source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte Donald DEARDORFF. (In re Donald Deardorff v. State of Alabama).
    1040163.
    Supreme Court of Alabama.
    Oct. 31, 2008.

      Jeffery C. Duffey, Montgomery, for petitioner.
    Troy King, atty. gen., and Anne C. Adams and Michael A. Nunnelley, asst, attys. gen., for respondent.
   On Application for Rehearing

PARKER, Justice.

This Court’s opinion of January 4, 2008, is withdrawn, and the following is substituted therefor.

Donald Deardorff petitions for a writ of certiorari to review the decision of the Court of Criminal Appeals affirming his convictions for capital murder and his sentence of death. We affirm. The facts pertinent to our review are as follows:

On September 22, 1999, Donald Dear-dorff, armed with a stolen handgun and accompanied by an associate, Millard Peacock, broke into the house of Ted Turner, a local businessman in Mobile, with whom Deardorff had had some dealings that had resulted in Turner’s pursuing legal action against Deardorff. They awaited Turner’s return to the house, at which time they subdued him at gunpoint. They kept Turner in a closet with his hands bound with duct tape. Over the course of the next 24 hours, Deardorff forced Turner to write 5 checks to Peacock for a total of $21,750. Peacock cashed the checks at a bank and gave the money to Deardorff. On September 24, 1999, Deardorff and Peacock drove Turner, whose hands and mouth were taped with duct tape and whose head was covered with a pillowcase that was taped in place, to the end of a logging road, at a point at which the road was blocked by a gate. There, they walked Turner, who had recently had knee surgery, to the end of the road and shot him four times in the head, killing him. Turner’s body remained undiscovered until July 2001. Deardorff was arrested in October 1999 for possessing a firearm without a permit; he was subsequently convicted on several capital-murder and other charges and was sentenced to death.

Deardorff was charged in a 23-count indictment with capital murder and related offenses surrounding Turner’s death. A jury convicted him of three counts of capital murder, seven counts of theft, and one count of receiving stolen property. After a penalty-phase hearing, a jury, by a 10-2 vote, recommended the imposition of the death penalty. After a separate hearing, the trial court followed the jury’s recommendation and sentenced Deardorff to death. On June 25, 2004, the Court of Criminal Appeals affirmed the capital-murder convictions and the sentence of death but ordered the seven theft convictions vacated because they violated Deardorffs double-jeopardy rights. Deardorff v. State, 6 So.3d 1205 (Ala.Crim.App.2004). The Court of Criminal Appeals remanded the case to the trial court for the limited purpose of vacating the seven theft convictions and the associated sentences. On September 17, 2004, the Court of Criminal Appeals, on return to remand, affirmed the trial court’s action in vacating the theft convictions, without an opinion. Deardorff petitioned this Court for a writ of certiora-ri seeking review of 21 claimed conflicts and/or errors in the Court of Criminal Appeals’ opinion. We granted certiorari on four grounds, including three evidentia-ry issues and Deardorffs claim that the trial court improperly found as an aggravating circumstance that the offense was “especially heinous, atrocious, or cruel,” when compared to other capital offenses. Because no objection was made at trial on the evidentiary issues, Deardorff has petitioned this Court to conduct a plain-error review of those issues under Rule 39(a)(2)(A), Ala. R.App. P.

Legal Analysis

I. Was the offense “especially heinous, atrocious, or cruel,” when compared to other capital offenses?

Deardorff asserts that the Court of Criminal Appeals’ holding that “ ‘[t]he trial court’s determination that the evidence established the § 13A-5-49(8) aggravating circumstance, that the murder was especially heinous, atrocious, or cruel, is fully supported by the record’ ” conflicts with both the record in this case and this Court’s decision in Ex parte Clark, 728 So.2d 1126 (Ala.1998). Deardorff's petition at 24 (quoting Deardorff, 6 So.3d at 1228).

The trial court ruled that Deardorffs execution-style murder of Turner fell within the meaning of the “especially heinous, atrocious, or cruel” aggravating circumstance; the Court of Criminal Appeals determined that there was sufficient evidence to support a finding that that aggravating circumstance existed, stating:

“From the moment Deardorff threatened Turner with ‘blowing his brains out’ to the moment he was forced to kneel, bound and with his head covered with a pillowcase secured with duct tape, Turner’s fear for his life was undoubtedly great. ... The terror he experienced must have escalated tremendously when his mouth was taped and his hands were bound as he was taken away from his home, driven away in his own car. When the pillowcase was taped and he could no longer see where he was being taken, he had to know that his death was imminent.”

Deardorff, 6 So.3d at 1228.

Deardorff disputes whether Turner was aware of his impending death. However, the evidence introduced at trial shows that at one point while Turner was being held captive by Deardorff and Peacock, Dear-dorff drew his gun, pointed it at Turner, and told him to be quiet and say nothing or Deardorff would “blow his brains out.” Turner pleaded with Deardorff, telling him that he would give him whatever he wanted so long as Deardorff did not kill him. Two months before his death, Turner had made a notation on his will, which had been executed in January 1999, reaffirming its validity “just in case Don Deardorff is really crazy.” Thus, there is sufficient evidence indicating that Turner was aware of his impending death through the threat, the fears, the pleas, the final abduction in the car, and the forced walk down a dirt road.

The Court of Criminal Appeals repeatedly asserted in its opinion that Turner was forced to kneel on the ground before he was shot; however, the only eyewitness to the killing, Peacock, testified that he was not aware that Deardorff was going to shoot Turner, and he testified that “[Deardorff] walked [Turner] a few more feet and he shot him.” Deardorffs brief at 83 and 85. The State concedes that evidence in support of those statements in the Court of Criminal Appeals’ opinion that Turner was “forced to kneel” is lacking:

“Deardorff makes much of the statements in the Court of Criminal Appeals’ opinion that Turner was ‘forced to kneel’ before he died. This finding was not made by the trial court, nor did the State argue [that] this was the case. The evidence is silent on this question. But the finding is not necessary to support the [aggravating circumstance that the offense was especially heinous, atrocious, or cruel].... [Standing or kneeling, Turner had every reason to fear that his death was imminent and unpreventable. The trial court properly found that the murder of Ted Turner was ‘especially heinous, atrocious, or cruel.’ No error, much less plain error, occurred.”

State’s brief at 54-55. The absence of evidence indicating that Turner was forced to kneel, however, does not negate the impact of the evidence previously cited showing Turner’s fear and his knowledge of his impending death.

This Court discussed the meaning of the words “especially heinous, atrocious or cruel,” as used in § 13A-5-49(8), Ala.Code 1975, in Ex parte Clark as follows:

“We cannot depart from the established meaning of the words enacted by the Legislature — ‘especially heinous, atrocious or cruel’ — and apply those words to include murders that do not involve the infliction of torture on the victim. Such a departure would abandon the essential characteristic that made our previous applications of § 13A-5-49(8) compatible with the Eighth Amendment. We are bound to retain the interpretation of ‘especially heinous, atrocious or cruel’ that has provided a consistent and principled distinction between those murders for which the death penalty sentence is appropriate and those for which it is not. See [Maynard v.] Cartwright, 486 U.S. [356] at 363, 108 S.Ct. 1853 [ (1988) ]; Godfrey [v. Georgia], 446 U.S. [420] at 433, 100 S.Ct. 1759 [ (1980) ].”

728 So.2d at 1140-41. This Court in Ex parte Clark refused to expand the definition of “especially heinous, atrocious or cruel” to include murder not involving torture:

“The State urges us to hold that the ‘execution-style’ murder in this case, for which the record does not reflect torture of the victim, is nonetheless ‘especially heinous, atrocious or cruel.’ Such an expansion of the aggravating circumstance set out in § 13A-5-49(8) to encompass a murder not involving torture, merely because the State labels the murder an ‘execution-style’ slaying would abandon the very interpretation that the Eleventh Circuit held critical to the constitutional application of that aggravating circumstance. Indeed, the Supreme Court of the United States has held that a state supreme court’s failure to apply its previously recognized limiting construction of an aggravating circumstance, which required a finding of torture or aggravated battery of the victim, rendered the application of the aggravating circumstance unconstitutional. Godfrey [v. Georgia], 446 U.S. [420,] 429, 432, 100 S.Ct. 1759 [ (1980) ].”

728 So.2d at 1140.

When considering whether a particular capital offense is especially heinous, atrocious, or cruel, the Court of Criminal Appeals adheres to the standard set out in Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), namely, the particular offense must be one of those “ ‘conscienceless or pitiless homicides which are unnecessarily torturous to the victim.’ ” Duke v. State, 889 So.2d 1, 36 (Ala.Crim.App.2002).

“One factor this Court has considered particularly indicative that a murder is ‘especially heinous, atrocious or cruel’ is the infliction of psychological torture. Psychological torture can be inflicted where the victim is in intense fear and is aware of, but helpless to prevent, impending death. Such torture ‘must have been present for an appreciable lapse of time, sufficient enough to cause prolonged or appreciable suffering.’ Norris v. State, 793 So.2d 847, 861 (Ala.Crim.App.1999).”

Ex parte Key, 891 So.2d 384, 390 (Ala.2004). See also Ex parte Rieber, 663 So.2d 999, 1003 (Ala.1995).

Deardorff has not shown any merit in his claim that the aggravating circumstance that the offense was especially heinous, atrocious, or cruel does not exist here. Being threatened with death, being held in captivity and confined in a closet, being transported by car while his head was hooded and his hands taped, being forced to walk down the dirt road with a hood over his head and his hands taped, and the events immediately preceding Turner’s killing constitute psychological torture so as to meet the standard for a murder that is “especially heinous, atrocious, or cruel.” There was no plain error in the trial court’s finding that Turner’s murder was especially heinous, atrocious, of cruel, and Deardorff is not entitled to any relief on this claim.

II. Did the trial court err in admitting evidence of Deardorffs prior bad acts?

Deardorff specifically challenged certain testimony that he asserts constitutes the improper admission of evidence of prior bad acts: testimony that Deardorff had killed several people before Turner’s murder, that he had illegally possessed a handgun, and that he had been incarcerated in the penitentiary before Turner’s murder.

Because no objection was made to this testimony at trial, Deardorff has petitioned this Court for plain-error review of this issue, under Rule 39(a)(2)(A), Ala. R.App. P.

“As this Court stated in Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001), regarding our standard of review when conducting a plain-error analysis:
“ ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is “particulai'ly egregious” and if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).’ ”

Irvin v. State, 940 So.2d 331, 341 (Ala.Crim.App.2005).

As to the testimony that Deardorff had previously killed several other people, we note that defense counsel, during the cross-examination of Walter Fambro, a convict in whom Deardorff had confided while they were both incarcerated, admitted into evidence a letter from Fambro to federal authorities detailing conversations Fambro alleged he had had with both Peacock and Deardorff about Turner’s murder. On redirect examination, the prosecutor questioned Fambro concerning that letter. When asked to read a page of the letter, Fambro stated that Deardorff had mentioned to him that he had committed other murders. The now complained-of testimony by Fambro was based entirely on the letter admitted into evidence as a defense exhibit. State’s brief at 30.

Likewise, as to the testimony that Dear-dorff had previously been incarcerated in a penitentiary, Alabama Bureau of Investigation Agent Andrew Huggins read from a report that had been admitted into evidence by the defense for impeachment purposes; the report stated that Deardorff told police when he was arrested for Turner’s murder that he was on probation for another offense. Deardorff now complains that this testimony was admitted in error, when this information was in fact placed in evidence by defense counsel.

The scope of cross-examination in Alabama is quite broad. Rule 611(b), Ala. R. Evid. This means that any question may be asked on cross-examination that is relevant either to any substantive issue in the case or to the witness’s credibility. See Rule 611(b), Ala. R. Evid., Advisory Committee’s Notes. The trial court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. Rule 611(a), Ala R. Evid. Deardorff challenges both the testimony that he had previously killed several people and that he had previously been incarcerated, and he asserts that such testimony constitutes the improper admission of evidence of prior bad acts under Rule 404(b), Ala. R. Evid. The testimony, however, was not offered to introduce Dear-dorff s prior bad acts and to show that he acted in conformity with those prior bad acts, but was elicited on redirect examination by the State regarding documents that had already been offered into evidence by the defense on cross-examination.

“[O]n redirect examination, the object is to answer any matters brought out on the cross-examination of the witness by his adversary. Whether, on redirect examination, a calling party may elicit from a witness matters which do not rebut that which was brought out on cross-examination is within the discretion of the trial court.”

Charles Gamble, McElroy’s Alabama Evidence § 439.01(1) (5th ed.1996) (footnote omitted). See Sistrunk v. State, 596 So.2d 644, 647 (Ala.Crim.App.1992).

“It does not seem consonant with sound principles of judicial administration to allow a party to introduce evidence and assert on appeal that the trial court erred to reversal by admitting that evidence. In 32A C.J.S. Evidence § 1040(1) (1964) the appropriate rule is stated:
“ ‘[A] party who has introduced certain evidence cannot subsequently object that ... it should not be given such consideration as its natural probative value entitled it to, or that it is insufficient to sustain a judgment based thereon.’ (Footnotes omitted.)”

Peterson v. Jefferson County, 372 So.2d 839, 842 (Ala.1979).

“ ‘Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby.’ Phillips v. State, 527 So.2d 154, 156 (Ala.1988). Although evidence that he had been convicted of a prior crime would not ordinarily have been admissible at trial, the appellant cannot claim that it was error to receive testimony concerning his arrest for a parole violation when he injected the issue into the trial.”

Franklin v. State, 644 So.2d 35, 38 (Ala.Crim.App.1994).

As to the testimony that Deardorff was in illegal possession of a gun, testimony was elicited that Deardorff had told Peacock that his grandmother’s house had been broken into and that the gun was reported stolen. However, the testimony indicated that Deardorff later found the gun but did not tell anyone it had been recovered; instead, he kept it. Deardorff was questioned as a suspect in Turner’s disappearance on October 1, 1999, when the car in which he was riding was stopped by the police. A gun was found during a search of the car, along with the proceeds from the checks Deardorff had forced Turner to write. In a tape-recorded interview, Deardorff admitted that he had lied about having the gun because he was afraid of going back to the penitentiary. Deardorff was arrested on a charge of possessing a firearm without a permit; the offense he expressed concern about was possession of a firearm by a convicted felon.

“ ‘[T]he State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged.’ ”

Ex parte Casey, 889 So.2d 615, 618 (Ala.2004) (quoting Garner v. State, 269 Ala. 531, 533, 114 So.2d 385, 386 (1959) (emphasis omitted)).

Deardorff challenges the admission of this testimony — two concerning pri- or bad acts and one concerning the source of a gun in Deardorffs possession, also involving a prior bad act. The first two were derived from evidence admitted by Deardorff, and, under the doctrine of invited error, he may not challenge evidence he has presented to the court. The testimony regarding his retention of a gun after it was reported stolen from his grandmother’s house was related to one of the offenses actually charged in the indictment, receiving stolen property, in that it was intended to establish the source of the gun in his possession. His challenge on appeal to the evidence has no merit, and there was no error in admitting the testimony at trial.

III. Did the trial court err in allowing the State’s expert witness to testify to facts not in evidence?

Deardorff contends that the testimony of George Glaser, an agent of the Federal Bureau of Investigation who testified as an expert for the State, was based on hearsay and on collateral sources that were not admitted into evidence.

Rule 703, Ala. R. Evid., requires that the facts or data relied upon by the expert in testifying and procured by the expert other than by firsthand knowledge generally must be admitted into evidence. See Charles Gamble, McElroy’s Alabama Evidence § 127.02(5) (5th. ed.1996). It is clear that under Alabama law the State must introduce into evidence the information upon which an expert relies. See Ex parte Wesley, 575 So.2d 127, 129 (Ala.1990) (holding that reversible error occurred where expert, in giving opinion on defendant’s mental condition, based opinion in part on police reports and medical records that were not admitted into evidence).

“Alabama has followed the traditional rule. Carroll v. State, 370 So.2d 749 (Ala.Cr.App.), cert. denied, 870 So.2d 761 (Ala.1979); Hurst v. State, 356 So.2d 1224 (Ala.Cr.App.1978); Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied, 292 Ala. 717, 298 So.2d 85 (1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 516, 42 L.Ed.2d 309 (1974). However, in Nash v. Cosby, 574 So.2d 700 (Ala.1990), the Alabama Supreme Court modified the traditional rule by allowing a medical expert to give opinion testimony based in part on the opinions of others when those other opinions are found in the medical records admitted into evidence. However, as the Alabama Supreme Court noted in Ex parte Wesley[ 575 So.2d 127 (Ala.1990) ], Nash did not change ‘the traditional rule followed in Alabama that the information upon which the expert relies must be in evidence,’ 575 So.2d at 129 (footnote omitted). In Ex parte Wesley, the expert, in giving his opinion on the mental condition of the defendant in that case, based his opinion in part on police reports and medical records that were not in evidence. Following the traditional rule, as modified, the Wesley court found the expert’s testimony inadmissible. More recently, in W.S. v. T.W., 585 So.2d 26 (Ala.1991), Justice Houston, the author of the opinion in Ex parte Wesley, in an effort to clarify the rule in Alabama, stated in a concurring opinion, as follows:
“ ‘It is my understanding that an expert witness may give opinion testimony based upon facts of which he has personal knowledge; based upon opinions of others, if these are opinions of a type customarily relied upon by the expert in the practice of his profession; or based upon facts that are assumed in a hypothetical question. In any event, the facts known to the expert, the opinions of others of a type customarily relied upon by the expert in the practice of his profession, and the hypothesized facts must all be facts in evidence.’
585 So.2d at 29.”

Madison v. State, 620 So.2d 62, 68 (Ala.Crim.App.1992).

Deardorff asserts that the prosecution relied on the testimony of Agent Glaser, using information obtained from two computers — one belonging to Turner and one belonging to Dawn Dunaway, Peacock’s girlfriend — to place Deardorff in a particular place and time to prove that Deardorff, and not Peacock, the only witness against him, was the killer. Agent Glaser analyzed the computers, searching for information provided by Tom Montgomery, an agent with the Federal Bureau of Investigation. Agent Glaser testified that Agent Montgomery gave him a list of words, all of which he found on the hard drives of the computers he examined. Agent Glaser “was not sure exactly how [Agent Montgomery] derived that information during the investigation, but when I got [the words] they were there.”

The State contends that all the facts upon which Agent Glaser based his testimony were within his direct knowledge. State’s brief at 35. Deardorff states:

“Agent Glaser testified that his analysis of the computer hard drives was based on information provided to him by a third party, Agent Montgomery. ... In describing his methodology, Agent Glaser testified that [Agent] Montgomery gave him some information, including a list of words or part numbers [for automobile parts] ... and he was ‘not sure exactly’ how Agent Montgomery derived that information.”

Deardorff's reply brief at 15.

However, before Agent Glaser testified, Agent Montgomery had already testified, and he presented substantial evidence that laid the foundation for Agent Glaser’s analysis.

“The relevance of computer searches performed by Agent Glaser had already been demonstrated by evidence admitted during Agent Montgomery’s testimony. For example, documents found in a car Deardorff had used, which Agent Montgomery described as receipts from car parts ordered on the internet in Turner’s name, were admitted into evidence. ... Similarly, Agent Montgomery testified that other website names were discovered based on reports from Turner’s family that they had discovered websites on Turner’s computer that were ‘odd, unusual, out of character sites visited on the dates in question when Mr. Turner was missing.’ ... Receipt for orders placed on Turner’s credit card, provided by the credit card company and the various merchants, were also admitted into evidence. ... Agent Montgomery also testified concerning the seizing of the computers and the handing off of the computers to Agent Glaser for analysis.”

State’s brief at 35-36 n. 12.

Therefore, the basis for Agent Glaser’s testimony regarding information Agent Glaser sought on the computers had already been admitted into evidence when Agent Glaser testified. We find no plain error.

IV. Did the prosecutor’s arguments in the penalty phase amount to improper “testifying”?

Deardorff asserts that the prosecutor improperly “testified” in the penalty phase of his trial. Specifically, Deardorff states:

“The prosecutor presented as evidence facts, inferences, and opinions going to critical issues at the penalty phase .... The prosecutor offered testimony that the victim suffered ‘extensive pain,’ ‘great fear- in his heart,’ and ‘great torture in his mind’ and that he was kept ‘gagged and bound’ in his house and dragged to his death.”

Deardorff's reply brief at 21-22.

During the penalty phase of Deardorffs trial, the State offered no evidence; instead, it relied on the evidence presented during the guilt phase of the trial. See § 13A-5 — 45(c), Ala.Code 1975. However, the trial court allowed the prosecutor to “argue” the properly incorporated evidence during the evidentiary stage of the penalty phase. According to Deardorff, “[t]his ... misconduct apparently is infrequent in Alabama capital trials, as [his] research has [found] no published decisions dealing with [this] precise situation.” Deardorff would have us recognize the allowance of such argument as plain error. Under the facts of this case, we will not do so.

Deardorff's trial counsel did not object to the prosecutor’s untimely argument. This failure weighs against the claim of prejudice Deardorff makes on appeal. See Brooks v. State, 973 So.2d 380, 387 (Ala.Crim.App.2007). “To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury’s deliberations.” Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000). We cannot conclude that the prosecutor’s arguments seriously affected Deardorff's substantial rights or that they had an unfair impact on the jury’s penalty-phase deliberations.

At the conclusion of the guilt phase, the trial court carefully charged the jury on the applicable law. The jury was told three times that the arguments of the attorneys were not evidence. As the trial court began its instructions to the jury during the penalty phase, it reminded the jury of the instructions given at the end of the guilt phase and offered to recharge the jury if any juror felt that it was necessary for it to do so. No juror requested any repetition of the earlier instructions. Under these circumstances, we consider it highly unlikely that any juror considered the prosecutor’s untimely arguments to be evidence. In fact, the prosecutor specifically asked the jury to consider the evidence that it had already heard in the guilt phase. At no point did the prosecutor suggest that the jury disregard the evidence or substitute his recollection of the evidence for its own.

In his application for rehearing, Dear-dorff alleges that the prosecutor’s untimely argument referred to “facts that were unproven by reliable, sworn testimony.” Our review of the record indicates that that is not the case. For example, the prosecutor argued that the victim had suffered a fractured cheekbone that would have been painful. A forensic pathologist had testified that the fracture had resulted from blunt-force trauma and that it would have caused severe pain. Although Deardorff argues that there was no evidence indicating that Turner’s cheekbone was fractured before Turner was killed, he ignores evidence elicited by defense counsel on cross-examination of prosecution witness Walter Fambro that Deardorff told him that he and Peacock had taken turns beating Turner until Turner lost consciousness. In fact, during the cross-examination of the forensic pathologist, Deardorff s trial counsel raised the possibility that the blunt-force trauma had rendered Turner unconscious before the shooting.

We certainly do not sanction allowing any attorney to make arguments during the evidentiary stage of the penalty phase of a capital-murder trial. However, under the facts of this case, we cannot conclude that allowing such an argument amounted to plain error. See Brooks, 973 So.2d at 387.

Conclusion

Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed.

APPLICATION OVERRULED; OPINION OF JANUARY 4, 2008, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

SEE, LYONS, WOODALL, SMITH, and BOLIN, JJ., concur.

MURDOCK, J., concurs in the result.

COBB, C.J., and STUART, J., recuse themselves.


author: PER CURIAM.

text:
    Donald SYKES, Petitioner, v. STATE of Florida, et al. Attorney General's Office, Respondents.
    No. 1D08-5958.
    District Court of Appeal of Florida, First District.
    March 3, 2009.
    Donald Sykes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Donald L. Sykes petitions this court for a writ of habeas corpus, complaining that Assistant Attorneys General who represent the state in other cases involving Sykes before this court are committing fraud and lying to this court in their motions. On December 18, 2008, this court issued the following order:

Upon review, the records of this court reflect that Donald L. Sykes has filed 21 appeals or petitions in this court since the affirmance of his judgment and sentence in Sykes v. State, 898 So.2d 943 (Fla. 1st DCA 2005). It appears that Sykes’ pro se activities in the Florida District Court of Appeal, First District, have substantially interfered with the orderly process of judicial administration. Petitioner shall therefore show cause within 15 days of the date of this order why he should not be henceforth prohibited from filing any document in this court on his own behalf, in this or any other case, as either appellant or petitioner. See Attwood v. Eighth Circuit, 667 So.2d 356 (Fla. 1st DCA 1995); Lee v. Fla. Dep’t of Corr., 873 So.2d 489 (Fla. 1st DCA 2004).

Having now considered petitioner’s response to that order, we find that the imposition of such a sanction is appropriate. It is hereby ordered that Donald L. Sykes shall secure the filing of a notice of appearance by a member in good standing of The Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within 10 days of the date of this order, failing which such cases shall be subject to dismissal. Further, the clerk of this court is directed to accept no further filings from Sykes: if received, they shall be returned to him without filing and with a reference to this order.

We also find this habeas corpus petition to be completely without merit and it is therefore denied.

PETITION FOR WRIT OF HABEAS CORPUS DENIED ON THE MERITS; SANCTION IMPOSED.

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    JEA, f/k/a Jacksonville Electric Authority, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 1D08-1958.
    District Court of Appeal of Florida, First District.
    March 5, 2009.
    David M. Wells and Whitney K. McGuire of Gunster Yoakley & Stewart, P.A.; Cindy A. Laquidara, Deputy General, Jacksonville, for Appellant.
    Michael G. Tanner and Stuart F. Williams of Tanner Bishop, Jacksonville; Gary K. Harris of Boies, Schiller & Flex-ner, LLP, Orlando, for Appellee.
   PER CURIAM.

JEA, formerly known as the Jacksonville Electric Authority, appeals a final summary judgment entered in favor of Florida Power & Light Company (FPL) in FPL’s declaratory judgment action. FPL sought a declaration that the term “nameplate capacity,” as used in section 8.3 of the Agreement for Joint Ownership, Construction and Operation of the St. Johns River Power Park entered into on April 2, 1982 between the parties, means the maximum rated capacity of a generator established by the manufacturer and affixed to the generator’s nameplate in Units 1 and 2 in the Power Park. We agree with the trial court that the meaning of the term “nameplate capacity” as used in section 8.3 is unambiguous, Cartaya v. Coastline Distribution, 937 So.2d 700, 701 (Fla. 1st DCA 2006) (whether a contract is ambiguous is a question of law for the court); Lambert v. Berkley South Condominium Association, Inc., 680 So.2d 588, 590 (Fla. 4th DCA 1996) (a contract term is ambiguous only if it “is reasonably susceptible to more than one interpretation.”); that the case was appropriate for determination by summary judgment, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000) (“[W]here the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.”) (quoting Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1096 (Fla. 1st DCA 1999)); and that the term “nameplate capacity,” as determined in the summary judgment entered by the trial court, “refers to the maximum rated output of a generator under specific conditions designated by the manufacturer, which in the present case, is affixed to the generator of each of Coal Unit 1 and 2 at the St. Johns River Power Park ... [and] means 679.6 megawatts for each of Coal Units 1 and 2 of the St. Johns River Power Park and the total of the ‘nameplate capacity’ of both of Coal Units 1 and 2 of the St. Johns River Power Park is 1359.2 megawatts.” See Madison Gas & Elec. Co. v. EPA, 25 F.3d 526, 529 (7th Cir.1994) (“Nameplate capacity is the capacity figure stamped on a generating unit by its manufacturer and includes the capacity necessary to power the unit itself.”). Accordingly, we affirm.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: CASANUEVA, Judge.

text:
    E.D.P., a/k/a E.M.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1730.
    District Court of Appeal of Florida, Second District.
    March 6, 2009.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Thirteen-year-old E.D.P. pleaded to reduced charges of burglary of a structure and grand theft of a firearm. He appeals his convictions, presenting seven issues. We find no merit in his Double Jeopardy arguments or his attack on the trial court’s denial of his motion to suppress, the first, second, and seventh issues raised. We therefore affirm those without further discussion. We reverse on the remaining issues that pertain to the order of restitution for the items taken during the burglary: a knife, a firearm, a bicycle, and a laptop computer.

The Knife

At the restitution hearing, the victim testified that a valuable knife was taken during the burglary. However, the theft of the knife was not identified in the charging document or as part of the factual basis for the plea. Apparently, the first time the defendant was aware that the victim was seeking restitution for the knife was at the restitution hearing. In this circumstance, that part of the order of restitution dealing with the knife violates the principles set forth in this court’s recent opinion in Malarkey v. State, 975 So.2d 538 (Fla. 2d DCA 2008).

Unfortunately, defense counsel did not object at the restitution hearing to the inclusion of the value of the knife in the restitution order. The only objection offered by defense counsel was pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), the juvenile equivalent of Florida Rule of Criminal Procedure 3.800(b)(2), by filing a motion to correct a sentencing error. The State contends, and its argument is well-taken, that such procedure is insufficient to preserve the error because it is an error in the sentencing process, not an error in the sentencing order, as recently clarified in Jackson v. State, 983 So.2d 562, 566 (Fla.2008) (holding that rule 3.800(b) “was intended to permit preservation of errors in orders entered as a result of the sentencing process — in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections.”) (resolving an interdis-trict conflict; approving Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003), and approving the result but not the reasoning in Jackson v. State, 952 So.2d 613 (Fla. 2d DCA 2007)). We reach this issue despite that it was not properly preserved because we conclude the error is fundamental. See Davis v. State, 741 So.2d 1213, 1214 (Fla. 2d DCA 1999) (“[T]he error here was fundamental because to require appellant to pay restitution here would amount to imposing a punishment for an offense that appellant did not commit.”).

As noted above, a Malarkey error has occurred. Therefore, we reverse that part of the restitution order representing the value of the knife.

The Firearm, The Bicycle, and The Laptop Computer

We must also reverse the remainder of the restitution order for a different reason. Due to the burglary, the victim lost a firearm, an expensive bicycle, and a laptop computer. The amount of restitution ordered for these three items is reversed because the State failed to present evidence of the elements necessary to establish fair market value, i.e., the original market cost, the manner in which the item was used, the general condition and quality of the item, and the percentage of depreciation. See Fletcher v. State, 800 So.2d 309, 310 (Fla. 2d DCA 2001) (“Absent evidence that the item taken was a family heirloom or a new automobile, for which fair market value would not adequately compensate the victim, fair market value is the valuation method to be used.”). The items stolen here do not fit into the exception noted by Fletcher. The State did present some evidence on some of the elements for some of the items, but insufficiently so, failing to establish the fan- market value of these items. On remand, and in the absence of an agreement on the amount of restitution, the trial court shall conduct a new eviden-tiary hearing to establish the amount of restitution due for these three items.

Ability to Pay Restitution

In the final meritorious issue, in which the State concedes error, E.D.P. challenges the imposition of restitution without a finding of his ability to pay. Inasmuch as there will be a new restitution order, the trial court should also take evidence and make findings to facilitate review in accord with J.A.B. v. State, 993 So.2d 1150 (Fla. 2d DCA 2008) (en banc; receding from R.S.M. v. State, 910 So.2d 361 (Fla. 2d DCA 2005); R.D.S. v. State, 844 So.2d 720 (Fla. 2d DCA 2003); and L.J.H. v. State, 627 So.2d 593 (Fla. 2d DCA 1993)). As this court outlined in J.A.B.:

[T]he trial court may set the restitution amount and payments in a reasonable amount based upon evidence regarding the earnings the juvenile may reasonably be expected to make and may set a commencement date for the payments so long as the court provides a reasonable amount of time for the juvenile to obtain employment. If the juvenile is thereafter unable to obtain appropriate employment or to otherwise afford the monthly payment despite reasonable efforts, the juvenile may present that evidence in his or her defense in any enforcement proceeding.

Id. at 1151.

Conclusion

Adjudication of delinquency and sentence of probation affirmed, order of restitution reversed, and case remanded for further proceedings.

DAYIS and LaROSE, JJ., Concur.


author: FULMER, Judge.

text:
    Henry R. MONDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1133.
    District Court of Appeal of Florida, Second District.
    March 6, 2009.
   FULMER, Judge.

Henry Mondy appeals the summary denial of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, he raised two claims. We affirm the postconviction court’s denial of relief as to claim one without further comment. As to claim two, we reverse for further proceedings.

Mondy entered a negotiated guilty plea to three counts of robbery with a weapon and one count of possession of cocaine. In accordance with his plea, he was sentenced as a prison releasee reoffender to concurrent terms of thirty years in prison for the robbery counts and five years for the possession count. He did not file a direct appeal.

In claim two of his pro se motion for postconviction relief, Mondy asserted, inter alia, that he received ineffective assistance of counsel because his counsel failed to make a motion to suppress Mon-dy’s post-Miranda custodial statements given under duress and compulsion. He asserted that he told counsel that he confessed to two St. Petersburg police detectives after he was subjected to direct threats. He asserted that he advised counsel that the detectives told him if he did not confess he would be charged with several robberies regardless of whether he did them. He contends that he would have insisted on going to trial but for counsel’s errors.

The postconviction court found that the claim was refuted by the plea colloquy, during which Mondy acknowledged he was satisfied with the representation of his counsel. The postconviction court reasoned that Mondy was aware of any potential issue regarding his custodial statement at the time of his plea but that he nonetheless acknowledged satisfaction with his counsel and chose to enter a plea.

Mondy’s claim that his counsel failed to move for suppression of a coerced confession states a facially sufficient claim of ineffective assistance. See Rouzard v. State, 952 So.2d 1290, 1292 (Fla. 4th DCA 2007) (“Counsel may be ineffective for not moving to suppress a defendant’s statement made during a police interrogation if the statement was involuntary or the defendant did not receive adequate Miranda warnings.”); see also Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007) (reversing summary denial of claim that counsel was ineffective for failing to file a motion to suppress statements made to police after an inadequate Miranda warning). The postconviction court erred in concluding that the plea colloquy conclusively refutes this claim. Mondy claimed that he advised his counsel of the officers’ threats and coercion; however, he did not indicate that he knew about the remedy of suppression at the time he entered the plea, which the postconviction court’s ruling assumes. “[A] defendant cannot voluntarily waive defenses of which he is not informed.” Rouzard, 952 So.2d at 1292; see also Wilson v. State, 871 So.2d 298, 299 (Fla. 1st DCA 2004) (finding that plea colloquy did not refute claim that counsel failed to file a motion to suppress incriminating custodial statements made without benefit of Miranda warnings).

By alleging that he would have insisted on going to trial but for counsel’s errors, Mondy sufficiently alleged facts to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Deck v. State, 985 So.2d 1234, 1237-38 (Fla. 2d DCA 2008); Brown, 967 So.2d at 443. Therefore, we reverse and remand for the trial court to conduct an evidentiary hearing at which Mondy will be given the opportunity to prove his claim that counsel was ineffective for failing to file a motion to suppress coerced statements.

Affirmed in part, reversed in part, and remanded.

WHATLEY and VILLANTI, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . He also asserted that counsel should have moved to suppress out-of-court show-up identification evidence. However, he gives no reason why this evidence was subject to suppression. Because he failed to allege any deficient performance on the part of counsel, we conclude that this portion of the claim was properly denied.


author: SUAREZ, J.

text:
    Ismael Grillo PERERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1464.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

Defendant, Ismael Perera (“Perera”), appeals from the trial court’s denial of his postconviction relief petition filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel. We reverse and remand with instructions.

Perera was charged with twenty-nine counts of sexual battery. He was found guilty as charged of twenty-two of those counts and received life in prison on each count to run consecutively. His appeal was affirmed by this Court. Perera v. State, 873 So.2d 389 (Fla. 3d DCA 2004). He then filed a petition for writ of habeas corpus, which was denied. Perera then filed the present rule 3.850 petition raising ten issues. Pursuant to an evidentiary hearing, the trial court denied all issues and also denied Perera’s motion for rehearing.

In issue 9 of his 3.850 motion, Perera alleged that his trial counsel was ineffective for failing to object to the trial court’s erroneous jury instruction on sexual battery in counts 7, 11, 15 and 19, which he claims is fundamental error. The information against him alleged sexual battery by penetration. The trial court instructed the jury that Perera could be found guilty of sexual battery if he committed an act of penetration or union. Perera’s defense counsel did not object to this instruction. At the 3.850 hearing, the trial court did not reach the merits of this issue as the trial court found that the issue was procedurally barred because it could have been raised on direct appeal. We disagree with the trial court, as this type of error can be raised in a 3.850 petition and not just on direct appeal. See Bruno v. State, 807 So.2d 55 (Fla.2001). We therefore reverse and remand to the tidal court with directions to hold an evidentiary hearing and to make a determination on the merits of issue 9. See State v. Weaver, 957 So.2d 586 (Fla.2007); Jomolla v. State, 990 So.2d 1234 (Fla. 3d DCA 2008); Beasley v. State, 971 So.2d 228 (Fla. 4th DCA 2008).

Reversed and remanded with instructions.


author: ROTHENBERG, Judge.

text:
    Alex ZIRAKZADEH, Appellant, v. Ayman MOUMINA, Appellee.
    No. 3D08-2162.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Roberto Matus, for appellant.
    Marcelo M. Agudo, Coral Gables; Arnal-do Velez, Coral Gables, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Alex Zirakzadeh (“the plaintiff’) appeals from a final order dismissing his 2007 complaint with prejudice. We reverse.

Ayman Moumina (“the defendant”) owns the condominium unit directly above the condominium unit owned by the plaintiff. In 2005, the defendant hired an interior decoration/design firm, which, during the course of its employment, punctured a water pipe. The water ran downhill, causing extensive damage to the unit owned by the plaintiff.

Later in 2005, the plaintiff filed a lawsuit against the defendant and a number of other defendants. However, the plaintiff was unable to perfect the service of process upon the defendant, and has not yet done so.

In 2007, the plaintiff filed a. new complaint, under a new case number, alleging the defendant’s negligence and breach of contract. The 2005 and 2007 complaints are allegedly based on the same set of operative facts — the puncture of the water pipe by the defendant’s interior designer/decorator. The plaintiff managed to serve process upon the defendant in the 2007 action.

The plaintiff moved to transfer and consolidate the 2007 action into the 2005 action. In the motion, the plaintiff alleged that the 2005 action was pending and that the two actions contain similar “facts, allegations, and for the most part, counts.” The trial court denied the motion. Subsequently, the defendant moved to abate or dismiss the 2007 complaint, based primarily upon the plaintiffs previous motion to transfer and consolidate. The trial court dismissed the 2007 action with prejudice, finding that the 2005 and 2007 actions were duplicitous. This appeal followed.

As the defendant properly concedes, because the trial court’s dismissal was not entered on the merits or as a sanction for inappropriate conduct, the imposition of the dismissal with prejudice was error. Reversal is appropriate upon this ground alone, and we remand with instructions to the circuit court to reinstate the 2007 action. At oral argument, counsel for the plaintiff indicated that if the 2007 action is reinstated, the plaintiff will dismiss the 2005 action (where there has been no service upon the defendant) and proceed with the 2007 action (where the defendant has been served). In the event the plaintiff does not dismiss the 2005 action, the trial court must consider whether abatement of the 2007 action is appropriate. See Koehlke Components, Inc. v. S.E. Connectors, Inc., 456 So.2d 554, 555 (Fla. 3d DCA 1984) (“Generally, a state court will abate an action upon a showing that a prior action involving the same parties and cause of action is presently pending in the same court or other court of like jurisdiction.”).

Reversed and remanded with instructions.

      . The 2005 complaint has not been provided by the parties and is not contained in the record before this Court.


text:
    Jename PLEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-32.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.

      Jename Plez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

The defendant was convicted of attempted felony murder, armed robbery, and attempted armed robbery. He alleges that during trial, the detective communicated to the jury the information contained in an anonymous tip which implicated this defendant in this crime. He alleges that his trial counsel was ineffective for failing to object or move for a mistrial.

On appeal from a summary denial of an order denying a motion for post-conviction relief, this court is obligated to reverse unless the postconviction record conclusively refutes the claim. Fla. R. App. P. 9.141(b)(2)(D). The State filed a response in the trial court which appears to acknowledge that the comment was made. The State response did not attach the relevant pages of the transcript and failed to address the applicable case law, see Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), and its progeny. As the post-conviction record now before us does not conclusively refute the appellant’s claim, we reverse as to point one and remand for further proceedings. If the trial court again summarily denies the motion, the court shall attach record excerpts conclusively refuting the appellant’s claim. We affirm the trial court’s denial of relief with regard to point two.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


author: KHOUZAM, Judge.

text:
    SEMINOLE CASUALTY INSURANCE COMPANY, Petitioner, v. Georgia MASTROMINAS, Nikolaos Mastrominas, Fotini H. Mastrominas, and All Discount Auto Insurance, Inc., Respondents.
    No. 2D08-3325.
    District Court of Appeal of Florida, Second District.
    March 13, 2009.

      Carlos D. Cabrera and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer P.A., Hollywood, for Petitioner.
    John Hugh Shannon, Lakeland, for Respondents Georgia Mastrominas, Nikolaos Mastrominas, and Fotini H. Mastrominas.
    No appearance for Respondent All Discount.
   KHOUZAM, Judge.

Seminole Casualty Insurance Company seeks certiorari review of a discovery order requiring it to produce certain items in its claims file. Because the trial court departed from the essential requirements of the law in ordering Seminole to produce these items, we grant the petition for writ of certiorari and quash the court’s order.

Georgia Mastrominas, Nikolaos Mastro-minas, and Fotini H. Mastrominas sued Seminole after Seminole denied coverage for an accident that occurred on July 8, 2001. Seminole claimed that the policy had been cancelled and was not in effect on the date of the accident because Nikol-aos Mastrominas had made a material misrepresentation in the insurance application. During discovery, the Mastromi-nases requested a copy of the entire claims file. Seminole objected on the ground that the items requested were privileged. The trial court conducted an in camera review of the items and found that not all of the claim file materials were protected by attorney-client or work-product privileges. The court entered an order requiring Seminole to produce those materials. This certiorari proceeding followed.

Certiorari review is appropriate when a discovery order departs from the essential requirements of the law, causing material injury to the petitioner throughout the remainder of the proceedings, and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999); Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). A trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved. See Am. Home Assur. Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008); GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d DCA 2006); Gov’t Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 796 (Fla. 3d DCA 2007).

Here, the Mastrominases alleged breach of contract and sought a declaratory judgment that coverage was in effect on the date of the accident. The lawsuit did not include a bad faith claim. See Hoy, 927 So.2d at 124 (finding that in a bad faith suit, a plaintiff may obtain discovery of the claim file). Because the issue of coverage is in dispute and has yet to be determined, the court departed from the essential requirements of the law by ordering Seminole to disclose materials in its claim file. See Vreeland, 973 So.2d at 671; Rodriguez, 960 So.2d at 796. Further, requiring the disclosure of claim file materials during the litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on appeal. Hoy, 927 So.2d at 126; see Vreeland, 973 So.2d at 671.

Accordingly, we grant Seminole’s petition for writ of certiorari and quash the court’s order compelling Seminole to produce certain items in its claim file.

Petition granted; order quashed.

NORTHCUTT, C.J., and CASANUEVA, J., Concur.

      . Although the trial court addressed the question of privilege, it did not address the cases that we cite in our opinion as controlling.

      . Our opinion should not be read as precluding appropriate discovery to the extent specific materials are discoverable. See Vreeland, 973 So.2d at 672. Although a claims file is generally not discoverable, to the extent that materials contained therein are relied on at trial, those items may be discoverable. See Northup v. Acken, 865 So.2d 1267, 1271 (Fla.2004) (holding that materials reasonably expected or intended to be used at trial are subject to discovery).


author: PALMER, C.J.

text:
    Scott KRUEGER and Cynthia Krueger, Appellants, v. Paul E. PONTON, Jr. and Marlene E. Ponton, Appellees.
    No. 5D08-1880.
    District Court of Appeal of Florida, Fifth District.
    March 13, 2009.

      Jason M. Gordon, Cocoa Beach, for Appellants.

      David J. Volk and Michael E. Dujovne of Volk Law Offices, P.A., Melbourne, for Appellees.
   PALMER, C.J.

Scott and Cynthia Krueger appeal the order entered by the trial court setting aside a default final judgment which had been entered in their favor. Concluding that damages claimed by the Kruegers were liquidated, we reverse the order setting aside the default final judgment except as to the Kruegers’ claims for attorney’s fees and costs.

The Kruegers filed a complaint against Paul and Marlene Ponton. Pertinent to this appeal, the Kruegers sought treble damages for a bad check pursuant to section 68.065 of the Florida Statutes (2004).

According to the complaint, the Krueg-ers and the Pontons entered into a contract for the sale of the Kruegers’ condominium. The Pontons presented the Kruegers with a $10,000.00 check written to Signature GMAC (the escrow agent) as a deposit to be placed in escrow. The check was returned for insufficient funds. The parties’ real estate contract provided that if the buyers failed to perform the contract the deposit paid by the buyers would be retained by and for the account of sellers as liquidated damages.

The Kruegers obtained a default against the Pontons based on their failure to file or serve a responsive pleading within the time allowed by law. Subsequently, a default final judgment was entered awarding the Kruegers actual damages of $10,000.00, plus statutory treble damages of $80,000.00, together with attorney’s fees and costs.

Nearly a year after the final judgment was entered, the Pontons filed a motion seeking to set aside the default and default final judgment. The motion alleged: (1) misrepresentation as to the amount of damages by the Kruegers pursuant to Florida Rule of Civil Procedure 1.540(b)(3); (2) the judgment was void pursuant to Florida Rule of Civil Procedure 1.540(b)(4); (3) the Pontons were entitled to receive notice of the hearing on damages but were not provided with notice; (4) the judgment awarded attorney’s fees without reflecting any findings with respect to reasonable hourly rate or reasonable hours expended; and, (5) the right to challenge the default and default judgment on any other grounds.

At the hearing on their motion to set aside the default final judgment, the Pon-tons admitted that they were not filing their motion to vacate the default final judgment on the basis of mistake, excusable neglect or meritorious defense. Instead, the Pontons argued that the judgment was either a void judgment or a judgment entered under a misrepresentation that the Kruegers were entitled to recover treble damages, since the Krueg-ers were not the payees of the check. Krueger countered that they were the third-party beneficiaries under the real estate contract and, therefore, they were entitled to make a claim for treble damages under section 68.065 of the Florida Statutes.

After considering the arguments presented at the hearing, the trial court issued a written order setting aside the default final judgment. The order stated as follows:

ORDERED AND ADJUDGED that Defendants’ Motions to Set Aside Default and Default Judgment is granted in part and denied in part as follows:
1. The final judgment is set aside pursuant to Fla. R. Civ. P. 1.540(b)(4), as it is a void judgment. The judgment awarded treble damages and attorney’s fees pursuant to § 68.065, Fla. Stat. Plaintiffs failed to state a cause of action because Plaintiffs did not allege that they were the payees of the dishonored check at issue, that the check was delivered to Plaintiffs, or that Plaintiffs were the holders of the check. The check was made payable to and delivered to Signature GMAC, a real estate agency, and not to Plaintiffs. Furthermore, the judgment awarded statutory damages and attorney’s fees against Paul E. Pon-ton, Jr., while it is clear on the face of the check that he was neither the maker nor the drawer of the check.
2. The notice of hearing for the proceeding that resulted in judgment shows on its face that it was not served on Defendants. Since the damages were unliquidated, Defendants were entitled to notice of the hearing at least as to the issue of damages.
3. The clerk’s default is not set aside.
4. The Court reserves jurisdiction to conduct a trial on the issue of damages, and any appropriate post-trial proceedings.

On appeal, the Kruegers contend that the trial court erred in concluding that the default final judgment was a void judgment due to the complaint’s failure to state a valid cause of action. We agree.

On proper motion, trial courts must set aside void judgments. Johnson v. State, Dept. of Revenue ex rel. Lamontagne, 973 So.2d 1236 (Fla. 1st DCA 2008). However, a distinction exists between a judgment that is void and one that is voidable; a “void judgment” is so defective that it is deemed never to have had legal force and effect, while a “voidable judgment” is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated. Sterling Factors Corp. v. U.S. Bank Nat. Ass’n, 968 So.2d 658 (Fla. 2d DCA 2007). Where a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities, or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void. Phenion Development Group, Inc. v. Love, 940 So.2d 1179 (Fla. 5th DCA 2006).

Here, the trial court erred in deeming the default final judgment void. Instead, the judgment was “voidable” based on an alleged non-eognizable cause of action.

In its order setting aside default final judgment, the trial court also erred in concluding that all the damages were un-liquidated.

A defaulting party has a due process entitlement to receive notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages. Belcourt v. Haraczka, 987 So.2d 175 (Fla. 1st DCA 2008). Damages are “liquidated damages” when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded by an arithmetical calculation or by application of definite rules of law. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007).

Here, the Kruegers’ complaint alleged that their damages were the $10,000.00 amount of the check plus treble damages as set forth under the statute. These damages were liquidated because they could be determined with exactness. As such, the default judgment entered thereon was proper. However, the Krueg-ers’ claim for unspecified attorney’s fees and costs sought an award of unliquidated damages; therefore, the Pontons were entitled to receive notice and an evidentiary hearing on said claim. See Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007)(holding claims for reasonable attorney’s fees are considered unliquidated damages).

Accordingly, we affirm the order to the extent that it set aside the judgment awarding unliquidated attorney’s fees and costs but reverse the trial court’s order otherwise setting aside the default final judgment.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO and COHEN, JJ., concur.

      . The Pontons could have challenged the final judgment by filing a timely motion for rehearing or a direct appeal. See Sterling Factors Corp. v. U.S. Bank Nat. Ass’n, 968 So.2d 658 (Fla. 2d DCA 2007)(holding a voidable judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances, but it cannot be challenged at any time as void under rule governing relief from judgment).


author: FARMER, J.

text:
    Christopher JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3090.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Philip J. Massa, Regional Conflict Counsel, Fourth Region, Marrett Willis Hanna, Assistant Regional Conflict Counsel, and Cynthia L. Comras, Assistant Regional Conflict Counsel, West Palm Beach.
    Bill McCollum, Attorney General, Tallahassee, Celia Terenzio, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Who shall represent the indigent defendant on his direct appeal?

The appellate Public Defender (PD) says she has a conflict because she already represents the co-defendant on his appeal, convicted for the same crimes. She points out that the trial court permitted the Public Defender there to withdraw from representing this defendant because of the same conflict. She also argues that the Regional Conflict Counsel has no standing to object to a PD motion for leave to withdraw when the motion certifies conflict.

On the other hand, the RCC (through his assistant) objects to, allowing the PD to withdraw. He argues that in a 2007 law “the Legislature intended to revise the previous system to correct unnecessary spending.” He contends that the PD has the primary responsibility to represent criminal defendants, not the RCC, and that the Legislature did not intend for the PD to “transfer all of [her] typical responsibilities, leaving the elected Public Defender with only nominal duties.” He further argues that “while it may be true that a lawyer may not be able to juggle multiple cases, in this instance there are or were 38 appellate attorneys employed by the Office of Public Defender with a limited case load per month.” He submits that his office is “a safety net, not a dumping zone.” As to standing, he contends that his office is constitutional and publicly funded, thereby giving him “direct standing” to object to this motion to withdraw.

The issue raised by these proceedings is now being frequently presented in motion practice before this court. The RCC (again, through his assistant) appears to be routinely demanding evidentiary hearings whenever the PD asserts a conflict in this court and moves to withdraw. Initially, motion panels of this court began relinquishing jurisdiction to the trial court to hold inquiries into the basis for the PD’s conflict. After such a relinquishment in this case, however, the PD personally filed a motion to renew her request to withdraw on conflict grounds and requested oral argument to address the general problems raised by such relinquishment. We granted her request and heard extended argument from both the PD and the Assistant RCC. Based on that argument and the written motions and objections of these counsel, we now proceed to decide the issue.

Co-defendants Johnson and Mayfield were charged with serious felonies in the 17th Circuit. Because of conflict in representing both defendants, the 17th Circuit PD was replaced with private counsel paid by the State to represent defendant Johnson. Both defendants were found guilty and filed appeals to this court.

The 15th Circuit PD represents all indigent defendants on appeal from their convictions in any of the circuit courts within this district. In this case, the 15th Circuit PD has moved to withdraw from representing defendant Johnson in this appeal on the grounds that she is currently also representing defendant Mayfield in his appeal from a conviction in the same case below. The PD claims a direct conflict here arising from representing multiple defendants in a criminal case with antagonistic interests.

The PD’s motion was captioned as “unopposed” and stated that the Assistant Attorney General assigned to this case had authorized movant to represent that she “agrees to this motion.” The PD’s motion made no assertion as to whether RCC had any position on withdrawal but did certify service of the motion to RCC.

RCC objected. Before the PD might have responded to that objection, we remanded the motion and objection to the trial court “to determine whether conflict exists and, if so, to appoint counsel.” Prompted by our later order for a status report on the matter, the PD filed this renewed motion to withdraw and for the appointment of RCC.

The renewed motion calls our attention to the multiple cases in this district in which this issue has been raised. The PD further argues that the obvious difficulties inherent in representing co-defendants eliminates any need for fact-finding in the trial court. She further points out that the trial judge thought the interests of the co-defendants antagonistic, requiring separate counsel. Hence the existence of true conflict ought to be accepted by this court without further inquiry for such appeals involving the same defendants.

We described RCC’s arguments in the opening paragraphs. Procedurally, he also argues that the 15th Circuit PD waived any of these contentions by failing to respond to his objection to the initial motion to withdraw. Substantively, his principal argument is that the statute creating the new RCC system contemplates a determination by this court as to whether a true conflict exists.

The PD relies on our decision in Turner v. State, 611 So.2d 12 (Fla. 4th DCA 1992). There the PD had moved to withdraw in the trial court because of conflict, which the trial court granted and appointed special counsel. Defendant moved for the appointment of special counsel on appeal. Palm Beach County objected, citing concerns about the burden of the expense for special counsel.

In holding that the County had no standing to object, we relied on In re Order of Prosecution of Criminal Appeals, 561 So.2d 1130 (Fla.1990). In that case the supreme court held that Counties need not be allowed to respond to PD motions for leave to withdraw because of conflict. As to the merits, we noted that the PD had asserted that the conflict continues to exist. Based on the assertion of the PD, we said: “Thus the issue of conflict is not extinguished, as the appeal is merely a continuation of the original proceedings.” 611 So.2d at 13. We held that the defendant is also entitled to conflict-free counsel for the same case on appeal.

Turner was based on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Barclay v. Wainwright, 444 So.2d 956 (Fla.1984). In Holloway, the Supreme Court reversed a conviction because a state trial court refused to appoint substitute counsel where counsel representing three defendants in a criminal trial certified that the defendants had antagonistic interests. In finding the trial court’s refusal a violation of the Sixth Amendment right to effective assistance of counsel, the Court explained:

“[M]ost courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. In so holding, the courts have acknowledged and given effect to several interrelated considerations. An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial’ Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. Finally, attorneys are officers of the court, and ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” [e.s.]

435 U.S. at 485-86, 98 S.Ct. 1173. In rejecting the State’s objections to withdrawal, the Court explained:

“The State argues, however, that to credit [defense counsel’s] representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State’s view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their ‘authority,’ presumably for purposes of delay or obstruction of the orderly conduct of the trial.”
“The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court’s ability to deal with counsel who resort to such tactics. Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections, and representations made to it, and no prospect of dilatory practices was present to justify that failure.” [e.s., c.o.]

435 U.S. at 486-87, 98 S.Ct. 1173. Holloway alone would seem to dispose of RCC’s arguments. Barclay did not rely on Holloway but holds that conflict with appellate counsel representing multiple defendants is a violation of the Sixth Amendment right to counsel.

RCC bases its objection to withdrawal on the statutes created by the Legislature in 2007. The supreme court has explained the purpose of these new statutes thus: “rather than appointing private counsel from a registry list, the new system mandates that [RCC] be appointed first.” Crist v. Fla. Ass’n of Crim. Defense Lawyers Inc., 978 So.2d 134, 138 (Fla.2008). RCC cites two subsections setting out statements of general legislative intent but does not rely on any specific prescriptive provision.

General statements of legislative intent have little power to change substantive directives stated plainly in the same statute .which may seem at odds with the general intent. RCC omits mentioning the dispositive provision in § 27.511(8), which states:

“If the public defender certifies to the court that the public defender has a conflict consistent with the criteria prescribed in s. 27.5303 and moves to withdraw, the regional counsel shall handle the appeal, unless the regional counsel has a conflict, in which case the court shall appoint private counsel pursuant to s. 27.40.” [e.s.]

§ 27.511(8), Fla. Stat. (2008). The plain meaning of this text is that the appellate PD’s certification alone is sufficient to shift representation of the defendant to the RCC. If in turn RCC has a conflict, he too has the same remedy as the PD did.

In short, the statute itself places the determination of the existence of a conflict in the hands of the PD — without any inquiry by an appellate court. The statute plainly says if a PD certifies conflict then RCC shall handle the appeal. This statute is not inconsistent with a supreme court holding before the statute was adopted. See Guzman v. State, 644 So.2d 996, 999 (Fla.1994) (“[0]nce a public defender moves to withdraw from the representation of a client based on a conflict due to adverse or hostile interests between the two clients, under section 27.53(3) ... a trial court must grant separate representation”) (citing Babb v. Edwards, 412 So.2d 859, 862 (Fla.1982)); see also § 27.53(3), Fla. Stat. (1997).

A separate statute authorizes but does not require trial courts to conduct an inquiry into the basis for the PD’s assertion that a conflict exists. § 27.5303(1)(a), Fla. Stat. (2008) (“The court shall review and may [e.s.] inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest ...”). RCC says this statute also applies in the appellate courts but has not furnished us with any statutory text supporting his argument that in spite of the clear appellate provision, § 27.5303(1)(a) nevertheless also authorizes factual inquiries when the appellate PD certifies conflict. Given the difference in text of the separate statutes, we conclude that § 27.511(8) is meant to control in the appellate court when multiple defendants are involved in appeals after a trial court has found a conflict. We again emphasize that the supreme court has previously established that a conflict sufficient in the trial court for the same defendants should be deemed valid in the appeals. Barclay, 444 So.2d at 958-59.

As we indicated before, Turner was based on the Constitution. See Holloway, 435 U.S. at 481-82, 98 S.Ct. 1173 (relying on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)); see also Cadejuste v. State, 993 So.2d 122 (Fla. 4th DCA 2008) (conflict of interest adversely affecting counsel’s performance violates Sixth Amendment). No further citations of authority are necessary to support the well established principle that conflict-free counsel is part of the constitutional provision for effective assistance of appellate counsel. The PD’s motion to withdraw thus implicates this constitutional imperative.

Finally, we conclude that RCC has no standing to object to the PD’s motions to withdraw. As we mentioned above, our Turner decision followed In re Order of Criminal Appeals. That case involved a problem in the Second District when the PD had developed a significant backlog of criminal appeals. A backlog of such appeals is plainly not the issue here, however; the reason for the PD’s motion today is the presence of conflict. But since In re Order of Criminal Appeals, two statutes appear to bear directly on the issue of standing.

In 2003, before the later adoption of the RCC statutes, the Legislature had enacted § 27.5303. Subsection 27.5303(1)(a) then contained the following provision:

“If, at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her .staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, then the public defender shall file a motion to withdraw and move the court to appoint other counsel. If requested by the Justice Administrative Commission, the public defender shall submit a copy of the motion to the Justice Administrative Commission at the time it is filed with the court. The Justice Administrative Commission shall have standing to appear before the court to contest any motion to withdraw due to a conflict of interest. ... The court shall deny the motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client. If the court grants the motion to withdraw, the court shall appoint one or more attorneys to represent the accused.” [e.s.]

§ 27.5303(1)(a), Fla. Stat. (2003). But in the subsequent legislation in 2007 creating the new RCC system, the highlighted text above was repealed. In repealing the old text, the new law did not make any new provision giving the RCC standing to object to PD motions to withdraw — similar to the authority that had formerly been given the Justice Administration Commission. Since this 2007 legislation, no statute authorizes the newly created RCC to object to PD motions to withdraw in any court. The omission of any grant of standing in the revised version of § 27.5303 causes us to conclude that the Legislature did not intend to grant the RCC statutory standing to object to PD withdrawals.

The RCC’s lack of standing to object to withdrawal of a PD asserting conflict obviously applies as well in trial courts. The determination that a conflict results from representation of multiple defendants in any court is an issue turning on privileged facts lying beneath the professional judgment of the PD — facts that are simply incapable of being made known in court without compromising the client. The decision to assert such a conflict resides in the presumed good faith of lawyers as officers of the court having the duty to avoid such conflicts. The lawyer involved in the case is the person with the primary responsibility of avoiding unethical representation and of asserting and protecting the interests of the defendant. In the relatively small percentage of her appellate cases in which she asserts such conflicts, we have been given no reason to doubt the good faith of the PD, nor of the Attorney General’s office in declining to object to these few requests. In this regard, the professionalism of both offices commends the lawyers who serve these important functions in the system of justice.

For the above reasons, we grant the PD’s motion for leave to withdraw by separate order and direct that the RCC “shall handle the appeal.” § 27.511(8), Fla. Stat. (2008). We will no longer relinquish jurisdiction on such motions for inquiry in the trial court. As the statute provides, if the PD certifies that a conflict exists, then RCC shall assume representation, subject to RCC’s duty to certify his own conflict if he be so advised.

Orders accordingly.

GROSS, C.J., and STEVENSON, J., concur.

      . Mayfield v. State, No. 4D08-1608, filed April 17, 2008, open and pending.

      . Actually his full title is "Criminal Conflict and Civil Regional Counsel, Fourth Region.” § 27.511(1), Fla. Stat. (2007). We shall use RCC as shorthand for the cumbersome statutory title.

      . Ch. 2007-62, §§ (1)-(2), Laws of Fla.

      . Robbery with a firearm and carjacking. Johnson's sentence was 25 years.

      . § 27.51(4)(d), Fla. Stat. (2008) (“The public defender for the judicial circuit specified in this subsection shall, after the record on appeal is transmitted to the appellate court by the office of the public defender which handled the trial and if requested by any public defender within the indicated appellate district, handle all circuit court appeals ... (d) Public defender of the fifteenth judicial circuit, on behalf of any public defender within the district comprising the Fourth District Court of Appeal”).

      .All of RCC's procedural objections are mer-itless, and we reject them without further elaboration.

      . The court reaffirmed its prior holding in Escambia County v. Behr, 384 So.2d 147 (Fla.1980), which had approved the position that "there should be no necessity for inquiry into whether the trial court’s order is based on a ‘lawful ground' because [the statute] providing the authority for the appointment in question does not mention any such prerequisite.” 384 So.2d at 149 (quoting Dade County v. Baker, 362 So.2d 151, 158 (Fla. 3d DCA 1978) (Hubbart, J., dissenting)).

      . See Ch. 2007-62, § 31, Laws of Fla.

      . See § 27.511(8), Fla. Stat. (2008) (“the regional counsel shall handle the appeal, unless the regional counsel has a conflict, in which case the court shall appoint private counsel pursuant to s. 27.40").

      .PD here does not contend that even if a statute gave RCC standing to object to the PD’s assertion of conflict it would conflict with the constitutional right to effective representation. Thus, we do not address that issue.

      . See n. 7 above and accompanying text.

      . See Ch. 2003-402, § 19, Laws of Fla.

      . See Ch. 2007-62, § 10, Laws of Fla.


text:
    M.J.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5000.
    District Court of Appeal of Florida, First District.
    March 31, 2009.

      David L. Dees, Assistant Regional Conflict Counsel, Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

M.J.S. was adjudicated a delinquent child for his commission of the offenses of burglary of an unoccupied dwelling, petit theft, grand theft auto and resisting an officer without violence. The Department of Juvenile Justice prepared a Pre-Dispo-sition Report which noted the prior criminal record of M.J.S. as well as his educational, social and familial history. Based on salient information, the Department recommended that M.J.S. be placed on probation with appropriate sanctions. The trial court disagreed with this recommendation and entered a disposition order which placed M.J.S. in a moderate risk commitment program. We reverse.

Subsequent to the entry of the trial court’s order, the Florida Supreme Court decided E.A.R. v. State, 4 So.3d 614 (Fla.2009), which announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation. As the court explained in E.A.R.:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.
Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate disposi-tional services in the least restrictive available setting.” § 985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§ 985.03(44)(a)-(e), 985.433(7)(a)-(b), Fla. Stat. (2007). The failure to connect departure “reasons” to the juvenile court’s ultimate statutory duty during a disposition hearing completely undermines the Legislature’s carefully-crafted statutory scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.433(7)(b), Fla. Stat.' (2007) (emphasis supplied). Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is “disregarding” these documents and the DJJ’s recommended disposition. Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment and PDR but then, for some unexplained, unarticulated “reason,” has imposed a judicially recrafted disposition. We conclude that simply parroting is insufficient to justify departure and that, instead, the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public. These are suitable means of insuring fulfillment of the Legislature’s comprehensive scheme and its stated intent that the juvenile courts of this state exercise appropriate discretion with the ultimate aim of providing the juvenile offender the most appropriate disposi-tional services in the least restrictive available setting.

Id. at 638 (emphasis in original.)

Understandably, the order on appeal fails to comply with these new standards. Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the court cannot, impose the probation recommended by the DJJ.

REVERSED and REMANDED.

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


text:
    Joseph J. CABRAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5376.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    Joseph J. Cabral, pro se, Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Walter W. LOWE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3670.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. United States v. Arias, 984 F.2d 1139 (11th Cir.1993).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Joseph Anthony FREDA, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3637.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2009.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hines v. State, 358 So.2d 183 (Fla.1978); Thomas v. State, 634 So.2d 276 (Fla. 4th DCA 1994); Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980).

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    Natavious WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3899.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. United States v. Arias, 984 F.2d 1139 (11th Cir.1998).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    John W. KINGCADE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-613.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.
    John W. Kingcade, Zephyrhills, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We grant John Kingcade’s Petition for Writ of Habeas Corpus, seeking a belated appeal. The order denying Kingcade’s motion for postconviction relief failed to advise him that he had a right to appeal the order within thirty days of its rendition. See Fla. R.Crim. P. 3.850(g); Lewis v. State, 606 So.2d 767 (Fla. 4th DCA 1992).

A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying postconviction relief in Case No. 00-2493-CF-A-X in the Circuit Court in and for Marion County. See Fla. R.App. P. 9.141(c)(5)(D).

WRIT GRANTED.

ORFINGER, TORPY and COHEN, JJ., concur.


text:
    Darleen M. JACOBS, et al. v. UNITED STATES FIDELITY AND GUARANTY COMPANY, et al.
    Nos. 2009-CC-0061.
    Supreme Court of Louisiana.
    April 13, 2009.
   PER CURIAM.

Writ Granted. The trial court is ordered recused.


text:
    Darleen M. JACOBS, et al. v. UNITED STATES FIDELITY AND GUARANTY COMPANY, et al.
    No. 2009-CC-0042.
    Supreme Court of Louisiana.
    April 13, 2009.
   PER CURIAM.

Writ Granted. The trial court is ordered recused.


text:
    STATE ex rel. Chris POLIZZI v. STATE of Louisiana.
    No. 2008-KH-2066.
    Supreme Court of Louisiana.
    April 17, 2009.
   In re Polizzi, Chris; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 80, 2009; Parish of Jefferson, 24th Judicial District Court Div. N, No. 03-5248; to the Court of Appeal, Fifth Circuit, No. 05-KA-478.

Denied.