel. When considered together, they cause us concern. At the least, defense counsel’s conduct required the Estate’s counsel to repeatedly object to inappropriate questioning by defense counsel throughout the trial, sometimes in response to questions which were asked in violation of a pretrial ruling or a ruling that had just been made by the trial court. Many of the objections were sustained, and defense counsel would often cause the Estate to object again on the same basis. The Estate’s numerous objections should not have been necessary and caused the Estate to risk “alienating the jury” or causing “the jury to infer that one side of the case is trying to hide or disguise matters that would be useful to the jury.” Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004) (holding that cumulative effect of plaintiffs comments deprived defendants of a fair trial and warranted the granting of a new trial under Murphy).

Had defense counsel’s behavior only consisted of the above instances, we could not say that a new trial would be required under Murphy. But we are faced with, and must consider, the fact that the presiding judge made strong comments on the record indicating that defense counsel’s behavior consisted of much more than that reflected in the record. As with a case involving particular credibility issues that may not be apparent from the record, see Cascio, 725 So.2d at 1193-94, we certainly recognize that misconduct of a party or litigant may likewise not be apparent from the record.

In our prior opinion, we pointed out that on two occasions, the presiding trial judge cleared the courtroom to manage the conduct of the attorneys. Sullivan, 34 So.3d at 810. After the Estate filed its motion for new trial, the presiding judge held a hearing at which she stated that she had serious concerns about the fairness of the trial.

The trial was extraordinary in that I cleared the courtroom twice. Come February of next year, I will have been on the bench 20 years.... I[ ] have been a member of the bar since June[ ] 1976. Even as a prosecutor, even in conversations with my colleagues, I can’t think of running into a scenario where because of the conduct, not of the litigants, not of the litigants, but the conduct of counsel — and to be clear, it was Mr. Jose-pher’s conduct, that ha[s] risen to the level of causing me grave concern as to the fairness of this trial....
Again, this trial was extraordinary, not because it was a medical mal, not because unfortunately, it was a baby that died. It was extraordinary because of the amount of time that was dedicated to managing the defense’s behavior....

Id. at 810-11 (alterations in original). She further stated that what happened during the course of the trial could not be gleaned from the cold record in this case. Id. at 811. She took the motion for new trial under advisement before making her ruling, specifically stating that she would review the law on fundamental error. The defense then filed a successful motion to disqualify her, alleging that her comments created a well-founded fear that the defense would not receive a fair hearing. Id.

The presiding trial judge was in the best position to judge whether defense counsel’s conduct amounted to fundamental error, yet once the presiding judge stated that defense counsel’s conduct concerned her, defense counsel employed a strategy of recusal which took the decision away from her. If she had been permitted to rule on the motion for new trial, her ruling would have been entitled to great deference. See Murphy, 766 So.2d at 1030-31. In fact, if she had granted a new trial, her decision would have been entitled to even greater deference than if she had denied the motion for new trial. See Manhardt v. Tamton, 832 So.2d 129, 131 (Fla. 2d DCA 2002) (“The showing necessary to overturn the denial of a motion for new trial is not as great as that necessary to overturn an order granting such a motion.” (citing Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975))). In other words, if she had granted a new trial, the defense would have had a more difficult time showing that she abused her discretion. See id.

We are not in a position to judge whether the nonrecord behavior would have justified the presiding judge’s granting or denying of the motion for new trial, but we should give great deference or weight to the presiding judge’s comments that defense counsel’s conduct caused her grave concern that the trial was unfair and that the extent and effect of the behavior could not be gleaned from the cold record in the case. The trial judge’s concern regarding the nonrecord behavior, combined with this court’s reading of the record behavior, leads us to conclude that the trial judge would have been justified in ruling that fundamental error occurred requiring the granting of a new trial.

Defense counsel’s conduct was improper as indicated by the record and the presiding judge’s comments on the record. But it must also be harmful. Defense counsel’s conduct can be said to have “gravely impair[ed] a fair consideration and determination of the case by the jury,” Murphy, 766 So.2d at 1029, and the portions of the conduct that were reflected in the record were extensive and not isolated. But it also must satisfy the test of being “of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such” behavior. Id. at 1030. We can conclude that the conduct must have had some type of influence on the jury, based at least on the record’s reflection of the time that the presiding judge spent controlling the behavior of the attorneys, specifically defense counsel, and based on the trial judge’s comments.

Also, the extent of defense counsel’s improper conduct was incurable. Defense counsel’s conduct that is reflected in the record shows that the trial judge continuously attempted to manage defense counsel’s conduct. This quantum of improper behavior combined with the trial judge’s inability to manage it caused the presiding judge to articulate her grave concern that she was unable to entirely destroy its influence. See id. Last, as indicated by the trial judge’s observations regarding defense counsel’s behavior and our reading of the record, the behavior of counsel affected the basic fairness, integrity, and public reputation of the judicial process such that a new trial is required. See id. The behavior of defense counsel took the focus away from the actual adjudication of the legitimate issue at hand— whether the defendants’ negligence led to the death of a twenty-month old child— and placed the focus on the courtroom behavior of the attorneys.

The defense argues “that a trial judge’s stated observation cannot provide grounds for a new trial in the face of a contrary record.” But here, the record is not contrary to the trial judge’s observations; rather, the nature of the behavior observed by the trial judge is not completely reflected in the record and the record before this court lends credibility to the trial judge’s comments regarding the egregiousness of the totality of defense counsel’s conduct.

Based on our reading of the record, we conclude that the presiding judge would have been justified in granting a new trial. She was unable to do so because of the defense’s strategy of disqualifying her. We cannot condone the practice of counsel engaging in overly zealous representation amounting to misconduct and then reaping the benefit of recusing the judge who was in the best position possible to assess the effect of that misconduct on the fairness of the trial.

Accordingly, we reverse the successor judge’s denial of the motion for new trial and remand for a new trial. This is consistent with our original holding that the successor judge was not in a position to fairly rule on the merits of the motion for new trial due to considerations that were not witnessed by him firsthand. Our conclusion does not change with the application of the fundamental error test in Murphy.

Reversed and remanded.

DAVIS and KELLY, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Robert FERGIEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1564.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Robert Fergien appeals his convictions for sale and possession of methamphetamine. We reverse and remand for the trial court to reconsider his motion for new trial using the correct legal standard.

The charges against Fergien arose from an undercover drug deal involving a confidential informant. The defense attacked the informant’s credibility with evidence that she had pending drug charges and had been paid for her involvement in this transaction. Although the State produced an audio recording, it did not contain statements incriminating Fergien. Defense counsel made these points, among others, when arguing motions for judgment of acquittal, which were denied. Posttrial, counsel raised these same attacks on the State’s evidence and argued that the guilty verdict was contrary to the weight of the evidence. The prosecutor countered that “there was sufficient evidence to prove this case beyond a reasonable doubt.” The trial court then denied the motion, observing that “it’s essentially the same argument that was made for judgment of acquittal” and that “the previous rulings are appropriate still.”

Fergien argues on appeal that we should reverse because the record does not indicate whether the trial court applied the correct legal standard when considering his motion for new trial. In a criminal case, motions for judgment of acquittal and for new trial are decided under different tests. Compare Fla. R.Crim. P. 3.380(a) (directing judgment of acquittal when trial court “is of the opinion that the evidence is insufficient to warrant a conviction”), with Fla. R.Crim. P. 3.600(a)(2) (directing new trial when “verdict is contrary to ... the weight of the evidence”). On the one hand, a motion for judgment of acquittal tests the sufficiency of the evidence; a trial court must determine “whether the evidence presented is legally adequate to permit a verdict.” Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). On the other hand, a motion for new trial tests the weight of the evidence; a trial court must weigh the evidence and determine credibility just as a juror is required to do. Id.

The ruling on a motion for new trial is generally reviewed for an abuse of discretion, but the legal standard under which the trial court decided the motion is reviewed de novo. Id. at 1045. When the record does not reveal whether the proper standard was applied, appellate courts have reversed and remanded for the limited purpose of having the motion reconsidered under the correct standard. Id. (“If the trial court concludes the verdict is not against the manifest weight of the evidence, it may again deny the motion and enter a new judgment and sentence accordingly.”); see also Spear v. State, 860 So.2d 1080 (Fla. 1st DCA 2003) (same).

Here, the record does not clearly reflect what standard was applied by the trial court. Fergien’s argument challenged the weight of the evidence, the State’s response focused on its legal sufficiency, and the trial court referred to its ruling on the motions for judgment of acquittal, which were decided based on sufficiency. Thus, we are unable to conclude that the trial court properly determined that the motion for new trial should be denied based on the weight rather than the sufficiency of the evidence. We reverse and remand for the trial court to reconsider the motion using the correct legal standard.

We note that Fergien has asked to file supplemental briefs challenging the constitutionality of section 893.13, Florida Statutes (2008). See Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011). By contemporaneous order, we deny the motion without prejudice to his raising this issue below if a new trial is granted. If the motion for new trial is denied, Fergien may raise this issue on appeal.

Reversed and remanded with directions.

SILBERMAN, C.J., and DAVIS, J., Concur.


author: WHATLEY, Judge.

text:
    Jeanne M. McGREGOR, Appellant, v. Valerie M. MOLNAR and Commercial Carrier Corporation, a Florida corporation, Appellees.
    No. 2D10-4992.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      Christopher V. Carlyle & Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Jennifer K. Birmingham of Alvarez, Sambol & Winthrop, P.A., Orlando, for Appellees.
   WHATLEY, Judge.

Jeanne M. McGregor appeals the order denying her motion for attorney’s fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2010), and the rule implementing it, Florida Rule of Civil Procedure 1.442. We reverse because the trial court erred in denying McGregor’s motion.

McGregor filed suit against Valerie M. Molnar and Commercial Carrier Corporation (CCC) for injuries she sustained when Molnar, driving a truck in the course and scope of her employment with CCC, backed into McGregor’s car. McGregor alleged a count against Molnar for negligence and a count against CCC for vicarious liability for Molnar’s negligence. She subsequently served only Molnar with an offer to settle for $200,000 in exchange for a dismissal with prejudice against Molnar. The offer expressly reserved McGregor’s right to proceed against CCC. Molnar did not accept the offer. The case proceeded to a jury trial, and a final net judgment in the amount of $876,190.42 was entered in favor of McGregor. Because the final judgment exceeded McGregor’s offer to Molnar by 25%, McGregor filed an amended motion for attorney’s fees and costs pursuant to section 768.79 and rule 1.442. After a hearing, the trial court entered an order granting McGregor’s motion but reserving jurisdiction to determine the amount only if the parties could not reach a settlement through mediation. Extensive discovery was undertaken, and another hearing was held two years later before a different trial court judge. That judge denied McGregor’s motion for fees, finding that it was not made in good faith. The reasons the court gave for this finding were that the offer was not intended to conclude the litigation because all claims against CCC remained and that Molnar’s failure to accept the offer caused no additional delay or cost.

In TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995), the supreme court explained that section 768.79 creates a mandatory right to attorney’s fees if its prerequisites are met. Entitlement is determined solely by whether a party has served an offer and has recovered a judgment at least 25% greater than the offer. Id. A court may in its discretion disallow an entitlement to fees, “but only if it determines that a qualifying offer ‘was not made in good faith.’ That is the sole basis on which the court can disallow an entitlement to an award of fees.” Id. at 612 (quoting Schmidt v. Fortner, 629 So.2d 1036, 1041 (Fla. 4th DCA 1993)). The burden of proving the absence of good faith is on the offeree. Gawtrey v. Hayward, 50 So.3d 739, 742 (Fla. 2d DCA 2010). “[T]he question of whether a proposal was served in good faith turns entirely on whether the offeror had a reasonable foundation upon which to make his offer and made it with the intent to settle the claim against the offeree should the offer be accepted.” Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000).

If the court decides that the offer was made in good faith, section 768.79(7)(b) and rule 1.442(h)(2) set forth six factors to be considered in determining the reasonableness of an award.

It is ... the aioard of fees that must be reasonable, i.e., the determination of the amount of the fee, and not whether the entitlement is reasonable. Under this statute, the legislature did not give judges the discretion to determine whether it is reasonable to entitle qualifying plaintiffs to fees. Rather, it determined for itself that it is reasonable to entitle every offeror who makes a good faith offer (later rejected) ... to an award of fees. Under subsection (7)(b), the court’s discretion is directed by the statutory text solely to determining the reasonability of the amount of fees awarded; and that discretion is informed, at least partially, by the 6 factors thereafter listed in that subsection.

Dvorak, 663 So.2d at 613 (quoting Schmidt, 629 So.2d at 1040-42).

The trial court erred in finding that McGregor did not make her offer in good faith for several reasons. First, the fact that the offer did not conclude the litigation with regard to CCC is irrelevant. “Nothing in either the statute or the rule requires that a proposal settle all claims between all parties, or even all claims between the parties to the proposal.” Wagner, 761 So.2d at 447 (holding that plaintiffs offer was not made in bad faith where it would have completely settled all claims between the plaintiff and the defendant but the defendant would have remained in the case because of a cross-claim); see Hess v. Walton, 898 So.2d 1046, 1048 (Fla. 2d DCA 2005) (noting that if there had been a settlement with the vicariously liable defendant, the lawsuit would not have ended). McGregor’s offer of $200,000 to Molnar specifically stated that if it was accepted, it would result in a dismissal with prejudice of the claim against Molnar. Clearly the offer was made with the intent to settle the claim against Molnar. See Wagner, 761 So.2d at 446.

Second, in its order, the trial court stated that if McGregor’s offer were accepted, it would merely provide funds for McGregor to proceed with the litigation. But this court has noted that securing funding to further prosecute a case is a valid strategic reason behind an offer to settle. Hess, 898 So.2d at 1051. Like this case, Hess involved an action for damages against an active tortfeasor and a party vicariously liable for the active tortfeasor. The plaintiff made separate and unequal offers to settle to the defendants, which we consider to be analogous to making an offer to just one defendant. A jury returned a verdict in the plaintiffs favor that was at least 25% greater than the offer to the vicariously liable defendant, and the trial court granted the plaintiffs motion to tax attorney’s fees against that defendant. On appeal, this court rejected that defendant’s argument that section 768.79 and rule 1.442 do not allow a party to serve separate and unequal offers to settle on an active tortfeasor and the party vicariously liable for the active tortfeasor. Id. at 1048. This court noted the following “logical, strategic” reasons for making differentiated offers:

It forces one defendant to settle. The plaintiff obtains money that can be used to further prosecute the lawsuit or which can be safeguarded from the risk of a future judgment if the defendants obtain the right to a judgment for their fees. The plaintiff can eliminate the defendant for whom the jury may have sympathy, or the defendant who may be on the brink of bankruptcy. If more than one lawyer is involved, the plaintiff can remove the defendant with the best lawyer. ... [W]e cannot rule that [these] are matters that a plaintiffs attorney should disregard when making a good faith offer to settle a case.

Id. at 1051.

Third, the trial court found that Molnar’s failure to accept the offer caused no additional delay or litigation costs. But this is not a factor to be considered in determining good faith; it is one of the six factors to be considered in determining the reasonableness of the amount of the fee award. § 768.79(7)(b)(6); Fla. R. Civ. P. 1.442(h)(2)(F) (“[t]he amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged”). A trial court only determines the reasonableness of the amount of the fee award if it has not disallowed an award because of a lack of good faith. See Fla. R. Civ. P. 1.442(h)(1).

Thus, the trial court abused its discretion in finding that McGregor did not make her offer to Molnar in good faith. Accordingly, we reverse the order denying McGregor’s motion for attorney’s fees and remand for proceedings consistent with this opinion.

CASANUEVA and MORRIS, JJ., Concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Gonzalo Rafael VENEGAS, Appellee/Cross-Appellant.
    No. 2D10-5029.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    Donald P. Day of Berry, Day & McFee, PA., Naples, for Appellee/Cross-Appel-lant.
   DAVIS, Judge.

The State of Florida challenges the trial court’s order granting the suppression of a statement made to law enforcement officers by Gonzalo Rafael Venegas after he was taken into custody on suspicion of second-degree murder. Venegas cross-appeals the trial court’s denial of his motion to suppress a knife that was located using information obtained during that same custodial interrogation. We affirm the trial court’s granting of the motion to suppress the statement but reverse the trial court’s denial of the motion to suppress the knife.

Venegas was employed with a construction crew working on the Collier County courthouse. After an incident on the fifth floor, a stabbing victim was transferred to the hospital, where he later died. Sheriffs detectives arrived at the courthouse and interviewed construction workers. Based on these interviews, law enforcement determined that Venegas was involved in the incident. After the detectives made contact with Venegas, he agreed to go with his wife to a police substation for questioning.

It was understood that Venegas was being detained at the substation and was not free to leave at the time of the interrogation. At the outset of the taped interview, a detective read the Miranda warning to Venegas, and Venegas indicated that he understood his rights. The detectives explained that they were trying to decipher the circumstances of the stabbing in order to determine whether it was a premeditated act or the result of a heated confrontation. One of the detectives asked, “Do you want to talk to us now without a lawyer present?” Venegas responded, “No, because there is someone dead.”

The detective then asked Venegas for the name of his lawyer, to which Venegas responded, “I want to talk with my wife. I’ve never had a lawyer because I’ve never committed any crimes or done anything.” Again, the detective asked if Venegas wanted to call his attorney, and again Venegas responded, “I want to see — talk for a moment with my wife.”

At this point the detective stated: “Okay. We’re going to have to either get— or going to ask you to consent to give us the knife, the tool that you use[d].... Or I’m gonna have to go apply for a search warrant and search his house and his truck.” The other detective then said, “Do you understand me? Any way that we have to do it. You can give us permission and you can give us the tool that was used or we are going to — .” At that point, Venegas interrupted, stating, “No, I know where it is; it’s in the bathroom. Yes I put it in the bathroom because I got scared when this happened.” Based on this information, the detective went to the portable toilet on the construction site and located the knife.

The trial court determined that Venegas made “an unequivocal request for an attorney” and that the detectives failed to immediately cease questioning Venegas after he asserted his rights to have his attorney present during the questioning. Thus the trial court ruled that all the statements made by Venegas subsequent to his invoking his right to counsel must be suppressed. We affirm this ruling of the trial court. See Francis v. State, 808 So.2d 110, 126 (Fla.2001) (“[O]nce an accused has invoked his right to counsel[,] any interrogation must immediately cease until counsel is made available, unless the accused himself initiates further communications with the police.”).

However, with regard to Venegas’ motion to suppress the actual knife, the trial court denied the motion, distinguishing Venegas’ Fifth Amendment right against self-incrimination from his Fourth Amendment rights guarding against unreasonable searches and seizures and concluding that there “is no reason to apply the Wong Sun [v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963),] ‘fruit of the poisonous tree’ doctrine” in this case. Venegas now challenges this ruling, and we reverse.

The trial court based its ruling on United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). In that case, law enforcement arrived at the Pa-tane residence as part of an investigation of Patane’s alleged violation of a restraining order. At the outset of the conversation, the investigating officer attempted to advise the defendant of his rights pursuant to Miranda; however, Patane interrupted the officer, insisting that he knew his rights. Since the giving of the Miranda rights never was completed, Patane’s subsequent statements, although made voluntarily, were considered to be “unwarned.” Id. at 634, 124 S.Ct. 2620. As a part of those unwarned statements, Patane advised the law enforcement officer of the location of a firearm in the bedroom of his home. The officer obtained Patane’s consent to enter his bedroom and discovered the firearm in the location provided by Patane.

The Patane Court concluded that the facts of that case provided “no reason to apply the ‘fruit of the poisonous tree’ doctrine” because simply excluding the unwarned statement was a sufficient deterrent to taking unwarned statements in future custodial interrogations. 542 U.S. at 642, 124 S.Ct. 2620. Patane’s gun was found as the result of a voluntary statement made by the defendant without his having been warned of his Miranda rights, and thus no police misconduct was involved in that case. “ ‘[T]he exclusion of unwarned statements ... is a complete and sufficient remedy for any perceived Miranda violation.... Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter.” Id. at 641-42, 124 S.Ct. 2620 (footnote omitted) (quoting Chavez v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003)).

However, such reasoning does not apply to the instant case, which is factually distinguishable from Patane. First, this case did not involve a “mere failure[ ] to warn.” Rather, the law enforcement officers warned Venegas of his rights, and he invoked his right to counsel. Despite such invocation, the officers continued to interrogate Venegas by telling him that he would have to consent to giving them the knife or that they would obtain a search warrant to search his house. See Everett v. State, 893 So.2d 1278, 1284 (Fla.2004) (“ ‘A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation.’ ” (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980))). Once Venegas stated that he wanted to speak with an attorney, the officers should have terminated their questioning until either Vene-gas consulted with his attorney or he initiated further conversation; any questioning after that point amounted to unlawful interrogation. See Francis, 808 So.2d at 126.

Furthermore, here, unlike in Patane, the exclusion of the physical evidence is necessary to deter future improper police conduct, namely continuing an interrogation after the suspect invokes his or her right to counsel. To exclude only the statement and not the knife in this case would not only reward the police for intentionally violating Venegas’ right to counsel but would also encourage future such violations by suggesting that even if any incriminating statements have to be excluded, the State still could benefit from any incriminating “nontestimonial” evidence it may be able to obtain.

Finally, Patane involved a voluntary statement. But Venegas’ statement here regarding the location of the knife cannot be considered voluntary. “ ‘[V]ol-untariness ... is to be determined by an examination of the totality of the circumstances surrounding the confession.’ ” Baker v. State, 71 So.3d 802, 814 (Fla.2011) (quoting Owen v. State, 862 So.2d 687, 695 (Fla.2003)). Here, Venegas’ advising the detectives of the location of the knife was a direct response to the unlawful interrogation conducted in violation of his right to counsel. As such, it cannot be deemed voluntary.

Because Patane is factually distinguishable from the instant case, it does not apply here. And the fruit of the poisonous tree doctrine requires the exclusion of the knife that law enforcement located as a result of the involuntary statement made by Venegas in response to unlawful interrogation conducted after he had invoked his right to counsel. The trial court therefore erred in denying Venegas’ motion to suppress the knife, and the order denying the motion must be reversed.

Affirmed in part, and reversed in part.

KELLY and MORRIS, JJ., Concur.

      . In determining whether evidence should be excluded as "fruit of the poisonous tree,” the "question ... is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (quoting John MacArthur Maguire, Evidence of Guilt 221 (1959)).


author: CRENSHAW, Judge.

text:
    SA-PG SUN CITY CENTER, LLC; SA-PG Operator Holdings, LLC f/k/a New Rochelle Administrators, LLC; New Surfside Administrators, LLC; New Surfside Administrators, LLC d/b/a Cypress Healthcare Management; SA-Master Operator Holdings, LLC; Harris Schwartzberg; Schwartzberg Descendent Trust; Steven Schwartzberg Trust; Harris Schwartzberg Trust; Judith Schwartzberg Trust; Maxwell Stolzberg; Sherill Cummings as to Palm Garden of Sun City Center, Appellants, v. Sandra Sue KENNEDY, as Personal Representative of the Estate of Joseph G. Bush; and Andrea Jo Cornwell a/k/a Andrea Cornwell, Appellees.
    No. 2D11-93.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      Antonio A. Cifuentes and Daniel E. Dias of Mancuso & Dias, P.A., Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee Sandra Sue Kennedy, as Personal Representative of the Estate of Joseph G. Bush.
    No appearance for Appellee Andrea Jo Cornwell a/k/a Andrea Cornwell.
   CRENSHAW, Judge.

Sandra Kennedy, as personal representative of the Estate of Joseph G. Bush (the Estate), brought an action for negligence and wrongful death against several defendants including SA-PG Sun City Center, LLC, d/b/a Palm Garden of Sun City Center (defendants collectively referred to as Palm Garden). Palm Garden appeals the trial court’s nonfinal order denying their motion to compel arbitration and finding the arbitration agreement procedurally and substantively unconscionable. Because the trial court’s factual findings are not supported by competent, substantial evidence and because it erred as a matter of law in concluding that the arbitration agreement was procedurally unconscionable, we reverse and remand for further proceedings.

Background

Ms. Kennedy, daughter of Mr. Bush and personal representative of the Estate, brought several claims against Palm Garden, the nursing home in which Mr. Bush resided for approximately six months from 2007 to 2008. The complaint included claims for negligence and wrongful death in violation of Mr. Bush’s rights under chapter 400, Florida Statutes. In response to the complaint, Palm Garden filed a motion to abate and compel arbitration. At the hearing on the motion to compel arbitration, the trial court considered the depositions of Ms. Kennedy and of Cheryl Moore, the nursing home director of admissions. The trial court also had a copy of the signed admissions papers.

In her deposition, Ms. Kennedy stated that Mr. Bush was taken to Palm Garden by ambulance. Ms. Kennedy drove her mother, Fern Bush, separately to meet with Ms. Moore, the admissions director. The admissions papers indicate that the father arrived at Palm Garden on November 19, 2007, and that the admissions papers were signed the next day. The admissions papers consisted of a thirty-five-page packet, which contained a one-page arbitration agreement on page sixteen.

Ms. Kennedy was present at the time Ms. Bush signed the admissions papers on behalf of Mr. Bush. Ms. Kennedy stated that she and Ms. Bush met with Ms. Moore for what “seemed like a long time,” but she was unable to recall several details. Ms. Kennedy did not read the documents as Ms. Moore went through them with Ms. Bush. She did not recall seeing the arbitration agreement in the admissions packet, nor did she recall Ms. Moore offering an explanation of arbitration. She stated that at the time of signing, Ms. Bush suffered from macular degeneration and a cataract which impeded her ability to read regular and small print; therefore, Ms. Bush could not have been able to read the arbitration agreement. Ms. Bush was given an opportunity to ask questions, but she did not indicate that she was unable to read the documents, and Ms. Kennedy recalled Ms. Bush asking questions related only to costs. Although Ms. Moore never stated so, Ms. Kennedy opined that Ms. Bush thought signing the documents was necessary for Mr. Bush’s admission into the nursing home.

Ms. Moore stated in her deposition that she did not specifically recall Mr. Bush or his family. However, she explained her routine practice of reviewing the admissions packets and obtaining signatures. She stated that it takes an average of twenty to thirty minutes to go through the thirty-five-page admissions packet. Her customary practice is to highlight specific areas on each page and to give a basic explanation of arbitration. If she believes that the person signing the admissions papers is confused, then she will not allow that person to sign.

Following the hearing, the trial court entered its written order denying Palm Garden’s motion to compel arbitration and concluding that the arbitration agreement signed by Ms. Bush was procedurally and substantively unconscionable.

Discussion

“ ‘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.’ ” Hillier Grp., Inc. v. Torcon, Inc., 932 So.2d 449, 452 (Fla. 2d DCA 2006) (quoting Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003)).

A trial court’s decision to grant a motion to compel arbitration is based in part on factual findings. Accordingly, the decision presents a mixed question of law and fact. The appellate review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. However, the standard of review applicable to the trial court’s construction of the arbitration provision and to its application of the law to the facts found is a de novo review. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005).

Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008).

“In challenging the validity of an arbitration agreement, a party must assert defenses applicable to all contracts — defenses such as fraud, duress, or uncon-scionability.” ManorCare Health Servs., Inc. v. Stiehl, 22 So.3d 96, 99 (Fla. 2d DCA 2009). This court requires a party asserting the defense of unconscionability to demonstrate both procedural and substantive unconscionability. Bland, ex. rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006), abrogated on other grounds by Shotts v. OP Winter Haven, Inc., — So.3d -, 2011 WL 5864830 (Fla.2011). If this court determines that the arbitration agreement is not procedurally unconscionable, then it does not need to reach the issue of substantive unconscionability. Id. at 257.

Procedural unconscionability relates to the manner in which the contract was made and involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. [Bland, 927 So.2d at 256.] A court can also find a contract unconscionable if important terms are hidden in fine print or if the contract reflects an absence of meaningful choice on the part of the consumer. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2d DCA 2004).

FL-Carrollwood Care, LLC v. Gordon, 72 So.3d 162, 165 (Fla. 2d DCA 2011). In determining whether there was an absence of meaningful choice on the part of the complaining party, courts may consider “whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a ‘take-it- or-leave-it’ basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2003).

Here, the trial court’s conclusion that the arbitration agreement was procedurally unconscionable was based upon the following findings in the written order:

Ms. Bush did not have the ability to know and understand the terms of the arbitration agreement; she was physically unable to read the document, the agreement was not explained to her, she had no meaningful opportunity to have the agreement reviewed by anyone who could explain it to her, and the director, who might have addressed any questions which Ms. Bush had, had an inadequate understanding of the arbitration agreement to be of much use explaining it.

We conclude that the record does not support the trial court’s factual findings or its conclusion that the arbitration agreement was procedurally unconscionable. Ms. Bush failed to indicate that she had any difficulty in reading the arbitration agreement. And despite an opportunity to ask questions, Ms. Bush failed to ask any questions about the arbitration agreement. Ms. Kennedy could not recall whether Ms. Moore reviewed the arbitration agreement with Ms. Bush, but Ms. Moore stated that it was her common practice to highlight each portion of the admissions packet which included the arbitration agreement. We find the circumstances here similar to those in Weston, where the First District noted:

[The signing party] asked no questions about the arbitration provision and said or did nothing to indicate she had not read and understood that provision before she executed the contract ... there is nothing to suggest that the contract was presented on a “take-it-or-leave-it” basis, or that, had [the signing party] requested that the arbitration provision be deleted, it would not have been; there is no evidence that [the signing party] could not have obtained a satisfactory placement for [the individual seeking admission] except by acquiescing to the terms of the contract; and that, to the extent [the signing party] did not, in fact, read the arbitration provision, nothing [the admissions director] did or said had any impact on her failure to do so.

857 So.2d at 287-88. Here the trial court noted that “there is nothing in the language of the agreement to indicate that a person may be admitted to the facility without first agreeing to arbitration,” and that “[t]here is nothing in the record to suggest that the director of admissions volunteered that agreeing to arbitration was not a mandatory part of admission.” However, we note that “[a]s the party seeking to avoid the arbitration provision on the ground of unconscionability, the burden [is] on [the party claiming uncon-scionability] to present evidence sufficient to support that claim.” Id. at 288 (emphasis added). And here there is no evidence that the admissions director affirmatively indicated that admission was contingent upon signing the arbitration agreement. See, e.g., Woebse, 977 So.2d at 633-34 (finding procedural unconscionability where the signing party was told signing the arbitration agreement was required for her father’s continued stay).

There is also no evidence demonstrating that Ms. Bush was coerced into signing or prevented from understanding the contents of the arbitration agreement.

[A party’s] alleged inability to understand the Agreement does not vitiate her assent to that Agreement in the absence of some evidence that she was prevented from knowing its contents. Florida law has long held that a party to a contract is “conclusively presumed to know and understand the contents, terms, and conditions of the contract.”

Rocky Creek Ret. Prop., Inc. v. Estate of Fox ex rel. Bank of Am., 19 So.3d 1105, 1108-09 (Fla. 2d DCA 2009) (quoting Stonebraker v. Reliance Life Ins. Co. of Pittsburgh, 123 Fla. 244, 166 So. 583, 584 (1936)). And “[t]his is true whether a party is physically unable to read the agreement or simply chooses not to read the agreement.” Id. at 1108 (emphasis added) (citation omitted).

The Estate relies upon Woebse in arguing that the arbitration agreement was procedurally unconscionable, but we find that the facts here are distinguishable. In Woebse, the plaintiff signed the admissions papers on her father’s behalf. 977 So.2d at 633. She met with the admissions director for approximately five minutes, was presented with a thirty-seven-page admissions document containing a five-page arbitration agreement, and was told where to sign. Id. Here, the arbitration agreement was limited to one page, and unlike the plaintiff in Woebse, Ms. Bush met with the admissions director to go over the documents for approximately twenty to thirty minutes, or what Ms. Kennedy described as what “seemed like a long time.” And in Woebse, the trial court considered other facts in finding procedural unconseionability, such as the admissions director advising the plaintiff that a signature was “required” for her father’s continued stay. Id. at 634.

We conclude based on the totality of the circumstances surrounding the formation of the arbitration agreement that any finding that Ms. Bush was not afforded a meaningful choice or reasonable opportunity to understand the contents of the agreement is not supported by competent, substantial evidence. Accordingly, we conclude that the arbitration agreement was not procedurally unconscionable. And because we find no procedural unconscion-ability, we do not need to reach the issue of substantive unconscionability. See Tampa HCP, LLC v. Bachor, 72 So.3d 323, 328 (Fla. 2d DCA 2011).

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.

      . Defendant Andrea Cornwell has filed a separate appeal raising the same issues as the appellants in this case. See Cornwell v. Kennedy, 79 So.3d 935 (Fla. 2d DCA 2012).

      . The trial court noted in its written order that Ms. Bush was unable to give her account of the admissions process because of her current medical condition.

      . We note that the trial court seems to have blurred the distinction between substantive and procedural unconscionability. However, we consider this factor in our analysis of procedural unconscionability.


author: LAWSON, J.

text:
    Yulanda E. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-978.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.

      Jennifer A. Jacobs, Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Yulanda E. Powell appeals her conviction for felony child abuse arising from an incident in which she allegedly hit, kicked and choked her teenage son, and threatened or attempted to hit him with a cement weight. We reverse the conviction and remand for a new trial based upon the trial court’s error in denying Powell the opportunity to cross-examine her son regarding the details of his juvenile probation (which Powell contended to be the motive for her son’s fabrication of facts that served as a basis for the charge against her). See Pennsylvania v. Ritchie, 480 U.S. 39, 51-52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“Of course, the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.”) (citations omitted); Watts v. State, 450 So.2d 265, 267 (Fla. 2d DCA 1984) (“In a criminal trial the defendant has the absolute right to fully cross-examine adverse witnesses to discredit them by showing bias, prejudice, interest, or possible ulteri- or motive for testifying. This is particularly so where a key witness is being examined.”) (citations omitted). We find no error in the denial of Powell’s motion for judgment of acquittal based upon the defense of parental privilege, Chisolm v. State, 58 So.3d 304 (Fla. 1st DCA 2011), or in the trial court’s refusal to instruct the jury using a proffered instruction on the defense. Even if the evidence had supported giving this instruction, Powell’s proposed instruction did not accurately reflect the law. Id. We address one other issue for the benefit of trial coui't and the parties in the event of a second trial.

Before the first trial, Powell moved in limine to preclude the State from eliciting testimony from her son about an uncharged incident during which she allegedly pulled a knife on him. In response, the State explained that it planned to present evidence that Powell overheard a phone conversation in which her son told his father about the knife incident, and that this is what precipitated and motivated the charged conduct — making the prior incident relevant to the charged offense. See generally Griffin v. State, 639 So.2d 966, 970 (Fla.1994) (explaining that evidence of uncharged misconduct can be relevant and admissible when “necessary to adequately describe the events leading up to” commission of the charged offense). Based upon this argument, the trial court denied the motion in limine. Powell does not argue that this ruling was erroneous at the time it was made, but claims error in that the State never presented the promised evidence necessary to link the two incidents. We conclude that this issue was not preserved for appellate review.

Normally, a motion in limine and a definitive ruling are sufficient to preserve an argument for appeal without the need to contemporaneously object when the evidence is admitted at trial. See § 90.104(l)(b), Fla. Stat. (2010) (providing in relevant part that when a “court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection ... to preserve a claim of error for appeal”). However, when an eviden-tiary ruling is made before trial based upon representations as to how the evidence will unfold, the judge’s ruling is “definitive” only as to the facts as represented. In this case, for example, Powell’s counsel would not have needed to renew her objection at trial so long as the State had presented evidence that Powell overheard her son telling his father about the knife incident immediately before her alleged attack. See Tolbert v. State, 922 So.2d 1013, 1017 (Fla. 5th DCA 2006) (“[Pjursuant to the amendment, if a party files a motion in limine prior to trial, the trial court’s ruling on that motion sufficiently preserves the evidentiary issue for appellate review.”). However, if the evidence introduced at trial materially differs from the pre-trial representations relevant to an issue addressed in a motion in limine, we believe it to be incumbent upon the objecting party to revisit the issue in light of the changed circumstances. Here, for example, when the victim testified that Powell could not have overheard the telephone conversation he was having with his father immediately before the attack, Powell’s counsel should have moved to strike the victim’s prior testimony regarding the knife incident — and for a mistrial — in light of the State’s inability to link the prior incident to the charged offense. Because we are reversing on other grounds, we need not determine whether the admission of evidence regarding the knife incident constituted fundamental error, but we instruct that any reference to the knife incident be excluded on retrial.

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER, C.J. and TORPY, J„ concur.

      . To the apparent surprise of the prosecutor, the victim testified that Powell could not overhear the telephone conversation with his father. And, the State presented no other evidence from which the jury could have concluded that Powell did overhear the conversation.


text:
    Jessica COMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2980.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      Jessica Compton, pro se.
   MORRIS, Judge.

Jessica Compton appeals the summary denial of her motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a), in which she raised one claim of illegal sentence. We reverse and remand for the postconviction court to reconsider its treatment of Compton’s motion.

On October 9, 2006, Compton pleaded guilty to battery on a law enforcement officer and resisting an officer with violence and was sentenced to sixty months’ probation. A month later, Compton was alleged to have violated her probation by being in possession of drug paraphernalia. In March 2007, after a hearing on her violation of probation, Compton was sentenced to consecutive terms of five years’ imprisonment on each of her underlying charges. On May 21, 2011, Compton filed the current motion pursuant to rule 3.800(a).

In her motion, Compton claims that she was illegally sentenced upon violation of her probation as a habitual felony offender (HFO) to consecutive five-year terms of imprisonment in violation of Hale v. State, 630 So.2d 521, 525 (Fla.1993) (holding that the “trial court is not authorized ... to both enhance [the defendant’s] sentence as a habitual felony offender and make each of the enhanced habitual felony offender sentences ... consecutive, without specific legislative authorization in the habitual felony offender statute”). In support of her motion, Compton attached scoresheets that were prepared at her original sentencing and upon revocation of her probation. The scoresheets indicate that each time, Compton was designated an HFO.

We have identified deficiencies in Compton’s motion. First, Compton has failed to specifically allege that her underlying charges were for multiple crimes committed during the same criminal episode, as required by Hale, 630 So.2d at 524. Although she makes this allegation in her initial brief on appeal, her failure to do so in her rule 3.800(a) motion rendered the motion facially insufficient. Furthermore, although she attached scoresheets intended to show that she was sentenced as an HFO, in situations where the sentence is in dispute, the oral pronouncement controls over the written sentencing document. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). Therefore, the sentencing hearing would be determinative for a claim concerning the details of a sentence, and in rule 3.800(a) motions, “the burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record.” Williams v. State, 957 So.2d 600, 604 (Fla.2007).

In addition to the shortcomings of Compton’s motion, the postconviction court’s order also suffers some deficiencies. Rather than noting the facial insufficiency of Compton’s claim and dismissing the motion, the court considered the claim on the merits. First, the court attempted to refute Compton’s claim by attaching the written judgment and sentence from her convictions. Although these documents do not reflect HFO treatment, they are not ultimately controlling in this situation, particularly in light of the inconsistency between these documents and the score-sheets provided by Compton. Furthermore, the postconviction court briefly analyzed the single criminal episode issue. Relying upon the arrest affidavit, the court found that Compton’s charges were the result of two separate incidents separated by a period of time. Although this finding may ultimately prove accurate, the court is not permitted to rely on such documents to make this determination:

[I]n Burgess v. State, 831 So.2d 137, 141 (Fla.2002), the supreme court held that a trial court cannot rely on hearsay documentation that is contained in the trial court record, such as a police report, to determine a 3.800(a) Hale claim. The trial court may rely on any portion of the trial court record that is not hearsay, such as a trial transcript.

Wachter v. State, 868 So.2d 629, 629 (Fla. 2d DCA 2004). In Burgess, 831 So.2d at 142, the supreme court also held that the proper mechanism for claims such as Compton’s is a motion pursuant to rule 3.850, which can be resolved after an evi-dentiary hearing, if necessary. Nevertheless, “if the determination of whether the offenses were part of the same criminal episode can be made without resorting to extra-record facts,” West v. State, 825 So.2d 499, 500 (Fla. 2d DCA 2002), the claimant may raise a Hale claim pursuant to rule 3.800(a).

Ultimately, this case is troublesome because of the uncertainty surrounding the true nature of Compton’s sentence. By assessing Compton’s claim on the merits rather than dismissing her motion for failing to affirmatively allege that identifiable court records “demonstrate on their face an entitlement to relief,” Fla. R.App. P. 3.800(a), the postconviction court erred. Accordingly, we reverse the denial of Compton’s rule 3.800(a) motion and remand for the postconvietion court to dismiss Compton’s motion as facially insufficient with leave to amend this claim.

Reversed and remanded.

DAVIS and CRENSHAW, JJ. Concur.


author: MARSTILLER, J. WETHERELL, J.,

text:
    Jerry LEWIS, Appellant, v. David MORGAN, Sheriff of Escambia County Florida in his Official Capacity, Appellees.
    No. 1D10-4258.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.

      Robert C. Allen, Pensacola, for Appellant.
    Lisa Truckenbrod of Jolly & Peterson, P.A., Tallahassee, for Appellees.
   MARSTILLER, J.

Escambia County Sheriffs deputies arrested Appellant, Jerry Lewis, at his home on December 24, 2006, for grand theft of a motor vehicle. The arrest arose from a complaint lodged by World Ford Pensacola (“World Ford”), an automobile dealership, alleging that Lewis failed to return a vehicle to the dealership as required by contract when financing fell through. Appellant successfully moved to dismiss the criminal charge and subsequently sued Ap-pellees, Escambia County Sheriff David Morgan and Lt. Roger Dale Grice, for false arrest and malicious prosecution. Appellees moved to dismiss the complaint for failure to state a cause of action because the facts alleged supported an affirmative defense to the claims — existence of probable cause for arrest. The trial court agreed and dismissed the complaint without prejudice. Appellant sought leave to file an amended complaint omitting the problematic allegations and adding claims for abuse of process and invasion of privacy. The court disallowed the amendment and dismissed the complaint with prejudice. Appellant argues on appeal that the court initially erred in dismissing his complaint because the contract dispute between he and World Ford could not provide probable cause to arrest him for theft. If dismissal was correct, Appellant argues alternatively, the court abused its discretion in denying him leave to amend the complaint. Because we agree with Appellant on the latter issue, we reverse the order dismissing Appellant’s complaint with prejudice and remand for further proceedings.

I. The Dismissal Without Prejudice

Appellant’s complaint and attached exhibits (inter alia, the vehicle purchase agreement and the Sheriffs Office incident report) alleged that he entered into a purchase agreement and financing contract with World Ford. Under the purchase agreement, the sale of the vehicle was contingent on World Ford successfully assigning the financing contract to a lender. The agreement specified that World Ford “conditionally delivered” the vehicle to Appellant pending approval of financing and that Appellant would “immediately return the vehicle on the oral or written request or demand of World Ford Pensacola until financing of this transaction is fully approved or concluded.” Three days after the parties executed the purchase agreement, World Ford notified Appellant that it could not obtain financing at the agreed-upon terms, but had found a lender to finance the purchase at a higher interest rate. Appellant refused to sign a new contract or return the vehicle. Several days later, a World Ford salesperson spoke to Appellant’s wife and advised her that if Appellant failed to sign another contract or bring back the vehicle, World Ford would report the theft to law enforcement. Thereafter, Appellee Lt. Grice spoke to Appellant by phone on three occasions to persuade him to complete the new financing paperwork or turn the vehicle in. Upon Appellant’s continued refusal to do either, World Ford reported the vehicle stolen and filed a criminal complaint against Appellant. The Sheriffs office, in turn, issued a BOLO (“Be on the Lookout”) for the stolen vehicle. When officers discovered the vehicle parked next to Appellant’s residence, they arrested him and impounded the vehicle. The trial court dismissed Appellant’s complaint without prejudice, explaining that:

Based upon the facts alleged in the complaint and amended complaint ... sufficient probable cause existed for the arrest of the Plaintiff ... Because [lack of] probable cause is an essential element for a claim for malicious prosecution and an affirmative defense to a claim for false arrest, the existence of facts pled by the Plaintiff in the complaint that establish the existence of probable cause renders the claims of the Plaintiff against Defendant Sheriff and Defendant Grice subject to dismissal.

A trial court’s ruling on a motion to dismiss for failure to state a cause of action is reviewable de novo. See Locker v. United Pharm. Group, Inc., 46 So.3d 1126, 1128 (Fla. 1st DCA 2010); Fla. R. Civ. P. 1.140(b). An affirmative defense appearing on the face of a complaint can be grounds for a motion to dismiss under Florida Rule of Civil Procedure 1.140(b). See Fla. R. Civ. P. 1.110(d); see also Se. Integrated Med., P.L. v. N. Fla. Women’s Physicians, P.A., 50 So.3d 21, 24 (Fla. 1st DCA 2010); O’Halloran v. PricewaterhouseCoopers LLP, 969 So.2d 1039, 1042 (Fla. 2d DCA 2007). The existence of probable cause to arrest is an affirmative defense to false arrest. See Rivers v. Dillards Dep’t Store, Inc., 698 So.2d 1328, 1331 (Fla. 1st DCA 1997). And the existence of probable cause will defeat a claim for malicious prosecution because lack thereof is a necessary element of the claim. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994). Probable cause for arrest exists where “the facts and circumstances known to the arresting officers were sufficient to cause a reasonably cautious person to believe that the suspect was guilty of committing a crime.” Fla. Game & Freshwater Fish Comm’n v. Dockery, 676 So.2d 471, 474 (Fla. 1st DCA 1996).

To show probable cause in a false arrest situation, it is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged; probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.

Id.

According to Appellant’s complaint and exhibits, the facts known to Sheriffs deputies when they arrested Appellant were that Appellant had attempted to purchase a vehicle from World Ford, but the transaction was not completed because the dealership could not obtain financing for Appellant. Consequently, Appellant did not own the vehicle. Although World Ford gave Appellant possession of the vehicle pending financing approval, the agreement Appellant signed required to him to return the vehicle if World Ford could not get such approval. Appellant declined to execute a new financing contract with World Ford in order to complete the purchase. And after several demands from both World Ford and a Sheriffs Office lieutenant, he steadfastly refused to return the vehicle to the dealership.

The elements of grand theft of a motor vehicle are: (1) knowing and unlawful obtaining or use, or knowing and unlawful endeavor to obtain or use, (2) the motor vehicle of another, (3) with the intent to either temporarily or permanently (a) deprive the owner or lawful possessor of a motor vehicle of the right to the vehicle or the benefit from it, or (b) to appropriate the motor vehicle to the accused’s own use or to use of any person not entitled to it.

Fryer v. State, 732 So.2d 30, 33 (Fla. 5th DCA 1999) (emphasis added); accord Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996); see § 812.014(2)(c)6, Fla. Stat. (2006). Section 812.012 defines the phrase “obtains or uses” to include “[c]onduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception.” § 812.012(3)(d)l, Fla. Stat. (2006) (emphasis added). Conversion, and thus theft under section 812.014, occurs when a person who has the right to possess certain property demands its return, and the property is not relinquished. See State v. Siegel, 778 So.2d 426, 427-28 (Fla. 5th DCA 2001) (citing Denson v. Stack, 997 F.2d 1356, 1362 (11th Cir.1993)). How the defendant — or as in this case, the suspect — acquired the other person’s property is not relevant. See Isenhour v. State, 952 So.2d 1216, 1221 (Fla. 5th DCA 2007). Consequently, the fact that Appellant initially took possession of the vehicle pursuant to a contract does not defeat, ipso facto, probable cause. We conclude, as did the trial court, that the facts as alleged by Appellant in his complaint constituted probable cause to believe Appellant committed theft by conversion when he refused to relinquish the vehicle owned by World Ford. Accordingly, the trial court properly dismissed the complaint without prejudice for failure to state a cause of action.

II. The Denial of Leave to Amend and, Dismissal With Prejudice

The amended complaint Appellant sought leave to file omitted the facts that the trial court previously found constituted probable cause for arrest. Neither the purchase agreement nor the incident report was attached to the proposed amended complaint. Appellant alleged only that he advised Sheriffs deputies he had a valid purchase agreement and installment repayment contract with World Ford, but that deputies had telephoned him and instructed him to tear up the valid contract, give the vehicle back to World Ford, and sign a new contract. The proposed amended complaint also asserted new causes of action against Appellees for abuse of process and invasion of privacy.

“Public policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit.” Laurencio v. Deutsche Bank Nat. Trust Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011) (citations omitted). “As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991). Leave to amend a complaint should be given freely to allow a plaintiff to state a cause of action “unless, of course, it is clear that a plaintiff will not be able to state a cause of action.” Town of Micanopy v. Connell, 304 So.2d 478, 480 (Fla. 1st DCA 1974); see also Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002). In denying Appellant leave to amend his complaint, the trial court found neither that permitting amendment would prejudice Appellees nor that Appellant had abused the privilege to amend. Rather, as to the false arrest, malicious prosecution and invasion of privacy claims, the court determined that its previous finding on the existence of probable cause made Appellant’s endeavor to pursue those claims futile. And because Appellant was arrested without a warrant, there could be no abuse of process by Appellees. Therefore, amending the complaint to assert that claim would be futile, as well.

We conclude the trial court should have permitted Appellant to amend his complaint. Appellant was not bound by the allegations in the prior unsworn complaint. See Bryant v. Stevens, 313 So.2d 124, 124-25 (Fla. 2d DCA 1975) (reversing dismissal with prejudice where trial court denied leave to amend because amended complaint omitted facts that caused dismissal of original complaint without prejudice and “plaintiff could not escape from the facts which he had previously pled”). The question at this stage was not whether Appellant ultimately can prevail, but whether he can state a cause of action. Furthermore, we can find no case law — -and Appellees presented none to the trial court or to this Court — holding that a warrantless arrest cannot be the subject of an abuse of process claim. Accordingly, we REVERSE the order dismissing Appellant’s complaint with prejudice and REMAND for further proceedings.

SWANSON, J, concurs.

WETHERELL, J., dissents with opinion.

WETHERELL, J.,

dissenting.

I agree with the majority that the trial court properly dismissed the false arrest and malicious prosecution claims against Appellees in the first amended complaint. However, unlike the majority, I do not see any way the pleading deficiency that led to the dismissal of those claims can be cured because the Offense Report (which was an exhibit to both the first amended complaint and the proposed second amended complaint) clearly establishes that there was probable cause for Appellees to arrest Appellant for grand theft. Additionally, although it is a closer question, I am not persuaded that Appellant will be able to state legally-sufficient claims against Ap-pellees for abuse of process or invasion of privacy in light of the facts alleged in the proposed second amended complaint and reflected elsewhere in the record.

Accordingly, I would affirm the trial court’s order denying Appellant’s motion to file the proposed second amended complaint, the effect of which was to dismiss the claims-against Appellees with prejudice. Alternatively, I would only reverse the trial court’s order insofar as it denied Appellant any opportunity to allege the abuse of process and invasion of privacy claims raised for the first time in the proposed second amended complaint. Because the majority opinion reverses the denial of the motion to amend and remands without any limitations on the claims that may be alleged, I respectfully dissent.

      . The majority opinion is technically correct when it states that the report was not attached to the proposed second amended complaint. However, the report was specifically identified as an exhibit to that pleading. Accordingly, it was proper for the trial court to consider the information in the report in determining whether to allow Appellant to file the proposed second amended complaint and in evaluating the legal sufficiency of that pleading.


author: WOLF, J.

text:
    Robert Jay ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6317.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.

      Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Robert Rosado challenges his conviction for armed robbery. The issue is whether the trial court impermissibly allowed evidence of a totally unrelated home invasion robbery with little to no probative value to become a feature of the trial. We find harmful error and reverse.

At trial, the State was allowed to introduce evidence of a dissimilar home invasion robbery without first filing a notice of intent to introduce collateral crime evidence. During direct examination, appellant stated he was involved in a previous “incident.” The State argued this “incident” was a home invasion, and appellant’s testimony opened the door to evidence concerning the invasion. The court agreed and permitted the State to ask appellant specifics about the collateral crime, and to impeach appellant with his alleged confession to the collateral crime. The State further highlighted the unrelated collateral crime by calling an officer in rebuttal to testify that appellant had, in fact, confessed to the crime.

These actions by the State and the trial court require reversal for three reasons. First, the State may not rely on the law of impeachment to introduce impermissible prior crime evidence. See Robertson v. State, 829 So.2d 901, 913 (Fla.2002). Second, the trial court compounded the error by allowing the State to present extrinsic evidence of a collateral matter. See, e.g., Wilson v. State, 72 So.3d 331, 334 (Fla. 4th DCA 2011) (stating that “‘if a party cross-examines a witness concerning a collateral matter, the cross-examiner must ‘take’ the answer, is bound by it, and may not subsequently impeach the witness by introducing extrinsic evidence to contradict the witness on that point’ ” unless the collateral extrinsic evidence sought to be introduced concerns matters testified to by the witness on direct examination) (quoting Correia v. State, 654 So.2d 952, 955 (Fla. 4th DCA 1995)). Third, the manner in which the evidence was highlighted, combined with the fact that the evidence was argued in both the opening statement and the closing argument, rendered the evidence a feature of the trial. The State’s use of the evidence “ ‘transcended] the bounds of relevancy to the charge being tried’ and the prosecution ‘devolve[d] from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’ ” Peterson v. State, 2 So.3d 146, 155 (Fla.2009) (quoting Conde v. State, 860 So.2d 930, 945 (Fla.2003)). We have recently reemphasized that collateral crime evidence must not become a feature of the trial. See Thompson v. State, 76 So.3d 1050 (Fla. 1st DCA 2011).

In addition, if an appellant establishes error in the admission of inherently prejudicial evidence, the burden shifts to the State to show that the error was harmless beyond a reasonable doubt. See Dortch v. State, 63 So.3d 904, 907 (Fla. 1st DCA 2011). As noted above, “[b]ecause of its prejudicial nature, ‘[ejrroneous admission of evidence of collateral crimes is presumed harmful.’ ” Sinclair v. State, 50 So.3d 1223, 1226 (Fla. 4th DCA 2011) (quoting Smith v. State, 743 So.2d 141, 144 (Fla. 4th DCA 1999)). The State has failed to meet its burden.

We, therefore, REVERSE and REMAND for a new trial.

CLARK and WETHERELL, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Ronald THOMPSON, Respondent.
    No. 1D11-6823.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Petitioner.
    Steven Brian Whittington of Whitting-ton & Culbert, P.A., Green Cove Springs, for Respondent.
   PER CURIAM.

In State v. Thompson, 64 So.3d 1281 (Fla. 1st DCA 2011), this court reversed respondent’s sentence and remanded to the Circuit Court for Clay County for re-sentencing with a statutorily-required 20 year mandatory minimum. On remand, Judge John Skinner directed the elected State Attorney for the Fourth Judicial Circuit to personally appear at the resen-tencing hearing. The state moved to disqualify Judge Skinner, asserting that his actions and comments in the case caused movant to fear that the judge was not fair and impartial in the cause. When the motion was denied, relief was sought from this court through a petition for extraordinary writ. The state requests that prohibition be granted and the disqualification of Judge Skinner be ordered. It also petitions for a writ of certiorari or quo war-ranto to review the order which directed the State Attorney’s attendance at resen-tencing.

The facts alleged in the state’s motion for judicial disqualification, taken as true as they must be under Florida Rule of Judicial Administration 2.330(f), would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). The motion was timely filed after the last in a series of actions by the judge that gave rise to such fear. See Dura-Stress v. Law, 634 So.2d 769 (Fla. 5th DCA 1994). We therefore grant the petition for writ of prohibition and direct Judge Skinner to enter an order of disqualification and requesting the Chief Circuit Judge to appoint a successor judge to preside over the resentencing hearing.

In accordance with Florida Rule of Judicial Administration 2.330(h), the State of Florida may request the successor judge to reconsider the order requiring the attendance of the State Attorney at resen-tencing. We therefore do not reach the correctness of that order. Our denial of certiorari and quo warranto relief at this time is without prejudice to the state’s right to again petition this court for relief if reconsideration is denied.

PETITION FOR WRIT OF PROHIBITION GRANTED; PETITION FOR WRIT OF CERTIORARI OR QUO WAR-RANTO DENIED WITHOUT PREJUDICE.

LEWIS, ROWE, and RAY, JJ., concur.


text:
    Robert ROELING, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2949.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After a non-jury trial pursuant to section 394.918(4), Florida Statutes, the trial court entered an order finding that “the State has proven by clear and convincing evidence that [Appellantj’s mental condition remains such that it is not safe for [him] to be at large and that, if released, [Appellant] is likely to engage in acts of sexual violence” and, based on this finding, the trial court recommitted Appellant to the custody of the Department of Children and Family Services under the Jimmy Ryce Act. Appellant timely filed a motion for new trial arguing, among other things, that the State did not meet its burden of proof. In ruling on the motion, the judge made comments suggesting that he was under the impression that the trial was only a probable cause hearing. The judge did not appear to be under this impression at the trial, however, as reflected in both the order on appeal and the oral ruling in which the judge resolved the conflicts in the evidence and explained why Appellant should be recommitted. Accordingly, because we cannot determine whether the trial court applied the incorrect standard at trial or misspoke when ruling on the motion for new trial, we reverse the order denying the motion for new trial and remand for clarification and, if necessary, reconsideration of the motion in light of this opinion.

REVERSED and REMANDED.

BENTON, C.J, WETHERELL, and RAY, JJ., concur.

      . Contrary to the State’s argument in its brief, the record clearly establishes that the order on appeal resulted from a trial under section 394.918(4), not a probable cause hearing under subsection (3).