author: CASANUEVA, Judge.

text:
    Joseph BARILE, Appellant, v. Tonya M. GAYHEART, Appellee.
    No. 2D10-3816.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      Hans M. Grieble of Boyko & Grieble, New Port Richey, for Appellant.
    No appearance for Appellee.
   CASANUEVA, Judge.

Appellee Tonya M. Gayheart petitioned for an injunction against repeat violence against her former employer, Appellant Joseph Barile, to whom she is related neither by blood nor marriage. After an evidentiary hearing the trial court entered an injunction against domestic violence. Mr. Barile now appeals that injunction. We reverse based on a denial of Mr. Bar-ile’s right to due process.

Mr. Barile raises three issues in this appeal: (1) that the trial court failed to determine that he and Ms. Gayheart reside together or have resided together in the same dwelling; (2) that Ms. Gayheart did not present sufficient evidence to show that she was the victim of domestic violence or had reasonable cause to believe she was in imminent danger of domestic violence; and (3) that the trial court erred in sua sponte issuing an injunction against domestic violence when Ms. Gayheart sought an injunction against repeat violence. We decline to reach the first two issues because Mr. Barile has failed to preserve them for review by contemporaneous objection. See Jarkesy v. Daniels, 58 So.2d 516 (Fla.1952). Mr. Barile’s third issue has merit and mandates reversal.

Ms. Gayheart’s petition claimed entitlement to an injunction based upon acts of repeat violence. See § 784.046, Fla. Stat. (2010). Early in the evidentiary hearing, the trial court properly observed that Ms. Gayheart’s evidence did not support the entry of a repeat violence injunction. Instead, the trial court unilaterally declared that the injunction hearing would continue on a claim for an injunction against domestic violence. The record shows that Ms. Gayheart did not seek to amend her pleading, that the trial court did not determine whether Mr. Barile objected to proceeding on an amended pleading, and that the trial court did not determine that its procedure resulted in no legal harm to Mr. Barile. As discussed below, we doubt whether the evidence Ms. Gayheart produced would have supported an injunction against domestic violence either, but we reverse for a more basic reason.

The notice for the hearing informed Mr. Barile that he would be defending himself against a charge of repeat violence towards Ms. Gayheart. As noted above, without notice, the trial court switched issues to one which Mr. Barile was not expecting and for which he was unprepared. Cf. Liton Lighting v. Platinum Television Group, Inc. 2 So.3d 366, 367 (Fla. 4th DCA 2008) (“When a trial judge sua sponte dismisses a cause of action on grounds ‘not pleaded,’ the trial judge denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” (quoting Kerrigan, Estess, Rankin, & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998))). Because the hearing went forward on Ms. Gayheart’s petition as amended on the spot by the trial court, Mr. Barile was denied due process and the injunction entered must be reversed and vacated.

As an aside, it is unlikely that Ms. Gayheart’s record evidence would have supported the granting of an injunction against domestic violence either as that term is defined in section 741.28, Florida Statutes (2010). In addition to failing to show acts of repeat violence, she also did not establish the other required statutory elements: that she and Mr. Barile (1) were spouses or former spouses or were related by blood or marriage; (2) had a child in common; or (3) currently resided together or had resided together in the past. There was evidence presented that she had once stayed with Mr. Barile for two days. A one- or two-night interlude of staying together does not meet the statutory criterion of having resided together in the same dwelling. See Slovenski v. Wright, 849 So.2d 349, 350 (Fla. 2d DCA 2003) (“To establish standing under this [domestic violence] statute, something more than a romantic relationship with overnight visits is required.”).

Because Mr. Barile was denied due process, we reverse and remand with instructions to vacate the injunction.

Reversed and remanded with instructions.

WALLACE and LaROSE, JJ., Concur.

      . Section 784.046(l)(b), Florida Statutes (2010), defines "repeat violence” as "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.”

      . Section 741.28, Florida Statutes (2010), defines the relevant terms in the following manner:
      (2) "Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
      (3) "Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    M.A.F., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5196.
    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 Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

The State filed a delinquency petition charging M.A.F. with the introduction of contraband into a county detention facility and possession of not more than twenty grams of marijuana. M.A.F. appeals from the disposition order that adjudicates him delinquent and commits him to a minimum risk facility. Because the evidence was insufficient to prove that he introduced or possessed marijuana in the county jail, we reverse his adjudication of guilt for that offense.

The record of the adjudicatory hearing reveals that Deputy Mendelson stopped M.A.F. outside a movie theater because he saw M.A.F. smoking a cigar. The deputy asked M.A.F. for identification with the intention of giving him a citation for underage possession of tobacco products. Upon checking M.A.F.’s record, the deputy found an outstanding “juvenile pick-up order.” He searched and handcuffed M.A.F. and put him in the back seat of his patrol car. The deputy also took custody of the backpack M.A.F. was carrying and searched it but found no contraband. He placed the backpack in the front seat of the car. On the way to the jail, Deputy Mendelson warned M.A.F. that if he was carrying any drugs he should reveal them because he could be charged with introducing contraband into a county jail. M.A.F. said he had no drugs. At the jail, Deputy Westlake took custody of M.A.F. and the backpack. Shortly thereafter, Deputy Westlake found a small amount of marijuana concealed in a pocket of the backpack.

Defense counsel moved to dismiss the introduction of contraband charge, arguing that M.A.F. did not possess the backpack when he came to the jail; rather, it was Deputy Mendelson who brought the backpack (and the marijuana) into the jail. The court rejected M.A.F.’s argument, finding as follows:

[M.A.F.] was aware that the contraband was coming in, even though through the assistance of the sheriffs office in carrying the backpack for him, it was going in, that it was being searched, and he did not take steps to insure that contraband did not come into the correctional facility as a result of it being in his backpack.

Thus, the trial court essentially found that M.A.F. was in constructive possession of the marijuana when entering the jail.

Constructive possession exists when the accused, without physical possession of the controlled substance, knows of its presence and has the ability to maintain control over it. See Byers v. State, 17 So.3d 825, 827 (Fla. 2d DCA 2009). While M.A.F.’s awareness that his backpack was coming into the facility tended to prove the element of knowledge of the presence of contraband, it did not establish that he had the ability to maintain control of it. See State v. Getzinger, 189 Or.App. 431, 76 P.3d 148, 149-50 (2003) (holding that the evidence was insufficient to prove the offense of “supplying” contraband to a jail because the defendant was not in possession of the drugs when he was taken to jail where the arresting officer entered the jail with the drugs). On the contrary, once the deputy placed M.A.F. in the patrol car, M.A.F. was separated by a glass window from the backpack on the front seat and he did not have access to the bag again. Accordingly, we affirm the finding of guilt of possession of marijuana and reverse the finding of guilt of introduction of contraband into a correctional facility.

Affirmed in part; reversed in part.

CRENSHAW and BLACK, JJ., Concur.


author: DAMOORGIAN, J.

text:
    STATE of Florida, Appellant, v. John Henry SIMMONS, Appellee.
    No. 4D10-71.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Rehearing Denied March 23, 2012.

      Pamela Jo Bondi, Attorney General, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel and Ephrat Livni, Assistant Regional Counsel, of the Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The State appeals a final order granting a downward departure from the sentencing guidelines for Defendant John Henry Simmons. Simmons cross-appeals his conviction and sentence for burglary of a conveyance, arguing that the trial court erred in granting the State’s request to instruct the jury on attempted burglary where the unrebutted evidence established that the burglary had been completed. We reverse the downward departure sentence for the reasons hereinafter stated. With respect to the attempted burglary instruction, we affirm because the issue was not preserved for review. Finally, we affirm without discussion the trial court’s denial of Simmons’s motion for judgment of acquittal.

Simmons was charged by information with burglary of a conveyance. The case proceeded to trial. The sole witness was a City of Palm Beach Gardens police officer. The officer described a sting operation, which was set up in the parking lot of a business. The purpose of the operation was to catch thieves stealing packages from vehicles. In order to do so, officers left an unoccupied pickup truck in the parking lot. In the back of the truck, the officers placed a box which, from its markings, appeared to contain a pressure cleaner. The scene was monitored by the testifying officer, who was positioned in an unmarked vehicle approximately sixty feet south of the truck. Simmons was observed pulling up in a vehicle from the opposite direction and parking alongside the pickup truck. Simmons exited his vehicle and walked around the pickup truck two times, at which point he reached over into the bed of the pickup truck with his hands and arms as if he was grabbing the box. Simmons then walked to the rear of the pickup truck, dropped the tailgate of the truck, reached inside the truck bed, and grabbed the box. Simmons’s arrest followed.

During the jury instructions conference, Simmons initially requested an attempted burglary instruction, but later withdrew the request. The State, however, requested the “attempt” instruction. The “attempt” instruction was given as a lesser included offense. The instruction for the lesser included offense of trespass was also given. No objection was made in connection with the instructions.

The jury returned a verdict finding Simmons guilty of attempted burglary of a conveyance. At various times during and after the trial, Simmons moved for judgment of acquittal or a new trial. However, it was not until several months after trial that defense counsel orally raised that the “attempt” instruction was improper as it was a category two lesser-included offense. The State argued that it was entitled to the instruction. On each occasion, the trial court denied Simmons’s motions.

At sentencing, Simmons moved for a downward departure sentence, arguing as a mitigating factor that the officers had, by staging the sting operation, enticed him to commit the crime. Simmons never admitted that the crime occurred and did not assert entrapment as a defense at trial. The State objected to any departure on the grounds that the facts did not support such. The court granted the motion for downward departure based on the enticement offered by law enforcement to commit the crime. Over the State’s objection, the trial court gave Simmons a sentence less than the minimum sentence under the Criminal Punishment Code.

We first address whether the trial court erred by imposing a downward departure sentence. Appellate courts apply a mixed standard of review when analyzing a downward departure sentence. First, the appellate court must determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence. State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006); State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). In making this determination, the appellate court must assess the evidence for sufficiency, not weight. Mann, 866 So.2d at 181. Second, if the appellate court determines that the trial court’s reason for departure was in accord with the law and supported by competent, substantial evidence, it must then decide whether the trial court was correct in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case. Subido, 925 So.2d at 1057. The reviewing court should not disturb this determination absent an abuse of discretion. Id.

Section 921.0026(2), Florida Statutes (2008), sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guideline sentence. Nevertheless, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). Enticement is not one of the enumerated grounds for a departure sentence. See § 921.0026(2), Fla. Stat. (2008). However, imposition of a downward departure based on enticement is not prohibited either. Accordingly, we must review whether there was competent, substantial evidence to support the trial court’s departure.

The State argues that the facts of this case do not support a departure based on the enticement offered by law enforcement. Conversely, Simmons argues that there was competent, substantial evidence to justify the trial court’s departure sentence based upon the notion that “there would be no crime here, if [the] police did not create the situation.” In support of his argument, Simmons relies upon the Third District’s opinion in State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002). In Steadman, police officers bought cocaine from a defendant within 1000 feet of a school as part of a sting operation. Id. at 1024. They continued to purchase cocaine from the defendant on various occasions, delaying defendant’s arrest until they generated enough quantity of cocaine to subject defendant to a lengthy prison sentence. Id. The State conceded that was the goal. Id. The trial court sentenced the defendant to a downward departure sentence based on the fact that the officers engaged in sentence manipulation, which the State appealed. Id. at 1023. In a case of first impression, the district court affirmed, concluding that even “conduct which is not sufficient to excuse the defendant’s actions [under an entrapment defense] may still warrant a downward departure sentence” where the record adequately supports the trial court’s reason for departure. Id. at 1025.

The conduct of the officers in this case is not akin to the officers’ conduct in Stead-man. Although the officers conducted a sting operation, they had no prior contact with Simmons, and their conduct during the act consisted of observing Simmons reaching into the truck bed and grabbing a box. Even if we were to analogize enticement to entrapment, we would remain unpersuaded. Florida’s entrapment statute provides:

A law enforcement officer ... perpetrates an entrapment if, ... he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

§ 777.201(1), Fla. Stat. (2008).

Other than setting up the opportunity, there is no evidence that law enforcement encouraged or induced Simmons to commit the crime where law enforcement never even spoke to Simmons until after the crime was committed. There was no evidence that Simmons was targeted in advance of committing the crime. Moreover, it was Simmons who pulled up next to the truck, got out and reached into the truck bed to grab the box. He then went to the back of the truck, dropped the tailgate of the truck, and reached inside the truck’s bed to get the box a second time. Our review of the evidence in this case leads us to the inescapable conclusion that there was not competent, substantial evidence to support the trial court’s reason for departing from a guideline sentence. As such, the trial court erred by entering a downward departure sentence.

Turning to the issue of the propriety of the jury being instructed on the lesser-included offense of attempted burglary, jury instructions are subject to the contemporaneous objection rule. See Fla. R.Crim. P. 8.390(d). Here, Simmons failed to object to the instruction at trial. In the absence of a contemporaneous objection at trial, relief regarding an error in an instruction will be granted only if the appellate court determines the error is fundamental. State v. Weaver, 957 So.2d 586, 588 (Fla.2007). Fundamental error is that which reaches “ ‘down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Id. (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). Appellate courts have been cautioned “to apply the [fundamental error] doctrine only in rare cases.” Phillips v. State, 972 So.2d 233, 236 (Fla. 4th DCA 2007). We conclude that in this case the error was not preserved and therefore affirm. Simmons points to no case law, and an independent search reveals no case law, supporting the conclusion that the giving of the attempted burglary instruction under facts similar to those present here amounted to fundamental error.

Accordingly, we reverse the downward departure sentence with instructions for the trial court to resentence Simmons within the sentencing guidelines on the attempted burglary conviction.

Reversed and Remanded.

TAYLOR and GERBER, JJ., concur.


author: MAY, C.J.

text:
    Clinton DINNALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4373.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

A double homicide resulted in the defendant’s conviction on two counts of first degree murder and concurrent life sentences. The defendant now appeals his conviction, raising two issues: (1) the trial court erred in denying his request to have a co-defendant declared unavailable to testify or take judicial notice of the charges against the co-defendant to which he had pled, and the sentence imposed; and (2) the trial court erred in denying his motion for judgment of acquittal on the murder of the male victim. We affirm.

The murders occurred at a residence, where a witness shared space. On the night before the murders, the witness shared a bottle of brandy, smoked marijuana, and snorted cocaine with a friend. Unable to go to work the following evening, she slept in the back bedroom through most of the day. She awoke to the sound of a gunshot from the living room. When she came out of the bedroom, she saw ten to fifteen men in the kitchen, including the co-defendants. There were trash bags and guns on the table. One co-defendant, who was holding a small automatic handgun, laughed and said it was all a mistake. The witness then got a soda and went back to sleep.

An hour or two later, the witness awoke to the sound of a second gunshot from the living room. This time she saw a man’s feet on the floor. Another co-defendant stood over the man holding a revolver. When she asked what was going on, one of the co-defendants told her to go back into the bedroom.

The witness then looked out the front door and saw another co-defendant and the defendant fighting with a woman. They were trying to drag her back into the house. The co-defendant was holding the woman’s head down and the defendant had her by the legs with a gun to her stomach. She heard the woman scream and beg for her life. The witness returned to the bedroom.

After hearing the door close, and thinking everyone had left, the witness came out, but one of the co-defendants was still there with the revolver. She went into the closet and threw clothes on top of herself. She heard the door open and close a second time. She looked out the door again and saw the defendant shoot the woman, whom she had seen outside a few minutes before. The witness then heard the men discuss removing the bodies. She saw brake lights back up to the house and the defendant and one of the co-defendants take the bodies outside.

After staying with a friend for the weekend, the witness turned herself in on an outstanding violation of probation warrant. She also gave a recorded statement of what she saw and heard on the day of the murders and looked at four photographic lineups. The witness admitted at trial that she did not see the defendant in the room with the male victim.

A neighbor across the street saw a green Ford Expedition parked behind a silver car in the driveway of the home where the murders occurred. The neighbor saw a man pulling a woman from the silver car. She later identified him as the man she had seen in the Ford Expedition. She said the man threw the woman onto the “floor” and slapped her to the left and the right. The neighbor heard the woman call for help and ask for someone to call the police. She described the woman as hysterical, screaming, and scared. The man told the neighbor not to worry because the woman was his wife. The neighbor was going to call the police, but thought about her children and the type of area it was, and decided not to get involved.

The neighbor witnessed the female victim wrap her legs around a pole to keep from being taken inside. The victim kept repeating “Please.... Don’t take me there. I don’t want to go.” The co-defendant pried the victim’s legs off the pole while the defendant held her arms. They threw her into the house and closed the door.

The neighbor later saw the same two men bring the woman out of the house. She was limp and not moving when the two men threw her into the trunk of the car. The neighbor saw the co-defendant go back into the house; the defendant fired a gun into the trunk of the car before closing it.

The neighbor packed up her children and started to leave. She passed the defendant, who had parked his vehicle and was walking back toward the house. She then went to the police station, reported the incident, and gave a statement. She identified the silver car as the vehicle into which the men had placed the woman’s body. She identified people in each lineup, including one co-defendant and the defendant.

Yet another neighbor saw the green Ford Expedition pull up with a rifle pointed out the window. The defendant and co-defendant each had guns and jumped out of the vehicle, grabbed the woman, and took her into the house. After the door closed, this neighbor heard a female scream and then say “don’t kill me, I have a son.” He then heard a gun go off “more than a couple” of times.

The neighbor saw a co-defendant back a silver Charger up to the door of the house and saw the defendant and co-defendant throw the bodies in the trunk. The defendant and co-defendant left in the silver Charger. The neighbor also gave a statement to police and made identifications from photo lineups.

Amother witness at a different location saw three males get out of a silver car. Two men put on gloves and wiped the inside and outside of the car, including the doors. They backed the car close to the wall of the house and banged on the back with rocks. The men left for a few minutes and returned with drinks. They took out white bags, which they placed under their shirts. The men stood there on the phone until a red car pulled up.

The witness reported the information to law enforcement, who responded to the scene. They found a silver car with bricks on the trunk lid and blood on the bumper, quarter panel, and tag area. When the officer opened the trunk, he found two bodies inside.

During the late stages of the State’s case, defense counsel discussed with the trial judge whether the defense would be permitted to call one of the co-defendants, who had already entered a plea. The co-defendant — who was in the county jail— took the stand outside of the jury’s presence, and told the court he would not answer any questions. Defense counsel then requested the court to declare the witness unavailable and/or take judicial notice of his charges, the plea, and his sentence. The trial court denied the request. Defense counsel renewed the request later in the trial.

The defendant moved for judgment of acquittal on both counts of the indictment, arguing the State had failed to establish a prima facie case. Specifically, as to count one, the defendant argued the State failed to establish that he was either present at the time the male victim was killed or that the death was part of a plan or conspiracy under the principal theory. The court denied the defendant’s motions and renewed motions for judgment of acquittal.

The jury convicted the defendant on both counts. On each count, the jury specifically found that the defendant possessed and discharged a firearm; and, as a result, he actually inflicted death upon each of the victims. The jury recommended a sentence of life in prison without the possibility of parole on each count. The court denied the defendant’s motion for new trial and imposed concurrent minimum mandatory life sentences.

On appeal, the defendant argues the trial court erred in two instances. First, the court should have taken judicial notice of the co-defendant’s plea and sentence. Second, the trial court erred in denying the defendant’s motion for judgment of acquittal. We find no error and affirm.

The trial court properly denied the defendant’s request to either call the co-defendant as a witness or take judicial notice of his charges, his plea, and his sentence as this evidence was irrelevant. Heath v. State, 648 So.2d 660, 664 (Fla.1994) (“The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.”).

We also find no error in the trial court’s denial of the defendant’s motion for judgment of acquittal. “A de novo standard of review applies when reviewing a motion for judgment of acquittal. ‘Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.’ ” Galavis v. State, 28 So.3d 176, 178 (Fla. 4th DCA 2010) (quoting Pagan v. State, 830 So.2d 792, 803 (Fla.2002)) (citation omitted).

“Under [Florida] law, both the actor and those who aid and abet in the commission of a crime are principals in the first degree. To be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Staten v. State, 519 So.2d 622, 624 (Fla.1988) (citations omitted).

Here, there was more than sufficient evidence to support the defendant’s conviction as a principal to the murder of the male victim, and as the shooter of the female victim. While no one saw the defendant shoot the male victim, the defendant was at the scene, helped carry the bodies out of the house and place them in the trunk of the car, and shot into the trunk after the bodies were placed there. The defendant’s car strategically blocked the silver car to prevent it from leaving. And, witnesses saw the defendant shoot the female victim. Because the defendant participated with two others in a common criminal scheme, he is guilty of all crimes committed in furtherance of that scheme— regardless of whether he actually participated in the murder of the male victim.

Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.

STEVENSON and GROSS, JJ., concur.

      . The defendant’s grandmother testified that the defendant drove the green Ford Expedition away from her home on the day of the murders.

      . Different witnesses refer to the color of the car as silver or gray; for ease of reference the car will be referred to as "silver.”


author: GROSS, J.

text:
    Linda WEXLER, Appellant, v. Miriam RICH, Appellee.
    No. 4D10-4437.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for appellant.
    Edward Downey of Downey & Downey, P.A., Palm Beach Gardens, for appellee.
   GROSS, J.

This case presents the question of whether a married couple established tenancy by the entirety bank accounts under the guidelines set forth in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001). We hold that the couple did not open such accounts and reverse the final order of the circuit court.

This appeal arose from litigation over the proceeds of two bank accounts previously held by the now deceased Donald Rich (“Rich”). In 2009, Rich’s daughter from a first marriage, Linda Wexler, filed a complaint against Rich’s second wife, Miriam Rich, claiming that she had conspired to appropriate Rich’s estate assets at the daughter’s expense. In pertinent part, the daughter contended that Miriam improperly caused Rich to transfer assets from bank accounts where Rich was the sole signatory, with the daughter as a beneficiary, into joint survivorship accounts with Miriam. Miriam’s answer denied the allegations and asserted that since Rich’s death, the subject accounts were unlawfully re-titled into Rich’s revocable trust without her consent. Miriam counterclaimed, seeking a declaration of her continued ownership in the accounts’ funds and the imposition of a constructive trust over those proceeds in her favor. The trial court entered an order in Miriam’s favor.

The testimony at trial told the following tale of the bank accounts. On November 8, 2007, Rich opened two single-party bank accounts in his own name with Bank United. On February 4, 2008, both accounts were converted into multi-party accounts with Miriam as a co-signer with a right of survivorship. Miriam and Rich told the Bank United employee who effected the account conversions that they wanted to open “joint accounts.” The employee inputted information into the bank’s computer and generated two new account forms. The bank’s forms contained a section entitled “Ownership of Account;” two of the options were “Multiple-Party Account” and “Multiple Party Account — Tenancy by the Entireties.” Another section of the forms, entitled “Beneficiary Designation,” contained various survivorship options. On each form, the bank employee checked the option designating the account as a “Multiple-Party” account, and not a “Multiple-Party Account — Tenancy by the En-tireties.” As to the beneficiary designation, the bank employee checked the box designating each account as a “Multiple-Party Account with Right of Survivorship.” The bank employee made these selections because Miriam and Rich had told her that they wanted to open “joint accounts” and because they did not expressly request that either account be held in the form of a tenancy by the entirety. Rich and Miriam had never discussed tenancies by the entirety and Miriam was not familiar with the concept. Moreover, because the employee was unfamiliar with the details of a tenancy by the entirety bank account, she did not discuss that form of ownership with the Riches.

Although there was a place on the account agreement forms for a customer to initial next to the type of account selected, neither Rich nor Miriam initialed that part of the form, nor were they asked to do so. After they reviewed the agreements with the employee for accuracy, Rich and Miriam signed each form at the bottom.

On May 5, 2009, Rich and Miriam went to Bank United and had the employee close both of the accounts opened on February 4, 2008. At the time they were closed, each account had a balance of $105,478.05. The employee cut two checks in that amount, each payable to Rich. Miriam did not object to the checks in Rich’s name alone because she believed that either of them was free to withdraw funds from the account with the consent of the other.

That same day, Rich and Miriam traveled to Floridian Community Bank where, with Miriam’s knowledge, Rich deposited the two' Bank United checks totaling $210,956.10 into a newly created account which was titled in Rich’s name alone, with Miriam and the daughter as equal “pay on death” beneficiaries. These funds were deposited along with funds from other accounts that are not at issue in this appeal. On May 7, 2009, Miriam drove Rich back to the Floridian Community Bank where, without her consent or knowledge, he signed papers transferring the ownership of the account from his individual name (with Miriam and the daughter as beneficiaries) to his revocable trust.

After Rich died three days later, the entire balance of $444,007.97 was withdrawn and made payable to his trust, rather than being split equally between Miriam and the daughter. Miriam first learned that Rich had changed the title to the account when she sought to transfer funds into a certificate of deposit a few days after his death. According to Miriam, she had never intended to waive her rights to the Bank United funds, but declined to object when they were transferred to the single-party account because she knew Rich was agitated and did not want to upset him, given his declining health.

Relying on Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45 (Fla.2001), the circuit judge held that Miriam was entitled to recover $210,956.10, because the Bank United accounts were tenancies by the entirety, entitling Miriam to assert a claim over the funds in the possession of the revocable trust. The trial judge found that there was “no express disclaimer of the tenancy by the entirety designation” under Beal Bank, because “there was no discussion of options, no mention of the choices one would have when opening this account and no initials placed next to the form of ownership selected” by Miriam and Rich “to express what they knowingly intended.”

The designation of the accounts as tenancies by the entireties is crucial to Miriam’s claim, because one spouse may not transfer money from such an account without the consent of the other spouse, so that Miriam would be able to claim entire-ties funds in the possession of the trust. Id. at 53 n. 8. On the other hand, if the accounts were joint tenancies with a right of survivorship, the joint tenancy was terminated by Rich’s conveyance of funds to the Floridian Community Bank account; a “joint owner’s withdrawal of funds from a joint bank account terminates the ‘joint tenancy nature of the [funds] and severs the right of survivorship as to the funds withdrawn.’ ” Sitomer v. Orlan, 660 So.2d 1111, 1114 (Fla. 4th DCA 1995) (quoting Wiggins v. Parson, 446 So.2d 169, 172 (Fla. 5th DCA 1984)).

Beal Bank held that if a signature card made at the opening of a bank account did “not expressly disclaim the tenancy by the entireties form of ownership, a presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account” is established consistent with the six characteristics of an entireties account. Beal Bank, 780 So.2d at 58; Sitomer, 660 So.2d at 1113. Beal Bank recognized that “an express designation on the signature card that the account is held as a tenancy by the entireties ends the inquiry as to the form of ownership,” so that there is no need to utilize a presumption to determine the nature of a bank account. 780 So.2d at 60. Also, Beal Bank indicated that a signature card’s “express disclaimer that a tenancy by the entireties was not intended” was effective to establish the absence of an entireties account, assuming no fraud. Id. at 60-61.

The Supreme Court identified two ways to expressly disclaim the entities account status; first, “an express statement signed by the depositor that a tenancy by the entireties was not intended, coupled with an express designation of another form of legal ownership” and second, “if the financial institution affirmatively provides the depositors with the option on the signature card to select a tenancy by the entireties among other options, and the depositors expressly select another form of ownership option of either a joint tenancy with right of survivorship or a tenancy in common.” Id. at 60.

This case demonstrates the second type of express disclaimer contemplated by Beal Bank. Bank United provided the Riches with account agreements containing the option of a tenancy by the entireties, but that option was not selected. Rather, the agreements established joint tenancies with right of survivorship. The Riches signed the agreements after having had a chance to review them. Freedom of contract “includes freedom to make a bad bargain.” Posner v. Posner, 257 So.2d 530, 535 (Fla.1972). Florida adheres to the principle that a “party has a duty to learn and know the contents of a proposed contract before he signs” it. Mfrs.’ Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So.2d 171, 172 (Fla. 4th DCA 1976). Therefore, “[o]ne who signs a contract is presumed to know its contents.” Addison v. Carballosa, 48 So.3d 951, 954 (Fla. 3d DCA 2010). When the Riches signed the account agreements, they “expressly select[ed]” a form of account ownership other than a tenancy by the entireties, within the parameters set by the Supreme Court in Beal Bank.

The trial judge found no express disclaimer of tenancies by the entireties primarily because the bank employee did not discuss or explain the account ownership options with the Riches. As it applies to the mechanics of the bank-customer relationship in the opening of accounts, Beal Bank does not require a bank to explain the legal ramifications of the various account options. Only a handful of attorneys in Florida are able to describe the differences between a tenancy by the entireties bank account and a joint account with right of survivorship. The bank’s obligation is to clearly provide customers with the option of a tenancy by the entireties account, not to assist them in making a considered choice. To paraphrase the old proverb, a bank’s duty under Beal Bank is to lead the horse to water, not to make him drink it.

The parties have not argued the application of section 655.79(1), Florida Statutes (2009), apparently believing it is inapplicable because an amendment to it did not become effective until October 1, 2008. This 2008 amendment provides that “[a]ny deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” Ch. 2008-75, § 8, Laws of Fla. (2008). We note that if the statute were to apply here, the signed account agreements containing the option of a tenancy by the entireties and designating the accounts as “Multiple-Party Accounts] with Right of Survivorship” would satisfy the statutory requirement that an alternative form of account ownership be “specified in writing.”

For these reasons, we reverse the final order declaring the Bank United accounts to be tenancies by the entireties and remand to the circuit court for proceedings consistent with this opinion.

MAY, C.J., and STEVENSON, J., concur.

      . Because it has not been briefed, we do not reach the issue of whether the 2008 amendment to section 655.79(1), Florida Statutes (2009), could be retroactively applied to this case. See In re Estate of Herring, 670 So.2d 145 (Fla. 1st DCA 1996).


author: PER CURIAM.

text:
    L.N.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-94.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3167.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Larry Williams, Immokalee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Larry Williams (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

Following a jury trial, Defendant was found guilty as charged of second degree murder with a firearm as to one victim and attempted first degree murder with a firearm as to another victim.

The first ground of his timely rule 3.850 motion — which was reiterated in his timely amended motion, after the first motion was denied without prejudice to amend — was ineffective assistance of counsel in failing to notify the trial court that a juror was sleeping during critical testimony. Defendant alleged he informed trial counsel numerous times that one of the jurors was sleeping, but counsel failed to bring this information to the trial court’s attention so that, in effect, he was convicted by a jury of five. Defendant argued that he was prejudiced because, had counsel alerted the court, the alternate juror could have taken the sleeping juror’s place. He cited numerous decisions in which this court and others have reversed the summary denial of rule 3.850 motions raising the same claim. See Erlsten v. State, 842 So.2d 967 (Fla. 4th DCA 2003), and cases cited therein.

We agree that the trial court erred in summarily denying this ground for relief. See also Terrell v. State, 9 So.3d 1284 (Fla. 4th DCA 2009); Judd v. State, 951 So.2d 103 (Fla. 4th DCA 2007). Accordingly, we reverse and remand the summary denial of this ground for further proceedings.

We affirm the summary denial of the second and fifth grounds without further discussion.

Although the trial court denied the third and fourth grounds on the merits, the defendant has failed to demonstrate that these grounds were not untimely because they were raised for the first time in his amended motion, which was filed after the expiration of the two-year period for filing a rule 3.850 motion, and no exception appears to apply. Accordingly, the summary denial of these two grounds is affirmed because they were untimely raised. See Rincon v. State, 996 So.2d 922 (Fla. 4th DCA 2008) (affirming denial of amended postconviction motion that trial court should not have considered because it was untimely); Lanier v. State, 826 So.2d 460 (Fla. 1st DCA 2002).

Affirmed in Part, Reversed in Part, and Remanded.

GROSS, TAYLOR and CONNER, JJ., concur.


author: MONACO, J.

text:
    T.M.W., Father of J.A.C., A Child, Appellant, v. T.A.C., Mother of J.A.C., A Child, Appellee.
    No. 5D11-3399.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2012.

      T.M.W., Century, pro se.
    No Appearance for Appellee.
   MONACO, J.

T.M.W., the father of J.A.C., appeals the order of the trial court terminating his parental rights because he was not provided with appointed counsel pursuant to section 39.807(1), Florida Statutes (2010). We reverse the order terminating T.M.W.’s parental rights in order to allow him the opportunity to be represented by counsel for the TPR proceedings.

Section 39.802(1), Florida Statutes (2010) provides that:

All proceedings seeking an adjudication to terminate parental rights pursuant to this chapter must be initiated by the filing of an original petition by the department, the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes them to be true.

The mother of J.A.C., as opposed to the Department of Children and Family Services, filed a petition to terminate T.M.W.’s parental rights. The petition alleged that J.A.C. was born in 1998, and was thirteen years of age at the time of the TPR hearing. The mother alleged that T.M.W.’s rights should be terminated with respect to her son because although he was the biological father, he had not visited the child since 2005; had not telephoned the child for a year prior to the filing of the petition; had never paid child support; and in 2010 he was sentenced to life in prison for attempted first degree murder. T.M.W. filed an answer, denying that he had abandoned the child, a motion to dismiss, and a motion for telephonic hearing.

The trial court heard both the motion to dismiss and the petition to terminate parental rights at a single telephonic hearing. T.M.W., of course, appeared by telephone because of his imprisonment. No transcript of the hearing has been provided. T.M.W. indicates, however, that the trial court did not advise him that he had a right to counsel, and denied counsel to him when he asked for representation even though he advised the trial court that he was indigent.

The trial court subsequently entered an order terminating T.M.W.’s parental rights based on section 39.806(l)(d), Florida Statutes (2010), finding that T.M.W. would be incarcerated for a substantial portion of the period of time before the child would attain the age of 18 years. The trial court found that the child was 13 years old at the time of the hearing, and that there was no reasonable expectation that T.M.W. would be released from state prison prior to the child’s eighteenth birthday. Simultaneously, the trial court held that T.M.W. did not have standing to contest the TPR because he was not listed on the putative father registry, was not on the child’s birth certificate, had never been named as the father by any court, and had admittedly never paid child support. We note, however, that there is a final judgment of paternity in the record that was rendered in 2004, that establishes that T.M.W. is the father of the child based on the consent of both parties.

T.M.W. filed a timely motion for rehearing, asserting inter alia, that the trial court denied him a fair and impartial hearing and entered judgment contrary to law by denying T.M.W.’s request for appointed counsel. The trial court denied T.M.W.’s motion for rehearing and also denied T.M.W.’s motion for appointment of counsel on appeal.

In proceedings involving the possibility of permanent termination of parental rights to a child, indigent parents are entitled to the appointment of counsel. In re L.N., 814 So.2d 1142, 1143-44 (Fla. 2d DCA 2002) (citing In Interest of D.B., 385 So.2d 83, 90-91 (Fla.1980)). In fact, section 39.807(1) Florida Statutes provides:

(l)(a) At each stage of the proceeding under this part, the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents. The court shall ascertain whether the right to counsel is understood and, where appropriate, is knowingly and intelligently waived. The court shall enter its findings in writing with respect to the appointment or waiver of counsel for indigent parents.
2. A waiver of counsel made in court must be of record. A waiver made out of court must be in writing with not less than two attesting witnesses and must be filed with the court. The witnesses shall attest to the voluntary execution of the waiver.
3. If a waiver of counsel is accepted at any stage of the proceedings, the offer of assistance of counsel must be renewed by the court at each subsequent stage of the proceedings at which the parent appears without counsel.

(Emphasis supplied).

The right to counsel in such cases is a fundamental right under the due process clauses of the Constitution of the United States and the Florida Constitution. In re L.N., 814 So.2d at 1143-44. To fulfill these constitutional requirements, the trial court, first, must inform the parent of the right to counsel. If the parent wishes to waive that right, the trial court must next establish that the waiver is knowingly and intelligently made. In Interest of R.K., 535 So.2d 312, 314 (Fla. 2d DCA 1988). Finally, under the statute the trial court must make written findings ■with respect to the waiver or appointment of counsel, and a waiver of counsel must be of record.

It is clear from the record that the trial court failed to appoint counsel for T.M.W., and failed to make written findings indicating that T.M.W. waived that right. We suspect that the trial court did so because this was a private TPR proceeding, rather than a proceeding commenced by the Department of Children and Family Services. The statute requiring the appointment of counsel for indigent persons, however, does not make that distinction.

In M.E.K. v. R.L.K., 921 So.2d 787 (Fla. 5th DCA 2006), this court held that judicial termination of parental rights in a privately initiated involuntary adoption proceeding under Chapter 68, Florida Statutes, is state action that is sufficient to trigger due process protections to an indigent parent. See also M.L.B. v. S.L.J., 519 U.S. 102, 117 n. 8, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (noting that whether a parental termination proceeding is brought by a state agency or a private party as a prelude to adoption, “the challenged state action remains essentially the same: ... imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships”); cf., A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007) (reiterating that because termination proceedings under Chapters 39 and 63 both involve state infringement of a fundamental right, the same safeguards applicable to Chapter 39 proceedings apply to private adoption cases under Chapter 63). We see no reason why the same reasoning does not apply to a Chapter 39 private termination action. Thus, we conclude that T.M.W. was entitled to appointed counsel, and the failure of the court to make such an appointment is reversible error.

We address the standing issue because it is likely to be raised in further proceedings in this case. T.M.W. was the named defendant in the case. The mother alleged that he was the father of the child. There is in the record a final judgment of paternity declaring that T.M.W. is the father of the child. We conclude that T.M.W. had standing to contest the termination of his own parental rights.

Accordingly, we reverse the order terminating T.M.W.’s parental rights to J.A.C., and remand for a new termination hearing at which time the trial court shall consider the request for appointed counsel and make written findings in that regard.

REVERSED and REMANDED.

LAWSON and COHEN, JJ., concur.


author: DAVIS, Judge.

text:
    J.C.J., Appellant, v. FLORIDA DEPARTMENT ON REVENUE, on behalf of O.S.B., Appellee.
    No. 2D10-4029.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2012.

      Tamara A. Felton of Felton Law Firm, PA., St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

J.C.J. challenges the trial court’s order denying his petition to disestablish his paternity of the minor child of O.S.B. (the Mother). The trial court denied the petition, concluding that it did not comply with the requirements of section 742.18(l)(b), Florida Statutes (2009). That statute “establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.” § 742.18(1). On appeal, J.C.J. argues that the trial court erred in failing to grant his request for further scientific testing prior to denying the petition. We agree and reverse.

From the limited record before this court, we have determined that the minor child was born on May 22, 2005. J.C.J. signed a voluntary acknowledgement of paternity for the child the next day in accordance with section 382.013, Florida Statutes (2005), and nothing in this record suggests that either he or the Mother ever sought to rescind that acknowledgement. As such, J.C.J. has been established as the legal father of the minor child. See § 742.10(1) (“[I]f an affidavit acknowledging paternity or stipulation of paternity is executed by both parties and filed with the clerk of the court ... such ... affidavit or acknowledgment constitutes the establishment of paternity for purposes of this chapter.”); Allison v. Medlock, 983 So.2d 789, 790 (Fla. 4th DCA 2008) (“When the child was born in 2003, Allison and the mother signed a paternity affidavit in accordance with section 382.013, Florida Statutes. Because neither party sought to rescind the acknowledgement of paternity within sixty days, a rebuttable presumption arose that Allison is the father.”).

For undisclosed reasons, however, J.C.J. subsequently took the child to DNA Diagnostics Center for DNA testing on November 1, 2007, and the lab submitted its finding by a report dated November 11, 2007. The report indicated that “the probability of paternity is 0%” and concluded that “[t]he alleged father is excluded as the biological father of the tested child.”

On March 5, 2008, the Department of Revenue (DOR) filed, on behalf of the Mother, its petition for support and other relief, alleging that J.C.J. is the “biological and/or legal father” of the minor child and that the child resides with the Mother. The petition further alleged that J.C.J.’s paternity of the child legally had been determined pursuant to chapter 742, Florida Statutes, and that the child was in “the care and actual custody of the Custodial Parent,” who is the mother of the child.

J.C.J. initially filed a one-sentence pro se answer denying that he was the biological father of the child. He then retained counsel, who filed an answer and counter-petition to disestablish paternity on March 27, 2009. The counterpetition alleged that J.C.J. had newly discovered evidence which he received after he signed the ac-knowledgement of paternity and which proved that he was not the minor child’s biological father. J.C.J. acknowledged that although the lab report might not be admissible as evidence at trial, it does serve as the newly discovered evidence that would support the filing of the petition to disestablish paternity. J.C.J. then requested that the court order further scientific testing to determine the minor child’s paternity. The answer and counterpetition both were filed under oath by J.C.J.

The Mother failed to respond to the counterpetition, and the clerk entered a default against her on June 2, 2009. DOR filed its answer on behalf of the Mother, basically alleging that it was without knowledge of the facts alleged in the coun-terpetition.

A hearing was held on J.CJ.’s counter-petition to disestablish paternity on July 16, 2009. The trial court found that J.C.J. “is deemed to be the legal father of the subject child, as a result of [the] voluntary acknowledgement” he signed the day after the child was born. The trial court’s order acknowledged that the genetic testing provided by J.C.J. did show that he was not the minor child’s biological father. However, the trial court concluded that because the test results, which were admitted into evidence at the hearing, had not been obtained within ninety days prior to the filing of the counterpetition, J.C.J. failed to comply with the requirements of section 742.18(l)(b). The court thus further concluded that it was required by subsection (4) of the statute to deny the petition even though the genetic testing conclusively determined that J.C.J. was not the minor child’s biological father and a default had been entered against the Mother individually. The trial court specifically stated its belief that the statute did not provide any discretion in the matter because J.C.J. failed “to meet the strict requirements of the subject statute despite the [legislature’s] obvious intent to allow disestablishment of paternity under certain circumstances.”

We disagree with the trial court’s conclusion. Section 742.18(l)(b) provides that the father’s petition to disestablish paternity must include “[t]he results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition” or “an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition.” This section thus sets forth what is required to be included in the petition in order for it to sufficiently state a cause of action. Subsections (2) and (3) describe the factual findings that the trial court must make to grant the petition. Section 742.18(4) requires that the petition be denied if the petitioner “fails to make the requisite showing required by this section.” In other words, subsection (4) requires the denial of the petition if the petitioner fails to state a cause of action under subsection (1) — the only subsection of the statute that sets forth what the petitioner is required to do under the statute.

J.C.J., however, did not fail to state a cause of action under subsection (1). By his pleadings, he swore under oath that he did not have access to the child to have further testing performed, and he requested that the trial court thus order such testing. See § 742.18(l)(b) (“A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.”).

Although the statute uses the word “affidavit,” we conclude that the pleadings filed in the case provide the functional equivalent of an affidavit. The petition filed by DOR on behalf of the Mother alleged that she is the custodial parent of the minor child and that the child is in “the care and actual custody of the Custodial Parent, and they reside together.” J.C.J.’s answer admitted this allegation, and that answer was filed under oath. Furthermore, by the default entered against the Mother, she in effect consented to each of the well-pled allegations of fact. See Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) (“When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.”). Taking all of this together, an additional affidavit would not provide any further proof or notice, and accepting these pleadings as the equivalent of the statutorily described affidavit does not in any way prejudice the Mother, nor does it impact the effectiveness or intent of the statute.

Accordingly, we conclude that the trial court erred in denying the petition without requiring the further testing as requested by the pleadings. Upon remand, the trial court should order the additional testing of the child and father and then proceed to consider the merits of the evidence presented in support of J.C.J.’s counterpetition.

We therefore reverse the denial of J.C.J.’s petition to disestablish paternity and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and BLACK, JJ., Concur.

      . Our record does not include a transcript of the hearing at which the trial court made its ruling. The order states that the parties stipulated to the order serving as a statement of facts presented at the hearing for the purposes of appellate review.

      . This seems to suggest that J.C.J. recognized that the statute requires the lab results to have been obtained within ninety days of the filing of the petition for them to be evidence sufficient to disestablish paternity. See § 742.18(l)(b), Fla. Stat. (2009).

      . The failure to file a petition that sufficiently states a cause of action actually should trigger a dismissal of the petition, not a denial on the merits. However, such a request was not made in this case, and J.C.J. does not argue on appeal that his counterpetition should have been dismissed rather than denied.


text:
    Cordell THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2768.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Thompson’s conviction without prejudice to Thompson to timely seek postconviction relief challenging the trial court’s imposition of a 25-year minimum mandatory term. See Dunbar v. State, 35 So.3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue is not raised at sentencing or in timely post-sentencing proceeding pursuant to rule 3.800); see also Williams v. State, 56 So.3d 899 (Fla. 5th DCA 2011).

AFFIRMED.

ORFINGER, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    Thomas J. ANTINARELLI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4343.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    Thomas J. Antinarelli, Sneads, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 24, 2011 re-sentencing of petitioner in case numbers 05-1996-CF-027176, 05-1996-CF-026882-A, and 05-1997-CF-003762-A in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J, LAWSON and COHEN, JJ., concur.


text:
    T.W.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0618.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr. and Steven L. Seli-ger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas D. Winokur and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant — a juvenile — challenges the trial court’s decision to upwardly depart from the sentencing recommendation given by the Department of Juvenile Justice (DJJ). We agree with Appellant that the trial court did not follow the requirements for imposing an upward departure found in E.A.R. v. State, 4 So.3d 614 (Fla.2009), and reverse.

Appellant was charged in a delinquency petition with committing sexual battery pursuant to section 794.011(2)(b), Florida Statutes (2010). He pled guilty, and the trial court accepted the plea and withheld adjudication of delinquency. The trial court placed Appellant on conditional probation, with two conditions being that he commit no new law violations and refrain from using drugs.

Four months later, Appellant’s probation officer issued an affidavit alleging Appellant had violated the conditions of his probation. In particular, the officer claimed Appellant had tested positive for marijuana twice and been caught leaving his home unsupervised on “several occasions.” Appellant admitted to committing these violations and the trial court accepted his plea. The trial court then ordered the DJJ to prepare a predisposition report (hereinafter a PDR) for the disposition hearing.

In the PDR, the DJJ found Appellant had no behavioral problems or incidents at home since the filing of the affidavit. It stated he had made significant improvements academically, and had been accepted into AMI/Jacksonville, a rigorous school. The PDR went on to state Appellant had passed several recent drug tests — as well as failing one more drug test for marijuana — and had shown progress in his responsiveness to treatment. It concluded his risk to reoffend was moderate.

Attached to the PDR was a report from a licensed psychologist assigned to conduct a psychosexual evaluation of Appellant. She stated she would recommend releasing Appellant into probation if he received day treatment at AMI/Jacksonville, along with additional substance abuse and sex offender treatment from a licensed psychologist. Given this psychologist’s cautious recommendation, as well as the positive reports from Appellant’s school, the DJJ concluded the PDR with the following recommendation:

It is respectfully requested that [Appellant] be continued on probation with the added conditions that he enroll in and successfully complete AMI/Jacksonville, participate in substance abuse treatment including random urinalysis testing and successfully complete outpatient sex offender treatment as designated by his therapist and probation officer.

The PDR was then submitted at the disposition hearing, where the DJJ and Appellant asked the trial court to adopt the recommendation of probation. The trial court rejected the recommendation and placed Appellant in a moderate-risk residential program.

Section 985.433(7)(b), Florida Statutes (2010), governs the extent to which a trial court may deviate from a sentencing recommendation of the DJJ. It states:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why [it] is disregarding the assessment of the child and the restrictiveness level recommended by the department.

Recently, in E.A.R., 4 So.3d at 638, the Florida Supreme Court clarified that to justify an upward departure, a trial court has to:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

(emphasis in original).

On appeal, a reviewing court must determine “whether the juvenile court has employed the proper legal standard in providing its on-the-record departure reasons[.]” Id. at 638-39. Because this is a pure question of law, the standard of review is de novo. See B.L.R. v. State, 74 So.3d 173, 175 (Fla. 1st DCA 2011).

Here, when rejecting DJJ’s recommended non-residential placement and ordering moderate risk commitment for Appellant, the trial court expressed concern about “what [Appellant] does when people are not watching him.” The court justified its decision by stating only that: “The child willfully violated probation with full knowledge of the consequences. The public safety can best be served in residential treatment.” We consider these reasons insufficient to satisfy E.A.R.

First, the trial court did not “articulate an understanding of the respective characteristics of the opposing restrictiveness levels[.]” E.A.R., 4 So.3d at 638. See M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011) (stating that although “a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that knowledge on record if the judge intends to rely on these types of findings to support deviations”); L.S. v. State, 978 So.2d 220, 221 (Fla. 1st DCA 2008) (reversing a decision to deviate to a moderate-risk facility where the trial court failed to “reference the characteristics of a moderate risk commitment vis-a-vis Appellant’s, needs”).

Second, the trial court failed to “logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public.” E.A.R., 4 So.3d at 638. See P.Y. v. State, 976 So.2d 1168, 1169 (Fla. 1st DCA 2008) (“[bjasing its decision on the protection of the public did not absolve the court of its responsibility to relate the level of commitment it imposed to the needs or attributes of the particular child”). As the supreme court explained in E.A.R.:

Simply listing “reasons that are totally connected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender” the m,ost appropriate disposi-tional services in the least restrictive available setting. § 985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§ 985.03(44)(a)-(3), 985.433(7)(a)-(b)[,] Fla. Stat. (2007). The failure to connect departure “reasons” to the juvenile court’s ultimate statutory duty during a disposition hearing completely undermines the Legislature’s carefully crafted statutory scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.433(7)(b), Fla. Stat. (2007).

4 So.3d at 638.

Because the trial court failed to satisfy the requirements of E.A.R. when it deviated from the recommended disposition, we reverse the sentencing order and remand for the trial court to either make the necessary findings to support departing from the DJJ’s recommendation or, if it cannot, enter a new order imposing the probation originally recommended by the DJJ. See M.W. v. State, 58 So.3d 350, 351 (Fla. 1st DCA 2011).

REVERSED and REMANDED with directions.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Crystal CHISHOLM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4994.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.
    Crystal Chisholm, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgments and sentences rendered on April 20, 2010, in Duval County Circuit Court case numbers 16-2009-CF-9435-AXXX-MA, 16-2009-CF-94S6-AXXX-MA, and 16-2009-CF-9654-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent her in the belated appeal authorized by this opinion.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


author: CIKLIN, J.

text:
    Cyrill SIEWERT, Appellant, v. Gerard W. CASEY, Appellee.
    No. 4D10-4523.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      William A. Fleck of Jupiter Legal Advocates, Jupiter, for appellant.
    Freeman W. Barner, Jr. and Brett C. Barner of Freeman Barner & Associates, P.A., Palm Beach Gardens, for appellee.
   CIKLIN, J.

Cyrill Siewert (the “landlord”) appeals from a final judgment in favor of Gerard Casey (the “tenant”). The landlord sued the tenant for damages resulting from the tenant’s early termination of a residential lease. Following a non-jury trial, the trial court found that the landlord arbitrarily refused to allow a sublease of the property, despite a clause in the lease permitting a sublease with prior approval by the landlord. The trial court further found that because the landlord arbitrarily withheld consent, the tenant was no longer obligated to perform under the lease. On appeal, the landlord argues that the trial court’s final judgment was not supported by competent, substantial evidence. We disagree and affirm the final judgment.

On January 23, 2006, the parties entered into a residential lease agreement. The lease term was April 1, 2006 to September 30, 2007. The agreement contained a clause relating to assignments and subleases:

ASSIGNMENT. Tenant ... may not assign the lease or sublease all or any part of the Premises without first obtaining the Landlord’s written approval and consent to the assignment or sublease.

In June of 2006, the tenant notified the landlord of his intent to move back to New York at the end of the year. Extensive oral and written communications and negotiations occurred over the next six months with respect to a resolution of the situation. Ultimately, a sublease was not created. The tenant vacated the property in December of 2006 and stopped paying rent.

The landlord sued the tenant for unpaid rent, late payment charges, and unpaid utility charges. The tenant counterclaimed, arguing that the landlord breached his duty to mitigate any harm he might suffer from the tenant’s premature termination of the lease.

A non-jury trial was held on June 29, 2010. The evidence consisted of the landlord’s and tenant’s testimony, the landlord’s realtor’s deposition testimony, and a handful of written communications between the landlord and the tenant.

In its final judgment, the trial court found that the landlord issued a blanket refusal to allow any sublease thereby excusing the tenant’s continued performance under the lease.

On appeal, the landlord only takes issue with the trial court’s factual findings. We review the trial court’s factual findings for competent, substantial evidence. See, e.g., Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682 (Fla. 4th DCA 2009) (“The standard of review applicable to the trial court’s factual findings is whether they are supported by competent, substantial evidence.”). To this end, we find no error.

When a lease contains a boilerplate clause requiring the landlord’s consent for any proposed sublease—without specific standards governing the landlord’s approval—the landlord may not then arbitrarily withhold approval of a sublease. This stems from the implied covenant of good faith which “exists in virtually all contractual relationships.” Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So.2d 1, 3 (Fla. 2d DCA 2007). “The implied obligation of good faith performance has been applied in the context of lease provisions requiring a landlord’s consent to a tenant’s assignment of a lease.” Id. at 4; see also Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981).

In the instant case, the sublease provision in the lease provided no standards which the landlord was to utilize in determining whether to approve or reject a sublease. Therefore, the implied obligation of good faith performance is applicable to the sublease provision at issue in this case.

The trial court concluded that the landlord refused to enter into any sublease. A landlord’s blanket refusal to consent to any sublease, when the lease provides that the landlord must give approval before a sublease can be created, is by definition unreasonable and therefore a violation of the covenant of good faith.

We recognize that some evidence was presented which conflicted with the notion that the landlord refused to enter into a sublease. However, it is well established that

It is the role of the finder of fact, whether a jury or a trial judge, to resolve conflicts in the evidence and to weigh the credibility of witnesses. Great deference is afforded the finder of fact because it has the first-hand opportunity to see and hear the witnesses testify.

Ferry v. Abrams, 679 So.2d 80, 81 (Fla. 5th DCA 1996). So long as competent, substantial evidence supports the trial court’s factual findings, we will not in essence offer a second trial on appeal by reweighing the evidence. Here, competent, substantial evidence supported the trial court’s conclusion that the landlord made a blanket refusal to enter into any sublease. Therefore, we affirm.

Affirmed.

GROSS and LEVINE, JJ., concur.

      . Because the claimed damages exceeded $15,000, the case was heard in the circuit court. See, e.g., Haueter-Herranz v. Romero, 975 So.2d 511, 514 (Fla. 2d DCA 2008) (reviewing the threshold amount in controversy for county and circuit court cases).

      . In his brief, the landlord intermittently uses the phrase "manifest weight of the evidence” to challenge the final judgment. However, that standard is a special one which applies to a trial court's decision to grant a new jury trial. See Brown v. Estate of Stuckey, 749 So.2d 490, 495 (Fla.1999) ("The trial judge's discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts.”).


author: HAZOURI, J.

text:
    Cedric BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1886.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Cedric Barnes appeals his conviction for burglary of a dwelling. He raises two points on appeal: (I) that the trial court erred in denying his motion in limine concerning collateral crime evidence and in finding it was an inseparable part of the burglary incident with which he was charged; and (II) that the trial court erred in overruling his objections to testimony by the arresting officer commenting on Barnes’s invocation of his right to remain silent. We agree on both points and reverse and remand for a new trial.

Count I of the information charged Barnes and his codefendant Travis New-kirk with burglary of a dwelling owned by Andrew Greenfield. Counts II and III charged Newkirk with possession of burglary tools and petit theft of a lamp owned by Kathy Atria. Barnes was tried separately on count I.

Prior to trial, Barnes filed a motion in limine to exclude the testimony of Atria concerning collateral crime evidence. The substance of the objected to testimony dealt with events which occurred prior to the burglary at Greenfield’s residence. Atria was expected to testify:

2.... [T]hat on May 7, 2008, someone rang her door bell, she looked out the fisheye peephole and saw an African American male whom she did not know. Mrs. Atria did not open her door, but watched as the man bent down and picked up a UPS box previously delivered to her home. At that time, the man, who is believed to be the co-defendant, Travis Newkirk, carried the box to the car and handed it to the passenger. Mr. Newkirk then proceeded to prowl around the house. Mr. Newkirk approached the front door again and rang the bell at which point Mrs. Atria responded and the man left.
8. Mrs. Atria noted the tag number on the vehicle and reported the suspicious activity.
4. Based on Mrs. Atria’s report the police were called, located the vehicle and subsequently arrested the Defendant, CEDRIC BARNES[,] and TRAVIS NEWKIRK.
5. Mrs. Atria was not able to identify the passenger of the vehicle.

Barnes argued that these were prior bad acts that did not tend to prove a material fact associated with the burglary. Barnes was not charged with these acts in the information. The state argued that the testimony was admissible because it was inextricably intertwined with the crime charged and it led the police to the location of the burglary. Atria could not identify either defendant but she could tell the man in the car was African American.

The state had not filed notice of other prior acts as required by section 90.404(2), Florida Statutes. The state asserted that its failure to give notice was not fatal because the testimony was not being offered as Williams rule evidence. The trial court denied the motion finding that the evidence was not Williams rule but that it was inextricably intertwined with the burglary charge.

FACTS DEVELOPED AT TRIAL

After receiving the call from Atria the Hollywood Police Department dispatched Officer William Scalzetti to an area around 3550 North 55th Avenue to look for a gray Toyota Corolla with a specific tag number supplied by Atria. He found it on the south swale of 32nd Street, a couple blocks from 55th Avenue and called for assistance.

Officer Anthony Pimentel testified that on May 7, 2008, at about 1:00 p.m., he was dispatched to where Scalzetti had located the vehicle. He approached the vehicle and realized no one was in the Toyota. When he got close to it, he heard “a metallic to glass sound, when you’re prying against glass, the crackling of glass and metal.” He stood on a nearby junction box and looked over a tall fence which bordered Greenfield’s backyard. He saw two black males in white T-shirts and dark pants. One was in front of a set of French doors with his elbow moving back and forth in a prying motion. The other one was at the other set of French doors with his hands up against the glass, blocking the glare, and cupping his eyes. He was looking into the house. Pimentel went through the gate, gun drawn and made contact with the suspects. He commanded that they show him their hands and get on the ground, which they did. He identified Barnes as the person he saw looking into the doors. Scalzetti joined him and took Newkirk into custody. Pimentel handcuffed Barnes and transported him to the police station.

As to point I, Barnes argues that the testimony of Atria concerning the theft of the parcel was irrelevant to the other evidence elicited to prove the burglary and was not inextricably intertwined with the burglary allegations. We agree.

“A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” McCall v. State, 941 So.2d 1280, 1288 (Fla. 4th DCA 2006) (citation omitted). “However, this discretion is limited by the rules of evidence.” Id.

In McCall, the defendant was drinking in a bar and decided to sleep in an unlocked car where he was awakened by troopers. As he got up, the jacket covering his torso fell to the floorboard and a short time later the troopers discovered a firearm underneath the jacket. McCall was charged with possession of a firearm by a convicted felon and carrying a concealed weapon. McCall made a motion in limine to preclude the state from presenting evidence that he was arrested in a stolen vehicle and that the serial numbers on the firearm were obliterated. The trial court granted the motion but during the trial the court overruled McCall’s objections to several references to the stolen car and the obliterated serial numbers. His motions for mistrial were also denied. He was found guilty of the possession of a firearm by a convicted felon. This court reversed for a new trial, finding:

Here, the evidence that the car was stolen, or even missing, is not inextricably intertwined with the underlying crime. Absent this evidence, the state would not be unreasonably hampered in explaining how the charged crime came to light. All the jury needed to hear was that the vehicle in which McCall was found was not his, and that it belonged to Louis, who did not know McCall and did not own the jacket or the gun. Thus, it was not necessary or appropriate that the jury hear that the vehicle was missing or stolen from Louis, in order to explain how McCall ended up in the vehicle.

Id. at 1283-84.

In the instant case, the testimony that Newkirk stole the package from Atria and that someone in the car helped Newkirk put the box in the car is not inextricably intertwined with the burglary of the Greenfield home, nor was the state unreasonably hampered in presenting its case against Barnes.

“The erroneous admission of collateral crimes evidence is presumptively harmful.” “Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Evidence of collateral crimes or bad acts is admissible only when relevant to prove a material fact at issue. § 90.404(2)(a), Fla. Stat. (2005). Moreover, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2005).

Id. at 1283 (citations omitted).

This error is not harmless beyond a reasonable doubt as Barnes’s defense was that he was just trespassing in Greenfield’s back yard. Permitting the testimony of Atria concerning the uncharged collateral crime would certainly support the state’s claim that Barnes in conjunction with Newkirk were engaged in a series of thefts. We therefore find the trial court erred in permitting into evidence the testimony concerning the collateral crime of theft of Atria’s lamp.

As to point II, during Pimentel’s direct examination the following occurred:

Q. Tell the jury, in the process of explaining to Mr. Barnes what was going to happen at the station, in terms of the procedures, when somebody is arrested, did he say anything to you?
A. Yes.
Q. What did he say?
A. I was letting him know what the process would be, informing him he would have the opportunity to speak with a detective.
At that point, he told me he didn’t have anything to say to me or any detectives.
MS. TOLLEY [defense counsel]: Objection. Sidebar.
THE COURT: Sure.
(Sidebar had.)
MS. TOLLEY: I’m moving for a mistrial based upon the inappropriate comment on the defendant’s right to remain silent.
MS. VAUGHAN: He said I don’t have anything to say. It is a qualitative statement of guilt. The officer didn’t question him. It was a spontaneous statement. You have to look at it in context. It is not saying I don’t want to talk. I don’t have a statement.
THE COURT: It is governed by Commissary and 403 comparison.
When you look at it in totality of the circumstances of this case, it is more probative than prejudicial. The motion for mistrial is denied.
(Sidebar concluded.)
BY MS. VAUGHAN:
Q. You can continue, Officer Pimentel.
A. He advised me he didn’t have anything to say, that we had minimum [sic] dead to rights.

Barnes argues and we agree that it was error to permit Officer Pimentel to testify concerning his conversation with Barnes as it was an improper comment on Barnes’s right to remain silent. At the time this comment was evoked by Officer Pimentel, Barnes was clearly in custody. Before engaging Barnes in any conversation Pimentel had an obligation to advise Barnes of his Miranda rights, which he failed to do.

In Ventura v. State, 29 So.3d 1086 (Fla.2010), the supreme court held:

Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation.
Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment — direct or indirect — by anyone at trial on this right is constitutional error that should be avoided.
Id. at 1088-89.

At the point when Barnes objected to the initial statement, the state argued that this was a “qualitative statement of guilt,” and spontaneous. In overruling Barnes’s objection, the trial court found this testimony to be more probative than prejudicial. This was not a spontaneous statement by Barnes because he said it in response to Pimentel explaining to him the process that would occur at the police station and his opportunity to speak to a detective.

Reversed and remanded for a new trial.

POLEN and TAYLOR, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).