source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Brandon Deon MITCHELL. (In re Brandon Deon Mitchell v. State of Alabama).
    1100363.
    Supreme Court of Alabama.
    Nov. 18, 2011.
    Stephen A. Strickland and Richard S. Jaffe of Jaffe & Drennan, P.C., Birmingham; and Donald L. Colee, Jr., Birmingham, for petitioner.
    Luther Strange, atty. gen., Prim F. Es-calona, deputy atty. gen., and Tina Coker Hammonds, asst. atty. gen., for respondent.

       Justice Shaw, Justice Main, and Justice Wise were members of the Court of Criminal Appeals when that court considered this case,

   PER CURIAM.

Brandon Deon Mitchell was convicted of four counts of capital murder for the intentional killing of Kim Olney, John Ayles-worth, and Dorothy Smith during the course of a robbery at a hotel, § 13A-5-40(a)(2), Ala.Code 1975, and for killing two or more persons pursuant to one act or course of conduct, § 13A-5-40(a)(10), Ala. Code 1975. The jury that convicted Mitchell recommended that he be sentenced to life in prison without the possibility of parole on each conviction. After ordering and receiving a presentence report and holding a sentencing hearing, the trial court overrode the jury’s recommendation and sentenced Mitchell to death.

Mitchell’s convictions and sentences were affirmed by the Court of Criminal Appeals. Mitchell v. State, 84 So.3d 968 (Ala.Crim.App.2010). Mitchell then petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals, asserting 17 separate grounds for review pursuant to Rule 39, Aa. RApp. P. This Court granted the petition on May 25, 2011, and issued the writ to examine the sole question whether the trial court had complied with Ala.Code 1975, § 13A-5-47(d) and (e), as those Code sections were construed by this Court in Ex parte Taylor, 808 So.2d 1215 (Ala.2001). Upon receiving the record, we determined that the writ was improvidently issued, and we now quash the writ.

Subsection (d) of § 13A-5-47 requires the trial court in a capital case to “enter specific written findings concerning the existence or nonexistence of’ the statutory and nonstatutory mitigating circumstances and the aggravating circumstances contributing to the trial court’s determination of the sentence. Subsection (e) provides that, unless an advisory jury verdict has been waived in the sentencing phase, “the trial court shall consider the recommendation of the jury contained in its advisory verdict.” The Court in Taylor, construing those subsections together, held that the trial judge was required to “state specific reasons for giving the jury’s recommendation the consideration he gave it.” 808 So.2d at 1219.

The opinion of the Court of Criminal Appeals, in addressing Mitchell’s argument that the trial court failed to consider certain nonstatutory mitigating circumstances in overriding the jury’s advisory verdict and sentencing him to death, discussed relevant caselaw and quoted from the trial court’s written findings. 84 So.3d at 991. The decision of the Court of Criminal Appeals, however, quoted only introductory sections of the trial court’s order, which identified the evidence and the report the trial court had received and reviewed. The Court of Criminal Appeals then concluded in broad language that “the circuit court clearly considered all mitigating circumstances presented to it.” 84 So.3d at 997. Both the Court of Criminal Appeals’ opinion and Mitchell’s petition to this Court appeared to suggest either that the trial court had read its specific determinations with regard to the mitigating circumstances and the aggravating circumstances in open court but had failed to enter its findings as to those circumstances into the record or that the trial court had not made the necessary specific findings. This Court granted certiorari review to determine whether the trial court had, or had not, properly made specific findings as to the aggravating and mitigating circumstances and whether it had entered those findings into the record.

The record provided by the Court of Criminal Appeals upon our issuance of the writ shows that the trial court properly entered written findings as to the existence or nonexistence of the statutory mitigating circumstances and the statutory aggravating circumstances; that it entered written findings as to the existence or nonexistence and the weight of the non-statutory mitigating circumstances presented by the defense; and that it discussed the jury’s recommendation of life imprisonment with the possibility of parole and specified why it did not follow that recommendation. The trial court complied fully with Aa.Code 1975, § 13A-5 — 47(d) and (e), as construed by this Court in Taylor, The petition was therefore improvidently granted and the writ issued on May 25, 2011, is due to be quashed.

WRIT QUASHED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

SHAW, MAIN, and WISE, JJ., recuse themselves.


author: WEBSTER, J. ROWE, J.,

text:
    Robert N. STURDIVANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6058.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2010.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant seeks review of his convictions and sentences for first-degree felony murder and aggravated child abuse, arguing that he could not be convicted of those offenses because of the common-law “merger doctrine.” Because we conclude that we are constrained by precedent from our supreme court to apply the merger doctrine on the facts of this case, we reverse, and remand with directions that the trial court set aside the convictions for felony murder and aggravated child abuse and adjudicate appellant guilty of second-degree murder (as to which the jury also found him guilty) and sentence him for that offense. We also certify to the supreme court a question we believe to be of great public importance.

I.

Appellant was indicted by a grand jury for first-degree felony murder and aggravated child abuse. As to the felony-murder charge, the indictment alleged that appellant killed the victim while committing aggravated child abuse by slapping the victim into a wall. The allegation was the same for the aggravated child abuse charge. The state subsequently filed an information against appellant charging second-degree murder based on the same allegation as had been made in the indictment. At a hearing on the state’s motion to consolidate the cases, the state explained that it had filed the information “out of an abundance of caution” because of a Florida Supreme Court decision which the prosecutor said “st[ood] for the proposition that if one single act is the basis for the felony murder ..., then it’s not felony murder.” The trial court granted the motion to consolidate, and the case was tried to a jury.

The state played for the jury a portion of a statement made by appellant in which appellant said that he had slapped the two-year-old victim, who was standing on a coffee table, on the back of the head with such force that the victim fell, hitting his head on the concrete wall. The medical examiner testified that appellant’s version of what had happened was consistent with the findings on autopsy, and that the force of the slap to the back of the victim’s head would have been sufficient to cause death.

At the close of the state’s case, appellant filed a written motion for judgment of acquittal. In it, he argued that, in Brooks v. State, 918 So.2d 181 (Fla.2005), the court had held that the merger doctrine precludes conviction for felony murder when the predicate aggravated child abuse consists of a single act. According to appellant, given the evidence in the case, the greatest offense of which he could be convicted was second-degree murder. The trial court initially granted the motion as to the felony-murder charge. However, following additional argument, the trial court reversed itself, agreeing with the state that Brooks did not preclude a conviction for felony murder, and denied the motion.

The jury returned verdicts finding appellant “guilty as charged” of first-degree felony murder, second-degree murder and aggravated child abuse. At sentencing, the trial court adjudicated appellant guilty of first-degree felony murder and aggravated child abuse, and sentenced him accordingly. Because of double jeopardy concerns, all agreed that appellant should not be adjudicated guilty of, or sentenced for, second-degree murder. This appeal follows.

II.

We would normally begin our analysis with an examination of Brooks v. State, 918 So.2d 181 (Fla.2005), to determine what, if anything, it has to say relevant to the issue raised by this appeal. However, another panel of this court has already conducted such an examination.

A.

In Lewis v. State, 34 So.3d 183 (Fla. 1st DCA 2010), the appellant had been convicted of aggravated child abuse and first-degree felony murder as a result of the drowning death of her daughter. Id. at 184. On appeal, she made the same argument that appellant makes here — that “her convictions must be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony in a felony murder charge if only a single act of abuse led to the child’s death.” Id. As does appellant here, Lewis relied principally on Brooks v. State, which she contended was controlling.

As the Lewis panel explained, “[a]t ... common law, the crime of felony murder occurred when a person caused the death of another in the commission of any felony....” Id. The merger doctrine was a common-law limitation on the crime of felony murder. Id. “Without [it], all felonious assaults that resulted in death would be bootstrapped up to first-degree murder regardless of whether the requisite mens rea existed.” Id. at 184-85. See also Robles v. State, 188 So.2d 789, 792 (Fla.1966) (discussing the doctrine, but concluding that it had no role to play in Florida because, at the time, Florida’s felony-murder statute “limit[ed] the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms”).

B.

The Lewis panel next directed its attention to the supreme court’s Brooks decision. As the panel noted, Brooks had been charged with the murders of a mother and her infant daughter. Id. at 186. Each count charged first-degree murder, committed either with premeditation or in the commission of the felony of aggravated child abuse. Id. Brooks was not separately charged with aggravated child abuse. Id. The jury returned a general verdict finding Brooks guilty as charged. Id. The trial court adjudicated Brooks guilty of two counts of first-degree murder and, following the jury’s recommendation, sentenced Brooks to death. Id.

In Brooks, the court characterized Brooks’ argument as follows:

[Brooks] contends that because the single act of stabbing [the child] formed the basis of both the aggravated child abuse aggravating factor under section 921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the court should have found that the aggravated child abuse allegation “merged” with the more serious homicide charge. Thus, according to Brooks, the State should have been totally precluded from invoking the felony murder doctrine and should have been limited to proving first-degree murder only on the theory of premeditation for both murders. Brooks does not merely attack the use of the underlying felony as an aggravator; he asserts that the state is prohibited from using aggravated child abuse as the felony crime.

Brooks, 918 So.2d at 197-98. Four members of the court (Chief Justice Pariente, and Justices Anstead, Quince and Cantero) agreed. Id. at 198, 211. The four-member majority explained its conclusion thus:

Mills [v. State, 476 So.2d 172 (Fla.1985) ] clearly bars a conviction of aggravated battery where a single act of aggravated battery also causes a homicide. This determination is based on the fact that the aggravated battery has merged into the homicide. Likewise, had Brooks been charged with aggravated child abuse, he could not have been convicted of that crime. That is because aggravated child abuse is an aggravated battery, the only difference being that the victim is a child.... In light of the fact that Brooks delivered a single stabbing blow that resulted in [the child’s] death, the act constituting the aggravated child abuse merged into the infant’s homicide.
... [T]he instant case involved the single act of stabbing which caused a single injury. In a case such as this where the Mills rule prevents a conviction of aggravated battery because a single act caused both an aggravated battery and a homicide, aggravated battery cannot then serve as the underlying felony of the felony murder charge. It makes no difference that Brooks was not charged or convicted of aggravated child abuse because that crime, under these facts, merges with the homicide itself. In the instant matter, the action underlying the aggravated child abuse factor constituted the fatal stab wound that killed [the child]. Because there is no separate offense of aggravated child abuse, that crime cannot logically serve as the underlying felony in a felony murder charge.

Id. at 198-99.

After noting the above language from Brooks, the Lewis panel concluded that it was not binding on them because the discussion was “ultimately immaterial to the outcome of the case” and, therefore, constituted dicta. Lewis, 34 So.3d at 186.

C.

To the extent that a discussion such as that of Brooks in the Lewis decision is necessary to the panel’s decision, it is binding on us unless overruled either by this court, sitting en banc, or a higher court. See, e.g., Carr v. Carr, 569 So.2d 903, 903 (Fla. 4th DCA 1990) (stating that “we must follow the law of our own cases until we are overruled or until we recede from them”). However, if it is unnecessary, it constitutes dicta, and is not binding on other panels. See, e.g., Conway v. Sears, Roebuck & Co., 185 So.2d 697, 699 (Fla.1966). In the penultimate paragraph of its opinion, the Lewis panel said:

Assuming arguendo that the statements in Brooks are not dicta and are applicable to the instant case, we would still affirm. Based on the child’s injuries and the manner of her death, it is clear that more than a single act of abuse led to her death.

Lewis, 34 So.3d at 187. We believe it is relatively clear from this language that it was unnecessary for the Lewis panel to reach the question of whether the discussion in Brooks was dicta and that, as a result, the discussion of whether it was or was not dicta is, itself, dicta. Accordingly, the discussion of Brooks in Lewis is not binding on us, and we must conduct our own examination.

D.

While the Lewis panel is correct when it says that the discussion in Brooks “had no effect on the Court’s decision to affirm Brooks’ convictions,” id. at 186, our examination of the opinions in Brooks leads us to conclude that the discussion was necessary to the court’s decision and, therefore, was not dicta.

We candidly acknowledge that the opinions in Brooks (including two on rehearing, there are five), are not models of clarity. However, having spent considerable time parsing the language of those opinions, we are satisfied that, insofar as pertinent to our inquiry, a majority of the court held that it was error . (1) to convict Brooks of felony murder based on a predicate felony of aggravated child abuse, see 918 So.2d at 197-98 (where four members of the court “agree” with what is characterized as Brooks’ contention that “the State should have been totally precluded from invoking the felony murder doctrine and should have been limited to proving first-degree murder only on the theory of premeditation for both murders”), id. at 211 (Par-iente, C.J., concurring in part and dissenting in part) (stating, “I agree with the majority that there could be no crime of aggravated child abuse based on a single stab wound because that .crime merges with the homicide”), id. at 218 (Lewis, J., concurring in part and dissenting in part) (stating that “[t]he majority opinion adopts and endorses Brooks’ view and applies the rule of law established in Mills ... to totally void aggravated child abuse as both a basis for any felony murder conviction and as a statutory aggravator in sentencing ... ”), id. at 221 (Pariente, C.J., dissenting from denial of rehearing) (arguing that reversal of Brooks’ convictions was required because “the general verdict of guilt precludes us from determining whether the jury relied upon the valid premeditated murder theory or the legally invalid felony murder theory”), id. (Lewis, J., dissenting from denial of rehearing) (arguing that, the “majority having reached the conclusion that no underlying felony existed as a matter of law, we must grant Brooks’s motion for rehearing, reverse his convictions, and remand this case for a new trial”); and (2) for the trial court to rely on aggravated child abuse as an aggravating factor for sentencing purposes, see id. at 199 (where four members of the court state that the trial court “err[ed] in relying on the aggravated child abuse factor in aggravation” of Brooks’ sentences), id. at 202 (where four members of the court characterize as error “reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse”), id. at 217 (Pariente, C.J., concurring in part and dissenting in part) (stating, “I concur in the majority’s determination that the underlying felony of aggravated child abuse merges with the homicide for the killing of [the child] with a single stab wound, invalidating the ‘murder in the course of a felony aggravator found by the trial court as to both victims”), id. at 218 (Lewis, J., concurring in part and dissenting in part) (stating that “[t]he majority opinion adopts and endorses Brooks’ view and applies the rule of law established in Mills ... to totally void aggravated child abuse as both a basis for any felony murder conviction and as a statutory aggravator in sentencing ...”), id. at 220-21 (Pariente, C.J., dissenting from denial of rehearing) (stating, “I concurred in the majority’s determination that the aggravated child abuse merged into the felony murder and therefore did not support a separate aggravating circumstance”). However, we conclude, further, that a majority of the court determined these errors were harmless. The majority actually says as much with regard to use of aggravated child abuse as an aggravating factor for sentencing purposes, see id. at 199 (“[t]he trial court’s error in relying on the aggravated child abuse factor in aggravation has no impact on the sentencing determination for either murder” because, even without that factor, “[t]he aggravating factors continue to substantially outweigh any mitigation”), id. at 202 (concluding in its “cumulative error analysis” that “there is no reasonable possibility that” the errors, including “the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse ... contributed to Brooks’ [sentences]”). While we have been unable to find any direct statement that the majority also concluded that allowing the charges to go to the jury on alternative theories of either premeditated first-degree murder or felony murder was harmless, such a conclusion seems to us inescapable in light of the opinions of Chief Justice Pariente and Justice Lewis dissenting from denial of rehearing. See id. at 220-21 (Pariente, C.J., dissenting from denial of rehearing); id. at 221 (Lewis, J., dissenting from denial of rehearing).

Because we conclude that the discussion in Brooks is necessary to the court’s decision, we conclude, further, that it is not dicta. See Rosa v. State, 35 Fla. L. Weekly D1361, 2010 WL 2430985 (Fla. 2d DCA 2010) (disagreeing with the Lewis panel’s conclusion that the pertinent language in Brooks was dicta). Accordingly, we are obliged to follow it. E.g., Cont’l Assurance Co. v. Carroll, 485 So.2d 406, 409 (Fla.1986); Hoffman v. Jones, 280 So.2d 431, 433-34 (Fla.1973). Because it is clear that the child victim died as the result of a single blow from appellant, we are constrained to reverse appellant’s convictions. However, that does not mean that, while doing so, we may not state our reasons for advocating change. Hoffman, 280 So.2d at 434. In this regard, we are in complete agreement with the Lewis panel that Justice Lewis’ position in Brooks was the better-reasoned one.

E.

As we have already noted, the merger doctrine is a creature of the common law. As such, it must yield to an inconsistent statute adopted by the legislature. See, e.g., State v. Egan, 287 So.2d 1, 6 (Fla.1973); § 2.01, Fla. Stat. (2007). To the extent pertinent, the felony-murder statute reads: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... [ajggravat-ed child abuse ... is murder in the first degree and constitutes a capital felony ....” § 782.04(l)(a)2.h„ Fla. Stat. (2007) (emphasis added). We see nothing unclear or ambiguous about this statutory language. It clearly states that “any” aggravated child abuse will support a conviction for felony murder. As Justice Lewis said in Brooks, “[t]he plain text of the statute ... affords no indication that the Legislature intended to exclude application of the felony murder doctrine in those instances of aggravated battery on a child that involve a solitary stab wound, a lone blow to the head, one gunshot wound, or any other single act of violence”; rather, “[t]he plain statutory language reflects a policy decision to protect the children of this state by subjecting those whose acts of child abuse produce death to the highest possible penalty.” 918 So.2d at 219 (footnote omitted). The Lewis panel agreed:

the felony murder statute specifically provides that aggravated child abuse is a predicate offense for felony murder. The plain, unambiguous language of the statute demonstrates that the legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder, regardless of the number of acts of abuse which caused the child’s death.

34 So.3d at 186-87. Accord Rosa v. State, 2010 WL 2430985 (Fla. 2d DCA 2010). Interestingly, the Brooks majority did not address Justice Lewis’ criticism

F.

Accordingly, while we conclude that we are constrained by Brooks to reverse appellant’s convictions, we believe that a proper deference to the legislature’s adoption of section 782.04(l)(a)2.h. requires the conclusion that aggravated child abuse will support a felony-murder conviction, even if the abuse consisted of a single act. We certify the following question, which we believe to be of great public importance, to the supreme court:

DOES BROOKS v. STATE, 918 So.2d 181 (Fla.2005), PRECLUDE A CONVICTION FOR FELONY MURDER BASED ON THE PREDICATE OFFENSE OF AGGRAVATED CHILD ABUSE WHEN THE ABUSE CONSISTS OF A SINGLE ACT, NOTWITHSTANDING THE LANGUAGE OF SECTION 782.04(l)(a)2.h., FLORIDA STATUTES (2007)?

Our resolution of this issue renders appellant’s remaining issue moot.

III.

We reverse appellant’s convictions for first-degree felony murder and aggravated child abuse, and remand with directions that the trial court adjudicate appellant guilty of second-degree murder and sentence him for that offense.

REVERSED and REMANDED, with directions.

PADOVANO, J., concurs; ROWE, J., dissents with opinion.

ROWE, J.,

dissenting.

I respectfully dissent. While I join the majority in certifying the question as one of great public importance, I disagree with the majority’s conclusion that we are constrained by Brooks v. State, 918 So.2d 181 (Fla.2005), to reverse Mr. Sturdivant’s convictions for felony murder and aggravated child abuse. Nor can I agree that Brooks held that a single act of aggravated child abuse may not serve as the underlying felony in a felony murder conviction. See id. at 197-99. As acknowledged by the majority opinion, this court very recently in Lewis v. State, 34 So.3d 183, 186-87 (Fla. 1st DCA 2010), reached the opposite conclusion, finding that the relevant language in Brooks was merely dicta and that a single act of aggravated child abuse may, under the plain language of the murder statute, serve as a predicate crime for felony murder. The prior decision in Lewis is correct. The language in Brooks was merely dicta and, therefore, not binding precedent. Id. at 186. Because the Legislature has clearly expressed that a single act of aggravated child abuse may serve as both the predicate for a felony murder conviction and for the underlying felony itself, I would affirm Mr. Sturdivant’s judgment and sentences for felony murder and aggravated child abuse.

Analysis

I. The Contested Language in Brooks was Not a Holding of the Case.

A. Language Not Necessary to a Court’s Decision is Mere Dicta.

I disagree with the majority’s conclusion that the language voiding aggravated child abuse as a predicate crime for felony murder is a holding of the case. Although the majority cites a number of statements from Brooks to claim that this language is a holding, simply referring to such language as a holding does not make it so: Lewis v. State, 623 So.2d 1205, 1208 (Fla. 4th DCA 1993) (Farmer, J., dissenting) (quoting New Port Largo, Inc. v. Monroe County, 985 F.2d 1488 (11th Cir.1993) (Edmondson, J., specially concurring)).

[N]o matter how often or how plainly a judicial panel may put in its opinions the “we hold X,” “X” is not law and is not binding on later panels unless “X” was squarely presented by the facts of the case and was a proposition that absolutely must have been decided to decide the concrete case then before the court.

Indeed, as then-Judge Canady observed in his special concurrence in State v. Yule, 905 So.2d 251, 259 (Fla. 2d DCA 2005), the doctrine of stare decisis does not require courts to “treat every broad statement of principle made in a prior decision as establishing a binding rule.” In discussing the distinctions between holding and dicta, Judge Canady referred to a law review article in which dicta is defined as a statement not related to the majority’s “chosen decisional path or paths of reasoning”:

A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.

Id. at 259 n. 10 (quoting Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953,1065 (2005)). It is axiomatic that language that is not a holding is dicta. Only that language that is “clearly critical to the outcome” of the case may be considered a holding of the case. See Bellsouth Telecomms., Inc. v. Church & Tower of Fla., Inc., 930 So.2d 668, 673 (Fla. 3d DCA 2006) (“[Ojur reliance upon Witt was clearly critical to the outcome in Carrousel, and, therefore, not dictum.”). Where a statement does not directly control the outcome, it is mere dicta and without the force of precedent. See State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dep’t of Bus. Regulation, 276 So.2d 823, 826 (Fla.1973); Estate of Williams ex rel. Williams v. Tandem Health Care of Fla., Inc., 899 So.2d 369, 374 (Fla. 1st DCA 2005).

B. The Contested Language in Brooks is Not Necessary to the Outcome of That Case.

The contested language of the Brooks majority opinion, that a single act of aggravated child abuse cannot serve as the predicate for felony murder, was not necessary to the outcome of that case; • if it was a holding, it would have required reversal of Brooks’s conviction. Although this is precisely what Justice Lewis urged the court to do on rehearing, i.e., vacate Brooks’s conviction, the majority declined to do so. Brooks, 918 So.2d at 221-24. Under well established precedent, reversal is required where a general verdict is based upon multiple grounds, one of which is unsupportable, and where it is impossible to tell the ground upon which the jury based its verdict. See, e.g., Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled cm, other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); accord Delgado v. State, 776 So.2d 233, 242 (Fla.2000) (remanding for a new trial where the theory of felony murder was legally inadequate), superseded on other grounds by statute, § 810.015, Fla. Stat. (2001); Mackerley v. State, 777 So.2d 969, 969 (Fla.2001).

In Brooks, the jury convicted the defendant of first-degree murder. Because a general verdict was rendered, the jury did not have the option to designate whether its verdict was based on premeditated murder or felony murder. Had the majority’s discussion of aggravated child abuse as a predicate for felony murder been essential to the outcome of the case, reversal would have been required. However, only Justices Pariente, Anstead, and Lewis voted to grant rehearing to reverse the murder conviction. The remaining four justices affirmed the murder conviction and denied rehearing. Thus, the discussion regarding child abuse and felony murder could only be limited to the consideration of aggravated child abuse as a statutory aggravator at sentencing — not the underlying conviction for felony murder. Because the language at issue in Brooks is not only unnecessary, but in fact at odds with the outcome, it cannot be a holding and must instead be treated as dicta.

II. If a Single Act of Aggravated Child Abuse Cannot Serve as the Predicate for a Felony Murder, a Conviction by General Verdict Would Not be Harmless Error.

A. A Conviction by General Verdict is Erroneous When it Rests Upon Multiple Bases, One of Which is Legally Invalid.

While conceding in its analysis that the Lewis panel was correct that the discussion in Brooks had no effect on the Court’s decision to affirm Brooks’s convictions, the majority, nevertheless, reaches the “inescapable conclusion” that the Brooks court found harmless any error by the trial court in allowing the charges to go to the jury on alternative theories of either premeditated first-degree murder or felony murder. This conclusion is far from “inescapable.” In fact, it is contrary to well-settled law.

It cannot be harmless error to convict a defendant by general verdict for first-degree murder on alternate theories of premeditation and felony murder when the felony murder theory is legally invalid, even where there is evidence in the record of premeditation. See, e.g., Mackerley v. State, 111 So.2d 969, 969 (Fla.2001). Had the Brooks majority actually determined that a single act of aggravated child abuse could not serve as the basis for a felony murder conviction, it could not have then concluded that Brooks’s conviction by general verdict was harmless. Instead, such a determination would have required reversal.

B. The Brooks Majority Did Not Hold that Brooks’s Conviction by General Jury Verdict Was Error Based on the Principle that Aggravated Child Abuse Could Not Serve as the Predicate for Felony Murder.

The cumulative error analysis performed in Brooks refutes a conclusion that the Brooks majority regarded as harmless error Brooks’s conviction by general jury verdict based on a legally invalid theory of felony murder. When conducting a cumulative error analysis, the reviewing court identifies all the known errors in a trial which individually were considered harmless, and then determines whether in the aggregate the errors deprived the defendant of a fair trial. See, e.g., Suggs v. State, 928 So.2d 419, 441 (Fla.2005); 5 Am.Jur.2d Appellate Review § 668 (2010). Further, in a cumulative-error analysis the reviewing court aggregates only actual errors to determine a cumulative effect. 1 Federal Trial Handbook Criminal § 2:35 (4th ed. 2009). In affirming Brooks’s murder conviction, the court considered five errors it had identified in the case, among them “the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse.” Brooks v. State, 918 So.2d 181, 202 (Fla.2005) (emphasis added). Thus, the court only considered harmless error in regard to applying aggravated child abuse as an aggravating factor in sentencing. In its analysis of errors, the Brooks majority does not enumerate as error Brooks’s conviction for first-degree murder because it may have been based on a legally invalid theory of felony murder. Id. The court’s failure to identify that as an error in its cumulative error analysis suggests that the court did not consider it an actual error in Brooks’s conviction, let alone a harmless error.

III. The Plain Language of the Murder Statute Allows Aggravated Child Abuse to Serve as the Predicate for ■ Felony Murder.

Because the dicta in Brooks stating that a single act of aggravated child abuse cannot serve as a predicate crime for felony murder is not controlling, we should adhere to our prior decision in Lewis v. State, 34 So.3d 183 (Fla. 1st DCA 2010). Although dicta from the Florida Supreme Court “may afford welcome guidance ... such passages lack the binding force of precedent.” Sims v. State, 743 So.2d 97, 99 (Fla. 1st DCA 1999); accord Estate of Williams ex rel. Williams v. Tandem Health Care of Fla., Inc., 899 So.2d 369, 374 (’Fla. 1st DCA 2005). In fact, in cases such as this one, where the Legislature has clearly declared a contrary intent, such dicta must be disregarded.

Among the expressly enumerated predicate crimes for felony murder is “aggravated child abuse.” § 784.02(l)(a)2.h., Fla. Stat. The plain language of the murder statute “demonstrates that the Legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder.” Lewis, 34 So.3d at 186-87. This is true even if a single act causes the child’s death. Id. at 187. Based upon the plain language of the statute defining first-degree murder, aggravated child abuse may serve as the predicate crime in a felony murder conviction even where only a single act of aggravated child abuse occurs. Accordingly, Mr. Sturdivant’s convictions for felony murder and aggravated child abuse should be affirmed; therefore, I respectfully dissent.


author: PADOVANO, J. THOMAS, J.,

text:
    Robert N. STURDIVANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6058.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2010.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   ORDER ON MOTION FOR HEARING EN BANC

A judge of this court requested that this cause be considered en banc in accordance with Florida Rule of Appellate Procedure 9.381(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of hearing en banc. Accordingly, the request for hearing en banc is denied.

WOLF, KAHN, WEBSTER, BENTON, VAN NORTWICK, LEWIS, and CLARK, JJ., concur. PADOVANO, J., concurs with an opinion in which DAVIS, J., concurs.

WETHERELL, ROWE, and MARSTILLER, JJ., dissent. THOMAS, J., dissents with an opinion in which HAWKES, C.J. and ROBERTS, J., concur.

PADOVANO, J.

concurring.

I join in the decision to deny en banc review without further comment on this case but write to state my view that the en banc rule should not be construed to authorize a non-panel judge to publish a dissent from an order denying an internal motion for hearing en banc. The practice of writing and publishing a dissenting opinion in a case that has been decided by three other judges and made final by an order denying en banc review undermines the state constitutional system of deciding cases by three-judge panels, enables judges to publicly prejudge issues that are not before them and causes significant harm to the collegiality of the court.

The Florida Supreme Court adopted Rule 9.331 of the Florida Rules of Appellate Procedure in the wake of the 1980 revision of Article V of the Florida Constitution. The Supreme Court’s power to resolve a conflict between two decisions of the same district court of appeal was eliminated in this revision, so the rule was needed to provide a method of resolving conflicts within an appellate court. The rule became effective on January 1, 1980, and since then there have been very few instances in which a judge on any Florida appellate court has written an opinion dissenting from the denial of an internal en banc motion. As a matter of fact, there has not been a single instance of such an opinion in the First District Court of Appeal from the inception of the rule until the publication of the dissenting opinion in this case.

Rule 9.331 provides that a non-panel member in active service on the court may request an en banc hearing on a panel decision or a proposed panel decision. If the motion is granted, the case will then be considered by the full court, and any judge may write an opinion addressing either the merits of the case or the court’s decision to grant en banc review. However, if the motion is denied, the case is no longer before the full court. The very point of an order denying a motion for an en banc hearing is to hold that the panel decision or the proposed panel decision will stand as the decision of the court and that it will not be open to further consideration by other members of the court. A judge who did not serve on the panel has no greater right to comment on the case at that point than he or she would have to comment on a panel decision that had not been the subject of an en banc motion.

Although a judge who was not assigned to the panel may request review by the full court, there is nothing in rule 9.331 to suggest that it would be proper for that judge to write a dissenting opinion in the case if the request is denied. Nor should there be. If the request is denied and the full court has decided to allow the panel decision or proposed panel decision to stand as the decision of the court, that should be the end of the matter.

It seems to me that the practice of allowing a non-panel member to write an opinion on an order denying an internal motion for en banc review could only weaken the judicial system the people of Florida created when they adopted our constitution. Article V, section 4(a) of the Florida Constitution states, in part, “Three judges shall consider each case and the concurrence of two shall be necessary to a decision.” It does not say that a fourth judge who was not assigned to the panel can comment on the case, yet that is precisely what happens every time an appellate judge writes an opinion on a decision to deny en banc review.

Another vice that is inherent in the practice of allowing dissents from the denial of internal en banc motions is that it enables judges to publish opinions that effectively prejudge issues that are not before them. A dissent from the denial of an en banc hearing has no legal effect of any kind. It certainly has no precedential value. And, if we take seriously the order of the full court denying en banc review, we could even conclude that it is not authorized. The only possible effect the opinion could have is to telegraph the way in which the dissenting judge would vote if the issue comes before that judge in the future.

Perhaps a dissenting judge could avoid the appearance that he or she is prejudging an issue if that judge could limit the discussion to the need for review and avoid a discussion of the merits. It is naive though, to think this is the true objective of such an opinion or that the issues could be neatly separated if it were, in fact, the objective. Very often the reasons for requesting a hearing before the full court are interconnected with the merits of the case.

The effect that these kinds of dissents have on collegiality is also a matter of great concern. The denial of an en banc motion signals an intention on the part of the full court not to open the case for consideration by judges other than those who were assigned to the panel. When a judge insists on writing an opinion on the denial of such a motion, the judge is essentially saying, “I don’t care that the case is not before the full court or that I am not assigned to the case, I’m going to comment on it anyway.” This promotes discord among the members of the court and makes it more difficult for them to work together on behalf of the court.

If the practice of writing dissenting opinions from orders denying internal en banc motions takes hold in Florida law, we will have essentially concluded that our system of assigning appellate judges to panels is meaningless. Any panel decision could provide a forum for comment by any judge on the court. It will not be an obstacle for a judge who insists on writing such an opinion that he or she was not assigned to hear that case. Nor will it be a problem for the judge that the full court has decided not to revisit or modify the panel opinion. All the judge will need to do is make a motion for an en banc hearing. Even if the motion gets only one vote, the judge can then take it upon himself or herself to weigh in on the case and possibly criticize the panel decision the court has just decided not to consider.

It would take very little imagination to recognize the harm that can be done if we allow non-panel members to wade into a controversy that is not before the full court. We need only consider the decision we made just a few months ago in Council for Secular Humanism, Inc. v. McNeil, 44 So.3d 112 (Fla. 1st DCA 2010). That case differs in the respect that it involved an en banc motion by a party, as opposed to an internal motion by a judge, but it illustrates the same potential dangers. When the motion for rehearing en banc was denied, a judge who was not on the panel wrote a dissent. Four other judges who were not on the panel joined in the dissent. This result, no doubt, left lawyers and trial judges who are supposed to derive some benefit from our opinions at a complete loss. Three members of the court made a decision for the court, yet five others signaled their disagreement with the decision.

The judges who voted to deny the motion for rehearing en banc could have written opinions, but that would have defeated the very point of denying the motion. If everyone on the court is going to express an opinion on the case, the court might as well grant the motion. The lesson we can learn from our experience in McNeil is that allowing dissents from the denial of en banc review promotes a form of minority rule. The minority can force the majority either to remain silent or to participate in the en banc proceeding it has just denied.

It is not at all uncommon for an appellate judge to disagree with a panel opinion that is circulating within the court. The judge is free to inform the panel members of the. disagreement and, if that fails to produce a satisfactory result, the judge is free to ask the full court to consider the case. But if the full court denies the request, that is the point at which the judge should accept the decision and refrain from making further comment. To persist in a disagreement to the point of publishing a grievance against the full court for refusing to take up the case will only undermine the authority of the court’s decision.

There are those who would say that we should allow a judge to write an opinion on an order denying a motion for en banc review because it would otherwise appear to be a form of censorship. I do not see it as censorship at all. There are limits to things we are authorized to do as judges. I could not just decide to weigh in on a case pending before another panel of this court any more than I could publish an opinion on a case that is pending in another district court of appeal. We all accept the fact that the right to publish an appellate opinion is limited by jurisdictional principles. I do not understand why it would be difficult for anyone to accept the fact that it is also limited in a multi-panel appellate court by judicial assignment.

Prohibiting an appellate judge from writing and publishing an opinion dissenting from an order of the full court denying en banc review does not stifle dissent or muzzle the judge, as some might argue. Those who make that argument are, in my view, looking at the issue the wrong way. The judicial system does not exist to serve the rights of judges; we are here to serve the judicial system. The harm that is done to the court as an institution by allowing the publication of a dissent from the denial of an internal en banc motion is far more serious than any restriction that could be placed on an individual judge’s ability to express his or her views on the motion. There are many situations in which a judge must exercise judicial restraint for the good of the court and the judicial system. It is certainly not an offense to any right the judge may have merely to be told that there are some circumstances in which an opinion is not warranted or permitted.

It is no answer to these arguments that opinions dissenting from the denial of en banc review are now commonplace in the federal court system. To the contrary, I think the Florida courts would be wise to learn from the results of this practice in the federal courts. Many federal judges believe, as I do, that it is a mistake to allow non-panel members to dissent from an order denying en banc review. Fifty years ago, Judge Henry Friendly warned that it would “mean that any active judge may publish a dissent from any decision although he did not participate in it, a practice that seems to us of dubious policy....” U.S. v. New York, N.H. & H R. Co., 276 F.2d 525, 558 (2d Cir.1960). More recently, Judge A. Raymond Randolph of the District of Columbia Circuit offered a similar criticism:

It has become customary for members of this court to issue statements concurring in or dissenting from denials of rehearing en banc. I doubt the propriety of this practice. Such statements are rarely confined to setting forth the author’s reasons for thinking or not thinking the case important enough to warrant en banc treatment. Although the statements may take this form, more often than not they contain expressions of a different sort. Judges commonly use denials of rehearing en banc to declare their views on the merits of the case. Those who were not on the original panel announce what they would have decided if only they had been called upon to rule. Judges who were members of the panel express afterthoughts, or respond to criticism contained in the en banc statements of other judges, or explain what the panel “really” meant. All of this may be good for the soul. But it rubs against the grain of Article Ill’s ban on advisory opinions. The manner in which these en banc “bulletins” are formulated does not simulate the process of the court when it is actually deciding a case. If recurring issues are addressed, en banc statements may be tantamount to prejudgments.

Independent Ins. Agents of America, Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C.Cir. 1992). In 1987, Judge Patricia Wald of the District of Columbia Circuit noted that dissents from the denial of en banc review had become more elaborate and she suggested that they might be more properly described as “thinly disguised invitations to certiorari.” Patricia M. Wald, The D.C. Circuit: Here and Now, 55 Geo. Wash. L. Rev. 718, 719 (1987). When a panel member dissented from an order denying an internal motion for a hearing en banc, Judge John C. Porfilio, had this to say:

Because I find no precedence for the publication of an order denying rehearing and rehearing en banc, I have no idea what to label this missive. Nonetheless, an issue has been made over the denial of rehearing en banc, and I am stirred to state for the record the reason why I have voted to deny. I hope in so doing I do not create a custom for this court, because there already being enough judicial verbiage in print to confound practitioners, I find opprobrious this whole notion of publishing non-prec-edential matters.

Rocha Vigil v. City of Las Cruces, 119 F.3d 871 (10th Cir.1997).

The First District Court Appeal has addressed the problem I have identified here, but not with any degree of finality. In 2006, the court adopted a policy of prohibiting judges from writing and publishing dissenting opinions from the denial of internal en banc motions. This policy was published as a part of the court’s internal operating procedures. Then, in 2008, the court took the opposite position by adopting a policy of allowing dissents from the denial of internal en bane motions. The court revised the manual of internal operating procedures to reflect this most recent version of its policy. Nothing had changed in the interim except the composition of the court.

In any event, I do not believe that the issue is a matter of local concern to be resolved within the First District Court of Appeal. If the Florida court system adopts a policy on the issue, and I believe that it should, the policy should apply uniformly throughout the state. For the reasons given here, I believe that if an internal motion for en banc review is denied, the policy should be to list the vote of each judge in the order without explanation by any judge.

THOMAS, J.,

dissenting on denial of hearing en banc.

I respectfully dissent from this court’s decision to deny hearing en banc, pursuant to Florida Rule of Appellate Procedure 9.331. Because the panel should have followed this court’s well-reasoned, thoughtful and correct decision in Lewis v. State, 34 So.3d 183 (Fla. 1st DCA 2010), which addresses the precise issue raised here, we should hear this case and affirm our decision in Lewis.

The decision here adopts an incorrect legal position that the Florida Supreme Court declined to adopt, and commits this court to precedent that directly contradicts controlling statutory authority. Rather than allow a subsequent panel to overrule a prior panel’s decision, we should affirm Lewis and certify conflict with Rosa v. State, 35 Fla. L. Weekly D1361, 2010 WL 2430985 (Fla. 2d DCA 2010), on the issue of whether Brooks held that an adult who kills a child in a single act of violence cannot be convicted of first-degree felony murder.

The panel’s majority opinion and new, binding precedent holds that an adult who kills a child by a single stab wound, a single gunshot, a single fatal blow, or any other single act of violence, cannot be convicted of first-degree felony murder, despite the Legislature’s specific designation of aggravated child abuse as a predicate crime for felony murder in section 782.04(l)(a)l-2., Florida Statutes. Contrary to the majority’s view, this was not the holding in Brooks v. State, 918 So.2d 181 (Fla.2005), for one simple reason: the majority in Brooks declined to vacate the first-degree felony murder conviction for the single stabbing of the child. The Brooks court did not state that the felony murder conviction was upheld on the basis of harmless error; rather, the harmless error analysis involved aggravated child abuse as an aggravating factor in sentencing. See Brooks, 918 So.2d at 199 (“The trial court’s error in relying on the aggravated child abuse factor in aggravation has no impact on the sentencing determination for either murder.... The aggravating factors continue to substantially outweigh any mitigation, which supports application of the death sentence for Rachel Carlson’s murder.”).

The decision in Brooks did not hold that the merger doctrine precludes a conviction of first-degree felony murder based on a predicate act of aggravated child abuse. In a dissenting opinion from the denial of rehearing, Justice Lewis correctly asserted that the majority was obliged to vacate Brooks’ first-degree felony murder conviction, based on the merger doctrine, if that was the majority’s holding. Brooks, 918 So.2d at 221 (“The majority’s decision has been based upon the theory of merger because it would be unconstitutional and illegal to predicate two convictions on the single act. As more fully explained below ... the majority’s conclusion that a single stabbing blow cannot constitutionally, as a matter of law, constitute an underlying felony for the purpose of application of the felony murder doctrine requires this Court to reverse Brooks’s convictions.”) (citations omitted). Because the majority in Brooks declined to vacate the first-degree murder conviction, it is undeniable that the majority’s discussion of the merger doctrine was dicta.

Why This Court Should Follow Our Prior Holding of Lewis v. State

If future panels are free to reject the rationale of prior panel decisions which extensively analyze and address the same issue, then our decisions are of less permanence and importance. Here, two panels reached opposite conclusions on the same issue involving the application of a rule of law in first-degree murder cases. Because the court has declined to exercise its authority to consider this case en banc and resolve the inconsistent decisions, we fail to contribute to the stability of the law and the administration of justice. Now, the work of the first panel in Lewis, which correctly concluded that Brooks does not preclude Appellant’s conviction here, is no longer relevant or binding because of a subsequent split-panel decision. Today’s panel decision will always require that a child victim be the subject of multiple acts of abuse to form a predicate crime for felony murder.

Thus, even if Lewis is not binding, based on its alternative holding regarding the nature of the predicate crime there, we should exercise our en banc authority to rehear this case to ensure uniformity on this important issue. We should follow Lewis for jurisprudential and policy reasons, and to ensure uniformity.

Dictum versus Holding

In U.S. v. Crawley, 837 F.2d 291, 292-93 (7th Cir.1988), Judge Posner noted:

We have defined dictum as ‘a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding-that, being peripheral, may not have received the full and careful consideration of the court that uttered it.’ ‘[Djictum is a general argument or observation unnecessary to the decision .... The basic formula [for distinguishing holding from dictum] is to take account of facts treated by the judge as material and determine whether the contested opinion is based upon them.’ A dictum is ‘any statement made by a court for use in argument, illustration, analogy or suggestion. It is a remark, an aside, concerning some rule of law or legal proposition that is not necessarily essential to the decision and lacks the authority of adjudication.’ It is ‘a statement not addressed to the question before the court or necessary for its decision.’
What is at stake in distinguishing holding from dictum is that a dictum is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject. So instead of asking what the word ‘dictum’ means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion-⅞ can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers,....

(Emphasis added; citations omitted.)

Under Judge Posner’s analysis, it is clear that our prior discussion in Lewis regarding the holding in Brooks was not dicta. The Lewis rationale and holding regarding Brooks was: 1) fully and thoughtfully considered and central to the decision in Lewis; 2) the issue of the nature of the merger-doctrine discussion in Brooks was presented to the Lewis court by the “fires of adversary presentation,” see Lewis, 34 So.Sd at 186 (“The appellant urges us to reverse her convictions of aggravated child abuse and felony murder on the basis of Brooks v. State .... ”); 3) disregarding the operative rationale in Lewis would “seriously impair[ ] the analytical foundations” of the decision; 4) the analysis and rationale of Lewis was certainly not an “aside” or “remark” that concerned some legal proposition that “lacked the authority of adjudication”; 5) the Lewis rationale addressed a question presented to the court, and necessary to its final decision, despite its alternative holding; 6) the clear rationale in Lewis cannot be “sloughed off’ without doing damage to the work of that panel which conducted an extensive and scholarly review of the merger doctrine and felony murder under the common law and Florida statutes; and finally, 7) Lewis was clearly meant to establish binding authority to “be relied on by readers.”

Dictum and Alternative Holdings

It is undeniable that Lewis did not mean to signal readers to ignore all the analysis and rationale of the entire opinion as unnecessary and not of any significance. Rather, the Lewis decision simply noted an alternative holding: “Assuming arguendo that the statements in Brooks are not dicta and are applicable to the instant case, we would still affirm.” Lewis, 34 So.3d at 187. The use of the introductory clause “assuming arguendo” signals the panel’s view that it is affirming the conviction there on two separate bases. It defies logic and reality to find that the Lewis panel would conduct a lengthy, multi-page analysis of why Brooks did not bar affirming Lewis’ conviction, only to have the panel toss aside its analytical work as meaningless. This is especially clear in an opinion in which the panel spends almost all of its work on its primary holding and only a single paragraph on its alternative holding.

Merely because Lewis stated an alternative holding does not render its primary decision as nonbinding dicta:

A ruling in a case fully considered and decided by an appellate court is not dictum merely because it was not necessary, on account of one conclusion reached upon one question, to consider another question the decision of which would have controlled the judgment.
Two or more questions properly arising in a case under the pleadings and proof may be determined, even though either one would dispose of the entire case upon its merits, and neither holding is a dictum, so long as it is properly raised, considered, and determined.

Parsons v. Fed. Realty Corp., 105 Fla. 105, 143 So. 912, 920 (1932) (on rehearing); see also Paterson v. Brafman, 530 So.2d 499, 501 n. 4 (Fla. 3d DCA 1988) (explaining the fact a holding was alternative does not detract from its authority); Clemons v. Flagler Hosp., Inc., 385 So.2d 1134, 1136 n. 3 (Fla. 5th DCA 1980) (noting that where a decision rests on two grounds, neither can be relegated to the category of obiter dictum ); accord Ohio v. Roberts, 448 U.S. 56, 69 n. 10, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (discussing dictum and alternative holdings as different positions), reversed on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); United States v. Fulks, 454 F.3d 410, 434-35 (4th Cir.2006) (citing to MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 346 n. 4, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), and noting “alternative holdings are not dicta”); United Airlines, Inc. v. U.S. Bank, N.A., 409 F.3d 812, 813 (7th Cir.2005) (explaining prior conclusion of court was “an alternative holding, and not dicta”); Banks v. Gallagher, 686 F.Supp.2d 499, 517 n. 8 (M.D.Pa.2009) (citing MacDonald, 477 U.S. at 346 n. 4, 106 S.Ct. 2561); Penzer v. Transp. Ins. Co., 509 F.Supp.2d 1278, 1285 (S.D.Fla.2007) (explaining that alternative holdings are binding under Florida law), rev. on other grounds, 605 F.3d 1112 (11th Cir.2010).

In Lewis, our court reached an alternative holding that merely provided a secondary basis for affirming the conviction of first-degree felony murder. Such a holding did not contradict the underlying rationale of the decision in Lewis and, thus, did not render that extensive analysis as mere obiter dictum. Nor was the underlying analytical foundation of the decision in Lewis a mere “aside” or “remark” meant to discuss possible legal theories for academic or scholarly purposes only.

Obiter dictum is not interchangeable with the concept of an alternative holding. See World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 958 (11th Cir.2009) (explaining alternative holdings are not mere dicta); United States v. Bueno, 585 F.3d 847, 850 n. 3 (5th Cir.2009) (same); Nicholson v. Shafe, 558 F.3d 1266, 1273 n. 6 (11th Cir.2009) (same); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977) (en banc) (same); Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 606 n. 15 (2007) (observing that an adjudication on any point within the issues presented cannot be considered dictum, nor can an additional reason for a decision brought after the case has been disposed of on one ground); Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 241 (Tex.Civ.App.1978) (explaining an alternative holding exists where the appellate court rests its decision under the facts presented on two separate but equally valid grounds, whereas obiter dicta exists where the court decides a case on a specific ground and then, assuming facts not before it, makes statements based upon the assumed facts); cf. U.S. ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493, 507 (6th Cir.2007) (holding prior conclusion properly considered dicta rather than alternative holding because prior rationale could not be considered as alternative holding because it could not support the judgment in the case).

Supporting a rationale by including an alternative holding does not render the rationale mere dicta. To hold otherwise, as the majority opinion does here, imposes great damage on the thoughtful and controlling rationale and analytical framework of Lewis. In fact, today’s decision eviscerates our prior decision in Lewis and renders it a nullity regarding future decisions. This is so because the issue was not whether multiple acts of aggravated child abuse can form the predicate crime of felony murder — no one can dispute that in light of section 782.04(l)(a)l-2., Florida Statutes. Rather, the question we face here is whether a subsequent panel can and should disregard a careful and well-reasoned recent prior panel decision that addresses this precise issue: May a person be convicted of first-degree murder for a single act of stabbing, hitting, shooting, or for that matter, drowning a child? The Legislature answered yes, the Florida Supreme Court declined to hold otherwise, and so should this court. I dissent, therefore, from the court’s denial of en banc review in this case.


text:
    David Ledonte WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0147.
    District Court of Appeal of Florida, First District.
    May 9, 2011.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the revocation of his probation, arguing, among other things, that the evidence presented at the violation of probation hearing was insufficient to establish he willfully violated his probation. We agree and reverse.

The court found appellant violated two conditions of his probation by failing to (1) maintain a GPS monitoring device and (2) attend sex offender counseling. At the violation of probation hearing, appellant testified the alleged violations occurred due to his inability to pay his utility bill and the cost of counseling. Appellant testified that he had tried to obtain employment unsuccessfully, due to his prior convictions, and that he was trying to get back into school, and “there wasn’t a way for me to get the money.” In addition, appellant testified that he tried to explain his inability to pay the cost of counseling to the counseling center’s staff but they were unhelpful. The State’s witnesses corroborated that appellant violated probation due to his inability to pay his utilities and counseling fees.

As such, the trial court was required to consider appellant’s ability to pay before revoking his probation. Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994) (holding that before a probationer can be imprisoned for failure to pay, there must be a finding establishing the probationer had the inability to do so); Smith v. State, 49 So.3d 833, 834 (Fla. 1st DCA 2010); Odom v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009). In addition, because appellant’s un-rebutted testimony established he made a good faith effort to comply with the conditions of his probation, the trial court abused its discretion in finding he willfully violated his probation. Easterling v. State, 989 So.2d 1285, 1287 (Fla. 1st DCA 2008) (“Because we determine that appellant made a good faith effort to comply, we must also reverse the violation relating to failing to follow the lawful instructions of his community control officer.”). For these reasons, we REVERSE and REMAND with instructions to reinstate appellant’s probation and strike the order revoking appellant’s probation.

WOLF, DAVIS, and HAWKES, JJ„ concur.


author: CLARK, J.

text:
    Agnes J. DORAN and James R. Doran, as husband and wife, Appellants, v. FLORIDA S.E. INC., d/b/a Red Lobster, a Florida Corporation, Appellee.
    No. 1D10-6025.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Louis K. Rosenbloum, of Louis K. Ro-senbloum, P.A., and Marcus J. Michles II and Chad D. Camper, of Michles & Booth, P.A., Pensacola, for Appellants.
    Carlos D. Cabrera and Shannon McKen-na, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Pensacola, for Appellee.
   CLARK, J.

The appellants challenge a final summary judgment which was entered for the appellee in the appellants’ negligence action, where it was alleged that the appellant Agnes Doran slipped and fell on a wet floor in the appellee’s restaurant. Because the parties’ filings created disputed issues of material fact with regard to this claim, the trial court should not have entered the summary judgment.

In seeking summary judgment the ap-pellee did not contest the allegation that Mrs. Doran slipped and fell onto a bathroom floor, but the appellee maintained that the floor was not wet and that there was no evidence to support the allegation that a wet floor caused Mrs. Doran to slip and fall. Depositions were submitted, with the appellee’s restaurant manager testifying that she inspected the floor and did not find it to be wet, and that Mrs. Doran had blamed the fall on her shoes. However, Mrs. Doran testified that she did not attribute the fall to her shoes and that she thought the floor was wet, although she did not notice any water either before or after she fell. Another witness testified that when the paramedics arrived to tend to Mrs. Doran, they had to move a yellow sign which was like a “wet floor” or “be careful” sign, with that sign having been on the floor in the area where Mrs. Doran fell.

These assertions in the deposition testimony create disputed issues, as to whether the floor was wet, and whether that caused Mrs. Doran to slip and fall. A summary judgment should be entered only when there is no genuine issue as to any material fact, with even the slightest doubt as to the existence of such a question precluding summary judgment. See, e.g., Laidlaw v. The Krystal Co., 53 So.3d 1128 (Fla. 1st DCA 2011); Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006). The trial court should not resolve such a question by summary judgment, and instead must view the evidence and draw all reasonable inferences in favor of the party opposing the summary judgment. See Laidlaw; Falco. When the evidence in the present case is viewed in that way, the appellee did not satisfy its burden to show the nonexistence of any disputed issue of material fact, and the trial court therefore should not have resolved the case by summary judgment.

The appealed order is reversed, and the case is remanded.

HAWKES and SWANSON, JJ., concur.


author: VAN NORTWICK, J.

text:
    Rebecca A. TUTEN, as personal representative of the Estate of James Kenneth Tuten, deceased, Appellant, v. Alexander FARIBORZIAN, M.D. and Meridian Behavioral Healthcare, Inc., a Florida Corporation, Appellees.
    No. 1D11-0641.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.

      John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, and Helen W. Spohrer, of Spohrer & Dodd, P.L., Jacksonville, for Appellant.
    Michael R. D’Lugo and Richard E. Ramsey of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellees.
   VAN NORTWICK, J.

Rebecca A. Tuten appeals a final order dismissing with prejudice her negligence action against appellees, Alexander Fari-borzian, M.D., and Meridian Behavioral Healthcare, Inc., a psychiatric facility. For the reasons that follow, we affirm.

Rebecca Tuten’s husband, James, began receiving outpatient care at Meridian in September 2007 for depression and suicidal ideations. He was voluntarily admitted to Meridian after attempting suicide in November 2007. After three days, upon his request, he was released with medication. Two months later, James Tuten again attempted suicide by taking an overdose of psychiatric medication. Following a stay in the intensive care unit at a local hospital, he was admitted to Meridian on February 5, 2008, and came under the care of appellee, Alexander Fariborzian, a psychiatrist. On his third day at Meridian, James Tuten requested a discharge, but his request was denied by Dr. Fariborzian. On February 8, 2008, on the fourth day of his stay, a Meridian administrator filed a petition for involuntary placement and a petition for adjudication of incompetence to consent to treatment pursuant to the Baker Act. Both petitions were supported by the opinion of Dr. Fariborzian.

A hearing was eventually scheduled for February 15, 2008. On February 13, James Tuten requested his release from Meridian and Dr. Fariborzian certified that Tuten was competent to provide consent for a release. He was released on that date with an order to receive followup care. The next day, James Tuten shot his wife and then fatally shot himself.

Rebecca Tuten filed a wrongful death action asserting negligence against Dr. Fariborzian and Meridian. Her initial complaint was dismissed without prejudice. In her amended complaint Mrs. Tuten alleged, in count one, that Dr. Fariborzian was negligent in his treatment of the deceased by breaching the applicable standard of care when he certified that Mr. Tuten was competent to provide consent and by failing to continue inpatient care; in count two, that Meridian was vicariously liable for the negligence of Dr. Fariborzi-an; and, in count three, that Meridian was negligent by discharging Mr. Tuten. Meridian and Dr. Fariborzian moved to dismiss, and after a hearing, the trial court granted dismissal with prejudice, noting that no amendment to the complaint could state a cause of action.

Mrs. Tuten raises three issues on appeal. First, she argues that the trial court erred in dismissing her amended complaint because, under the Baker Act, chapter 394, Florida Statutes, also known as the Florida Mental Health Act, Meridian and Dr. Fariborzian had the duty to keep James Tuten within the facility until a trial court ruled on the petition for involuntary placement. Second, she asserts that, apart from the Baker Act, Meridian and Dr. Fariborzian owed James Tuten a duty of care which was breached upon his release. Finally, she claims that the trial court erred in refusing to allow a third amendment of her complaint.

Turning first to the argument that the Baker Act creates a duty not to release a patient under treatment until a trial court has ruled upon a pending petition for involuntary placement, we note that section 394.469, Florida Statutes (2008), provides that “[a]t any time a patient is found to no longer meet the criteria for involuntary placement,” (emphasis added), the facility administrator is required to discharge the patient (not under criminal charge), transfer the patient to voluntary status, or place an improved patient (not under a criminal charge) on convalescent status in a community facility. There is no limitation stated under the Baker Act on this obligation to discharge a patient who no longer warrants involuntary placement.

The statutory provisions for committing a patient to involuntary placement do not expressly provide that, once a petition for involuntary placement has been filed, it cannot be withdrawn. In fact, a plain reading of section 394.469 would indicate that a petition could be withdrawn prior to a ruling. Also, the grant by a court of a petition for involuntary placement requires proof that a patient meets the criteria outlined in section 394.467(l)(a) and (b), and the criteria must be established by clear and convincing evidence. Since Dr. Fariborzian, the treating physician, concluded that, in his professional opinion, James Tuten could determine for himself whether commitment was necessary, there was no proof Meridian or Fariborzian could offer in continuing support of a petition for involuntary placement.

Further, as this court observed in Handley v. Dennis, 642 So.2d 115, 116 (Fla. 1st DCA 1994),

One of the findings that must be made to support an order of involuntary placement in a state mental hospital is that “all available less restrictive treatment alternatives which would offer an opportunity for improvement ... have been judged to be inappropriate.” § 394.467(l)(b) Fla. Stat. (1998). The state must be able to support this finding when the patient is first committed and all times during the course of the patient’s commitment. If a patient improves and is able to function in an “available less restrictive environment” then the State has no alternative but to place the patient in that environment. To do otherwise, would violate the constitutional rights of the patient as well as the plain requirements of the Baker Act.

(Emphasis added).

At the time of James Tuten’s commitment to Meridian, involuntary inpatient placement still required clear and convincing evidence that “all available less restrictive treatment alternatives which would offer an opportunity for improvement ... have been judged to be inappropriate.” § 394.467(l)(b), Fla. Stat. (2008). Given the professional opinion of Dr. Fariborzian, the treating physician, that Tuten was competent enough to give or withhold consent for treatment, involuntary placement in Meridian would have been inconsistent with the mandate of section 394.467(l)(b).

As for the argument that a common law duty exists which required Meridian and Dr. Fariborzian to keep James Tuten committed against his will, despite the professional opinion of his treating physician that Tuten had become competent enough to make his own decision regarding commitment, we cannot agree that such a duty exists under the undisputed facts in this case. Because the “internal workings of the human mind remain largely mysterious,” to impose a general duty on a psychiatrist would require such doctors to have the gift of “clairvoyance.” Garcia v. Lifemark Hospitals of Florida, 754 So.2d 48, 49 (Fla. 3d DCA 1999) (quoting Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 34, 551 P.2d 334, 354 (1976) (Mosk, J., concurring and dissenting)). We agree with the reasoning of the Fifth District in Paddock v. Chacko, 522 So.2d 410, 413-15 (Fla. 5th DCA 1988):

The practice of psychiatry has come a long way from the ancient practice of confining persons with aberrant behavior in institutions or asylums. It has been recognized that mental illness may be caused or intensified by institutionalizing mental patients. Emerging from these roots, the science and profession of psychiatry has burgeoned into a multifaceted social institution. The practice of psychiatry is no longer limited to the institutionalization of the mentally ill. Professionals in the practice of psychiatry and psychology now offer an innumerable variety of remedial therapies to the troubled and ailing souls of modern society. We are impressed with Judge Jorgensen’s observations in his dissenting opinion in Nesbitt v. Community Health of South Dade, Inc., 467 So.2d 711 (Fla. 3d DCA 1985) where, in a different factual context he noted that
The science of psychiatry represents the penultimate grey area. Numerous cases underscore the inability of psychiatric experts to predict, with any degree of precision, an individual’s propensity to do violence to himself or others. Indeed, “[psychiatrists themselves would be the first to admit that however desirable an infallible crystal ball might be, it is not among the tools of their profession.” People v. Burnick, 14 Cal.3d 306, 326, 121 Cal.Rptr. 488, 501, 535 P.2d 352, 365 (1975).
A substantial body of literature suggests that the psychiatric field cannot even agree on appropriate diagnosis, much less recommend a course of treatment.

467 So.2d at 717.

A psychiatrist, or any other doctor, may “order” his patient to comply with a prescribed treatment. When, however, the plaintiff speaks of her psychiatrist’s duty to “order” hospitalization, it appears that something more is meant than the colloquial understanding of “doctor’s orders.” Essentially, the plaintiff argues that [the psychiatrist] was obligated to demand and insure that his patient be hospitalized for the benefit of her own safety.

We decline to force every psychiatrist to navigate between Scylla and Charybdis, in deciding whether or not to involuntarily detain and examine a patient.[]

(Other internal citations omitted; bold added). Thus, explained the Chacko court, the law of this state does not impose a duty upon a psychiatrist to hospitalize or otherwise involuntarily detain a patient.

The Chacko court, however, did indicate that “[w]here a patient has surrendered himself to the custody, care and treatment of a psychiatric hospital and its staff, liability may be predicated upon the hospital’s failure to take protective measures to prevent the patient from injuring himself,” 522 So.2d at 417, while the patient is in custody. This specific “duty is based solely on the fact of the patient’s confinement in the hospital, and the hospital’s ability to supervise, monitor and restrain the patient.” Id. at 416. The case before us is factually distinguishable from the exception described in Chacko. Tuten was not in the custody of appellees Meridian or Fariborzian when he killed himself and injured his wife. These acts of violence occurred outside of the scope of the facility’s range of observation and control. See Santa Cruz v. Northwest Dade Community Health, 590 So.2d 444 (Fla. 3d DCA 1991) (holding the Baker Act imposes no affirmative obligation on the part of psychiatrist or mental health center to hospitalize a patient or commence proceedings for involuntary placement, and they could not be held liable for failing to do so to those subsequently injured by the patient).

It is significant that the case law establishes that there is no duty to warn that a patient may be dangerous, even when the patient is involuntarily committed as a result of a Baker Act proceeding. Judge Altenbernd, writing for the court in Mental Health Care, Inc. v. Stuart, explained that no such duty exists because of “the inherent unpredictability associated with mental illness and the ‘near-impossibility of accurately or reliably predicting dangerousness.’ ” 909 So.2d 371, B74 (Fla. 2d DCA 2005) (quoting Boynton v. Burglass, 590 So.2d 446, 450 (Fla. 3d DCA 1991)). In holding no duty to warn exists, the Mental Health Care court relied heavily on Boynton, which also held no duty on the part of a psychiatrist exists to warn others about a patient. Explained the Boynton court,

to impose a duty [on a psychiatrist] to warn or protect third parties would require the psychiatrist to foresee a harm which may or may not be foreseeable, depending on the clarity of his crystal ball. Because of the inherent difficulties psychiatrists face in predicting a patient’s dangerousness, psychiatrists cannot be charged with accurately making those predictions and with sharing those predictions with others.

590 So.2d at 450. Similarly, the court in Santa Cruz v. Northwest Dade Community Health Ctr., Inc., 590 So.2d at 445, held that a psychiatrist or a psychiatric facility did not have the duty to warn others not within its custody that a patient, formerly in custody, might be dangerous.

All of these authorities emphasize the unpredictability and inexactness inherent in the practice of psychiatry. Thus, because the future behavior of a psychiatric patient is unknowable, under Florida law risk of harm is not foreseeable and therefore no duty exists to lessen the risk or protect others from the type of risk which a psychiatric patient might pose. As the Florida Supreme Court has explained, the “requirement of reasonable, general foresight is the core of the duty element.” McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992).

Finally, as to the refusal of the trial court to allow Mrs. Tuten the opportunity to file a second amended complaint, rule 1.190(a) of the Florida Rules of Civil Procedure provides for the right to amend once before a responsive pleading is served, and thereafter, only by leave of the court. Although leave of the court shall be freely given when justice requires, the court need not allow an amendment that would be futile. Thompson v. Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993). Further, the trial court “has wide discretion on procedural matters including requests to amend pleading.” Fla. R. Civ. P. 1.190 Author’s Comment 1967. Here, there has been no showing by appellant as to possible amendments to the complaint that would not be futile. We find no abuse of discretion.

The final order is AFFIRMED.

DAVIS and THOMAS, JJ., concur.

      . The criteria are:
      (a) He or she is mentally ill and because of his or her mental illness:
      1.a. He or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment; or b. He or she is unable to determine for himself or herself whether placement is necessary; and
      2.a. He or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or
      b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and
      (b) All available less restrictive treatment alternatives which would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.

      . The Chacko court explained this reference as follows: " 'Incidit in Scyllam qui vult vi-tare Charybdim.' ” This Latin proverb means that in our eagerness to avoid one evil, we often fall into greater.” 522 So.2d at 415 n. 7.


text:
    R.J. REYNOLDS TOBACCO COMPANY and Liggett Group, L.L.C., Appellants/Cross-Appellees, v. Finna CLAY, as Personal Representative of the Estate of Janie Mae Clay, Appellee/Cross-Appellant.
    No. 1D10-5544.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2012.
    Gregory G. Katsas and Donald B. Ayer of Jones Day, Washington, DC; Stephanie E. Parker, John F. Yarber, and John M. Walker of Jones Day, Atlanta, GA; Charles F. Beall, Jr., and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola; Kelly Anne Luther and Michael P. Rosenstein of Kasowitz, Benson, Torres, & Friedman, Miami; Karen H. Curtis of Clarke, Silvergate, Campbell, Miami; Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hubener, III, Chief Deputy Attorney General, Tallahassee, for Appellants/Cross-Appellees.
    John S. Mills and Gregory J. Philo of The Mills Firm, P.A., Tallahassee; David J. Sales of David J. Sales, P.A., Jupiter; William A. Norton of Searcy Denney, Tallahassee; T. Hardee Bass and Brian R. Denney of Searcy, Denney, Scarola, Barn-hart & Shipley, West Palm Beach, for Appellee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


author: MONACO, J.

text:
    Lucas IRIZARRY, Appellant/Cross Appellee, v. Kenneth O. MOORE and Waste Management, etc., Appellee/Cross Appellant.
    No. 5D09-3207.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Rehearing and Rehearing En Banc Denied April 18, 2012.

      Shannon McLin Carlyle, and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, and Joseph Howard Shaughnessy and Keith Randolph Mit-nik of Morgan & Morgan, Orlando, for Appellant/Cross-Appellee.
    Richard A. Sherman, Sr., of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, Dale R. Hightower and Christopher Stratton of Hightower & Partners, P.A., West Palm Beach, for Appellee/Cross Appellant.
   MONACO, J.

This is a troubling case. In the final analysis we conclude that trial counsel for the appellees, Dale R. Hightower, stepped over the behavioral bounds so frequently during the three-day trial of this case that a reversal is required. That is to say that while each individual defalcation of Mr. Hightower’s might not justify reversal, their totality surpasses the critical mass that compels us to order a new trial.

The appellant, Lucas Irizarry, was injured in an accident with a truck owned by appellee, Waste Management, Inc. of Florida, and driven by appellee, Kenneth O. Moore. The accident was a low impact event, but was, according to the jury, 100% due to the negligence of the appellees. Thus, the trial was basically about damages.

Mr. Irizarry asserted that he injured his neck in the accident, and as a result was required to undergo a three-level cervical fusion. The evidence reflects that he incurred about $112,000 in medical expenses. The defense was essentially that Mr. Iri-zarry had preexisting injuries or conditions, none of which were exacerbated by the accident, and that accordingly, he incurred little or no damages from this minor traffic incident. The jury returned a verdict in Mr. Irizarry’s favor of $56,000 for past medical expenses, found no permanent injury, and awarded no damages for pain and suffering past or future, and no future medical expenses.

So what was it that compels us to reverse? There were many incidents during the trial that lead us to order a new trial, and it would probably serve no useful purpose to delineate each of them in great detail. An examination of a few aspects of Mr. Hightower’s behavior during the trial, however, will provide an adequate illustration.

For reasons that are hard to explain, Mr. Hightower, a lawyer who claims to have tried over two hundred cases, began during his voir dire of the jury using the terms “guilty” and “innocent” in describing Mr. Irizarry’s burden of proving his negligence cause of action. A flavor of the problem can be sensed in one particular exchange. Mr. Hightower began by saying:

[Wje’re a Defendant in a case, but I think Plaintiffs counsel did a good job talking about their burden of proof, and I know you’ve heard this phrase, but I want to make sure that everybody understand it and agrees with it. That that is, as a defendant in a case, whether it’s a criminal case or a civil case, we’re presumed innocent until proven guilty. Everybody understand that okay?

[Emphasis added]. After the obvious objection was sustained, counsel continued undaunted:

That’s a phrase in a criminal case, but they have to prove their case against us and if they have to prove their case, I’m just saying, just because we’re here doesn’t mean we did anything wrong. So whether you’re presumed innocent or not, just because we’re here—

[Emphasis added]. Although the objection was again sustained, counsel still persisted, announcing to the jury:

I just want to reiterate just because we’re a Defendant in the case, doesn’t mean that we did anything wrong. Does everybody understand that? Okay. The Plaintiff has to prove that we’re liable or guilty of something before we can be found — that’s why we’re going to trial.

Later that day, but still during voir dire, appellees’ counsel then began a series of comments suggesting that Mr. Irizarry was seeking to make a fraudulent claim. He began by asking:

MR. HIGHTOWER: Has anyone had a situation whether they knew someone, let’s say, was in a car accident, but they had had damage to their car before this car accident — either damage to their bumper or their engine wasn’t running right or their transmission wasn’t running right — and they tried to claim it in the car accident when it didn’t really happen in the car accident, but it happened before?

When appellant’s counsel, Mr. Mitnik, objected, the following dialogue occurred:

MR. MITNIK: And what about injecting an issue of fraud into the case through your question.
MR. HIGHTOWER: I said your client was guilty of fraud.
MR. MITNIK: Do you have any evidence of any fraud?
MR. HIGHTOWER: Huh?
MR. MITNIK: Do you have any evidence of any fraud?
MR. HIGHTOWER: I’m not going to tell you. If I do, you’ll find out.

He continued in that same vein, asking finally:

Does everyone understand that it’s fair and reasonable compensation and it’s not like, you know, Florida lottery money or something like that.

More objections and a motion for a mistrial ensued. No evidence of fraud was ever adduced during the course of the trial.

The problematic behavior continued in the same style during the remainder of the case. Once again, without attempting to catalogue all of the questionable tactics, we have found particular difficulty with the following action of Mr. Hightower:

a. Failure to deliver an updated CME prior to trial in violation of the pretrial order;

b. Referencing in opening statement that a medical expert had reviewed additional medical tests when counsel was fully aware that the expert was to be limited to the information contained in his earlier report;

c. Advising the jury during opening statement that appellant’s law firm had paid a medical expert to examine Mr. Iri-zarry (i.e., to perform a CME); that later the doctor operated on appellant; and that the jury should take that into account “in deciding whether or not to pay the medical bill” for the surgery;

d. Failing to timely provide changes to a defense radiologist’s report to appellant’s counsel (the doctor had been provided additional materials since his report was prepared);

e. Attempting to interject information from the police report of the accident, in violation of section 316.066, Florida Statutes (2009);

f.Unnecessarily interrupting appellant’s counsel during final argument in the presence of the jury in an effort to suggest that counsel was taking too much time, even though there was a specific determination by the trial judge governing time already in place.

As noted, this list is not intended to be exhaustive. Rather, it is intended to provide a glimpse into the conduct of the trial by Mr. Hightower. Frankly, at the end of the day, because of Mr. Hightower’s egregious behavior, we have no confidence that the parties received a fair trial of the issues. See Philippon v. Shreffler, 38 So.3d 704, 709 (Fla. 4th DCA), review denied, 47 So.3d 1290 (Fla.2010); Samuels v. Torres, 29 So.3d 1193 (Fla. 5th DCA 2010); Maksad v. Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002). Although the appellant moved for a new trial based on the pervasive effect of opposing counsel’s conduct, the motion was denied by the trial court. We conclude that the trial judge abused her discretion in doing so. See Manhardt v. Tamton, 832 So.2d 129, 132 (Fla. 2d DCA 2002).

Unfortunately, this is not the first time Mr. Hightower’s trial behavior has been called into question. See Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443 (Fla. 3d DCA 2001); see also The Florida Bar v. Hightower, 814 So.2d 442 (Fla.2002). We are, thus, less inclined to lay off the problems we see to simple overzealousness. We suspect that the best way to put a stop to this kind of bad trial behavior is to grant a new trial when the misconduct reaches the appropriate level. We choose to do so in the present case, but reverse only on the issue of damages. Accordingly, we affirm the judgment as to liability, but reverse and remand for a new trial on the issue of damages. We trust that civility will be more in evidence at that proceeding.

REVERSED and REMANDED.

JACOBUS, J., concurs.

SAWAYA, J., concurs in result only.

      . "A willful disregard of prior court rulings can constitute a direct obstruction of the court.” See State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981).

      . See Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443 (Fla. 3d DCA 2001).

      . See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000); Murphy v. Int’l Robotics Sys. Inc., 710 So.2d 587, 588 (Fla. 4th DCA 1998).

      . See also Thomas v. Gottlieb, 520 So.2d 622 (Fla. 4th DCA 1988).

      . The trial court characterized these tactics as "unfair.”

      . We note that the appellant did not seek sanctions against Mr. Hightower personally.


text:
    HOPEWELL, LLC, a limited liability company, Joseph Cauthen, III, and Joseph Cauthen, IV, Appellants, v. ALARION BANK, Appellee.
    No. 1D11-6259.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Rehearing Denied April 4, 2012.
    Jon D. Parrish and Kirt R. Posthuma of Parrish, Lawhon & Yarnall, P.A., Naples, for Appellants.
    John Hayter and David E. Williamson of John F. Hayter, Attorney At Law, P.A., Gainesville, for Appellee.
   PER CURIAM.

The appellants seek review of a nonfinal “Order Denying Defendants’ Motion to Dismiss Complaint and Setting Case Management Conference,” entered on October 27, 2011. The appellants argue the order is immediately appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) because it necessarily determined their entitlement to arbitration. However, the order on appeal does not determine the appellants’ entitlement to arbitration and the Court lacks jurisdiction to review the order at this time.

The Court’s jurisdiction turns on whether the order on appeal determined the appellants’ entitlement to arbitration. A trial court may construe a motion to dismiss as a motion to compel arbitration and make a determination on a party’s entitlement to arbitration in its order on the motion. See, e.g., S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600, 602 (Fla. 1st DCA 2007). Alternatively, a trial court may decide a motion to dismiss that asserts an entitlement to arbitration without reaching the arbitration issue. See Weber v. Bonilla-Mathe, 807 So.2d 170 (Fla. 3d DCA 2002) (dismissing appeal from order denying motion to dismiss wherein defendant sought dismissal because plaintiff had not invoked arbitration clause); Southeastern Title and Ins. Co. v. Curtis, 155 So.2d 855 (Fla. 3d DCA 1963) (dismissing appeal from order denying motion to dismiss wherein defendant’s sole grounds for dismissal was that the claims were subject to arbitration and therefore the plaintiff should be required to exhaust her remedies in arbitration). Similar to the defendant in Curtis, the appellants construe the order on appeal as an order denying a motion to compel arbitration because the underlying motion to dismiss had asserted that the claims raised in the complaint are subject to arbitration. However, even if the claims are subject to arbitration, dismissal of the complaint is not required. See § 682.03(1), (3), Fla. Stat. (2010); Rittman v. Allstate Ins. Co., 727 So.2d 391, 394 (Fla. 1st DCA 1999) (“A stay of judicial proceedings is required when the action involves an issue subject to arbitration, an application for arbitration has been made, and the trial court determines the arbitration decision may have an effect on the litigation.”). The appellants have not filed a motion in the trial court seeking to compel arbitration and the trial court did not construe the appellants’ motion to dismiss as such a motion.

DISMISSED.

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    Robert FENN, Appellant, v. BANK OF AMERICA, N.A. et al., Appellee.
    No. 5D11-4101.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Rehearing Denied April 3, 2012.
    Robert Fenn, Orlando, pro se.
    Nancy M. Wallace, of Akerman Senter-fitt, Tallahassee, William P. Heller, of Ak-erman Senterfitt, Fort Lauderdale, and Michael D. Starks, of Akerman Senterfitt, Orlando, for Appellee.
   PER CURIAM.

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

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Termaine AIKENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0695.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2012.
    Termaine Aikens, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WETHERELL, MARSTILLER, and RAY, JJ., concur.