author: TAYLOR, J.

text:
    John Thomas DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1940.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Rehearing Denied Dec. 13, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant, John Dorsey, appeals his convictions for two counts of second degree murder, possession of a firearm by a convicted felon, and carrying a concealed firearm. His charges arose from a confrontation at a high school “keg” party that ended in tragedy — the loss of two young lives. We affirm the defendant’s convictions for the weapons charges. However, after reviewing the evidence in the light most favorable to the State, we conclude that the evidence was insufficient to sustain convictions for second degree murder. Instead, the evidence established an impulsive overreaction to an attack, which warranted convictions for manslaughter. We further find that the trial court erred in instructing the jury on the justifiable use of deadly force, specifically regarding the duty to retreat under the “Stand Your Ground” law. Accordingly, we reverse the defendant’s convictions for second degree murder and remand for a re-trial on manslaughter charges.

The defendant was charged by indictment with first degree murder for the shooting death of Stephen “Bo” Bunting and second degree murder for the shooting death of John Lott. At trial, the evidence established that on August 25, 2006, the defendant attended a large “keg” party, where most of the guests were high school students or had recently finished high school. During the party, Bunting and Lott approached the defendant, who was either sitting on the hood of his SUV or leaning against the vehicle. Lott was angry that someone had bumped him earlier while walking past him. Lott and Bunting, along with Lott’s brother and several of their friends, formed a group which surrounded the defendant in a half-circle. A short time before the confrontation, the defendant had armed himself with a gun in the midst of an apparently unrelated dispute with other individuals regarding a keg.

The defendant had his hand in his pocket, and it appeared to witnesses that a confrontation was imminent. One witness claimed that the defendant was smirking as he was leaning against his vehicle and that he did not appear to be afraid. Lott and the defendant began cursing at each other. A prosecution witness acknowledged that it looked like Lott was trying to start a fight with the defendant. Bunting, who was trying to encourage the fight, asked Lott whether he was “going to let him [the defendant] talk to you like that?” At that point, Lott struck the defendant in the face with his fist. The defendant was hit “pretty hard” and fell back against his vehicle.

After the defendant was punched, he quickly pulled out a gun, shot Lott once and shot Bunting once. Lott and Bunting were, at most, two or three feet away from the defendant. Lott died from a single gunshot wound to the chest, and Bunting died from a single gunshot wound to the abdomen. After the shootings, the defendant jumped into his vehicle and drove away.

According to the medical examiner, the path of the gunshot wounds was consistent with the decedents leaning forward as they were shot. Lott and Bunting were both at least one foot away from the shooter. Lott had a blood alcohol level of 0.249 grams per deciliter, over three times the legal limit for driving. Bunting had a blood alcohol level of 0.05 grams per deciliter, and also had Xanax in his blood, in an amount described as being within a therapeutic range. Lott, who was heavily tattooed, had a roll of coins wrapped in black electrical tape in his pants pocket. There was also evidence at trial that both Lott and Bunting had a reputation for violence. One witness claimed that Lott and Bunting were known to jump people and they liked to fight, not always fairly.

At the conclusion of both the State’s case and at the close of all the evidence, the trial court denied the defendant’s motions for judgment of acquittal. One of defense counsel’s arguments in support of the motion for judgment of acquittal was that the defendant could not be convicted of murder as a matter of law; rather the jury should consider only manslaughter charges, as the evidence showed only that the defendant had an impulsive overreaction when being attacked.

Following deliberations, the jury returned its verdict, finding the defendant guilty of second degree murder as a lesser included offense on Count I, guilty of second degree murder as charged in Count II, and guilty of possession of a firearm by a convicted felon and carrying a concealed firearm as charged in Counts III and IV.

The first issue we address is whether the evidence was sufficient to sustain the defendant’s convictions for second degree murder. A de novo standard of review applies to our review of the denial of a motion for judgment of acquittal. Turner v. State, 29 So.3d 361, 364 (Fla. 4th DCA 2010). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

The crime of second degree murder is defined as the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04, Fla. Stat. (2006). An act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (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. Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011); Fla. Std. Jury Instr. (Crim.) 7.4.

Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. See, e.g., Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993). “Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.” Light, 841 So.2d at 626. Moreover, “[hjatred, spite, evil intent, or ill will usually require more than an instant to develop.” Id.

While the jury may reasonably reject the theory of self-defense in a case involving a defendant’s impulsive overreaction to a victim’s attack, such a case warrants a conviction for manslaughter, not second degree murder. See Poole v. State, 30 So.3d 696, 698-99 (Fla. 2d DCA 2010) (where defendant stabbed the unarmed victim once after the victim had lunged at him in a confined R.V., the evidence showed an impulsive overreaction to an attack, warranting a conviction for manslaughter but not second degree murder); Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008) (reversing convictions for second degree murder and attempted second degree murder where defendant stabbed victims after he was pushed to the ground and someone stepped on his neck at a nightclub); Rayl v. State, 765 So.2d 917, 919-20 (Fla. 2d DCA 2000) (prosecution failed to establish that the defendant acted with depraved mind where the victim stormed into the defendant’s place of business threatening to kill the defendant, the defendant shot the victim twice, and the victim had come toward the defendant before each shot; the fact that the defendant was standing with his arms folded when officers arrived was insufficient to prove ill will); McDaniel, 620 So.2d at 1308 (prosecution failed to prove prima facie case of second degree murder where evidence showed that the victim initiated altercation with the defendant by hitting him in the mouth and knocking him to the ground; although defendant’s use of knife to ward off further attack may have been excessive, thereby negating a finding of self-defense, his acts did not evince depraved mind; no evidence was presented that defendant acted out of ill will, hatred, spite, or an evil intent).

In the present case, the evidence in the light most favorable to the State is insufficient to sustain the defendant’s convictions for second degree murder. Here, it was uncontested at trial that the defendant had his back against his vehicle when he was confronted by multiple men, including the victims, Lott and Bunting. The victims had both been drinking and Lott, in particular, was heavily intoxicated. After the defendant and Lott exchanged words, Lott punched the defendant in the face, with Bunting’s encouragement, causing the defendant to fall back against his vehicle. Although a jury could reasonably find that the defendant’s use of a gun was excessive, thereby negating a finding of self-defense, no evidence was presented that the defendant acted out of ill will, hatred, spite, or an evil intent. Furthermore, we reject the State’s argument that the defendant’s demeanor before the confrontation was sufficient to prove beyond a reasonable doubt that he acted with a depraved mind. The defendant’s use of deadly force occurred only after he was attacked, and the State has pointed to no record evidence that the defendant had any previous grudge against these victims or any ongoing disputes between them.

In short, this case is not materially distinguishable from Poole, Rayl, and McDaniel, where second degree murder charges were reduced to manslaughter because the evidence established an impulsive overreaction to a victim’s attack or injury rather than an act out of ill will, hatred, spite, or an evil intent. Here, the evidence similarly showed an impulsive overreaction to an attack, warranting convictions for manslaughter but not second degree murder. The trial court thus erred in denying the defendant’s motions for judgment of acquittal on the murder charges.

Ordinarily, we would simply direct that the trial court reduce the second degree murder convictions to manslaughter convictions. However, in this case, an error in the jury instructions on self-defense warrants a new trial.

By way of background, section 776.012, Florida Statutes (2006), provides that a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she 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; or
(2) Under those circumstances permitted pursuant to s. 776.013.

§ 776.012, Fla. Stat. (2006).

Section 776.013(3), Florida’s so-called “Stand Your Ground” law, in turn provides:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2006).

During the charge conference, the defense requested that the “Stand Your Ground” instruction, based on section 776.013(3), not be given. He did so because the defendant was presumably “engaged in an unlawful activity” at the time he used deadly force; he was a convicted felon in possession of a firearm and he was carrying a concealed firearm. Thus, the “Stand Your Ground” instruction did not apply to him. The trial court denied the defendant’s request and ultimately gave the jury the standard jury instruction, which is consistent with the “Stand Your Ground” law set forth in section 776.013(3).

After the court denied the defense request that the “Stand Your Ground” instruction be omitted from the jury instructions, the defendant requested that the jury receive the following instruction:

If you find that the defendant was engaging in an unlawful activity or was attacked in a place where he did not have the right to be then you must consider if the defendant had a duty to retreat. If the defendant was placed in a position of imminent danger or death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.

The emphasized portion of the above instruction was taken from the pre-2005 standard jury instruction on the justifiable use of deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2004). The prosecutor initially agreed to the requested instruction, but later announced an objection, believing that it would be error for the court to give anything other than the current standard instruction. The trial court declined to give the specially requested instruction.

A criminal defendant is entitled to a special jury instruction if the following three elements are satisfied: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing. Stephens v. State, 787 So.2d 747, 756 (Fla.2001).

Prior to the enactment of section 776.013, Florida common law provided that, with the notable exception of the “castle doctrine,” a person could not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat “to the wall.” See Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999); State v. Smiley, 927 So.2d 1000, 1001 (Fla. 4th DCA 2006).

However, even under the common law rule, where a defendant has retreated to the wall or retreat would be futile, deadly force is justifiable. See Thompson v. State, 552 So.2d 264, 266 (Fla. 2d DCA 1989); State v. Rivera, 719 So.2d 335, 338 (Fla. 5th DCA 1998).

The legislature’s creation of section 776.013 in 2005 “expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death.” McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007). Section 776.013 thus altered the law so that now there is “no duty to retreat” under a broad array of circumstances. Smiley v. State, 966 So.2d 330, 335 (Fla.2007). In other words, section 776.013 created a new affirmative defense for situations in which one may use deadly force without first retreating. Id.

For offenses occurring after the effective date of section 776.013, several cases have found fundamental error where the jury received the pre-2005 standard instruction on the justifiable use of deadly force. See Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008); see also Richards v. State, 39 So.3d 431, 433-34 (Fla. 2d DCA 2010). However, in the present case, unlike in Richards and Williams, there was an issue as to whether the defendant was engaged in an unlawful activity at the time he was attacked. The current standard instruction does not inform the jury of the parameters of the duty to retreat in situations where the defendant was engaged in an unlawful activity or was not in a place where he had the right to be at the time he was attacked. See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011) (“If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] had a right to be, [he] had no duty to retreat and had the right to stand [his] ground and meet force with force, including deadly force, if [he] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] or to prevent the commission of a forcible felony.”).

Under the unique circumstances of this case, the trial court erred in instructing the jury as to the “Stand Your Ground” law over the defendant’s objection, without also instructing the jury as to the scope of the duty to retreat in situations where the defendant was engaged in unlawful activity-

The plain language of section 776.013(3) provides that the “no duty to retreat” rule applies only where a person “is not engaged in an unlawful activity.” We need not decide the exact scope of the statutory term “unlawful activity” under section 776.013(3). Whatever the scope of that term, we hold that possession of a firearm by a convicted felon qualifies as “unlawful activity” within the meaning of the Stand Your Ground law. Cf Dawkins v. State, 252 P.3d 214 (Okla.Crim.App.2011) (holding that a defendant who was in possession of an illegally modified weapon — a sawed-off shotgun — was engaged in an unlawful act and was not entitled to benefit from Oklahoma’s stand-your-ground statute, but finding that “minor infractions” would not constitute “unlawful activity”).

Accordingly, where, as here, a defendant was engaged in an unlawful activity or was in a place where he did not have a right to be at the time he was attacked, the common law duty to retreat still applies. See Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 581 (Fla.1996) (“A court will presume that such a statute was not intended to alter the common law other than by what was clearly and plainly specified in the statute.”). But even the common law duty to retreat is not absolute — the common law before section 776.013 recognized that there was no duty to retreat where a defendant had retreated to the wall or retreat would be futile.

Here, the requested instruction on the duty to retreat was supported by the evidence (i.e., that the defendant was unlawfully possessing a firearm), the standard instruction did not adequately address the scope of the duty to retreat in cases where the defendant was engaged in unlawful activity, and the special instruction, which was derived from the pre-2005 standard jury instruction, was a correct statement of the common law duty to retreat and was not misleading or confusing.

Because there was evidence that the defendant was engaged in unlawful activity, the trial court should not have given the standard instruction on the Stand Your Ground law over the defendant’s objection, without also giving the defendant’s specially requested instruction. Alternatively, in light of the defendant’s objection to the Stand Your Ground instruction and the evidence that the defendant was engaged in unlawful activity at the time he was attacked, the court could have simply omitted the Stand Your Ground instruction and given the pre-2005 standard instruction on the justifiable use of deadly force. Either approach would have served to explain to the jury the parameters of the duty to retreat in cases where the defendant was engaging in unlawful activity at the time he was attacked. Although the defendant’s claim of self-defense was arguably weak in this case, he was nevertheless entitled to a proper instruction on the law. See Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (stating that a criminal defendant is entitled to have a jury instruction on his theory of defense if there is any evidence supporting his theory).

Based on the foregoing, we reverse for a new trial on charges of manslaughter.

Affirmed in part, Reversed in part, and Remanded for a new trial on charges of manslaughter.

HAZOURI and LEVINE, JJ„ concur.

      . The testimony at trial varied as to whether the defendant fired two or three shots. One of the victims’ friends claimed that after the defendant shot both victims, the defendant fired a third shot, directed at him, but missed.

      . As to all other issues raised, they are either rendered moot by our disposition or they are otherwise without merit.

      . In a separate point on appeal, the defendant makes an alternative argument that the term “unlawful activity" in the Stand Your Ground statute should be interpreted to apply only to forcible felonies. We reject this argument without further discussion. Nothing in this opinion, however, should be read as limiting a convicted felon's right to raise a defense of necessity to an unlawful possession of a firearm charge in an appropriate case. See Marrero v. State, 516 So.2d 1052, 1054 (Fla. 3d DCA 1987) ("[T]he law has long recognized that there may be circumstances under which a convicted felon's possession of a firearm would be justified and his conduct declared not criminal.”).

      . That instruction provides in pertinent part: The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
      The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm, and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Michael PRICE, Appellee.
    No. 2D11-1646.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.
    Rehearing Denied Nov. 29, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    N. Adam Tebrugge of Tebrugge Legal, Bradenton, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting Michael Price’s motion to suppress, which found that the stop of Price’s ear was improper. We conclude that Price’s car was lawfully stopped even though the officer was outside of his jurisdiction when the stop was conducted and reverse.

Price was charged with possession of a firearm by a convicted felon, possession of ammunition by a convicted felon, and driving under the influence of alcohol. At the hearing on Price’s motion to suppress, Officer Michael Coss with the North Port Police Department testified that on September 21, 2010, he had been working at the Sarasota County Jail on an unrelated case when he encountered Price’s car on his way home. Officer Coss was wearing his police uniform and was driving an unmarked patrol car. He first noticed Price’s car when it was on the ramp to get on Interstate 75. Price’s car made a wide turn, drifting off to the left of the white line. Price’s car sped up to approximately eighty miles an hour when it got on the interstate, but it then began to slow down, speed up, and slow down again. The car drifted between lanes and when the southbound lanes narrowed from three lanes to two lanes, Price continued in the third lane as it was coming to an end and then changed lanes in front of a semi-truck, causing the driver of the truck to take evasive action and blow his horn. A few moments later, Price’s vehicle swerved off to the right of the fog line and came within a foot of striking a bridge.

Officer Coss asked his dispatch to determine if a highway patrol officer or sheriffs deputy was available to stop Price’s car, but no one from either agency was available. Officer Coss then decided to stop Price’s car because he was concerned that Price was driving under the influence and he would cause an accident, hurting himself or someone else. Price’s car was stopped about five miles away from North Port. Officer Coss approached Price’s car and asked him to keep his hands on the steering wheel until deputies from the sheriffs office arrived and took over the investigation.

At the hearing on the motion to suppress, defense counsel erroneously argued that the “under color of office” doctrine applied because Officer Coss was not on the same footing as a person making a citizen’s arrest since he was able to stop Price’s car using his car’s patrol lights and he identified himself as a police officer when he approached Price’s car. In granting Price’s motion to suppress, it appears that the trial court similarly misapplied the “under color of office” doctrine.

As noted by the Florida Supreme Court, law enforcement officials have the same ability to make an arrest as does a private citizen when they are outside their jurisdiction, but law enforcement officials outside their jurisdiction do not have superior power of arrest than private citizens. Phoenix v. State, 455 So.2d 1024, 1025 (Fla.1984). The supreme court further noted that the “under color of office” doctrine pertains “only to prevent law enforcement officials from using the powers of their office to observe unlawful activity or gain access to evidence not available to a private citizen.” Id.; see also San-Martin v. State, 562 So.2d 776, 777-78 (Fla. 2d DCA 1990) (“[T]he mere fact that an officer acts like a police officer in making an arrest outside of his geographical jurisdiction does not mean that he is improperly acting under the color of his office.”). Here, the activity observed by Officer Coss, Price’s driving, could be observed by any private citizen driving on the interstate. Therefore, the “under color of office” doctrine does not apply.

This case is similar to Edwards v. State, 462 So.2d 581, 582 (Fla. 4th DCA 1985), in which the Fourth District noted that “at common law, a private citizen may arrest a person who in the citizen’s presence commits a felony or breach of the peace, or a felony having occurred, the citizen believes this person committed it.” In Edwards, the court held that the appellant’s conduct amounted to a breach of the peace where he was driving his pickup truck in a dangerous fashion. Id. In that case, an off-duty officer followed the appellant for about five miles and observed his truck cross the center line three to seven times, which caused approaching drivers to run onto the berm, and also observed the appellant’s truck come close to hitting a bridge abutment. Id. The officer approached the appellant after the stop and detained him. Id. The Edwards court held that the stop of the appellant’s car was lawful and the court noted that the off-duty officer’s identification of himself as such and his offer to show the appellant his badge did not amount to acting under color of office. Id.

Similarly in State v. Furr, 723 So.2d 842, 843 (Fla. 1st DCA 1998), a law enforcement officer stopped the appellee’s truck outside of the officer’s jurisdiction after the officer saw the truck cross the center dividing line four or five times. The appel-lee, who appeared to be intoxicated, got out of the truck and the officer detained him until a state highway patrolman arrived. Id. The First District held that the trial court erred in granting the appellee’s motion to suppress and in finding that “a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.” Id. at 845. The First District recognized that the “col- or of office” doctrine prevents law enforcement from using their official powers to acquire access to evidence not available to a private citizen or to view unlawful activity, but it did not prevent the officer in that case from stopping the appellee while wearing his police uniform, operating a police cruiser, and using the car’s blue lights. Id. at 844. As in Edwards, the Fwt court concluded that the officer could arrest the appellee outside of his jurisdiction because the appellee’s drunk driving amounted to a breach of the peace. Id.; see State v. Phoenix, 428 So.2d 262, 266 (Fla. 4th DCA 1982) (“When officers outside their jurisdiction have sufficient grounds to make a valid citizen’s arrest, the law should not require them to discard the indicia of their position before chasing and arresting a fleeing felon”). In the present case, Officer Coss could properly make a citizen’s stop of Price’s car using the patrol car’s lights and he could properly detain Price while wearing his police uniform, as neither of these actions violated the “color of office” doctrine.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

NORTHCUTT and WALLACE, JJ., Concur.


author: JACOBUS, J.

text:
    INTERNATIONAL ENGINEERING SERVICES, INC., Appellant, v. SCHERER CONSTRUCTION & ENGINEERING OF CENTRAL FLORIDA, LLC, Appellee.
    No. 5D10-2764.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Rehearing Denied Nov. 21, 2011.
    Jim MeCrae, of the Law Office of Jim McCrae, P.A., Lake Mary, for Appellant.
    Victor W. Holcomb and Brian A. Leung of Holcomb & Leung, P.A., Tampa, for Appellee.
   JACOBUS, J.

International Engineering Services, Inc. (“IES”) timely appeals the entry of a final summary judgment in favor of Scherer Construction & Engineering (“Scherer”) on its breach of contract claim. The lower court entered summary judgment in favor of Scherer based upon a pay-when-paid clause in the subcontract agreement between IES, the subcontractor, and Scherer, the general contractor. On appeal, IES contends that the pay-when-paid clause in the subcontract is ambiguous and, therefore, is not enforceable. It also contends that if the clause is found to be unambiguous, then it becomes ambiguous when considered in conjunction with the terms of the contract between Scherer and the project owner (“prime contract”). As a result of the ambiguities in the contract, IES argues that it was error for the trial court to enter summary judgment in favor of Scherer. We find, based upon the language contained in the subcontract and in the prime contract, the pay-when-paid clause is ambiguous and unenforceable. We therefore reverse the final summary judgment entered in favor of Scherer and remand the cause back to the trial court for entry of judgment in favor of IES.

In early 2008, IES and Scherer entered into a subcontract in which IES agreed to perform the structural steel work on a project in Maitland, Florida. IES performed all the work required under the parties’ contract. After the work was finished, Scherer issued two written contract change orders, which increased the subcontract amount to $98,680. Although IES performed all the obligations under the subcontract, it did not receive payment from Scherer. IES then filed suit against Scherer alleging a breach of contract and seeking $98,680. In its answer, Scherer asserted a single affirmative defense: that the subcontract contains a pay-when-paid clause, which provides that payment by the project owner to Scherer is an express condition precedent to any obligation of Scherer to pay IES. Because Scherer had not been paid by the project owner, the condition precedent to Scherer’s obligation to pay IES had not yet occurred and payment was not due.

Both parties filed motions for summary judgment. At the hearing on those motions, the trial court found that the language in the subcontract was not ambiguous and it was clearly meant to shift the burden of nonpayment from the contractor to IES, the subcontractor.

The pay-when-paid clauses in the contract between the parties are found in Articles 6 and 7 of the subcontract. Article 6 of the subcontract provides in part:

I. The Contractor shall pay the Subcontractor Progress Payments for work performed and material suitably stored and inventoried on the job-site (materials delivered to and stored at the site shall be limited to materials required to be incorporated into Subcontractor’s work in the immediate future, taking into account any space restrictions at the job site) in monthly payments. Such payments are payable on or about the 20th of the following month. Subcontractor shall be responsible for proper storage and for any damage, defect, deficiency or theft or any materials stored on the project site, regardless of fault. Notwithstanding anything contained in any of the Contract Documents to the contrary, Subcontractor agrees that all progress payments and final payment to Subcontractor are contingent upon and subject to Owner’s acceptance of Subcontractor’s work and upon contractor’s receipt of payment from Owner. Subcontractor agrees to accept the risk of non-payment if Contractor is not paid progress payments and/or final payment from Owner, for any reason. Subcontractor further agrees that Owner’s payment to Contractor of all progress payments and final payment for any work performed by Subcontractor, other Subcontractors and Contractor shall be an express condition precedent to any obligation of Contractor to make any progress payment, retainages, or final payment to Subcontractor, and Subcontractor hereby waives all right to commence litigation or arbitration until payment is made to Contractor. Contractor, in its sole discretion, may make payment to Subcontractor by checks made payable jointly to Subcontractor and Subcontractor’s sub-subcontractors, materialmen, laborers, and suppliers.

Article 7 states as follows:

1. Final Payment shall be due when the work described in this Subcontract is fully completed and performed in accordance with the Contract Documents, is satisfactory to the Owner and Architect, and Final Payment has been made by the Owner to the Contractor.

IES argues that these two clauses are ambiguous. In Peacock Construction Co., v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977), our supreme court addressed a situation similar to this case. It explained as follows:

[The parties’] intent in most cases is that payment by the owner to the general contractor is not a condition precedent to the general contractor’s duty to pay the subcontractors. This is because small subcontractors, who must have payment for their work in order to remain in business, will not ordinarily assume the risk of the owner’s failure to pay the general contractor. And this is the reason for the majority view in this country, which we now join.
Our decision to require judicial interpretation of ambiguous provisions for final payment in subcontracts in favor of subcontractors should not be regarded as anti-general contractor. It is simply a recognition that this is the fairest way to deal with the problem. There is nothing in this opinion, however, to prevent parties to these contracts from shifting the risk of payment failure by the owner to the subcontractor. But in order to make such a shift the contract must unambiguously express that intention. And the burden of clear expression is on the general contractor.

Id. at 842^13 (footnotes omitted) (emphasis supplied). If a risk-shifting provision is clear and unambiguous the court will interpret it as setting a condition precedent to the general contractor’s obligation to pay. DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 429 (Fla.1990). If, however, the provision is ambiguous, a court will interpret it as fixing a reasonable time for the general contractor to pay. Id.

Article 6 is a clear expression that the parties intended for IES to assume the risk of loss for nonpayment. IES argues that Article 7 is ambiguous because it is very similar to the language found in Peacock. If Article 7 was the only expression in the contract regarding payment, then IES’s argument would be well-taken, Peacock would apply, and IES would be entitled to payment in a reasonable time. However, when Articles 6 and 7 are read together, it is apparent that the parties expressly and unambiguously intended to shift the risk of nonpayment to IES for progress payments and final payments.

This finding, however, does not end our inquiry. Article 2 of the subcontract between the parties is relevant to the arguments on appeal. It reads as follows:

The “Contract Documents” for this Subcontract consist of this Agreement, the terms, conditions or instructions contained in the transmittal letter from the Contractor to the Subcontractor delivering this subcontract for execution by the Subcontractor, any exhibits attached hereto, the Agreement between the Owner and Contractor dated (prime contract), the conditions of the Architect, all approved drawings and architectural plans and specifications, all modifications issued prior to execution of the Agreement between the Owner and Contractor, and all modifications issued subsequent thereto.

Article 2 of the subcontract clearly incorporates the prime contract by reference. The prime contract provides:

Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied.

This term in the prime contract provides that the owner is not obligated to pay Scherer until Scherer has paid all its subcontractors. By incorporating the prime contract into the subcontract, the pay-when-paid clause becomes ambiguous.

This situation is analogous to that found in OBS Co. v. Pace Construction Corp., 558 So.2d 404 (Fla.1990). In that case, the subcontract contained a clear pay-when-paid clause. Id. at 406. The subcontract incorporated by reference the contract between the general contractor and the owner. Id. The court concluded that this created an ambiguity regarding who should bear the risk of the owner’s nonpayment. Id. The OBS court emphasized that “in construing risk-shifting provisions, the burden of clear and unequivocal expression is on the general contractor.” Id. Therefore, the court held that Pace, the general contractor, remained liable for the final payment it owed to OBS, the subcontractor. Id. at 407; see also Harris Air Sys., Inc. v. Gentrac, Inc., 578 So.2d 879, 882 (Fla. 1st DCA 1991) (holding that final payment provisions of general contract and subcontract conflicted and created ambiguity regarding when subcontractor was entitled to payment by general contractor, ambiguity must be resolved against general contractor).

Here, an ambiguity exists when the pay-when-paid clause is read in combination with the prime contract and its conditions. This ambiguity must be resolved against Scherer, the general contractor, and interpreted as establishing a reasonable time for Scherer to pay IES. See OBS, 558 So.2d at 407; Gentrac, 578 So.2d at 882.

We have considered the parties’ remaining arguments and find them to be without merit. The final judgment is reversed and the matter is remanded to the trial court for entry of a judgment in favor of IES.

REVERSED and REMANDED for JUDGMENT in favor of International Engineering Services, Inc.

ORFINGER, C.J. and TORPY, J„ concur’.


author: MAY, C.J.

text:
    Leon C. INMON, Appellant, v. AIR TRACTOR, INC., et al., Appellee.
    No. 4D10-703.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Rehearing Denied Dec. 16, 2011.

      John S. Mills of The Mills Firm, Jacksonville, and Robert F. Spohrer of Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, and Stuart F. Williams of Tanner Bishop, Jacksonville, for appellant.
    Frank D. Hosley and Tamaro E. Johnson of Seipp & Flick, LLP, Lake Mary, Douglas H. Stein of Seipp & Flick, LLP., Miami and Gary W. Davis of Rodriguez, Davis, Ghorayeb, Gersch & Towns, P.C., Austin, Tx., and Basheer Y. Ghorayeb of Rodriguez, Davis, Ghorayeb, Gersch & Towns, P.C., Dallas, Tx., for appellee.
   MAY, C.J.

Having had his negligence complaint dismissed on two grounds, the plaintiff appeals both an adverse summary judgment and the dismissal order. He argues the trial court erred in applying the applicable statutes of repose and in dismissing the action as a sanction for violation of multiple court orders. We find no error and affirm.

While the plaintiff was dusting crops, the right wing of his airplane suddenly failed. The plaintiff was injured and the plane was destroyed. The airplane was not considered airworthy at the time because the plaintiff had failed to obtain a required annual inspection.

Two years later, the plaintiff sued the plane manufacturer. He alleged the crash was caused by a defective wing assembly and a factory modification kit manufactured and designed by the manufacturer. The plaintiff specifically claimed that the plane’s right wing cracked at the “lower spar cap.”

The plane manufacturer ultimately moved for summary judgment based on the eighteen-year federal statute of repose and the twelve-year Florida statute of repose. The primary issue was whether the plane manufacturer’s design and sale of a new part for the wing assembly in 1993 restarted the respective periods of repose.

The record established the following facts. The plane had been manufactured in 1982. The plaintiff purchased the plane from a third party in 1998 with no warranty. The airframe was originally rated with a useable or “safe life” of 5,000 hours.

The safe life of an airframe represents the maximum number of hours the airplane can be flown before the accumulated stresses of ordinary flight make continued flying dangerous. If, on a particular aircraft, the first fatigue critical location (“FFCL”) can be modified or replaced and thereby increase the safe life of the FFCL, then the safe life of the entire airframe will likewise increase by the same amount (not to exceed the safe life of any other airframe component).

The plane manufacturer’s president, who had also designed the plane, agreed that the FFCL on the plane is the outermost of four bolt holes on the “spar splice.” The spar splice connects the right wing to the left wing at the airplane’s centerline. The spar, including its lower spar cap, is an original component of the plane. The lower spar cap on the right side fractured in the accident, resulting in the wing separating.

To extend the safe life of that FFCL on a similar airplane, the plane manufacturer issued Service Letter 55, which was made applicable to this model by Service Letter 70. By designing a new spar splice with an additional fifth bolt hole further out from the centerline of the aircraft and installing it on the existing lower wing spar cap, the plane manufacturer purportedly extended the safe life of the FFCL (and thus the entire airframe) by an additional 2,000 hours.

The work specified in Service Letters 55 and 70 was performed on the airplane by a mechanic — not affiliated with the plane manufacturer — nine years before the accident and while the plane was owned by another individual. The mechanic did not replace the original spar cap, which already had four bolt holes. Instead, he modified the spar cap by drilling a fifth bolt hole and adding a new five-bolt spar splice (replacing the original four-bolt spar splice) and bolts.

The owner of the dealership that sold the airplane confirmed that the parts required by Service Letter 55 were “factory parts” supplied by the plane manufacturer to its dealers as part of the modification kit. An engineer from the plane manufacturer testified that the spar splice modification kit included the five-bolt spar splice sold by the plane manufacturer as a replacement part for the original four-bolt spar splice.

Service Letter 161 subsequently advised that, if Service Letters 55 and 70 were followed, and certain additional inspections and maintenance were performed, the safe life of this model’s airframe could be extended from 7,000 to 10,000 hours. That additional work was completed by the dealer at the time the airplane was sold to the plaintiff. When the plane crashed less than four years later, it had reached approximately 8,200 hours on the airframe.

In its motion for summary judgment, the plane manufacturer argued that the spar splice did not cause the accident and therefore the addition of the new part could not restart the applicable statutes of repose. The plaintiff argued in opposition that installation of the new five-bolt spar splice should restart the clock because the defective design of the new part was the cause of the crash. The plaintiffs expert testified that the crash resulted from the failure of the right wing during flight.

The trial court granted the motion for summary judgment, finding that the “service letters and inspections referred to in [the] Complaint did not toll the applicable statute of repose.” The court also rendered an order dismissing the complaint as a sanction for violating numerous court orders.

On appeal, the plaintiff argues that the trial court erred in granting summary judgment because the design and manufacture of the replacement five-bolt spar splice restarted the repose period. Furthermore, the plaintiff argues expert testimony established that the defective design of this new part caused the crash. The plane manufacturer responds that the plaintiff sued over an alleged defect in the plane’s wing, which was over twenty years old and beyond the statute of repose. The plane manufacturer further argues that any modification to an original part does not restart the statute of repose.

This court has de novo review of a trial court’s application of a statute of repose in a products liability action because it involves an issue of law. Cassoutt v. Cessna Aircraft Co., 742 So.2d 498, 495 (Fla. 1st DCA 1999).

Congress passed the General Aviation Revitalization Act (“GARA”) in an effort to curb the enormous product liability costs imposed on manufacturers of general aviation aircraft. Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084 (9th Cir.2001). GARA provides:

Except as provided in subsection (b), no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred—
(1) after the applicable limitation period [18 years] beginning on—
(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or
(B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or....

Id. (citing General Aviation Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552 (1994)) (provisions at 49 U.S.C. § 40101 notes). It is considered a “classic statute of repose.” Id. (citing Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1156 (9th Cir.2000)). “[I]t runs from what amounts to the date of the first transfer from the manufacturer.” Id.

Section 2(a)(2) of GARA, known as the “rolling provision,” states that an eighteen-year repose period must be applied separately to “ ‘any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft....’ ” Alter v. Bell Helicopter Textron, Inc., 944 F.Supp. 531, 538 (S.D.Tex.1996) (quoting GARA § 201, 114 Stat. 91). However, “[t]he language of the statute including ‘component, system, subassembly, or other part’ is not accompanied by any modifier or reference to ‘design’ thereby indicating that ‘replacement’ means replacement of a physical item, ‘i.e., a piece of hardware, and not a new intangible concept or design.’ ” Holliday v. Extex, 457 F.Supp.2d 1112, 1117 (D.Hawai’i 2006) (quoting Hiser v. Bell Helicopter Textron, Inc., 111 Cal.App.4th 640, 4 Cal.Rptr.3d 249 (2003)).

The “rolling statute of repose applies only with respect to a new item that replaces an original item.” Hiser, 4 Cal. Rptr.3d at 257. “Modification of an item, whether it is a component, system, subas-sembly, or other part, does not restart the limitation period under GARA.” Id.

Service bulletins do not constitute a “new part” and do not qualify under the rolling provision of GARA to extend the repose period; as one court wrote, “given the continual issuance of service bulletins pertaining to a variety of topics, ‘if the statute of repose [were] triggered every time a service bulletin was issued, the intent of GARA would be eviscerated.’” Moyer v. Teledyne Cont’l Motors, Inc., 979 A.2d 336, 344 (Pa.Super.Ct.2009) (quoting the opinion issued by the trial court).

We agree with the trial court that the eighteen-year and twelve-year repose periods did not restart with the replacement of the five-bolt spar splice. Although the plaintiff established a new part was installed, it did not replace an item, but rather modified the original design. Further, the plaintiff failed to demonstrate that the new part actually caused the accident. We therefore affirm the summary judgment in favor of the manufacturer.

Affirmed.

STEVENSON and CIKLIN, JJ„ concur.

      . The plaintiff also sued three other defendants, but this appeal is limited to the orders entered in favor of the plane manufacturer and against the plaintiff.

      . At the hearing, the plaintiff's counsel agreed with the trial court that Service Letter 161 was "irrelevant to the whole thing because, again, it’s not adding a new part.”

      . Florida’s statute of repose provides a twelve-year repose period and states as follows:
      (b) Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. All products, except those included within subparagraph 1. or subparagraph 2., are conclusively presumed to have an expected useful life of 10 years or less.
      1. Aircraft used in commercial or contract carrying of passengers or freight, vessels of more than 100 gross tons ... are not subject to the statute of repose provided within this subsection.
      § 95.031 (2)(b), Fla. Stat. (2002) (emphasis added). The statute also allows for tolling where a replacement component is installed — but only with respect to defects in the replacement component. See Cassoutt v. Cessna Aircraft Co., 742 So.2d 493, 495 (Fla. 1st DCA 1999).

      . Because we affirm on the statutes of repose, we need not address the alternative basis upon which the trial court dismissed the plaintiff’s complaint.


author: DAVIS, Judge.

text:
    William Patrick BROWN, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2873.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2011.
    James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

William Patrick Brown, III, challenges his convictions and sentences for attempted second-degree murder, robbery with a firearm, and attempted robbery with a firearm. A jury convicted him, and the trial court sentenced him to thirty years’ imprisonment with a twenty-five-year minimum mandatory on the attempted murder, life with a twenty-five-year minimum mandatory on the robbery, and fifteen years with a ten-year minimum mandatory on the attempted robbery. In charging the jury on count one, the trial court gave the standard jury instruction on attempted manslaughter that this court already has concluded amounts to fundamental error under like circumstances. See Houston v. State, — So.3d -, 2011 WL 3518029 (Fla. 2d DCA 2011). We therefore reverse Brown’s conviction and sentence for attempted second-degree murder and remand for new trial on that count only. In all other respects, we affirm Brown’s judgments and sentences without further comment.

Count one of the State’s information charged Brown with attempted first-degree murder. At trial, in conjunction with this count, the trial court instructed the jury on attempted first-degree murder, attempted second-degree murder, and attempted manslaughter by act. The standard attempted manslaughter by act jury instruction that the court read to the jury was as follows:

Before you can find the Defendant guilty of attempted voluntary manslaughter as a lesser crime of attempted first-degree murder, the State must prove the following element beyond a reasonable doubt:
William Patrick Brown, III, committed an act which was intended, to cause the death of Javier Mata and would have resulted in the death of Javier Mata except that someone prevented William Patrick Brown, III, from killing Javier Mata or he failed to do so.
It is not an attempt to commit manslaughter if the Defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
In order to convict of attempted voluntary manslaughter, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

(Emphasis added.)

This instruction is essentially the same instruction given in Houston, — So.3d at -. In that case, this court concluded “that the phrase ‘committed an act which was intended to cause the death of imper-missibly creates an intent-to-kill element in the crime of attempted manslaughter.” Id. at -. Applying the reasoning of State v. Montgomery, 39 So.3d 252 (Fla.2010), which dealt with the standard jury instructions for voluntary manslaughter given as a necessary lesser included offense of first-degree murder, this court concluded that the attempted voluntary manslaughter instruction given in Houston was fundamental error:

The [Montgomery] court concluded that “because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter ... fundamental error occurred ... which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill [the victim].” Applying this analysis, the erroneous instruction here constitutes fundamental error.

Id. at- (second alteration in original) (citation omitted) (quoting Montgomery, 39 So.3d at 259).

This same analysis is applicable here and likewise renders the giving of the instruction in this case to be fundamentally erroneous. We therefore reverse Brown’s conviction for attempted second-degree murder and remand for a new trial on that charge only.

We do note that there is currently a split among the districts on this issue. The First and Third Districts have concluded, as we have, that the reasoning of Montgomery, 39 So.3d 252, applies to the standard jury instruction on attempted manslaughter by act. See Bass v. State, 45 So.3d 970, 971 (Fla. 3d DCA 2010); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009). However, the Fourth District does not read Montgomery to extend to the attempted offense. See Williams v. State, 40 So.3d 72, 73-74 (Fla. 4th DCA 2010) (holding that the standard jury instruction on attempted manslaughter does not possess the same fatal flaw as the standard jury instruction on manslaughter), review granted, 64 So.3d 1262 (Fla.2011). Therefore, as we did in Houston, we certify conflict with the Fourth District’s opinion in Williams.

Affirmed in part, reversed in part, remanded for new trial, and question certified.

NORTHCUTT and BLACK, JJ., Concur.


text:
    Bernard William (Willie) REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-72.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Bernard William Reynolds was convicted of the sale of cocaine following a jury trial. He raises two points on appeal: (1) the trial court erred in denying his motion for judgment of acquittal, and (2) the trial court erred in admitting a police officer’s testimony that his conduct was consistent with that of someone conducting a drug transaction. We affirm the trial court’s denial of the defendant’s motion for judgment of acquittal. However, we reverse and remand for a new trial because the trial court reversibly erred in allowing the officer’s testimony regarding general criminal behavior as evidence of the defendant’s guilt.

The State sought to prove that the defendant sold crack cocaine to Andrew Va-lente. At trial, Valente testified that his mother and grandmother drove him to a convenience store and dropped him off so he could make a purchase; his true purpose was to buy cocaine. When Valente arrived at the store, his first contact was with a person whom he described as a short Spanish guy wearing an orange jersey. Valente described the person from whom he purchased crack cocaine as a tall black man with short, scruffy hair. Va-lente was unable to identify the seller in court.

After Valente purchased the crack cocaine, he got back into the family car and was arrested immediately before he left the parking lot. When Valente was arrested, he had the cocaine in his pocket. Valente testified that his memory of events on the date of the incident was fuzzy, and that he occasionally has problems remembering things. He recalled that the man from whom he purchased the crack cocaine was wearing khaki jeans, and that he paid twenty dollars for the cocaine. He never made a pre-trial identification of the seller.

Officer Brown testified that he was on patrol in Boynton Beach when he noticed a red car pull into the north side parking lot of a convenience store. A black male, whom the officer identified in court as the defendant, went over to the vehicle. When asked what the defendant did, Officer Brown responded that he leaned into the vehicle. Defense counsel objected when the officer started to explain the defendant’s actions. The following exchange occurred:

State: Can you tell the jurors what Mr. Reynolds was doing, or what Mr. Reynolds did?
Brown: Okay. Backing up to the time, when someone leans in the car like that it’s consistent—
Defendant: Objection, Your Honor, speculation.
Court: Overruled.
Brown: It’s consistent with a narcotics or some kind of an interaction with the person inside the vehicle, which in that area a lot of drug activity takes place.

Officer Brown testified that he then saw the defendant running westbound on the north side of the convenience store. He and another officer followed the defendant in an unmarked vehicle. During that time, Officer Brown heard the defendant yelling to somebody that he “needed two.” The officer explained that this was common street terminology for two rocks — two pieces of crack cocaine.

The officers continued to watch the defendant and followed him as he returned to the convenience store. They saw Valente walk up to the front of the convenience store and briefly speak to a man wearing an orange football jersey, who was talking on a cell phone. The defendant then met up with Valente. Officer Brown observed them engage in a hand-to-hand transaction. On cross-examination, the officer clarified that he did not see any money or drugs exchanged between them; he merely saw their hands touch. After their interaction, Valente walked towards his vehicle, and the defendant walked across the street. Officer Brown conducted a traffic stop on Valente’s vehicle as it was about to pull out of the parking lot. Valente, who was in the rear passenger seat, had what appeared to be crack cocaine in his possession. Officer Brown performed a field test on the substance recovered from Valente; the test results confirmed that it was crack cocaine.

Brown then contacted other officers via radio to take the defendant into custody. Officer William Muhleisen testified and identified the defendant as the person he detained and later arrested pursuant to Officer Brown’s instructions. Muhleisen said that when he made contact with the defendant, the defendant had a $20 bill in his possession. Muhleisen added that another officer who searched the defendant found a total of $21.46 on his person.

Regarding his ability to see the hand-to-hand transaction between the defendant and Valente, Officer Brown explained that he was in an unmarked vehicle about 150-200 feet across the street from the convenience store when the transaction occurred. He said he used a pair of binoculars to monitor the transaction and kept the defendant in constant view the entire time.

A forensic chemist for the Palm ¿each County Sheriffs Office testified that there was cocaine present in one of the crack rocks recovered from Valente. The parties stipulated that the defendant had a $20 bill in his possession when he was arrested, and a total of $21 plus change on his person. They also stipulated that the defendant was not wearing an orange jersey.

After the state rested, the defendant moved for a judgment of acquittal. Defense counsel argued that Valente was unable to identify the defendant as the person who sold him cocaine, that there was no evidence of an actual sale of cocaine, and that there was no DNA evidence linking the twenty dollar bill to Valente or linking the crack cocaine to the defendant. The trial court denied the defendant’s motion for judgment of acquittal and his renewed motion for judgment of acquittal at the close of the evidence.

During closing, the state referred to Officer Brown’s testimony regarding the defendant’s act of leaning into Valente’s ear. The jury found the defendant guilty of the sale of cocaine, as charged. The trial court sentenced him to thirty months in prison.

When we review a denial of a motion for judgment of acquittal, we apply a de novo standard of review. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. Id. (citing Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996)). If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id. (citing Banks v. State, 732 So.2d 1065 (Fla.1999)). In moving for a judgment of acquittal, a defendant “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “Courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch, 293 So.2d at 45.

Under this standard of review, we affirm the trial court’s order denying the defendant’s motion for judgment of acquittal. Valente testified that he bought cocaine from a person who was later identified, through testimony of law enforcement witnesses, as the defendant. We distinguish Williams v. State, 976 So.2d 1210 (Fla. 4th DCA 2008), relied upon by the defendant.

In Williams, the defendant was convicted of the sale of cocaine and marijuana within 1000 feet of a school and a public housing facility. Id. at 1210. We held that the evidence was insufficient to support his convictions. Id. at 1212. There, an undercover officer observed the defendant ride his bicycle up to the driver’s side door of a white Nissan, have a conversation with the driver, look around, and then give the driver what the officer believed to be a small object in exchange for money. Id. at 1210. The officer did not actually see the object inside the defendant’s hand. Id. After the exchange, the defendant yelled out to someone to the east of his location, out of the officer’s sight, and rode his bicycle in that direction. Id. He came back about two minutes later and handed the driver of the car a second object. Id. Again, the officer could not actually see the object; however, he did not believe that money changed hands during the second exchange. Id. The undercover officer radioed a description of the defendant and the driver, and they were both detained. Id. at 1211. When the defendant was searched, no drugs were found, but $500 cash was found on his person. Id. Two baggies of suspect cocaine and marijuana were found on the driver’s side floor of the white Nissan.

We held in Williams that the defendant’s motion for judgment of acquittal should have been granted. We reasoned that “[a]lthough drugs were found in the white Nissan and police had observed an encounter and possible transaction between Williams and the car’s driver, there was no evidence linking the drugs to Williams or in any way linking the possible sources of the drugs found in the car.” Id. at 1212. In the instant case, however, the cocaine found in Valente’s possession was linked to the defendant because Valente testified that he had purchased cocaine from a person, whom law enforcement officers identified as the defendant. Thus, the trial court properly denied the defendant’s motion for judgment of acquittal.

The defendant also argues that the trial court erred in admitting testimony concerning general crime behavior. We agree with this point on appeal. Over the defendant’s objection, Officer Brown testified that the defendant approached Valente’s car and leaned into it, consistent with the behavior on someone engaged in a drug transaction. The law is well settled that “general criminal behavior testimony based upon a law enforcement officer’s observations and experience in the investigation of other cases is inadmissible as substantive proof of a defendant’s guilt, because a defendant has a right to be tried based on the evidence against him or her, not on the characteristics or general behavior of certain classes of criminals in general.” Baskin v. State, 732 So.2d 1179, 1180 (Fla. 1st DCA 1999) (citations omitted). The “only purpose of testimony regarding criminal behavior patterns ‘is to place prejudicial and misleading inferences in front of the jury.’ ” Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997) (quoting Nowitzke v. State, 572 So.2d 1346, 1356 (Fla.1990)).

In White v. State, 971 So.2d 972 (Fla. 4th DCA 2008), we reversed a defendant’s conviction for sale or delivery of cocaine where general crime behavior testimony was admitted into evidence at trial. In that case, the evidence against White was based on a videotaped controlled buy made by a confidential informant, who had an extensive criminal record. Id. at 973. The videotape showed White and the co-defendant approach the informant’s car window. Id. It further showed the co-defendant actually hand the drugs to the informant and take the money. Although the informant testified that White arranged the sale, the videotape was not clear about what White said to the informant. Both men were charged with the sale of cocaine. Id.

Over a defense objection, the trial court in White permitted the supervising detective to testify that in drug transactions it was not uncommon for more than one person to approach the buyer’s window. White, 971 So.2d at 973. We concluded that this was error, citing numerous cases wherein courts have held such testimony inadmissible to show that the defendant’s conduct “mirrored” that of other drug sellers. Id. at 973-74. We also found that the error was not harmless because the detective’s testimony refuted White’s defense that he did not participate in the crime, and “[wjithout the criminal behavior testimony suggesting guilt by comparison, the jury would have been required to decide the case solely from the videotape and the informant’s testimony.” Id. at 974.

Similarly, in this case, the trial court erred in admitting the officer’s testimony that the defendant’s act of leaning into the vehicle was consistent with the conduct of someone engaged in a drug transaction. Moreover, we cannot find that the error was harmless, i.e., that “there is no reasonable possibility that the error contributed to the conviction.” Goodwin v. State, 751 So.2d 537, 541 (Fla.1999) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). Here, the defendant denied that he sold drugs to Valente, Valente was unable to identify the defendant as the seller, and the officer was unable to actually see the exchange of any drugs or money. Thus, the general drug transaction behavior was a critical aspect of proof in relation to the other evidence of guilt in this case. Cf. Armalin v. State, 884 So.2d 458 (Fla. 4th DCA 2004) (holding that police officer’s testimony regarding the common practice of drug dealers to conceal narcotics in their mouth, though erroneous, was harmless where undercover officer had bought drugs directly from the defendant).

Accordingly, we reverse the judgment of conviction and sentence for sale of cocaine and remand for a new trial.

Affirmed in part, Reversed in part, and Remanded for a new trial.

HAZOURI and LEVINE, JJ., concur.

      . Although general criminal behavior testimony is usually objected to on the basis of relevancy, we note that such testimony was deemed inadmissible in a case concerning common behavior of drug dealers where the testimony was objected to at trial as speculative. See Petion v. State, 48 So.3d 726, 728 (Fla.2010).


author: PER CURIAM.

text:
    Ermino ESCOBEDO-MUNIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4273.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.
    Ermino Escobedo-Muniz, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ermino Escobedo-Muniz (Defendant) appeals an order of the Martin County Circuit Court, summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm without prejudice.

Defendant pleaded no contest to one first-degree misdemeanor, and two third-degree felonies. He was sentenced to time-served for the misdemeanor; forty-eight months’ imprisonment, followed by one year probation, for the first felony; and five years’ probation for the second felony.

In his rule 3.800(a) motion, Defendant alleged that his sentence of “48 months DOC followed by 5 years probation” was illegal because the scoresheet reflected a maximum of six years. The post-conviction coui’t conceded that the scoresheet contained an error, but concluded that the sentences were not illegal because Defendant was sentenced to forty-eight months in prison, followed by one year probation, for one third-degree felony, and to five years’ probation for the other third-degree felony offense. We agree.

Third-degree felonies are punishable by up to five years’ imprisonment. See § 775.082(3)(d), Fla. Stat. (2008). Contrary to Defendant’s assertion, the forty-eight month prison sentence and the five-year probationary sentence were not imposed for the same offense; rather, these were two distinct sentences for two different offenses. Therefore, Defendant’s sentences were not illegal as neither exceeded the statutory maximum permitted for third-degree felony offenses. See Maynard v. State, 763 So.2d 480 (Fla. 4th DCA 2000).

However, if Defendant relied on the scoresheet as the basis for his plea, or, if his plea agreement provided that he would be sentenced in accordance with the score-sheet, then his remedy would be to file a sworn rule 3.850 motion to withdraw his plea as involuntary or to enforce the agreement. See O’Hearn v. State, 67 So.3d 374 (Fla. 4th DCA 2011).

Because the instant appeal was pending when the two-year time period for filing a timely rule 3.850 motion expired, Defendant, if he chooses to do so, shall have thirty days from the issuance of the mandate in this case within which to file such a rule 3.850 motion, which shall be considered timely filed.

Affirmed without prejudice.

POLEN, CIKLIN and GERBER, JJ„ concur.


text:
    Jermaine MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-858.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.

      Jermaine Moore, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jermaine Moore appeals from the denial of his seven-issue motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons explained below, we affirm the denial with respect to all issues except Moore’s first claim.

Moore was convicted following a jury trial of possession of a firearm by a convicted felon, improper display of a weapon, possession of cocaine with intent to sell or deliver (with a weapon), possession of a short-barrel shotgun, two counts of resisting an officer without violence, and possession of drug paraphernalia. He filed a direct appeal, raising only two issues. First, he argued that his conviction on the two resisting counts violated double jeopardy. The State conceded error on this point. Second, he argued that the State provided untimely written notice of its intent to seek HFO sentencing. As to this issue, we found that the failure to timely serve the written notice was harmless because Moore had been given actual notice of the State’s intent to seek HFO sentencing separate and apart from the written notice. Moore v. State, 12 So.3d 1275 (Fla. 5th DCA 2009). Accordingly, we affirmed all convictions and sentences except for the duplicative resisting count. Id.

Moore timely filed his 3.850 motion, alleging six grounds for relief, plus a claim of cumulative error. Although the trial court granted a hearing on all six claims, Moore primarily relied upon the transcript of his trial to meet his burden of proof. As an aside, we note that Moore’s trial counsel did not seek to sever the count alleging possession of a firearm by a convicted felon from the remaining charges, and that Moore did not raise this as a ground for relief in his 3.850 motion. Cf. Brown v. State, 604 So.2d 20 (Fla. 1st DCA 1992); Sloan v. State, 500 So.2d 727 (Fla. 2d DCA 1987).

As his first issue, Moore claims that his counsel was ineffective for failing to object when the prosecutor displayed documents related to his prior conviction to the jury, despite his agreement to stipulate that he was a convicted felon. Moore claims prejudice because the documents showed that in addition to being convicted of possession of cocaine in a prior case, Moore had been charged in that case with delivery of cocaine. The trial transcript reflects that the prosecutor displayed the documents on a large screen, using an overhead projector, and explained them in detail to the jury, including the fact that Moore was charged with both delivery of cocaine and possession of cocaine in a prior case, and was convicted of the possession charge. This occurred shortly after the trial judge had confirmed on the record that Moore agreed with his attorney’s decision to stipulate to his status as a convicted felon.

At the evidentiary hearing on Moore’s motion, his prior counsel testified that he and Moore decided as a matter of strategy to concede guilt on a lesser offense of possession of cocaine in this case. He explained that Moore was arrested with the cocaine on his person and that he had no reasonable argument to challenge a charge of simple possession. So, to maintain credibility with the jury, he and Moore agreed they should concede that Moore personally used cocaine, and to argue that the cocaine on his person was for personal use — but to argue against conviction on the other charges (where the State’s evidence was not as strong). Based upon this strategy, counsel and Moore also agreed that even though Moore had stipulated to his status as a convicted felon, they should inform the jury that his prior conviction was for possession of cocaine. Because Moore was admitting his cocaine addiction, they felt that revealing the nature of the prior conviction would help in the defense more than it would hurt. Citing this testimony, the trial court found that counsel’s decision to have the jury informed of the nature of the prior felony was sound trial strategy, and denied relief. However, the trial court failed to address how it would further this strategy to allow the State to tell the jury that Moore had also been previously charged with delivery of cocaine.

Recognizing the “prejudicial effect the evidence of [an] acquitted crime will have in the minds of the jury in deciding whether he committed the crime being tried,” the Florida Supreme Court has generally found it “fundamentally unfair to a defendant to admit evidence of acquitted crimes” in a criminal trial. State v. Perkins, 349 So.2d 161, 163 (Fla.1977). We see no discernable reason why competent trial counsel would allow the State to place evidence of a prior delivery of cocaine charge before the jury in support of a defense that the defendant was only a consumer of the illicit drug. As such, we find that Moore did establish a deficiency in his counsel’s performance at trial with respect to this claim.

In his second issue, Moore alleged that his counsel was ineffective for having the jury informed of his prior conviction on the charge of possession of cocaine. The trial court properly found that this was a reasonable tactical decision, based on counsel’s testimony at the evidentiary hearing. Accordingly, we affirm as to this issue.

Third, Moore contends that his counsel was ineffective for failing to object and move for a mistrial when the prosecutor appealed to the jury’s “community sensibilities” during closing argument. The comment had to do with the open display of a firearm on a public street, with the prosecutor declaring that: “No parent, no mother, no father, no child should have to drive down any street and see this type of behavior going on. It is extremely offensive and it’s extremely dangerous.” We agree with the trial court that the comment was not so inflammatory that a timely motion would have warranted a mistrial, and affirm as to this issue as well.

Similarly, in his fourth issue, Moore claims that his counsel should have objected to another statement during the prosecutor’s closing argument which improperly vouched for the credibility of the State’s law enforcement witnesses. While the prosecutor did call the officers’ version of the facts “true and correct,” he followed almost immediately with a statement that it is the jury’s job to determine “which facts exist, if any,” explaining that: “Facts don’t come from me. Facts come from [the] witness stand.” Taking these statements as a whole, we again find that the trial court properly denied relief on this ground, since an objection would not have warranted a mistrial.

As his fifth basis for relief, Moore claims that his attorney was ineffective for failing to object to two statements by the prosecutor which Moore viewed as improper comments on his right to remain silent. With respect to the first statement, the trial court correctly ruled that the jury would not have viewed the statement, in context, as a comment on the Moore’s right to remain silent. With respect to the second statement, the trial court properly ruled that defense counsel did object to the statement, and thus his performance was not deficient.

Moore has abandoned his sixth claim on appeal, and there is no basis for a claim of cumulative error given that only one ground for relief remains.

With respect to Moore’s first claim, the trial court did not address the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and we remand with directions that the trial court do so.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

GRIFFIN, TORPY, and LAWSON, JJ., concur.