author: POLSTON, J.

text:
    Ramiro COMPANIONI, Jr., Petitioner, v. CITY OF TAMPA, Respondent.
    No. SC09-1800.
    Supreme Court of Florida.
    Dec. 16, 2010.

      Joel D. Eaton, of Podhurst Orseck, P.A., Miami, FL, and Dominic 0. Fariello, Tampa, FL, for Petitioner.
    Richard M. Zabak, Monterrey Campbell, and Brian K. Oblow, of GrayRobinson, P.A., Tampa, FL, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, FL, for Respondent.
   POLSTON, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in City of Tampa v. Companioni, 26 So.3d 598 (Fla. 2d DCA 2009), which is in express and direct conflict with the decisions of the Third District Court of Appeal in State v. Benton, 662 So.2d 1364 (Fla. 3d DCA 1995), and Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983), and the Fifth District Court of Appeal in State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995).

The districts conflict over whether a trial court may grant a post-verdict motion for a new trial based on attorney misconduct that occurred during the course of trial, when contemporaneous objections to the misconduct were sustained, but no motion for mistrial was made. As explained below, we hold that when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial. Therefore, we quash the decision of the Second District in Companioni.

I. BACKGROUND

Ramiro Companioni sued the City of Tampa (“City”) for injuries he sustained when his motorcycle hit the back of one of the City’s trucks. See Companioni, 26 So.3d at 598. Throughout the trial, the City objected to several instances of misconduct by Companioni’s counsel, and the trial court sustained the objections. Id. at 599. After the jury found in favor of Companioni and the trial court entered final judgment, the City moved for a new trial, alleging in part that “opposing counsel had engaged in misconduct throughout the trial, the cumulative effect of which was to deprive the City of a fair trial.” Id. at 598. The trial court denied the motion, reasoning that although “ ‘the cumulative conduct of Plaintiffs counsel was so pervasive and prejudicial that the City of Tampa’s right to a fair trial was impaired’ ... the City had not moved for a mistrial and the misconduct was not so extreme that ‘it would undermine the public’s confidence in the judicial system.’ ” Id.

The City appealed, raising several issues, and the Second District Court of Appeal reversed. Without reaching the merits of the City’s claims, the Second District held that the trial court erred in reviewing the City’s motion for fundamental error. Specifically, it explained:

[T]he trial court did not need to consider the issue of fundamental error because throughout the trial the City objected to opposing counsel’s conduct. The trial court apparently concluded that the City’s objections were not preserved for the purposes of its motion for a new trial because the City had not moved for a mistrial after the trial court sustained its objections. Athough a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial. As explained in Nigro [v. Brady, 731 So.2d 54, 56 (Fla. 4th DCA 1999) ], a trial court generally has broad discretion to set aside a jury verdict and grant a new trial. When counsel’s misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental.
Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel’s misconduct. Consequently, it applied the wrong standard when it evaluated the City’s motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public’s confidence in the justice system. Rather, it only needed to consider whether opposing counsel’s misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City’s motion. Accordingly, we reverse and remand for a new trial.

Id. at 599 (citations omitted).

In contrast to the Second District in Companioni, the Third and Fifth Districts have held that in order to preserve the issue for a trial court’s review of a motion for new trial, the moving party must first move for a mistrial after his objection is sustained. See, e.g., Benton, 662 So.2d at 1365 (“[D]efendant’s failure to request a curative instruction or a mistrial after the court apparently sustained defendant’s objection precludes awarding a new trial based on that comment.”); Fritz, 652 So.2d at 1244 (“The law is clear that, in order to preserve a claim based on improper prosecutorial conduct, defense counsel must object, and if the objection is sustained he must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek relief of a new trial.”); Sears, 433 So.2d at 1321 (reversing the trial court’s grant of a new trial and stating that counsel’s remarks were not “so inflammatory as to extinguish the plaintiffs right to a fair trial and to therefore constitute fundamental error [and] so, these remarks cannot be the basis for a new trial, absent, at least ... a timely motion for mistrial”). Accordingly, Benton, Fritz, and Sears cannot be reconciled with Companioni.

As explained below, we agree with the Third District in Benton and Sears and Fifth District in Fritz to the extent they hold that, in order to preserve a sustained objection for the trial court’s consideration of a motion for new trial based on attorney misconduct, the complaining party must timely move for a mistrial.

II. ANALYSIS

This Court has previously held that in order to preserve a sustained objection for appellate review, “[u]nless the improper argument constitutes a fundamental error, a motion for a mistrial must be made ‘at the time the improper comment was made.’ ” Ed Ricke & Sons, Inc. v. Green, 468 So.2d 908, 910 (Fla.1985) (quoting Clark v. State, 363 So.2d 331 (Fla.1978)). Given our opinion in Ed Ricke, which gave the trial judge the ultimate authority to decide at what point a mistrial should be granted, we conclude that the process for preserving the issue for appellate review and preserving the issue for the trial court’s review are the same.

In Ed Ricke, we held that when a party moves for a mistrial after his objection is sustained, the party may couple that motion with a request that the trial court defer ruling on it until after the jury returns its verdict. Id. at 911. Key to our decision was our interest in judicial economy. Specifically, we stated:

The trial court judge may, in his or her sound discretion, determine whether to rule on a motion for a mistrial immediately or reserve ruling until after the jury deliberates. However, this discretion must be exercised in accordance with precepts of judicial economy. When, as here, the prejudicial comments occur during closing argument, it is quite reasonable for a trial judge to reserve ruling until after the jury deliberates in the hope that the jurors can rise above the alleged prejudice and cure the error. If the verdict cures the error, the court will save the expenditure of additional time, money and delay associated with a new trial. On the other hand, if the judge, after the verdict, incorrectly grants the motion for mistrial and orders a new trial, that order is reviewable on appeal. The appellate court could then reverse the order granting the new trial and order the trial court to enter a judgment on the jury verdict.
The power of a trial court judge to reserve ruling on a motion for a mistrial will not only conserve judicial resources but may also operate to prohibit a wrongdoer from profiting from his intentional misconduct.

Id. at 910.

The City argues that Ed Ricke supports its position that a party can move for a new trial without first moving for mistrial. We disagree. Ed Ricke stands for the proposition that a trial judge has a superi- or vantage point from which to decide whether granting a mistrial prior to the jury rendering its verdict preserves judicial economy. It does not in any way imply that the parties’ attorneys have a superior vantage point and can thus utilize the “wait and see” approach. Litigants often engage in improper conduct to prompt a mistrial if they believe their chances of winning are slim. Id. In those cases, judicial economy dictates that if the verdict may cure the objection, then it is in the interest of the court to wait. See id. On the other hand, if the trial is permeated with attorney misconduct, it would not be in the interest of judicial economy to wait and see what a jury decides. Instead, requiring a litigant to move for mistrial following a sustained objection promotes judicial economy in the same way the contemporaneous objection requirement promotes judicial economy. As this Court explained in Murphy, 766 So.2d at 1017 (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978)),

[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

The principles behind the contemporaneous objection rule apply equally to our decision regarding mistrial motions today: failure to alert the trial judge that an error may be incurable results in delay and wastes judicial resources, especially if the error complained of occurs early on in the proceedings. In cases such as the instant case where the trial judge sustains an objection, the trial judge is not put on notice that any further action is needed. Without a request for mistrial or a curative instruction, the trial judge presumes that the objecting party has been satisfied and that the error has been cured. See Wilson v. State, 436 So.2d 908 (Fla.1983) (explaining that when a litigant’s objection is sustained and he does not thereafter ask for a curative instruction or move for a mistrial, the objecting party is “held to have been satisfied by the trial court’s ruling”) (citing State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark, 363 So.2d 331); see also Nixon v. State, 572 So.2d 1336, 1340 (Fla.1990) (“[T]o preserve a claim based on improper comment, counsel has the obligation to object and request a mistrial. If counsel fails to object or if, after having objected, fails to move for a mistrial, his silence will be considered an implied waiver.”). Accordingly, consistent with our opinion in Ed Ricke, we conclude that it is more efficient to alert the trial judge at the earliest point in the proceedings that an error may be incurable. As with the requirement for contemporaneous objection, “[djelay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.” Murphy, 766 So.2d at 1017 (quoting Castor, 365 So.2d at 703).

III. CONCLUSION

We hold that when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial. If the issue is not preserved in this manner, then the conduct is subject to fundamental error analysis under this Court’s opinion in Murphy, 766 So.2d at 1027-31 (establishing standard for determining whether relief should be granted in civil cases when the error complained of is not preserved for review).

Accordingly, we quash the decision of the Second District in Companioni, and remand to the Second District for consideration of whether the trial court abused its discretion in denying a new trial based on the analysis set forth in Murphy. After conducting this analysis, if the Second District concludes that the City is not entitled to a new trial, then it should consider any other remaining claims not reached, including the City’s claim that the verdict was excessive.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . Because the Second District concluded that the trial court should not have conducted a fundamental error analysis, it did not reach whether the trial court abused its discretion under Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1027-32 (Fla.2000) (explaining the standard the trial court should apply for reviewing a claim based on unpreserved error and noting that the trial court's ruling will be subject to an abuse of discretion standard on appeal).


source: Caselaw Access Project

author: CANADY, C.J.

license: Public Domain

text:
    Clarence DENNIS, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-941.
    Supreme Court of Florida.
    Dec. 16, 2010.

      Barbara J. Wolfe, of The Wolfe Law Firm, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Diana K. Bock and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   CANADY, C.J.

In this case we consider whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the “Stand Your Ground” statute. We have for review the decision of the Fourth District Court of Appeal in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009), which held that the existence of disputed issues of material fact required the denial of Dennis’s motions to dismiss. The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which held that the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section 776.032. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. Accordingly, we disapprove the Fourth District’s reasoning in Dennis and approve the reasoning of Peterson on that issue. However, because we conclude that the trial court’s error in denying Dennis a pretrial evidentiary hearing on immunity was harmless, we do not quash the Fourth District’s decision affirming Dennis’s conviction and sentence.

I. BACKGROUND

Clarence Dennis was charged by information with the attempted first-degree murder of Gloria McBride. The charge arose from an incident of domestic violence in August 2006. Dennis filed two motions to dismiss the information pursuant to section 776.032(1), Florida Statutes (2006), asserting that he was immune from criminal prosecution because his actions were a justified use of force. One motion was designated as being filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) and alleged that there were “no material facts in dispute and the undisputed facts do [not] establish a prima facie case of guilt against the Defendant.” The other motion was designated as being filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(3) and asserted that the preponderance of the evidence established that Dennis was entitled to immunity because his use of force was justified. The State filed a traverse and demurrer, asserting that material facts were in dispute.

The trial court denied the rule 3.190(c)(4) motion on the basis that the State asserted with specificity the existence of disputed material facts. After expressing uncertainty about whether it had authority to conduct an evidentiary hearing, the trial court rejected Dennis’s request for an evidentiary hearing and summarily denied the rule 3.190(c)(3) motion. The trial court concluded that in enacting section 776.032, the Legislature did not intend to take the question of immunity away from the jury.

Before proceeding to trial, the State amended the information, reducing the charge against Dennis to aggravated battery. During the trial, after the State rested its case, Dennis moved for a judgment of acquittal. The trial court denied Dennis’s motion, finding that the State had “proved the charge of aggravated battery and [had] established a prima facie case of guilt against the defendant.” After the defense presented its evidence and rested, Dennis renewed his motion for a judgment of acquittal. The trial court denied the renewed motion and submitted the case to the jury. When charging the jury, the trial court expressly instructed that an “issue in this case [was] whether the defendant acted in self defense” and gave detailed instructions on when deadly or nondeadly force is legally justified. Ultimately, the jury convicted Dennis of the lesser included offense of felony battery, and the trial court sentenced Dennis to sixty months of imprisonment.

Dennis appealed his conviction and sentence, raising two issues. The Fourth District discussed only one issue in its opinion:

Only one of the issues warrants discussion; that is, whether the trial court erred in denying Dennis’s motion to dismiss on his claim of statutory immunity brought under section 776.032, Florida Statutes, because there were disputed issues of material fact. We find no error in the trial court’s decision to deny the motion to dismiss. As we recognized in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009), a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact. Accordingly, we affirm.

Dennis v. State, 17 So.3d 305, 306 (Fla. 4th DCA 2009). The Fourth District denied Dennis’s motion for rehearing or clarification but did certify conflict with Peterson.

In Peterson, the State charged the defendant with attempted first-degree murder, and the defendant moved to dismiss the information on the ground that he was immune from criminal prosecution pursuant to section 776.032, Florida Statutes (2006). After conducting an evidentiary hearing, the trial court denied the motion to dismiss on the basis that the defendant had not established immunity “as a matter of fact or law.” Peterson, 983 So.2d at 28. The trial court recognized that no procedure had yet been enacted for deciding claims of immunity under section 776.032(1).

Peterson then filed a petition for a writ of prohibition, challenging the denial of his motion to dismiss. In response, the State argued that the motion should have been considered under rule 3.190(c)(4) and was properly denied because “any factual dispute should defeat a claim of statutory immunity” under that rule. Peterson, 983 So.2d at 28. The First District rejected the State’s argument that a motion to dismiss based on section 776.032 immunity must be denied whenever there are disputed material facts. Based upon its conclusion that the Legislature “intended to establish a true immunity and not merely an affirmative defense,” the First District outlined a procedure for use in ruling on motions to dismiss pursuant to section 776.032. Id. at 29. The First District explained:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required. Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.
In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo.1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.
Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. As noted by the trial court, courts have imposed a similar burden for motions challenging the voluntariness of a confession. See, e.g., McDole v. State, 283 So.2d 553, 554 (Fla.1973). We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

Peterson, 983 So.2d at 29-30. The First District ultimately denied Peterson’s petition for a writ of prohibition, concluding that the trial court did not err in finding that Peterson had failed to establish immunity.

We accepted jurisdiction based on the certified conflict on the question of whether the trial court should conduct a pretrial evidentiary hearing and resolve disputed issues of material fact to rule on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032. On this issue, Dennis contends that this Court should adopt the position taken by the First District in Peterson. He asserts that the trial court erred in summarily denying his motions to dismiss and that the trial court should have conducted an evidentiary hearing on his claim of immunity. The State contends that the trial court correctly found that a claim of immunity pursuant to section 776.032 is properly raised and resolved under rule 3.190(c)(4), which requires that the motion to dismiss be denied where there are disputed material facts. The State further asserts that to proceed to trial, section 776.032 requires only a showing that there is probable cause to believe that the defendant’s use of force was unlawful.

II. ANALYSIS

In the analysis that follows, we first explain why we approve the Peterson procedure for ruling on motions to dismiss filed pursuant to section 776.032. We then explain why Dennis is not entitled to relief despite the trial court’s denial of an evi-dentiary healing on his motions to dismiss.

Dennis and Peterson both filed motions to dismiss the charges against them on the basis of section 776.032, Florida Statutes (2006). Section 776.032, which became effective October 1, 2005, provides:

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

§ 776.032, Fla. Stat. (2006).

Florida Rule of Criminal Procedure 3.190 sets out procedures for the filing and consideration of a motion to dismiss in a criminal proceeding. The relevant provisions of the rule state:

(a) In General. Every pretrial motion and pleading in response to a motion shall be in writing and signed by the party making the motion or the attorney for the party....
(b) Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.
(c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time here-inabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:
(1) The defendant is charged with an offense for which the defendant has been pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which the motion is based should be alleged specifically and the motion sworn to.
(d)Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

The “cardinal rule” of statutory construction is “that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.” Reeves v. State, 957 So.2d 625, 629 (Fla.2007) (quoting City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla.1984)). “[Statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose.” Reeves, 957 So.2d at 629 (quoting Lewis v. Mosley, 204 So.2d 197, 201 (Fla.1967)). In resolving the conflict issue, we conclude that the plain language of section 776.032 grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial. We further conclude that the procedure set out by the First District in Peterson best effectuates the intent of the Legislature.

Section 776.032(1) provides, in part, that a “person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer ... who was acting in the performance of his or her official duties.” Section 776.032(1) defines “criminal prosecution” as including “arresting, detaining in custody, and charging or prosecuting the defendant.” Similarly, the preamble of the law creating section 776.032 states that “the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.” Ch.2005-27, at 200, Laws of Fla. (emphasis added).

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

This plain reading of section 776.032 compels us to reject the State’s contention that a defendant must raise a pretrial claim of immunity only in a rule 3.190(c)(4) motion to dismiss. To be entitled to dismissal under rule 3.190(c)(4), “the defendant must ‘demonstrate that the undisputed facts fail to establish a prima facie case.’ ” Dorelus v. State, 747 So.2d 368, 373 (Fla.1999) (quoting State v. Pollock, 600 So.2d 1313, 1314 (Fla. 3d DCA 1992)). If the State specifically alleges that the material facts are in dispute or that the facts refute the defendant’s claim, the motion to dismiss must be denied. State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000). Section 776.032 does not limit its grant of immunity to cases where the material facts are undisputed. Thus, treating motions to dismiss pursuant to section 776.032 in the same manner as rule 3.190(c)(4) motions would not provide criminal defendants the opportunity to establish immunity and avoid trial that was contemplated by the Legislature.

Florida Rule of Criminal Procedure 3.190(b) — rather than rule 3.190(c)(4)— provides the appropriate procedural vehicle for the consideration of a claim of section 776.032 immunity. Rule 3.190(b) provides generally that “[a]ll defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information.” Dennis’s failure to identify the pertinent subdivision of rule 3.190 in his motions to dismiss did not foreclose Dennis’s argument that section 776.032 required the trial court to make a pretrial evidentiary determination concerning the applicability of the statutory immunity. See, e.g., Steinhorst v. State, 636 So.2d 498, 500 (Fla.1994) (concluding that trial court should have treated criminal defendant’s motion, improperly designated as being filed pursuant to Florida Rule of Civil Procedure 1.540, as being properly filed pursuant to Florida Rule of Criminal Procedure 3.850); cf. Barrett v. State, 965 So.2d 1260, 1261 (Fla. 2d DCA 2007) (“Article V, section 2(a) of the Florida Constitution requires that no cause be dismissed because an improper remedy has been sought. Accordingly, the trial court should have considered whether Barrett had alleged sufficient facts to warrant relief and, if so, treated his motion as if the proper remedy had been sought.”).

The Florida appellate courts have interpreted rule 3.190 — in a variety of contexts — as granting trial courts authority to receive evidence to assist in ruling on motions to dismiss. For example, the appellate courts have approved the trial courts’ use of evidentiary hearings to rule on motions to dismiss on the basis of transactional or use immunity, prosecutorial misconduct, and selective prosecution. See, e.g., State ex rel. Hough v. Popper, 287 So.2d 282, 285 (Fla.1973) (issuing writ to compel trial court to hold an evidentiary hearing to determine if the transactional immunity or use immunity provisions of section 914.04, Florida Statutes, were applicable); Owen v. State, 443 So.2d 173, 175 (Fla. 1st DCA 1983) (holding that trial court had discretion to conduct an evidentiary hearing on a motion to dismiss alleging prose-cutorial misconduct and selective prosecution); State v. Yatman, 320 So.2d 401, 402 (Fla. 4th DCA 1975) (directing trial court to allow defendant to file a written motion to dismiss and to “hold a hearing to determine the issues created by said motion”).

We also reject the State’s contention that the pretrial hearing on immunity in a criminal case should test merely whether the State has probable cause to believe the defendant’s use of force was not legally justified. Prior to the enactment of chapter 2005-27, Laws of Florida (2005), Florida law defined certain types of justified force, see §§ 776.12, 776.031, Fla. Stat. (2004), and the Florida Rules of Criminal Procedure mandated that a trial judge make a pretrial nonadversarial probable cause determination either before or shortly after a defendant was taken into custody, see Fla. R.Crim. P. 3.133 (2004). “It is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’ ” Martinez v. State, 981 So.2d 449, 452 (Fla.2008) (quoting State v. Bodden, 877 So.2d 680, 686 (Fla.2004)). Accordingly, the grant of immunity from “criminal prosecution” in section 776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.

In summary, we conclude that the procedure set out by the First District in Peterson best effectuates the intent of the Legislature and that the trial court erred in denying Dennis an evidentiary hearing on his claim of statutory immunity.

We do not, however, quash the Fourth District’s decision affirming Dennis’s conviction and sentence. The erroneous denial of a motion to dismiss may be harmless error. See, e.g., John W. Campbell Farms, Inc. v. Zeda, 59 So.2d 750, 751 (Fla.1952) (applying harmless error statute to trial court’s error in denying a motion to dismiss due to misjoinder of plaintiffs). An error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated, ... that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The record in Dennis’s case demonstrates that the trial court’s summary denial of his motions to dismiss was harmless.

Dennis does not contend that his trial itself was unfair or that his ability to present his claim of self-defense was limited in any way by the trial court’s pretrial ruling. Dennis also does not assert that at a pretrial evidentiary hearing he would have presented evidence different from or additional to the evidence he presented at trial. At trial, Dennis testified on his own behalf and called witness George Daniels, who testified that victim McBride instigated the physical altercation by hitting Dennis with a beer bottle. The State introduced testimony contradicting Dennis’s claim of self-defense. The trial court denied Dennis’s motion for judgment of acquittal, and the jury determined that the evidence established beyond a reasonable doubt that Dennis committed the lesser included offense of felony battery. Based on the record before us, there is no reasonable possibility that the trial court’s failure to make a pretrial evidentiary determination regarding Dennis’s immunity claim contributed to Dennis’s conviction. See Parrish v. AmSouth Bank, N.A., 657 So.2d 1189, 1190 (Fla. 4th DCA 1995) (concluding that trial court’s erroneous denial of motion to dismiss challenging plaintiffs jurisdictional allegations was harmless where the evidence presented at trial established jurisdiction over the defendant). Because the trial court’s error in this case was harmless beyond a reasonable doubt, Dennis is not entitled to relief.

III. CONCLUSION

We conclude that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. A motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of rule 3.190(c)(4) but instead should be treated as a motion filed pursuant to rule 3.190(b). While the error in Dennis was harmless, we disapprove the Fourth District’s reasoning and approve the reasoning of Peterson on the conflict issue.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant/Respondent, v. Nadim YAQUBIE, Appellee/Petitioner.
    Nos. 3D09-999, 3D09-2093.
    District Court of Appeal of Florida, Third District.
    June 16, 2010.
    Rehearing and Rehearing En Banc Denied Feb. 9, 2011.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, Louisville, CO, for appellant/respondent.
    Hersch & Talisman and Richard Hersch, Coconut Grove, FL, for appellee/petitioner.
    Before WELLS, ROTHENBERG and LAGOA, JJ.
   WELLS, Judge.

Nadim Yaqubie seeks a writ of prohibition claiming immunity from prosecution under section 776.032 of the Florida Statutes (2008). The State of Florida seeks review of an order reducing the original second degree murder charge filed against Yaqubie to manslaughter. We grant the writ and remand for an evidentiary hearing to determine whether Yaqubie’s immunity claim is supported by the preponderance of the evidence. We also find that the second degree murder charge must be reinstated should the court below determine that Yaqubie is not immune from prosecution.

Undisputed Facts

The essential facts involved here are not disputed. In the early hours of May 18, 2008, in an alley in Miami Beach, nineteen-year-old Nadim Yaqubie stabbed fifty-year-old Robert Camacho multiple times with a seven-inch knife. Two of these wounds were sufficiently serious to cause Camacho’s death.

Petition for Writ of Prohibition (Immunity)

On May 19, Yaqubie was arrested and charged with second degree murder. Yaqubie does not deny that he stabbed Camacho to death, but claims that the stabbing occurred while Camacho was assaulting, battering, or robbing him, making him immune from prosecution under section 776.032 of the Florida Statutes. See § 776.032, Fla. Stat. (2008) (commonly referred to as the “Stand Your Ground” law and providing that a person who uses force as authorized in sections 776.012, 776.013, or 776.031, “is immune from criminal prosecution and civil action for use of such force”); § 776.012, Fla. Stat. (2008) (providing that use of deadly force is justified where an individual “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony”); § 776.08, Fla. Stat. (2008) (defining “forcible felony” as including aggravated assault, aggravated battery, and robbery).

The court below, applying the standard enunciated in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009), essentially treated Yaqubie’s immunity claim as an affirmative defense and denied the motion to dismiss because “material facts [were] at issue in the case.” Yaqubie claims that the court below applied the incorrect standard and should have applied the standard enunciated in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), to determine whether a preponderance of the evidence shows that he is immune from prosecution under section 776.032. We agree with Ya-qubie and therefore grant the instant writ.

In Velasquez, the Fourth District Court of Appeal addressed the procedure to be followed in handling section 776.032 motions. Looking to Florida Rule of Criminal Procedure 3.190(c)(4), the court concluded that a motion to dismiss on section 776.032 immunity grounds must be denied when, on no more than a specific denial in a traverse, a material disputed fact issue is made to appear, in effect treating such a claim as an affirmative defense:

Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure provides for the filing of a motion to dismiss when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Subsection (d) allows for the state to traverse or demur the motion and for the court to receive evidence on any issue of fact. It then provides that “[a] motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Fla. R. Civ. P. 3.190(d).

Velasquez, 9 So.3d at 23-24.

In Peterson, the First District Court of Appeal decided that section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist.
Likewise we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.... We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

Peterson, 983 So.2d at 29-30.

Florida’s Second and Fifth District Courts of Appeal have now adopted the standard and procedure enunciated in Peterson, as we do now by virtue of this decision. See Horn v. State, 17 So.3d 836, 839 (Fla. 2d DCA 2009) (‘We agree with the First District — that our legislature intended to create immunity from prosecution rather than an affirmative defense and, therefore, the preponderance of the evidence standard applies to immunity determinations.”); Gray v. State, 13 So.3d 114, 115 (Fla. 5th DCA 2009) (“In our prior opinion, which was issued virtually simultaneously with Velasquez, we adopted the procedure described in Peterson. Now, with the benefit of Velasquez, we see no reason to alter our opinion.”). The petition for writ of prohibition is, therefore, granted with this matter remanded to the court below for an evidentiary hearing applying the standard enunciated in Peterson. To the extent this decision conflicts with the Fourth District’s decision in Velasquez, we certify conflict.

Motion to Dismiss

We also reverse the order granting Ya-qubie’s Rule 3.190(c)(4) motion to dismiss which reduced the original second degree murder charge filed against him to a charge of manslaughter. Second degree murder is defined as the “unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life.... ” § 782.04(2), Fla. Stat. (2008). As the Standard Jury Instruction on second degree murder confirms, an act is “imminently dangerous to another and demonstrating a depraved mind” if it is one that:

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life..

Fla. Std. Jury Instr. (Crim.) 7.4 Murder.

Yaqubie does not claim that stabbing someone in the abdomen and chest so hard that it actually results in death is either not an act that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury or is not an act indicative of an indifference to human life. Rather he claimed below that because he was acting in self-defense, ill will, hatred, spite, or evil intent could not be demonstrated requiring either dismissal of the second degree murder charge against him or reduction of that charge to manslaughter. The court below agreed with Yaqubie, concluding that the facts leading up to Camacho’s death were “insufficient as a matter of law to prove the evil intent or ill will necessary to rebut the defendant’s claim of self-defense to the charge of second-degree murder.” We cannot agree with this determination.

The facts largely come from a statement made by Yaqubie to the police following his arrest. According to Yaqubie, who was nineteen years old at the time, he travelled to Miami a few days before the stabbing took place “[bjecause nobody liked [him] in New York,” and because he needed a mini-vacation. He ultimately was going to Tampa to “get stronger” so that “people [would] stop picking on [him].”

On the evening of May 18, Yaqubie took a bus from his hotel to Washington Avenue and 16th Street on Miami Beach. As he exited the bus, one of three black men offered to sell drugs and fake identification to him. Although he declined the offer of drugs and initially the offer of fake identification, Yaqubie later returned to purchase fake identification so that he could “get into like the good nightclubs.”

To make this purchase, Yaqubie accompanied one of the men down Washington Avenue where Yaqubie withdrew $60 from an ATM. After waiting almost an hour, Yaqubie and the man were joined by four or five more black men and a “Mexican” and “they” offered to sell identification to him for $50. Yaqubie agreed and purchased what turned out to be Camacho’s (whom Yaqubie referred to as the “Mexican”) expired Virginia driver’s license. According to Yaqubie, almost as soon as this transaction was completed, the black men left with his money and Camacho demanded return of the identification, claiming it to have been merely rented and not sold to Yaqubie. When Yaqubie refused to return the identification, Camacho threatened to “[f_] [Yaqubie] up.”

Yaqubie admitted that at this juncture he was not frightened by Camacho or his threats because he was too busy concentrating on getting into a nightclub:

He said that’s my ID, ... and I told him I already bought it. He said no, no, like you’re just going to use it to get into the nightclub and then you’re going to give it back to me. And then he started threatening me if I don’t, he’ll [f_] me up, he’ll do this and that. He said he knows those black people, they’re probably a gang and stuff and he will get them on me and stuff. I wasn’t paying attention at first. Mostly I was just focusing on getting to the nearest nightclub....

And although Yaqubie claims that later, while waiting in line to get into a nightclub, he got scared when he noticed Camacho staring at him, Yaqubie did nothing to secure assistance. Rather, Yaqubie left the line and engaged Camacho in conversation. When Yaqubie was unable to convince the older, heavier man to let him keep the identification, Yaqubie decided to lose him:

I walked, I was getting farther away from the club, towards 16th Street and like I really wanted to keep the ID and I asked him how much he wants for it. He said no, I need it, I don’t care how much. I asked him if he can help me find another and he said no, [f-] you, you wasted too much time, you wasted too much of my time.
And I basically didn’t want ... I just lost sixty dollars for nothing so I tried to run for it and like, I tried to lose him.
I went into a dark alley. I didn’t think he would run fast enough considering how old he is and his physique.

Yaqubie was, however, surprised that the significantly older and heavier man caught up with him in the alley where Yaqubie sought to hide. And, when Camacho shouted threats at Yaqubie and grabbed his arm with both hands, Yaqubie “panicked,” his “instincts took over” and he pulled a seven-inch knife from his pocket and began to stab Camacho in the abdomen:

He catches up, and like he started screaming, I’ll [f_] you up, I’ll [f_] you up, in a very loud tone because nobody was around he didn’t held [sic] back his voice. He grabbed my, my right arm, upper arm with both his hands, and like he started pulling very hard and he scared me. I thought I was, he was going to do something on me because like, I don’t know, I just like, I panicked.
... I thought maybe he was going to kill me for like trying to run off on him.
I grew too frightened. I just, I don’t know, like instincts take, took over. I just quickly took the knife ... [a]nd like, I took three jabs on him ... [a]round his abdominal.

According to Yaqubie, Camacho then let go of his arm and said, “You want a piece of me? Fine” and threw a book bag he had been carrying at Yaqubie. The book bag “didn’t do much” other than cut Yaqu-bie’s middle finger “a little.” Then, not seeing a weapon in Camacho’s possession because “[i]t was too dark to tell,” but thinking that Camacho “might have like pulled like some kind of like weapon” because the man had not immediately run away after being stabbed three times in the abdomen, Yaqubie “rushed” Camacho, stabbing him so violently in the chest with the knife that he believed that Camacho was going to die.

Yaqubie then stuck the knife in his pocket and ran. He did not, however, run for help either for himself or for the man he believed he had just stabbed to death. Rather, he hailed a taxi and had it drop him of at a Domino’s pizzeria. Because the pizzeria was closed, he returned to his hotel where he was directed to a nearby restaurant where he went to eat. After a meal, he returned to his room where he went to sleep until a little after noon the following day.

The following day, Yaqubie relaxed. He had a light snack, exercised, took a bus to Lincoln Road and Aventura Mall, returned to his hotel and dressed for clubbing that night. To avoid entanglement with the black men from the night before, he wore a hooded jacket and made sure to take his knife along. Although he was able to get into a club without showing identification, he was rousted by club security for disturbing another patron. He was searched and the knife and Camacho’s expired Virginia driver’s license were found. The police were called, Yaqubie was arrested and he made a voluntarily statement.

Although there were no other witnesses to these events, two women staying at a hotel adjacent to the alleyway where the stabbing occurred advised the police that, while hearing no loud threats coming from the alley at the time of the incident, they both heard a male voice say, “Don’t do that! Don’t do that!” One of the women stated that when she heard the male voice yell, she looked out of her hotel room window to see two men disengage from one another in the alleyway and head in opposite directions. Alarmed, she went into the alley where she found Camacho collapsed on the ground, unconscious and bleeding heavily. No weapons were found on Camacho, in his backpack or anywhere in the alleyway. Camacho died of fatal stab wounds to the heart and the right lung.

According to Yaqubie, these facts establish that he acted in self-defense, thereby negating the State’s ability to prove the ill-will or evil intent essential to a second degree murder charge. We disagree.

As this court on more than one occasion has stated, the purpose of a Rule 3.190(c)(4) motion is to test the legal sufficiency of the charges brought by the State, it is not to require the State to demonstrate that it will secure a conviction at trial. See State v. Arnal, 941 So.2d 556, 558 (Fla. 3d DCA 2006) (stating that “[t]o avoid dismissal under this rule, the State is not obligated to pre-try its case, only to provide sufficient facts, when viewed in a light most favorable to the State, to show that a reasonable jury could rule in its favor”); State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000) (to counter a Rule 3.190(c)(4) motion to dismiss, the State “need not adduce evidence sufficient to sustain a conviction”). In this case, Yaqubie convinced the court below that the State could not demonstrate the ill-will, spite, hatred, or evil intent essential to a second degree murder charge because he was acting in self-defense when he stabbed Camacho. But Yaqubie’s characterization of his actions as defensive is not determinative. To the contrary, the facts are equivocal and may be characterized as defensive or as spiteful, hateful, or evil and whether Yaqubie was acting in self-defense or as an aggressor out of hatefulness or spite is for a jury, not for the defendant or the court, to decide. See Amal, 941 So.2d at 558-59 (confirming that it is not proper on a Rule 3.190(c)(4) motion to determine factual issues, to weigh evidence, or to determine credibility); State v. Stewart, 404 So.2d 185, 186 (Fla. 5th DCA 1981) (finding that the trial court erred in assuming that the defendant’s version of the victim’s death had to be accepted and in dismissing a second degree murder charge under Rule 3.190(c)(4) for a fatal stabbing where “[t]he type of wound and direction of the blow are sufficient alone to cast considerable doubt on the defendant’s stories concerning an accidental cutting”); State v. Milton, 488 So.2d 878, 879 (Fla. 1st DCA 1986) (concluding that it was improper for the trial judge to consider the issues of self-defense and premeditation in a(c)(4) motion to dismiss since they were questions for a jury not a judge to decide).

As was aptly stated by the Second District Court of Appeal in State v. Rogers, 386 So.2d 278, 280 (Fla. 2d DCA 1980), where the trial court similarly resolved the issue of whether the defendant’s actions “evincfed] a depraved mind regardless of human life”:

[Ijntent or state of mind is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4). Instead, it is usually inferred from the circumstances surrounding the defendant’s actions. Since the trier of fact has the opportunity to weigh the evidence and judge the credibility of the witnesses, it should determine intent or state of mind.

See also Arnal, 941 So.2d at 559 (finding that “[wjhile intent or state of mind may, as the trial court correctly noted, be difficult to establish, it is not, as we have stated ‘an issue to be decided on a motion to dismiss under Rule 3.190(c)(4).’ ” (quoting State v. Book, 523 So.2d 636, 638 (Fla. 3d DCA 1988))).

The motion to dismiss should, therefore, have been denied.

Accordingly, the petition for writ of prohibition is granted and conflict with Velasquez certified. The order granting the motion to dismiss and reducing the second degree murder charge to manslaughter is reversed.

      . Yaqubie described himself as a loser who was picked on in high school and community college. While he denied picking fights with others, he admitted that he had "probably broken fingers and ... bruised up people. ...”

      . Yaqubie candidly admitted that when he initially ran from Camacho he did so not out of fear, but because he wanted to keep Camacho’s identification. Yaqubie also confirmed that when Camacho caught up with him in the alley, Camacho posed no greater threat than he had when Yaqubie ran from him as Camacho was unarmed. Yaqubie nonetheless began stabbing Camacho when Camacho grabbed his arm, finally stabbing Camacho to death when he continued to resist. These actions are as capable of being characterized as a hateful, spiteful, and evil attempt to get rid of this bothersome man, as they are of being construed as defensive actions against an aggressor.


author: BENTON, J.

text:
    Leonard MAZZARA, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1730.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.
    Rehearing Denied Jan. 25, 2011.

      Leonard Mazzara, pro se, Appellant.
    Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Leonard Mazzara appeals the order denying, after an evidentiary hearing conducted on July 23, 2008, the motion for postconviction relief he filed on June 11, 2003, under Florida Rule of Criminal Procedure 3.850. Although we are unable to agree with all of the reasoning in the order, we affirm.

At Leonard Mazzara’s trial in September of 1982, the state put on evidence that Barry Hoffman and James White had murdered Frank Ihlenfeld and Linda Parrish in a Jacksonville Beach motel room on September 7, 1980, at Mr. Maz-zara’s behest. Mr. Hoffman testified that he had not conspired with Mr. Mazzara and had not killed anyone (and explained his earlier guilty pleas as nothing more than part of an agreement to avoid the death penalty), but the jury found Mr. Mazzara guilty as charged on two counts of first-degree murder and one count of conspiracy to commit first-degree murder.

I.

By way of background, we pause to describe the chronology of certain events in the Hoffman case: At his trial in January of 1983, the jury found Mr. Hoffman guilty of first-degree murder in the death of Mr. Ihlenfeld, second-degree murder in the death of Ms. Parrish, and of conspiracy (presumably with, among others, Mr. Maz-zara) to commit first-degree murder. (After Mr. Hoffman’s testimony at Mr. Maz-zara’s trial, the prosecution disavowed its plea agreement with Mr. Hoffman, who then had to stand trial himself, which resulted in his being sentenced to death.)

On October 2,1987, Mr. Hoffman filed a (timely) motion pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the state had withheld the names of (other) persons who had confessed to the murders, thereby violating the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady, the state must “disclose material information within its possession or control that is favorable to the defense.” Green v. State, 975 So.2d 1090, 1101 (Fla.2008). The trial court summarily denied this motion, but the supreme court reversed and remanded, ruling in Hoffman v. State, 571 So.2d 449, 450 (Fla.1990), that a full evidentiary hearing was required.

The supreme court also ordered the state to honor Mr. Hoffman’s requests under chapter 119, Florida Statutes, for access to certain records the state attorney had. Id. On remand in 1991, Mr. Hoffman filed an amended motion pursuant to Florida Rule of Criminal Procedure 3.850, which was also summarily denied. On a second appeal, the supreme court again reversed summary denial, and remanded to the trial court for resolution of public records issues, directing the trial court to hold a hearing in compliance with the supreme court’s 1990 mandate. See Hoffman v. State, 613 So.2d 405, 406 (Fla.1992).

Several years of public records litigation ensued, after which Mr. Hoffman filed a second amended motion for postconviction relief in 1997, adding the claim that the prosecution had withheld the results of an exculpatory hair analysis known to it at the time of trial. The second amended motion alleged that the hair analysis excluded Mr. Hoffman, Mr. White, and Mr. Ihlenfeld as possible sources of a Caucasian male’s hair found clasped in Ms. Parrish’s corpse’s hands, and named the other persons who allegedly confessed to the murders, including Bubba Jackson. After an evidentiary hearing on the second amended motion, the trial court again denied Mr. Hoffman relief.

On appeal from this denial, however, the supreme court concluded that Brady violations had occurred in Mr. Hoffman’s case, and vacated his judgment and sentence, ruling that there was “a reasonable probability that the result of the trial would have been different had the jury heard that another suspect had confessed and the hair in the victim’s hand did not belong to Hoffman.” Hoffman v. State, 800 So.2d 174, 181 (Fla.2001).

II.

Within two years of the supreme court’s third Hoffman opinion, Mr. Mazzara filed (on June 11, 2003) the motion for postcon-viction relief under Florida Rule of Criminal Procedure 8.850 which the trial court denied below, giving rise to the present appeal. By the time Mr. Mazzara filed the Rule 3.850 motion that began the present proceedings below, more than two years had elapsed from the date the mandate in his unsuccessful direct appeal from conviction and sentence had issued. But Mr. Mazzara’s motion alleged that events in the course of litigation involving Mr. Hoffman gave rise to newly discovered evidence; and that this newly discovered evidence made his collateral challenge to his conviction and sentence timely — by what would otherwise have concededly been the filing of his Rule 3.850 motion out of time. See Bolender v. State, 658 So.2d 82, 85 (Fla.1995) (requiring that a motion filed outside the two years provided for in Rule 3.850(b) on the basis of newly discovered evidence under Rule 3.850(b)(1) must be filed “within two years of the time when evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence”).

At a hearing on the motion (on July 23, 2008), Mr. Mazzara put on evidence of a Brady claim not unlike what had carried the day in Hoffman. But Mr. Hoffman and Mr. White testified as state’s witnesses at the evidentiary hearing. Both testified that they had committed the murders, when alone with the victims in the motel room. Mr. Hoffman testified that he went to Mr. Mazzara’s house after-wards, where Mr. Mazzara paid him for what they had done. Mr. White testified consistently that, after helping commit the murders, he accompanied Mr. Hoffman to an apartment, where Mr. Hoffman went inside, then emerged with $500, which Mr. Hoffman gave him; and that Mr. Marshall told him the money came from Mr. Maz-zara.

III.

In denying relief, the trial court ruled that Mr. Mazzara failed to establish that the state had suppressed, even inadvertently, evidence either of the hair analysis or of Bubba Jackson’s (or others’) confession(s). The trial court also ruled that Mr. Mazzara failed to establish that either the hair analysis report or Mr. Jackson’s confession would have been favorable to the defense. In Hoffman, however, the supreme court had plainly viewed these issues differently, explaining its reasoning, as follows:

[w]hether Hoffman was in fact in that motel room was an important issue that the jury had to resolve. Therefore, any evidence tending to either prove or disprove this fact would be highly probative. Hair evidence found in the victim’s clutched hand could tend to prove recent contact between the victim and a person present in that room at the time of her death. With the evidence excluding Hoffman as the source of the clutched hair, defense counsel could have strenuously argued that the victim was clutching the hair of her assailant, but that assailant was not Hoffman.
... [Ujnder the circumstances of this case, where another person has also confessed to the crime, the State should have disclosed that information to the defense. There is a reasonable probability that the result of the trial would have been different had the jury heard that another suspect had confessed and the hair in the victim’s hand did not belong to Hoffman.

Hoffman, 800 So.2d at 180-81. Because the logic of the supreme court’s analysis in Hoffman, 800 So.2d at 180-81, applies equally to Mr. Mazzara, who after all was charged with hiring Mr. Hoffman to commit the same murders, the trial court’s rulings on identical questions in the present case were erroneous. See State v. Lott, 286 So.2d 565, 566 (Fla.1973) (“The trial court is bound by the decisions of this Court just as the District Courts of Appeal follow controlling precedents set by the Florida Supreme Court.”); Hill v. State, 711 So.2d 1221, 1224 (Fla. 1st DCA 1998) (noting that to “avoid what would have otherwise been its obligation to follow” established supreme court precedent, the lower court had to distinguish the case before it).

The order under review identifies no meaningful distinction, between Hoffman and the present case as regards the relevance and logical implications of the newly discovered evidence. In Hoffman, moreover, the supreme court ruled that the state had suppressed the very same evidence. See State v. Falcon, 556 So.2d 762, 764 (Fla. 2d DCA 1990) (“[A] trial court must follow precedent established by our state supreme court ‘even though it might believe the law should be otherwise.’”) (quoting State v. Dwyer, 332 So.2d 333, 335 (Fla.1976)). Without more, evidence tending to prove Mr. Hoffman was not the assailant “ ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in’ ” not only that verdict but in the verdict in Mr. Mazzara’s case, as well. Carroll v. State, 815 So.2d 601, 619 (Fla.2002) (quoting Strickler, 527 U.S. at 290, 119 S.Ct. 1936).

IV.

But the cases differ in another, important way: The postconviction court in the present ease had before it not only the record of the original 1982 jury trial, but also the evidence the state presented at the 2008 evidentiary hearing. The lower court found that “[a]t the evidentiary hearing, Mr. Hoffman admitted to killing Mr. Ihlenfeld. Mr. Hoffman also testified that after the killing, he went to the Defendant’s house to get paid $2500-3000 because that was where he was told to go. Mr. White also testified that after the killing, he drove with Mr. Hoffman to the Defendant’s house and that Hoffman gave him $500.”

“[0]n a motion for postconviction relief alleging newly discovered evidence, the circuit court considers all admissible evidence when evaluating whether a new trial is warranted. This includes new evidence of guilt.” Wright v. State, 995 So.2d 324, 327-28 (Fla.2008) (citation omitted). See also Johnston v. State, 27 So.3d 11, 19 (Fla.2010) (“[I]n deciding if a new trial is warranted, the trial court must consider all admissible evidence, which in this case includes the new DNA evidence matching Johnston’s profile.”).

Here the hair analysis evidence and the Jackson confession, the newly discovered evidence favorable to Mr. Mazzara, must be considered, not in isolation, but together with all relevant evidence available on a new trial, including the confessions Messrs. Hoffman and White made at the evidentiary hearing. To vacate a judgment on collateral attack, on grounds of newly discovered evidence, the newly discovered evidence, which must be taken together with all other available evidence, “must be of such nature that it would probably produce an acquittal on retrial.” Jones v. State, 709 So.2d 512, 521 (Fla.1998). Appellant has failed to demonstrate that the trial court erred when it concluded that admission of the hair analysis report and Mr. Jackson’s confession at a second trial, viewed in the light of other newly discovered evidence favorable to the state, would probably not produce an acquittal on retrial.

Affirmed.

DAVIS, J., concurs.

MARSTILLER, J., concurs in result only.

      . At trial, the state called George Marshall, who testified that Mr. Mazzara requested his assistance in finding someone to kill Mr. Ihl-enfeld and that he recruited Mr. Hoffman and Mr. White for the job. Mr. Marshall was granted immunity from prosecution on any charge involving the crimes in exchange for testifying at Mr. Mazzara’s trial. The state also adduced testimony of law enforcement officers regarding confessions by Mr. Hoffman.

      . To establish a Brady violation, a defendant must demonstrate "(1) that favorable evidence — either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Green v. State, 975 So.2d 1090, 1101-02 (Fla.2008) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)); Polk v. State, 906 So.2d 1212, 1215 (Fla. 1st DCA 2005). "[Pjrejudice is measured by determining 'whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ " Carroll v. State, 815 So.2d 601, 619 (Fla.2002) (quoting Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936). Applying these elements, the evidence must be considered in the context of the entire record. Id.

      .The motion alleged that Mr. Mazzara had learned of the exculpatory evidence Mr. Hoffman's lengthy Chapter 119 litigation had brought to light only when he read the supreme court’s opinion in the third Hoffman decision. Mr. Mazzara asserted in his motion that he had submitted a request for records under Chapter 119 "many years ago,” but that the request was denied, and that only through the supreme court’s opinion in Mr. Hoffman's case was he able to ascertain that the state had withheld exculpatory evidence. Mr. Mazzara’s trial counsel was deceased at the time of the evidentiary hearing. Mr. Maz-zara testified that he had not known about the hair analysis evidence or the fact that Mr. Jackson had confessed to the murders until the supreme court issued its opinion in Hoffman v. State, 800 So.2d 174 (Fla.2001). The state put on no evidence contradicting this testimony.

      . Although the hair analysis report and evidence of the purported confession were not introduced into evidence at the hearing, the trial court took judicial notice of both Mr. Mazzara's entire case file and "Mr. Hoffman’s entire case.”

      . Mr. Hoffman had pleaded guilty to two counts of second-degree murder on February 8, 2006, and been resentenced to life in prison.

      . The coconspirators’ testimony was not available to the prosecution at the time of the original trial. At the original trial, law enforcement personnel testified that Mr. Hoffman (but not Mr. White) had confessed. Mr. Hoffman testified at the original trial that he was not involved with the murders.


author: PER CURIAM.

text:
    FRATERNAL ORDER OF POLICE, Appellant, v. Sheriff John RUTHERFORD, in his official capacity, and the City of Jacksonville, a Florida Municipality, Appellee.
    No. 1D10-1173.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 26, 2011.

      Paul A. Daragjati, Jacksonville, for Appellant.
    Howard M. Maltz, Deputy General Counsel, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the Fraternal Order of Police (FOP), appeals a final judgment determining that the confidentiality requirements in sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes (2008), commonly referred to as the Law Enforcement Officers’ Bill of Rights, are inapplicable to investigations conducted by the Response to Resistance Board (Board) within the Jacksonville Sheriffs Office’s (JSO). Because we conclude that the Board’s investigations are subject to the confidentiality provisions in sections 112.532(4)(b) and 112.533(2)(a), we reverse.

When an officer employed by the JSO uses force, such as discharging a weapon, JSO investigators conduct an initial investigation. If the investigators and the Office of the State Attorney determine the officer did not commit criminal wrongdoing, then the JSO convenes the Board, which is an administrative investigatory committee authorized under Office of the Sheriff General Order X.20. In the course of an investigation pursuant to the order of an incident involving the use of force, the Board typically questions witnesses, including the officer who engaged in the force at issue. The Board determines whether the use of force by the officer complied with JSO’s written directives and training and recommends to the sheriff whether disciplinary action is warranted.

JSO has a long-established practice of opening the Board’s meetings to the public in an effort to promote transparency in the review of an officer’s use of force. FOP petitioned the Circuit Court of Duval County for declaratory and injunctive relief, asking the court to declare that the Board’s open meeting format violates the confidentiality requirements of sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes.

Section 112.532(4)(b) provides for confidentiality during an ongoing disciplinary investigation “[Notwithstanding the provisions of s. 112.533(2)” when a law enforcement officer is subject to disciplinary action which could result in suspension with loss of pay, demotion, or dismissal:

The contents of the complaint and investigation shall remain confidential until such time as the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action....

Section 112.533(2)(a) provides for confidentiality during the processing of a complaint:

A complaint filed against a law enforcement officer ... with a law enforcement agency ... and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential and exempt from the provisions of s. 119.07(1) until the investigation ceases to be active....

The circuit court found that the confidentiality provision in section 112.533(2)(a) applies only when a police agency receives a written complaint and commences an investigation based on that written complaint, not when a law enforcement agency conducts an investigation pursuant to its internal operating procedures. The circuit court also found the confidentiality provision in section 112.532(4)(b) inapplicable to Board investigations because that section states that the “contents of the complaint and investigation” must be kept confidential, yet the Board can commence an investigation without a complaint. Based on the plain language of section 112.532(4)(b), however, we disagree with the circuit court’s construction of the statute. We conclude that an investigation within the meaning of section 112.532(4)(b) occurs whenever a law enforcement or correctional officer faces possible dismissal, demotion, or suspension without pay, and because the Board’s investigation may result in such discipline, the investigation triggers the confidentiality protections in section 112.532(4)(b).

Appellees, Sheriff John Rutherford and the City of Jacksonville, argue that because both sections 112.532(4)(b) and 112.533(2)(a) use the term “complaint” and the Board convenes based on a standing general order, not a complaint, confidentiality need not be afforded to Board investigations. Sheriff Rutherford and the City of Jacksonville rely on City of Delray Beach v. Barfield, 579 So.2d 315 (Fla. 4th DCA 1991). There, a City of Delray Beach police officer shot a man. Id. at 316. Pursuant to a general standing order, the police department began an investigation after receiving an oral “complaint” from a dispatcher. Id. No written external or internal complaint was filed. Id. A citizen requested copies of documents relating to the investigation, but the police department declined to furnish the copies, citing the confidentiality provision in section 112.533(2)(a). Id. The Fourth District upheld the issuance of a writ of mandamus requiring the department to release the records. Id. The court in Barfield found that although nothing in the statute requires complaints to be in writing, the use of the word “complaints” in the title of section 112.533 and the use of the word “filed” in subsection (2)(a) imply that the confidentiality provision is triggered only by a written complaint filed with a law enforcement agency. Id. at 317-18.

We conclude that the rationale of Bar-field inapplicable here. At the time the Fourth District decided Barfield, it construed only section 112.533(2)(a) because the confidentiality provision in section 112.532 had not been enacted yet. When the two sections are read in pari materia, as emphasized by the clause “[n]otwith-standing the provisions of s. 112.533(2)” at the beginning of section 112.532(4)(b), we conclude that the confidentiality rights afforded by section 112.532(4)(b) are broader than those provided by section 112.533(2)(a), and apply to ongoing investigations whenever a law enforcement or correctional officer faces possible dismissal, demotion, or suspension without pay. Because we conclude that section 112.532(4)(b) requires confidentiality of ongoing Board investigations, we do not reach the issue of whether a written complaint is required in order to trigger confidentiality under section 112.533(2)(a).

We recognize that the confidentiality provisions in sections 112.532(4)(b) and 112.533(2)(a) are exemptions from the public’s general right to access public records and meetings, see Art. I, § 24, Fla. Const.; § 119.01(1), Fla. Stat., and must be narrowly construed in favor of disclosure. Lightbourne v. McCollum, 969 So.2d 326, 332-33 (Fla.2007). However, we conclude that under the plain language of sections 112.532(4)(b) and 112.533(2)(a), the confidentiality of those sections applies only during the period of investigation, and public scrutiny is afforded as soon as “the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action,” § 112.532(4)(b), Fla. Stat., or when “the investigation ceases to be active,” § 112.533(2)(a), Fla. Stat. In enacting the statutes, the Legislature created a narrowly-tailored exemption from public disclosure. The statutes do not prohibit public access but merely delay it until the Board completes or abandons its investigation.

Because the plain language of section 112.532(4)(b) affords confidentiality to law enforcement officers who face potential discipline as a result of a Board investigation and the infringement on the public’s general right to access is limited, we hold that the Board must keep information related to an investigation confidential until it is concluded by one of the means provided by statute.

REVERSED.

HAWKES, C.J., ROBERTS and ROWE, JJ. concur.

      . During the pendency of the case at the circuit court, the Office of the Sheriff General Order X.20 was amended. While the Board could formerly recommend to the sheriff whether disciplinary action is warranted, the revised order allows the Board to "recommend investigation into whether disciplinary action is warranted.” We find this change inconsequential, as the officer being investigated is still subject to potential discipline as a result of the Board’s recommendation to the sheriff.

      . The legislature did not add the confidentiality language to section 112.532 until 2003. See Ch.2003-149, § 1, at 903, Laws of Fla.


text:
    Eric BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5728.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Rehearing Denied Jan. 14, 2011.
    Eric Brooks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Jayton K. PRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5409.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Rehearing Denied Jan. 14, 2011.
    Jayton K. Pride, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Smith v. State, 951 So.2d 965 (Fla. 1st DCA 2007).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Gregory PAPPAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3719.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Rehearing Denied Jan. 14, 2011.
    Gregory Pappas, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.