author: RAMIREZ, C.J.

text:
    Sabrina THOMPSON, Appellant, v. WAL-MART STORES, INC., Appellee.
    No. 3D10-146.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Gold, Chavez & Gold, and Philip A. Gold, Coral Gables; Barbara Green, for appellant.
    Quintamos, Prieto, Wood & Boyer and Philip J. Kantor and David Tarlow, Fort Lauderdale for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   RAMIREZ, C.J.

Sabrina Thompson appeals the denial of her motion for a new trial based on: the unreliability of an expert witness’ testimony and use of an undisclosed PowerPoint slide presentation; and the improper admission of Thompson’s prior convictions. We affirm the admission of Thompson’s prior convictions, but reverse and remand for a new trial, because the trial court abused its discretion when it allowed the introduction into evidence of the testimony of the expert witness who changed his testimony and presented PowerPoint slides at trial without prior notice to Thompson.

Thompson slipped and fell in a “puddle of yellowish-green liquid in a housewares aisle at Wal-Mart in Daytona Beach.” There were no warning signs or cones in the area, and Thompson did not see the liquid before she fell. An eye witness saw the liquid and witnessed her fall. A jury found Wal-Mart 100% at fault for the fall, but awarded only minimal damages. Thompson had previously fractured her wrist in 1994 for which she received treatment. Due to her previous injury, Thompson’s ulna was slightly longer than her radius.

About ten days after the fall, she saw Dr. Stephen Wender. Thompson told Dr. Wender that she had “severe pain in her wrist with numbness and tingling in her thumb, index finger and long finger.” Dr. Wender diagnosed Thompson with a tear of the triangular fibrocartilage complex (hereinafter “TFCC”) and carpal tunnel syndrome. After conservative treatment, Dr. Wender referred Thompson to Dr. Jay Dennis, Chief of Hand Surgery at the University of Miami School of Medicine.

Dr. Dennis reviewed Thompson’s medical records and conducted an examination. He concluded that she had suffered an injury that was both recent and acute. He diagnosed Thompson with a TFCC tear and carpal tunnel syndrome. Dr. Dennis also treated her conservatively for two months, and he did not find any changes in her condition.

Five months after the fall, in January 2007, Dr. Dennis performed arthroscopic surgery and a carpal tunnel release. Dr. Dennis believed the surgery showed an unreconstructable tear of the TFCC, and described it as a “trampoline with a hole in the middle” with no possibility of repair. At the same time, Dr. Dennis performed an ulnar shortening osteotomy, in which he broke the ulnar bone and shortened it to bring it down to a level even with the radius. According to Dr. Dennis, the procedure “is one of the salvage reconstruction options for an irreparable, non-recon-struetable, non-fixable TFCC.” The carpal tunnel release performed at that time also involved breaking the bone and inserting a plate which later had to be removed, leaving holes in the bone, which are points of weakness in the wrist. Dr; Dennis had to operate a third time, after a screw hole left from the plate caused a new displaced fracture in Thompson’s wrist. Dr. Dennis estimated that Thompson sustained a seven percent permanent impairment. He opined that the fall at Wal-Mart had caused a significant portion of her injury, and exacerbated her wrist condition and brought on all of her symptoms. He believed that as a result of the fall, Thompson required the three surgeries she received. He also stated that the fall also probably aggravated or exacerbated her carpal tunnel syndrome.

The pretrial order required the parties to provide opposing counsel, no later than sixty days before trial, “the names and addresses of all expert witnesses to be called at trial and all information regarding expert testimony (including treating physicians, if any, that is required by rule 1.280(4)(A)).” Wal-Mart filed its first witness and exhibit list in February of 2009, and at that time disclosed that it would call Dr. Felix Freshwater as an expert witness, and provided his address at the Miami Institute of Hand and Microsurgery. In its Disclosure of Experts, Wal-Mart also listed Dr. Freshwater as an expert in hand surgery. Wal-Mart filed a second witness and exhibit list in April of 2009 and gave no additional information.

Thompson’s counsel took Dr. Freshwater’s deposition in March of 2009. Dr. Freshwater never examined Thompson. He based his testimony on a review of medical records and on Dr. Dennis’ deposition. He testified that he had not seen her x-rays, but had reviewed the x-ray reports. He also testified that he could not determine within a reasonable degree whether the tear occurred prior to, or after her fall, or whether the injury was degenerative or traumatic in nature, only that the injury was not as a result of the fall at Wal-Mart. Dr. Freshwater further testified that the MRI taken of plaintiffs .wrist was practically useless, and that he “couldn’t see anything on the MRI about the TFCC tear that the radiologist alluded to.” He also testified that he was only able to measure the amount of the ulnar variance on the MRI, but that it was not a very good study. Dr. Freshwater believed that the procedures performed by Dr. Dennis were unnecessary, except the arthroscopy. After this statement, he terminated the deposition.

On May 8, 2009, Thompson moved to strike Dr. Freshwater on the grounds that his opinion was speculative and based on insufficient data because he was unable to read the MRI, had not personally examined Thompson, and had not reviewed the x-ray films. At the hearing on the motion, defense counsel stated that Dr. Freshwater would testify as to the surgeries being “overkill” and unnecessary, and that the tear could, have occurred before or after the fall but that he did not believe (“within a reasonable degree of medical probability or certainty”) that the fall caused the injury. The trial court denied Thompson’s motion to exclude or limit Dr. Freshwater’s testimony.

The night before the last day of trial, Thompson received a forty-five slide PowerPoint presentation titled “Understanding Wrist Fractures” that Dr. Freshwater was going to use to testify. Thompson objected to Dr. Freshwaters’ testimony, arguing that there would be no time for her own experts to evaluate them. The court overruled the objection.

Dr. Freshwater testified that using the MRI, he was able to tell that the end of Thompson’s radius had collapsed, which gave her a negative volar angle or tilt of twenty-one degrees; a normal volar angle being at eleven degrees, and he would be able to tell that there was a collapse of ten degrees the other way. Dr. Freshwater testified that the load on Thompson’s wrist increased to forty-three percent. He also testified that the MRI showed no “white area,” which indicated that there was a recent injury to the wrist. He stated that the cause of the wrist problem was degeneration, and this resulted from her wrist fracture in 1994. Dr. Freshwater stated that he based this opinion partly on the emergency medical records because Thompson did not complain in the emergency room of having any swelling, bruising, oozing or pain in her wrist, as he would expect from a TFCC injury. Also, the records from the North Dade Center where Thompson had a follow-up medical visit days after the fall did not indicate that she had any complaints or pain.

Dr. Freshwater conceded that he changed his opinion as to whether all of the surgeries Dr. Dennis performed were unnecessary, including the arthroscopy which in his deposition he stated was appropriate. Thompson cross examined Dr. Freshwater on his changed opinion but did not present any rebuttal testimony.

The jury returned a verdict for Thompson, awarding damages in the amount of $7,041.44 for the ambulance, hospital emergency room and MRI. There was no award for treatment by Dr. Wender or Dr. Dennis, or for pain and suffering.

We conclude that the trial court abused its discretion when it allowed Dr. Freshwater’s surprise testimony and his PowerPoint slides, neither of which had been disclosed to Thompson prior to the last day of trial. The trial court should not have allowed Dr. Freshwater to testify that Ms. Thompson’s wrist problem was caused by degeneration from her 1994 fracture when, before trial, he testified that it was impossible to determine the cause, except that it was not caused by the fall at Wal-Mart. In addition, the trial court should not have allowed Dr. Freshwater to present calculations at trial based on measurements he said in deposition he was unable to take because of the poor quality of the MRI. Throughout the entire pre-trial proceedings, Wal-Mart never disclosed Dr. Freshwater’s opinion that the wrist problem was degenerative, caused by the 1994 fracture.

Furthermore, the pretrial order required disclosure of all expert information required by Florida Rule of Civil Procedure 1.280(4)(A). Wal-Mart did not disclose the opinion it in its witness lists. Wal-Mart did not disclose it in its expert witness disclosures. Dr. Freshwater did not disclose it in his deposition. Wal-Mart did not disclose it in the proffer its counsel made to the court at the hearing three weeks before trial. In fact, the proffer consisted of Wal-Mart’s counsel reading verbatim several pages from Dr. Freshwater’s deposition, and representing to the court and Thompson that what Dr. Freshwater said in his deposition was what he was going to say at trial: that he could not say what caused the TFCC tear, or whether it occurred before or after her fall at Wal-Mart.

Thirty years ago, the Florida Supreme Court stated in no uncertain terms that courts in Florida would not condone trial by ambush. See Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981). In Binger, the court established the policy of this State which is to promote full and open disclosure in discovery and pretrial procedure, and it stated that “[t]he goals of [the] procedural rules is ‘to eliminate surprise, to encourage settlement, and to assist in arriving at the truth.’ ” Id. at 1313. Although the trial court has discretion to exclude a witness, the court explained:

The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noneompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases).

Id. at 1314.

We have previously condemned the practice of allowing experts to develop or change their opinion during, or shortly before, trial. In Owens-Corning Fiberglas Corp. v. McKenna, 726 So.2d 361, 363 (Fla. 3d DCA 1999), we held that the trial court properly excluded an expert who examined the plaintiff three days before trial and failed to provide a report of his examination before trial began. Similarly, in Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 994 (Fla. 3d DCA 2010), we held that the admission of an expert’s surprise testimony was an abuse of discretion, where it was based in part on the work of two people whose work the expert said, in his deposition, he had not reviewed.

The prejudice to Thompson’s case was obvious. She had already presented the testimony of her expert and had not contradicted the testimony of Dr. Freshwater because the anticipated evidence was entirely different from that which was ultimately given. The PowerPoint slides were never shown to Thompson’s counsel before their own expert had testified. The trial court’s finding of no prejudice seems to confuse the measurement of the ulnar variance, which Dr. Freshwater disclosed before trial, with the measurement of the volar tilt, which he did not disclose. It was the latter measurement, which he testified at deposition he could not measure, that was the basis of his new opinion.

Additionally, the rules of discovery certainly encompassed the disclosure of the PowerPoint slides. The Florida Supreme Court has frequently reiterated the importance of broad and liberal discovery rules in our adversary system. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 948 (Fla.2002). Trial courts should not allow litigants to circumvent the rules by preparing these types of eviden-tiary props at the last minute. Here, the trial court allowed Dr. Freshwater to underscore his testimony with an extensive use of PowerPoint slides that were only disclosed on the evening before the last day of trial. While we do not reverse on this ground alone, we strongly condemn such a strategy.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: MARSTILLER, J. THOMAS, J.

license: Public Domain

text:
    Jetta D. SCHANTZ and Robert E. Schantz, her husband, Appellants, v. Kenneth SEKINE, M.D. and Sekine & Rasner, P.A., a corporation, Appellees.
    No. 1D10-3511.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Rehearing Denied April 25, 2011.

      Joseph V. Camerlengo of Camerlengo Law Group, P.L., Jacksonville, for Appellants.
    Michael R. D’lugo and Richard E. Ramsey of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellees.
   MARSTILLER, J.

After receiving a defense verdict in Appellants’ medical malpractice lawsuit, Ap-pellees successfully sought costs and attorney’s fees pursuant to section 768.79(1), Florida Statutes, the offer of judgment statute. Appellants challenge the award, arguing that Appellees’ settlement proposal was conditioned on Appellants’ joint acceptance and is, therefore, invalid under Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla.2010). We agree and reverse the judgment for attorney’s fees and costs.

Florida Rule of Civil Procedure 1.442(3) permits joint settlement proposals like the one at issue in this case if they “state the amount and terms attributable to each party.” Under this Court’s pre-Gorlca decision in Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), a joint settlement offer conditioned on both plaintiffs’ acceptance, but clearly apportioning the offered amount among the plaintiffs and defendants, was valid and enforceable. But in Gorka the supreme court disapproved Clements, and now the differentiation rule 1.442 requires is ineffective where the settlement offer is conditioned on joint acceptance.

The joint proposal in Gorka offered to settle the plaintiffs’ claims for declaratory relief and breach of contract for $25,000. Gorka, 36 So.3d at 652 (Polston, J., dissenting). Under the express terms of the offer, each plaintiff would receive $12,500. Id. The proposal further provided that ‘“neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.’ ” Gorka, 36 So.3d at 648. Although rule 1.442(3) permits joint proposals so long as they break out terms and amounts as to each party, the supreme court deemed the offer invalid and unenforceable, stating that a settlement offer “conditioned on joint acceptance ... is the antithesis of a differentiated offer.” Id. at 651.

The pertinent terms of the settlement proposal in this case were:

3. Defendants will pay the total sum of One Hundred Thousand and No/100 ($100,000.00) Dollars (and of that amount, $95,000.00 to Plaintiff, Jetta Schantz, and $5,000.00 to Plaintiff, Robert Schantz) in full settlement of all of the Plaintiffs’ claims of whatever nature which have been or could have been asserted against these Defendants as a result of the matters described in the Plaintiffs’ Complaint and any amendments to the Complaint.
4. Plaintiffs shall execute a general release in favor of the Defendants.... The release will include a requirement that the terms of the settlement remain confidential. Furthermore, Plaintiffs shall hold harmless and defend the Defendants from all claims, liens, subrogation rights and all interests of all third parties which might exist as a result of the matters described in Plaintiffs’ Complaint. (See attached Release).
5. Plaintiffs shall dismiss this case with prejudice as to the Defendants.
7. If this Proposal for Settlement is not accepted in writing within thirty (30) days of service, it shall be deemed rejected by the Plaintiffs.

(Emphasis added.) Although not as direct as the wording of the settlement offer in Gorka, the highlighted language above— particularly that in paragraph 7 of the proposal — conditions settlement on Appellants’ mutual acceptance of the offer and joint action in accordance with its terms. Appellees contend that because the offer apportioned the settlement amount among the parties, Appellants could independently evaluate the settlement offer and had adequate notice that they could settle their claim(s) individually. Indeed, the proposal specified in a footnote, “Mrs. Schantz is offered $94,000 from Dr. Sekine and $1,000 from Sekine & Rasner, P.A. Mr. Schantz is offered $4,000 from Dr. Sekine and $1,000 from Sekine & Rasner, P.A.” Before Gor-ka, the joint settlement offer arguably would have satisfied rale 1.442(3) because it specifies who would get what from whom. But the new rule announced in Gorka renders Appellees’ proposal invalid and, we believe, “effectively eliminates the ability to make joint offers.” Gorka 36 So.3d at 654 (Polston, J., dissenting).

The Final Judgment as to Fees and Costs is REVERSED.

VAN NORTWICK, J., Concurs.

THOMAS, J., Specially Concurring With Opinion.

THOMAS, J.

Specially Concurring.

I concur with the majority opinion, because under the decision in Attorney s’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646 (Fla.2010), this offer of judgment cannot be upheld. I write to urge the legislature to review section 768.79, Florida Statutes, which provides a substantive right to attorney’s fees and, just as importantly, provides the legislature’s clear intent to facilitate settlements.

The legislature created a substantive right to attorney’s fees when it enacted section 768.79, Florida Statutes. See In re Amend, to Fla. Rules of Civ. Proc., 682 So.2d 105, 105-06 (Fla.1996) (in which the court rejected a proposed rule which attempted to define entitlement to substantive right which is within province of legislature). This substantive right is meaningless, however, if it cannot be enforced.

Legislative review of section 768.79, Florida Statutes, may be appropriate, because, as Justice Pariente has noted, “Over the years I have expressed concern about whether either [rule 1.442] or [section 768.69, Florida Statutes] is fulfilling its intended purpose of encouraging settlement or at times is having the opposite effect of increasing litigation.” Campbell v. Goldman, 959 So.2d 223, 227 (Fla.2007) (Pariente, J., specially concurring). This observation is borne out in case law. See, e.g., Gorka, 36 So.3d 646, 650 (Fla.2010) (noting the expected result of attorney’s fee sanction was to reduce litigation by encouraging settlement, but the sanction had not produced desired outcome “because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers.”). To illustrate its point, the Gorka opinion included this quote from Security Professionals,.Inc. v. Segall, 685 So.2d 1381, 1384 (Fla. 4th DCA 1997), in which the Fourth District lamented: “We regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to ‘terminate all claims, end disputes, and obviate the need for further intervention of the judicial process.’ ”) (quoting Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989)). Gorka, 36 So.3d at 650.

Under the statute, the legislature intended to encourage settlements and reduce litigation costs on society by providing that prevailing parties who make a legitimate offer of judgment will have a reasonable expectation of recovering their attorney’s fees. Consequently, I respectfully suggest that the legislature consider clarifying parties’ rights and responsibilities in making and receiving offers of judgments.

       Section 768.79(1) provides, in pertinent part:
      In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained is at least 25 percent less than such offer. ...


author: PER CURIAM. MARSTILLER, J.,

text:
    Kelvin Orlando MILES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6475.
    District Court of Appeal of Florida, First District.
    March 23, 2011.
    Rehearing Denied May 4, 2011.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant, Kelvin Orlando Miles, appeals his convictions for sexual battery with a deadly weapon and kidnapping with a deadly weapon and the corresponding consecutive life sentences. Miles raises three arguments on appeal, asserting that the trial court erred by (1) denying his motion in limine to exclude DNA evidence and testimony concerning the DNA evidence; (2) denying his oral motion to suppress statements he made during a police interview after he invoked his right to remain silent; and (8) by imposing a sentence which deviated from the recommended or permitted score sheet sentence. We find no error in the trial court’s denial of the motion in limine to exclude the evidence regarding the DNA or the trial court’s imposition of the sentence. However, we conclude that the trial court erred by denying Miles’ motion to suppress the statements he made to police after he invoked his right to remain silent. Despite compelling evidence of Miles’ guilt in this case, we are unable to conclude beyond a reasonable doubt that the error did not contribute to Miles’ conviction. We must, therefore, reverse and remand for a new trial.

Facts and Procedural Background

During the early morning hours of January 13, 1990, the victim in this case was exiting the vehicle she was driving when she was kidnapped and sexually battered by an assailant. The victim was unable to identify the assailant. When police officers found the victim in the vehicle a few hours later, they transported her to Ala-chua General Hospital where a sexual assault examination was conducted. Four sexual assault swabs were collected from the victim, placed in a sealed kit, and turned over to the Gainesville Police Department.

The Gainesville Police Department sent the sealed kit to the Florida Department of Law Enforcement (FDLE) in late 1993. Due to a backlog of cases requiring DNA analysis, the kit was not tested until 2003. The 2003 testing yielded a DNA profile that was matched to Miles in 2008, after the DNA profile was entered into FDLE’s Combined DNA Index System database.

After obtaining the hit in the database, in April 2008 two detectives from the Gainesville Police Department met with Miles in prison where he was incarcerated for other crimes to interview him about the 1990 crimes. The detectives began the interview as follows: “We have to discuss why we’re here, why we know you’re associated with this case. I just want to ask you, would you be willing to talk to us about this case?” Miles responded by stating, “[actually, I don’t know nothing about this, so I’m not fixing to say nothing about this.” The detectives then told Miles that “it was not a question of whether ... [he] did it.” They informed Miles that they had his DNA and that was as good as a signed confession. The detectives continued the interview, making a few more statements, then advising Miles of his Miranda rights.

At no point during the interview was Miles provided any details of the sexual battery other than that it occurred in Gainesville in 1990. During the interview, Miles made the following statements: “It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying.... What can I possibly tell you? We had sex. Just — that’s that.”

During the interview, the detectives also obtained a cheek swab from Miles. The analyst from the lab who performed the DNA analysis on the cheek swab and compared it to the unknown DNA profile developed by the lab in 2003 testified at trial that there was a one in 900 quadrillion likelihood that an unrelated person’s DNA would contain the same profile.

At a pre-trial hearing, Miles moved to suppress the statements he made during the interview asserting that he had invoked his right to remain silent, but made potentially incriminating statements after the detectives continued to question him. After hearing argument from the parties and listening to an audiotape of the interview, the court denied Miles’ motion, stating that it did not hear “Miles make an unequivocal invocation of his right to remain silent.”

The audiotape of the police interview was played for the jury. The detectives who conducted the interview testified at trial regarding the interview. During opening and closing statements, the prosecution referred to the statements made by Miles during the interview. Just before the jury retired for deliberations, two members of the jury inquired of the trial judge whether the audiotape or a transcript of the audiotape of the 2008 police interview would be available to the jury during deliberations. The court responded that the jury could listen to the audiotape in the courtroom, but that no transcript would be available. The record does not reflect that the jury listened to the audiotape for a second time. The jury returned a verdict finding Miles guilty of sexual battery with a deadly weapon and kidnapping with a deadly weapon. Miles was sentenced to life sentences on both counts, to be served consecutively.

Analysis

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, the appellate court must determine (1) whether competent, substantial evidence supports the trial court’s findings of historical fact; and (2) whether the trial court reached the correct legal conclusion. Thomas v. State, 894 So.2d 126, 136 (Fla.2004). Because the facts in this case are undisputed and the issue is purely one of law, we review the trial court’s ruling under the de novo standard.

Invocation of the Right to Remain Silent

Under both the United States and Florida Constitutions, a person may not be “compelled” to be a witness against himself or herself in any criminal matter. U.S. Const, amend. V; art. I, § 9, Fla. Const. To safeguard the privilege against self-incrimination, a person questioned while in custody must be clearly informed as to his or her rights, including the “right to remain silent” and that “any statement he does make may be used as evidence against him.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A defendant may waive these rights, but the waiver must be made voluntarily, knowingly, and intelligently. Id.

Further, police must not begin interrogation, or if it has already begun, must immediately cease “if the suspect indicates in any manner that he or she does not want to be interrogated.” Cuervo v. State, 967 So.2d 155, 161 (Fla.2007) (quoting Traylor v. State, 596 So.2d 957, 966 (Fla.1992)). Although no magic words are required to invoke the right to remain silent, a suspect must communicate his desire to remain silent and to end questioning “with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” State v. Owen, 696 So.2d 715, 718 (Fla. 1997). Once a suspect has invoked his right to remain silent, “the police must refrain from ‘any words or actions ... (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” State v. Hunt, 14 So.3d 1035,1038 (Fla. 2d DCA 2009) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). Statements obtained after a suspect has invoked his right to remain silent may only be admitted when “the suspect’s right was ‘scrupulously honored.’ ” Id. (quoting Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)).

On the other hand, where a defendant makes only an equivocal or ambiguous request to terminate an interrogation, police are not required to ask questions to clarify the suspect’s intent, but may instead continue with the interrogation. Owen, 696 So.2d at 719. In Owen, the supreme court held that the responses of “I don’t want to talk about it” and “I’d rather not talk about it” to factual questions concerning insignificant details of crime and not whether the defendant wished to speak about the crime were equivocal requests to invoke the right to silence. Id. at 717, 719-20. However, the Florida Supreme Court has since made clear that the holding in Owen regarding equivocal requests “applies only where the suspect has waived the right earlier during the session.” Almeida v. State, 737 So.2d 520, 523 n. 7 (Fla.1999); accord Cuervo v. State, 967 So.2d 155, 162 (Fla.2007). Accordingly, if the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation. See Alvarez v. State, 15 So.3d 738, 745 (Fla. 4th DCA 2009).

Here, at the very outset of the interview of Miles by detectives and before he was advised of his Miranda rights, Miles made a statement indicating his reluctance to talk to the police. The detectives who conducted the interview testified at trial that before beginning the interview they told Miles that they were there to talk to him about a rape or sexual battery that occurred in 1990. The audiotape of the interview begins with the detectives inquiring whether Miles would be willing to talk to them about the case: “We have to discuss why we’re here, why we know you’re associated with this case. I just want to ask you, would you be willing to talk to us about this case?” Miles responded to the inquiry with the following statement: “Actually I don’t know nothing about this, so I’m not fixing to say nothing about this.”

The trial court determined that this statement by Miles was not an unequivocal invocation of his right to remain silent, and therefore, denied Miles’ motion to suppress statements he made later in the interview. This was error. Under binding precedent from the Supreme Court, we are unable to conclude that the statement was equivocal. See Cuervo v. State, 967 So.2d 155, 163 (Fla.2007). In Cuervo, the Florida Supreme Court held that Cuervo’s statement “I don’t want to declare anything” was a “clear invocation of the right to remain silent.” Miles’ statement to the detectives in this case is indistinguishable from the statement at issue in Cuervo. Because Miles’ statement indicating that he did not want to discuss the case was unequivocal, the detectives were required to terminate the interrogation. Id. at 163— 65. Even if the statement could be construed as an equivocal request to remain silent, because Miles had not yet waived his Miranda rights, the detectives were required to clarify his intent before proceeding further with the interrogation. See Almeida, 737 So.2d at 523 n. 7. They did not do so.

Based on the facts of this case and the binding authority of Cuervo and Owen and its progeny, we are compelled to hold that the trial court erred by denying Miles’ motion to suppress statements he made to police after he invoked his right to remain silent. See Dubon v. State, 982 So.2d 746, 746-47 (Fla. 1st DCA 2008).

Hannless Error Analysis

The trial court’s ruling is subject to harmless error analysis. The harmless error test places the “burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that 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). When applying the harmless error test, appellate courts are required not only to examine the permissible evidence on which the jury relied, but to even more closely examine “the impermissible evidence which might have possibly influenced the jury verdict.” Id.

Although the State presented compelling DNA evidence linking Miles to the crimes in this case and suggesting his guilt, the State produced no additional forensic evidence connecting Miles to the crimes. The sexual battery and kidnapping took place in a car, with no witnesses other than the victim present. The victim could not identify her assailant and when she testified at trial, the victim was unable to identify Miles as the assailant.

The detectives who conducted the 2008 interview of Miles were examined at length during the trial regarding their questions to Miles and his responses to the questions, as well as Miles’ demeanor during the interview. An audiotape of the interview was played for the jury. Although the detectives testified that Miles was not provided any details of the sexual battery and kidnapping other than that it occurred in Gainesville in 1990, the jury heard the following statements by Miles in response to questioning by detectives through the admission of the audiotape: “It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying.... What can I possibly tell you? We had sex. Just— that’s that.” During opening and closing statements, the prosecution referred to the statements Miles made during the interview. Finally, immediately before the jury retired for deliberations, two members of the jury asked the trial court whether the audiotape or a transcript of the audiotape were available to the jury to review during its deliberations.

Although the evidence of Miles’ guilt is compelling, the standard we must apply in reviewing the error here is not a “sufficiency-of-the-evidence” or “an overwhelming evidence” test. DiGuilio, 491 So.2d at 1139. Instead, this court is required under the controlling precedent of DiGuilio to examine whether the improperly admitted statements and testimony concerning those statements contributed to the jury’s verdict. Id. Under the facts of this case, we are unable to conclude to the exclusion of all reasonable doubt that the erroneously admitted statements did not contribute to the jury’s verdict. Id. Accordingly, we reverse Miles’ conviction and sentence and remand for a new trial.

WEBSTER and ROWE, JJ., concur.

MARSTILLER, J., Concurs in Part, Dissents in Part.

MARSTILLER, J.,

concurring in part, dissenting in part.

I concur with the majority that the trial court neither erred in denying Appellant’s motion in limine or in imposing sentence. Further, I agree Appellant’s statement to police (“I’m not fixing to say nothing about this.”) sufficed to invoke his right to remain silent and is indistinguishable from the statement made in Cuervo. Because the facts do not show Appellant validly waived his right, the trial court should have suppressed Appellant’s subsequent statements.

But I do not find the error harmful and respectfully dissent from the majority opinion on that point. Police interrogating Appellant told him he was about to be charged with rape, robbery and kidnapping because “there would be no other reason why your DNA would be in this girl from 1990.” They neither identified “this girl” nor gave Appellant any details about the crimes. Appellant’s only statements to police in response were:

It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying.
What could I possibly tell you? We had sex. Just — that’s it.
I mean, it ain’t like I raped nobody or kidnapped nobody.

Thereafter he allowed police to swab his cheeks for DNA collection and testing.

The victim testified she was kidnapped and raped. The DNA evidence collected from the victim immediately after the rape matched Appellant’s DNA profile in FDLE’s database. The cheek swab Appellant consented to during the police interview confirmed the match. Testimony established that there is a one-in-900 quadrillion chance the DNA belongs to someone other than Appellant. On the other hand, all the jury heard in Appellant’s taped interrogation was Appellant claiming he had consensual sex with someone in 1990 and unequivocally denying he committed any crime. The statements neither dominated nor became a feature of the prosecutor’s opening statement or closing arguments. The prosecutor mentioned them once in opening. In closing, he argued simply that Appellant’s words were not those of an innocent person and urged the jurors not to let the statements create doubt in their minds. Indeed, the prosecutor posited that the only factual “debate” in the case was whether Appellant used a knife during the rape and kidnapping.

When applying the DiGuilio harmless error test, “[t]he focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d at 1189. I have no trouble, under the circumstances of this case, concluding that the trial court’s error in admitting Appellant’s statements denying guilt did not contribute to the guilty verdicts. Cf. O'Brien v. State, 56 So.3d 884 (Fla. 1st DCA 2011) (reversing sexual battery convictions where court erred by admitting appellant’s confession obtained in violation of Miranda, and error was not harmless beyond a reasonable doubt because prosecution hinged solely on victim’s testimony and state relied on appellant’s confession to bolster victim’s credibility). Accordingly, I would not reverse Appellant’s convictions and life sentences.


author: PER CURIAM.

text:
    Dexter A. DWIGHT, et al., Appellants, v. HOME FINANCING CENTER, Appellee.
    No. 3D10-2293.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Rehearing Denied May 6, 2011.
    511 Law, P.A., and Garry W. Johnson and Bruce K. Herman, Fort Lauderdale, for appellants.
    Spear and Hoffman, and Miguel A. Gonzalez, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984); Curbelo v. Ull-man, 571 So.2d 443 (Fla.1990).


text:
    Robert J. DILLON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0786.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Rehearing Denied May 4, 2011.
    Robert J. Dillon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

WOLF, DAVIS, and PADOVANO, JJ., concur.


author: SHEPHERD, J.

text:
    Sean ST. LOUIS, Appellant/Cross-Appellee, v. FLORIDA INTERNATIONAL UNIVERSITY, etc., Appellee/Cross-Appellant.
    Nos. 3D08-2316, 3D08-2326.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied May 12, 2011.

      Amlong & Amlong, and William R. Am-long, Karen Coolman Amlong, and Jennifer Daley, Fort Lauderdale; Deutsch Rot-bart & Associates, and Erika Deutsch Rotbart, Boca Raton; David A. Howard, for appellant/cross-appellee.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson, and Ingrid H. Ponce and Robert T. Kofman, Miami; Daniel W. Courtney, Miami, for appellee/cross-appel-lant.
    Richard E. Johnson for the National Employment Lawyers Association, Florida Chapter; American Federation of State, County, and Municipal Employees; Florida Education Association, Tallahassee, as Amicus Curiae.
    Todd D. Engelhardt, Robert J. Sniffen and J. David Marsey for the Florida Defense Lawyers Association, Tallahassee, as Amicus Curiae.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal and a cross-appeal from a final judgment on a jury verdict awarding the appellant, Sean St. Louis, $72,241 in lost wages and $2.5 million in compensatory damages on state law racial discrimination and retaliation claims, brought by him against his former employer, Florida International University (FIU), the appellee here. Because we find St. Louis failed to establish a prima facie case for both racial discrimination and retaliation, we reverse the final judgment entered on the jury verdict. Our decision makes it unnecessary to consider any other issues raised on appeal or cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

St. Louis, a Trinidadian man, was hired in November 1997 as the Assistant Controller (later promoted to Associate Controller) of the Contracts and Grants Department (C & G Department) at FIU. As head of the department, St. Louis was responsible for overseeing compliance with federal accounting regulations for federal grants awarded to FIU faculty members. St. Louis asserts he was a good employee and received praise for his work at FIU. FIU contends St. Louis’ department was dysfunctional to the point that the research faculty he was hired to serve was frustrated not only in their personal dealings with him, but also with the level of service they received from the C & G Department as a whole.

In 2002, the federal government announced an audit of the accounting for the research grants awarded to faculty members in FIU’s Hemispheric Center for Environmental Technology (HCET). The government proposed to fine FIU $25 million for violations of federal accounting regulations. In late 2003, St. Louis temporarily was reassigned to assist with FIU’s response to the federal government’s claim. FIU ultimately was able to reduce the fine to $11.5 million in a settlement.

In January 2004, FIU President Modesto A. Maidique announced that as a consequence of the HCET audit and faculty dissatisfaction, FIU was placing new senior officers in all three areas critical to federal regulatory grant compliance. One of these new officials, Dr. George Dam-bach, Vice President of Research, was mandated to reorganize FIU’s research grant structure. When St. Louis sought to return to his old job, he learned that due to the reorganization, the C & G Department had been merged into the Department of Sponsored Research Administration (DSRT) — subsequently renamed Post-Award — which reported directly to Dr. Dambach. On October 1, 2004, FIU informed St. Louis his position as Associate Controller for the C & G Department would be abolished effective March 31, 2005.

In conjunction with this organizational restructuring, Dr. Dambach developed new management protocols for post-award accounting and regulatory compliance for FIU’s federal grants. Instead of focusing on discrete tasks, financial managers in the new Post-Award Department now were called upon to manage all of the post-award issues of a specific faculty member or College, regardless of the type of federal grant involved. Because the job skills and responsibilities for the new positions were substantially different than the old C & G positions, FIU’s Human Resources Department recommended the former C & G employees be required to apply for the new positions and follow procedures like all other applicants. Based upon a similar analysis, FIU’s Human Resources Department recommended that the head of the newly created Post-Award Department, the Director Post-Award, likewise should be opened to all applicants on an equal basis. Dr. Dambach accepted both recommendations.

In October 2004, St. Louis applied for the Director Post-Award position. The search committee selected St. Louis and several other candidates for a preliminary phone interview. Throughout his phone interview, according to members of the committee, St. Louis failed to provide a ■vision for the Department’s future and failed to show a willingness to embrace the changes that were being sought in the new department. When asked what he would do differently in the new position, St. Louis responded he saw no difference between his old position and the new one. St. Louis stated he simply needed some “muscle” from FIU to force the faculty to cooperate and support his initiatives. The search committee did not recommend St. Louis for the position, nor did the committee recommend any of the other interviewees for the position. The position remained vacant for the next nineteen months. In the meanwhile, an Associate Vice President of Research, under the direction of Dr. Dambach, assumed many of the Director Post-Award’s responsibilities.

The Director Post-Award position eventually was filled by Aida Reus in May 2006. Reus had been hired in March 2005 as a Grants Financial Manager in the Post-Award Department, one of the new positions created by the reorganization. For the next thirteen months, she was one of three Grants Financial Managers in the department, and was responsible for supervising two assistant managers on her team. In May 2006, based upon her overall work performance in the Post-Award Department, Reus was promoted to Director Post-Award.

St. Louis first complained of racial discrimination in October 2004, when he was told his department was being eliminated. He testified he made his complaints to two individuals, Paul Michaud, the Assistant Vice President of Human Resources, and Harlan Sands, one of his supervisors at HCET. Importantly, Michaud was not part of the Director Post-Award search committee. Although Sands was part of the search committee, he recused himself from all discussions and decisions regarding St. Louis, and did not participate in St. Louis’ interview. After St. Louis was not recommended for the new position, he found other employment outside FIU and resigned before his termination date. In his resignation letter to Michaud, dated December 8, 2004, St. Louis expressed his belief that his termination was provoked by racial animus. However, there is no record evidence regarding any racially derogatory remarks about St. Louis’ race, nor did St. Louis attribute any racial remarks to Dr. Dambach or any other FIU representative.

St. Louis filed suit against FIU, alleging racial discrimination for eliminating his position and retaliation for expressing such sentiments by not being recommended for the new Director Post-Award position. At trial, a jury returned a verdict in St. Louis’ favor and awarded him $72,241 in lost wages and benefits and $2.5 million in compensatory damages. FIU subsequently filed a Renewed Motion for Directed Verdict, a Motion for New Trial or, in the alternative, a Motion for Remittitur. The trial court denied all of these motions, which FIU now appeals. FIU also filed a Motion to Conform Judgment to Statutory Caps, limiting St. Louis’ award to $200,000, based on sections 760.11(5) and 768.28(5), Florida Statutes (2008). The trial court granted FIU’s motion, which St. Louis appeals.

RACIAL DISCRIMINATION CLAIM

The Florida Civil Rights Act of 1992 (FCRA) protects employees from racial discrimination in the workplace, and provides, in part, “It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual ... because of such individual’s race ....”§ 760.10(l)(a), Fla. Stat. (2004). It is well settled that Florida courts follow the three-part framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for establishing a discrimination claim based on disparate treatment in the workplace through circumstantial evidence. See e.g., Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 21-22 (Fla. 3d DCA 2009); Scholz v. RDV Sports, Inc., 710 So.2d 618, 624 (Fla. 5th DCA 1998). Under the McDonnell Douglas framework, a plaintiff first must establish, by a preponderance of the evidence, a prima facie case of discrimination. Valenzuela, 18 So.3d at 22. If a prima facie case is raised successfully, a presumption of discrimination against the defendant arises. Id.

Once a presumption of discrimination against the defendant is shown, the burden of proof shifts to the employer to present a “legitimate, non-discriminatory reason” for the employment action. Id. If the employer meets its burden of offering non-discriminatory reasons for its employment action, then the presumption of discrimination no longer exists, and the employee must prove the employer’s legitimate reasons for discharge were a pretext for discrimination. Id.

Beginning with step one of the McDonnell Douglas framework, to establish a prima facie case of disparate treatment based on racial discrimination, St. Louis must show: (1) the employee belongs to a protected class; (2) the employee applied and was qualified for the position; (3) the employee, despite his qualifications, was rejected; and (4) similarly situated employees outside the employee’s protected class were treated more favorably. Id.; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Demonstrating a prima facie case is not difficult, but rather only requires the plaintiff to establish “facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). However, in this case, St. Louis failed to satisfy the fourth element, that similarly situated employees outside his protected class were treated more favorably.

To establish this element, St. Louis claims Aida Reus, a person outside his protected class, was treated more favorably by assuming St. Louis’ role as director. However, the evidence presented contradicts this assertion. When Reus was hired in April 2005, she was not hired as Director Post-Award, but rather as one of three Grants Financial Managers, supervising two Post-Award Department employees. St. Louis nevertheless contends that while her official title was different, her job responsibilities were equivalent to those of the position of Director Post-Award. St. Louis’ assertion is incorrect. Although Reus’ position encompassed managerial duties, she was not responsible for overseeing the entire Post-Award Department, as was required of the Director Post-Award.

Finally, St. Louis argues that because Reus eventually was promoted to Director Post-Award in May 2006, this qualifies her as a similarly situated employee outside the protected class for purposes of satisfying the fourth element of his prima facie case. We disagree. Evidence of a person outside the employee’s protected class being hired for the same position approximately nineteen months after St. Louis applied for the position and approximately eighteen months after St. Louis resigned from FIU does not, without more, create an inference of discriminatory intent. See Kelly v. Caldera, No. 98-0753-CB-M, 2000 WL 284263, at *3 (S.D.Ala. Feb.28, 2000) (“[EJvidence that the Corps created a new position eighteen months after a reorganization in which jobs were eliminated does not create an inference that its decisions were motivated by discriminatory intent.”).

Not every reorganization results in discrimination. In this case, St. Louis failed to establish a prima facie case of racial discrimination. As we have stated, “[a] jury’s verdict can not rest on a mere probability or guess, and we cannot affirm a verdict where it has no rational predicate in the evidence.” Food Fair Stores of Fla. v. Sommer, 111 So.2d 743, 746 (Fla. 3d DCA 1959) (citing Golden v. Morris, 55 So.2d 714, 715 (Fla.1951), and Jacksonville Coach Co. v. Early, 78 So.2d 369, 371 (Fla.1955)). FIU’s Motion for Directed Verdict on this claim should have been granted.

RETALIATION CLAIM

“It is an unlawful employment practice for an employer ... to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under [section 760.10].” § 760.10(7), Fla. Stat. (2004). Similar to the burden shifting analysis found in a race discrimination claim, in a retaliation claim the employee first must prove a prima facie case of retaliation. See Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004). If a prima facie case is proven, the burden shifts to the employer to proffer a legitimate reason for the adverse action. Id. The burden then shifts back to the employee to show the legitimate reason proffered was a pretext for the prohibited retaliatory conduct. Id. To establish a prima facie case for retaliation, the employee must show that: (1) he engaged in a statutorily protected expression; (2) there was an adverse employment action; and (3) there was a causal connection between the participation in the protected expression and the adverse action. Id.; see also Blizzard v. Appliance Direct, Inc., 16 So.3d 922, 926 (Fla. 5th DCA 2009).

Just as St. Louis failed to adduce sufficient proof to create an inference of a prima facie case of racial discrimination, he likewise failed to prove a prima facie case of retaliation. On this claim, St. Louis asserts he was not recommended by the search committee for the position of Director Post-Award based upon his allegation that he was being terminated from his position as Associate Controller in charge of the C & G Department because of racial animus, which he made to FIU Assistant Vice President of Human Resources Paul Michaud and HCET supervisor Harlan Sands in October 2004, before the committee considered his application.

Although St. Louis so testified, thereby engaging in a statutorily protected activity, he failed to adduce any evidence that the search committee knew of the allegations and therefore had cause to retaliate. St. Louis testified he made the allegation only to Michaud and Sands. Mi-chaud was not a member of the search committee and did not participate in the process. Although Sands was a member of the search committee, he recused himself from any discussions or decisions regarding St. Louis because St. Louis worked for Sands while at HCET. No evidence exists Sands expressed any opinion of St. Louis or provided any knowledge of St. Louis’ claim of racial discrimination to the search committee.

In order to satisfy the ‘causal connection’ prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. Moreover, while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities.

Russell, 887 So.2d at 379. There is no evidence the search committee was aware St. Louis had complained of racial discrimination. St. Louis’ retaliation claim fails on this element of his prima facie case. Therefore, FIU’s motion for directed verdict on St. Louis’ claim for retaliation likewise should have been granted.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s final judgment based upon the jury verdict in this case, with the direction that judgment be entered for FIU. All other issues raised by the parties are rendered moot by this decision.

Reversed and remanded for proceedings in compliance herewith.


text:
    Samuel C. GOLDEN, Appellant, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D10-2591.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Samuel C. Golden, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Samuel C. Golden, challenges an order striking his motion to reinstate his petition for writ of mandamus and referring him for disciplinary action. We affirm and, at the request of appellee, the Department of Corrections (DOC), impose sanctions for abuse of the process.

On July 24, 2007, appellant filed a petition for writ of mandamus, challenging an administrative determination of guilt for a violation of Florida Administrative Code Rule 33-601.314. On June 3, 2008, the circuit court dismissed the petition, citing a November' 16, 2001, order prohibiting appellant from “filing further complaints and petitions in this Circuit on his own behalf without representation of counsel or prepayment of the filing fee.” We affirmed the order dismissing the petition.

On July 6, 2009, appellant moved pro se to reinstate the petition for writ of mandamus. Observing that appellant had already been directed to refrain from further pro se filings in the Second Judicial Circuit, the court struck the motion and requested that DOC consider disciplinary measures against appellant pursuant to section 944.279, Florida Statutes (2009).

It is well-settled that courts have the inherent authority and duty to limit abuses of the judicial process by pro se litigants. See In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (preventing petitioner, who had filed 99 extraordinary writs, from proceeding in for-ma pauperis when seeking future such writs, because “part of the Court’s responsibility is to see that [limited] resources are allocated in a way that promotes the interests of justice”); Peterson v. State, 817 So.2d 838, 840 (Fla.2002) (limiting petitioner’s ability to file in pursuance of court’s “responsibility to ensure every citizen’s right of access to the courts”); Jackson v. Fla. Dep’t of Corrections, 790 So.2d 398, 400 (Fla.2001) (holding that supreme court “has the inherent authority to limit [the] right [to represent oneself] when pro se litigation becomes so disruptive that it threatens to deny other litigants their rights”).

The trial court advised appellant that its November 2001 sanctions order was final and further ordered the clerk to close the file. Having examined records of the clerk, the court found that appellant had since opened 16 cases over a period of 5 years and that none produced a meaningful result. Appellant was not represented by counsel when he moved to reinstate the mandamus petition, nor did he prepay the filing fee; appellant thus failed to satisfy either of the exceptions to the prohibition against pro se filings set forth in the 2001 order.

We are further troubled by the manner in which appellant has pursued this great volume of litigation. That appellant has disregarded a clear order of the circuit court to refrain from future pro se filings merely reinforces the frivolity of his claims. To dissuade appellant from bringing any similar such motions or pleadings, we conclude that further sanctions are appropriate. See § 944.279(1), Fla. Stat. (providing for disciplinary • procedures to be initiated against “[a] prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state”).

AFFIRMED.

WOLF, DAVIS, and HAWKES, JJ., concur.


text:
    J.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6031.
    District Court of Appeal of Florida, First District.
    May 2, 2011.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, a minor, appeals the trial court’s order finding him guilty of aggravated battery with a deadly weapon based on his stabbing the victim with a plastic fork. We reverse because the State presented insufficient evidence that the plastic fork, as used in the incident, constituted a deadly weapon.

Factual Background

Taking the evidence in the light most favorable to the trial court’s finding, Appellant verbally accosted the victim and then sat down at the table where the victim was eating breakfast. After the victim slid around the table to distance himself from Appellant, Appellant rushed around the table and stabbed the victim with a plastic fork in the left rear of his neck, causing several scratches and an area of redness, but no bleeding. The victim did not require any medical treatment for his injuries, although the school nurse did put some ointment on his neck.

The State filed a petition for delinquency, charging Appellant with one count of aggravated battery and one count of aggravated assault. The matter went to a bench trial. After the State rested, and again at the close of the evidence, Appellant conceded there was sufficient evidence that he committed a battery, but moved for a judgment of acquittal (JOA) on the charge of aggravated battery. The trial court denied both motions, and ultimately ruled:

Under the circumstances of the case, having considered all the evidence and read over the law, I do find that [Appellant] is guilty on the aggravated battery count. I know this fork, to me, it is a plastic fork but it is very sharp and very solid plastic. And I believe [Appellant] was lucky that he wasn’t two inches off on that. I do believe there was sufficient force that that could have punctured a very, very important part of [the victim’s] neck.

The court withheld adjudication and sentenced Appellant to probation. This appeal followed.

Analysis

“Because a motion for a[JOA] presents an issue of law, the trial court’s order on the motion is reviewed on appeal by the de novo standard of review.” Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). “[I]n reviewing an order denying a motion for a judgment of acquittal the appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the state.” Id. Here, the question is whether, under the circumstances, the plastic fork used by Appellant was a deadly weapon, supporting a charge of aggravated battery.

Section 784.045(l)(a), Florida Statutes, provides, “A person commits aggravated battery who, in committing battery ... [u]ses a deadly weapon.” Section 790.001(13) defines “weapon” as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (Emphasis added.) Thus, forks, plastic or otherwise, are not explicitly defined as a weapon, nor are they explicitly omitted from the definition, as plastic knives are.

This court has recognized that [a] ‘deadly weapon,’ within the meaning of the aggravated battery statute, is '1) any instrument which, when used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily hami because of the way it is used during a crime.’ ” Smith v. State, 969 So.2d 452, 454-55 (Fla. 1st DCA 2007) (emphasis added) (quoting V.M.N. v. State, 909 So.2d 953, 954 (Fla. 4th DCA 2005)); see also Fla. Standard Jury Instr. 8.4 (providing that [a] weapon is a deadly weapon [if] it is used or threatened to be used in a way likely to produce death or great bodily harm.). “Whether a weapon is a deadly weapon is a question of fact that should be submitted to the [trier of fact] ‘to be determined under all the circumstances, ... [including] the weapon and its capability for use.’ ” Smith, 969 So.2d at 455 (quoting E.J. v. State, 554 So.2d 578, 579 (Fla. 3d DCA 1989)).

In C.A.C. v. State, 771 So.2d 1261 (Fla. 2d DCA 2000), the defendant was convicted of aggravated battery for stabbing the victim two to three times in the back with a fork. The victim had scratches, swelling, and puncture marks on his back, but did not require any medical treatment for his injuries. Id. at 1262. On appeal, the Second District reversed the aggravated battery conviction and remanded with instructions to find the defendant guilty of battery and resentence him accordingly. Id. at 1262-63. The court reasoned that a fork is not likely to cause death or great bodily harm when used in the ordinary manner contemplated by its design and that there was no evidence that the fork, as used by the defendant, was likely to cause great bodily harm. Id.

Likewise, our review of the record in this case compels us to find that there was insufficient evidence to support a finding that the plastic fork used by Appellant was likely to cause great bodily harm. In reaching its conclusion, the trial court stated that it recognized the human neck’s “vulnerability,” and determined that the fork was “very sharp and very solid.” Based on these findings, the trial court concluded that “[Appellant] was lucky that he wasn’t two inches off’ because, had he been, he “could have punctured a very, very important part of [the victim’s] neck.” In doing so, the court incorrectly engaged in conjecture about what might have happened had Appellant stabbed the victim in a different part of the neck, without any evidence that this perceived potential for great bodily harm was likely based upon the actual circumstances of this case.

Moreover, in Smith, this court noted that “great bodily harm is ‘distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in simple assault and battery.’ ” 969 So.2d at 455 (quoting C.A.C., 771 So.2d at 1262). Here, there was no evidence that the injury that likely would result from the way in which Appellant stabbed the victim with a plastic fork would be anything more serious than the victim’s actual injury— scratches and redness — which is the type of injury likely to ensue from a simple battery. This is not to say that under no circumstances can a plastic fork be used in such a way that it can be classified as a deadly weapon, only that those circumstances did not exist here.

Conclusion

For the foregoing reasons, this matter is REVERSED. Because there was sufficient evidence to support Appellant’s concession that he committed a simple battery, this cause is REMANDED with instructions to find Appellant guilty of battery and resentenced accordingly.

HAWKES, ROBERTS and WETHERELL, JJ., concur.

       The trial court found Appellant not guilty of aggravated assault; thus, that charge is not the subject of this appeal.


text:
    B.F., Appellant, v. AMS STAFF LEASING and Aspen Administrators, Appellees.
    No. 1D102688.
    District Court of Appeal of Florida, First District.
    April 5, 2011.
    Rehearing Denied April 18, 2011.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Richard A. Sicking, Coral Gables, for Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO, Amicus Curiae in support of Appellant.
    Kelli Biferie Hastings and Geoffrey Bidder of Bichler & Kelley, P.A., Maitland, for Fraternal Order-of Police, Amicus Curiae in support of Appellant.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Florida Workers’ Advocates, Amicus Curiae in support of Appellant.
    Roy D. Wasson of Wasson and Associates, Chartered, Miami, for Florida Justice Association, Amicus Curiae in support of Appéllant.
    William E. Gregory of William. E. Gregory & Associates, P.A., Miami, for Appel-lees.
    Tamela Perdue, Tallahassee, Thomas A. Kovel, Sarasota, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Associated Industries, Inc., and Florida Insurance Council, Amicus Curiae in support of Appellees.
    Jeffrey I. Jacobs of Malea and Jacobs, P.A., Miami, for the Workers’ Compensation Section of the Florida Bar, Amicus Curiae in support of neither party.
   PER CURIAM.

AFFIRMED. See Kauffman v. Cmty. Inclusions, Inc., 57 So.3d 919 (Fla. 1st DCA 2011).

WOLF, DAVIS, and PADOVANO, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Sherrill KENNEDY, Appellant, v. J. Kelly KENNEDY, Appellee.
    No. 2D09-797.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.

      William S. Chambers, IV of Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellant.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   NORTHCUTT, Judge.

Sherrill Kennedy appeals from the final judgment dissolving her marriage to Kelly Kennedy. She challenges a portion of the property distribution, as well as the denial of her request for alimony. The property distribution was governed by a prenuptial agreement, and we see no error in the trial court’s interpretation and application of the agreement. But we reverse and remand on the question of alimony.

The evidence at trial was largely undisputed. The parties were married in March 1993. The dissolution petition was filed in September 2006, but it was followed by an attempted reconciliation possibly lasting through March 2008. At the time of trial, Mr. Kennedy was fifty-three years old, Mrs. Kennedy was forty-nine, and their health was generally good. Mr. Kennedy is an accountant and an attorney with his own practice, while Mrs. Kennedy has worked throughout the marriage as a staff assistant for an insurance company. The parties have one child together and several children from previous marriages. For most of the marriage, they lived in a five-bedroom lakefront house with a dock, boat lift, pool, and hot tub. They enjoyed a country club membership, yearly vacations and trips, and extracurricular activities for the children.

This comfortable standard of living was made possible by the parties’ earnings. In the past, Mr. Kennedy had earned as much as $500,000 in gross annual income. The court found that his current annual income was $173,042. Although this figure was supported by the evidence and testimony, the record reveals that it represented Mr. Kennedy’s net income, not gross as found by the court. As to Mrs. Kennedy, the court found that her annual income was $85,000, and this figure corresponded with the evidence of her gross income.

Mrs. Kennedy has worked at an insurance company for twenty-three years. She testified that she had reached a salary cap in her position. Unless she agreed to relocate, she was not eligible for promotion. She had always been unwilling to relocate, however, due to the location of her husband’s practice. Without a promotion, she testified, she was not eligible for bonuses. Mrs. Kennedy had attempted to support her husband’s practice by referring clients to him. She also scheduled him to speak as an expert at seminars she organized, and he gained additional clients from those appearances. In addition to working outside the home, Mrs. Kennedy was the primary caregiver for the children.

The final judgment ordered the sale of the parties’ marital residence, which was the only jointly owned asset. The evidence also revealed that Mr. Kennedy owned his office building and that each party had several investment or retirement accounts. By virtue of the prenuptial agreement, the trial court was relieved of the duty to distribute any assets other than the marital residence. Instead, in its final judgment the court made note of various assets and liabilities held separately by each party, but it made no findings as to the value of those assets or liabilities.

On the question of alimony, the findings in the final judgment were scant when compared to the factors the court was obliged to consider under section 61.08(2), Florida Statutes (2008). The statute provides as follows:

In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g)All sources of income available to either party. The court may consider any other factor necessary to do equity and justice between the parties.

The statute requires the court to make findings of fact relative to these factors, § 61.08(1), and its failure to make necessary findings is reversible error. Milo v. Milo, 718 So.2d 343, 344 (Fla. 2d DCA 1998).

In this case, the final judgment was silent on most of the statutory factors. The judgment noted that “[t]his is a gray area marriage where the wife worked throughout the marriage earning ample funds with which to support herself and will receive an equitable distribution and distribution of separate assets ... in excess of $300,000.” But the judgment failed to note the value of Mr. Kennedy’s equitable distribution and separate assets. It was completely silent on the marital standard of living. The judgment classified the marriage as within the gray area without determining its precise length, which was anywhere from thirteen to fifteen years. Nothing was said of the parties’ age or health, little was said about the relative value of each party’s postdissolution share of assets and liabilities, and no mention was made of Mrs. Kennedy’s contributions to the marriage and to her husband’s career.

This judgment typifies an unfortunate tendency among many courts and practitioners to treat the “gray area marriage” classification as a justification in itself for denying alimony — as if the classification excuses full consideration of the factors set forth in the alimony statute. To the contrary, the classification simply means that in a gray area marriage the court’s discretion is not to be influenced by a presumption for or against the award of permanent alimony. Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002). As such, a court’s discretion whether to award alimony is at its broadest when applied to a gray area marriage. And it is for that very reason that the court’s consideration of the statutory factors and its findings in regard to them are most important.

As our supreme court observed long ago:

The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In section 61.08 the legislature has prescribed a framework for making discretionary decisions on alimony issues in any given case. Certainly, the court in its discretion may assign varying weights to the statutory factors that are present in a particular case, but weigh them it must. The court is not free simply to disregard factors as it pleases. To do so would violate the statutory directive that the court “shall” consider the enumerated factors, and it would contravene the supreme court’s directive that discretionary decisions must not be made according to the whim or caprice of the individual judge.

In this case, evidence on a number of statutory alimony factors militated in favor of granting permanent alimony to Mrs. Kennedy. The final judgment ignored those factors and failed to make findings on them. Those omissions violated the requirements of section 61.08, and they have hampered our ability to review the case in search of logic or justification for denying Mrs. Kennedy’s request for alimony. That decision was based on an incomplete consideration of the statutory factors applicable to the case, and therefore it was unreasonable and an abuse of discretion. Accordingly, we reverse the final judgment insofar as it denied Mrs. Kennedy’s claim for alimony, and we remand for the trial court to reevaluate that claim.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ„ Concur.

      . This observation is consistent with recent amendments to the alimony statute. Section 61.08 now provides that permanent alimony may be awarded following a marriage of long duration, that it may be awarded following a marriage of short duration under “exceptional circumstances,” and that it may be awarded following a marriage of moderate duration “if such an award is appropriate upon consideration of the factors set forth in [section 61.08(2)].” § 61.08(8), Fla. Stat. (2010).


author: ROTHENBERG, J.

text:
    Plinio GONZALEZ, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 3D10-2686.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Rehearing Denied May 17, 2011.

      Howard J. Hochman, for appellant.
    Division of Legal Services, and Thomas A. David, Tallahassee, for appellee.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Plinio Gonzalez (“Gonzalez”) appeals from a final order of the Florida Department of Financial Services (“the Department”) revoking his license to transact life and health insurance business. We affirm.

Gonzalez was licensed by the Department to transact insurance business on behalf of insurers offering life and health insurance plans to consumers. On August 23, 2010, the Department served Gonzalez with a two-count administrative complaint. The first count alleged that while working for a certain insurer, Gonzalez encouraged an applicant to provide false information, and then Gonzalez submitted a false application to the insurer in violation of the law. The second count alleged that Gonzalez made a willful and material misrepresentation of fact during a sales presentation. The complaint notified Gonzalez that he could request an administrative hearing, and that his written petition must be received by the Department within twenty-one days of the date of service (or by September 13, 2010).

Gonzalez submitted a petition for an administrative hearing, but it was not received by the Department until September 15. Because Gonzalez’s petition was untimely, the Department issued a summary order revoking Gonzalez’s insurance license. In response, Gonzalez submitted an amended petition, contending that his untimely request should be excused pursuant to the equitable tolling doctrine. Gonzalez claimed that the filing delay was due to a mistake caused by hypertension, sleep deprivation, sleep apnea, anxiety, and an overwhelming workload. The Department declined to consider the amended petition, and this appeal followed.

Gonzalez asserts equitable tolling as a defense to the late filing of his petition, and he contends that the Department’s order should be reversed for an evidentia-ry hearing on the merits of his equitable tolling defense. We disagree.

“Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Machines v. Dep’t of Admin., 523 So.2d 1182, 1134 (Fla.1988). None of these situations are present here. Gonzalez does not allege that he was misled or lulled into inaction. Nor does he allege that he had any doubt as to the correct forum for filing his petition.

Rather, Gonzalez claims that he mistakenly told his attorney that he had been served with the administrative complaint on August 27, 2010, rather than August 23, and he claims that his mistake resulted from a number of maladies. However, Gonzalez does not dispute that the evidence reflects that he was served on August 23, and Gonzalez admits that he did in fact receive the complaint on that date. Gonzalez has not demonstrated that he was in any way prevented from timely requesting a hearing within the twenty-one-day period. He has merely alleged that he mistakenly failed to do so.

Such a mistake, even if it rises to the level of excusable neglect, does not provide Gonzalez with an escape from the consequences of his late-filed petition. Aleong v. State, Dep’t of Bus. & Prof'l Regulation, 963 So.2d 799, 801 (Fla. 4th DCA 2007). In closing, we quote the following language from this Court:

We, like the Second District before us, recognize that denying a late request for an administrative hearing could be, and perhaps should be, compared to entry of a default in a judicial proceeding, and that the administrative rules should encourage the setting aside of defaults to permit claims to be heard on their merits rather than decided on procedural technicalities. Cann v. Dep’t of Children & Family Servs., 813 So.2d 237, 239 (Fla. 2d DCA 2002). However “the legislature or the relevant agencies are the decision-makers to which these policy arguments must be directed. In the context of administrative law, the courts cannot override a filing rule that does not violate due process.” [Id.] at 240. The final order is, therefore, affirmed.

Patz v. Dep’t of Health, 864 So.2d 79, 82 (Fla. 3d DCA 2003).

Affirmed.


text:
    Gino BROWNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5395.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      Jeffrey Lewis, Regional Conflict Counsel, Jacksonville and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee; Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Gino Browning appeals convictions for kidnapping, resisting an officer without violence, and possession of a firearm. We affirm, and write only to address defendant’s contention that the trial court erred by denying his motion for judgment of acquittal on the kidnapping count.

Recounting the facts most favorable to the state, friends Randy Holmes and Larry Holsey arranged to buy a controlled substance from defendant for $20.00 during the late evening of July 28, 2008. When they drove to his home to pick it up, defendant got in the back seat behind the driver, Holsey, who handed defendant $20.00. Defendant acted agitated, repeatedly saying, “you are trying me,” then told Holsey to give him his money, even though he had not given Holsey any narcotics. Holmes, in the passenger seat, “felt the presence” of a gun, because he heard a cocking noise, saw a “glint of light” in the back, and saw that defendant’s hands were pointed forward behind the passenger seat. He thought this might be a robbery.

Because Holsey had only a few dollars, he suggested driving to an ATM machine. On the way, they discussed withdrawing Holsey’s $200 for defendant and then taking him home, and defendant said, “if I hear anything, I’m going to come get you.” Holmes began to feel better when he heard defendant talk about going home, but said he would have preferred not to be in that car. He did not ask to be let out, because he didn’t know whether it was a robbery and was afraid to argue with defendant. When Holsey said he would go to the ATM at Publix, defendant said, “you think you’re slick, there is a lot of police up there,” and told Holsey to drive to a nearby Circle K. At the store, Holsey took the keys when he got out but defendant told him to bring them back, and again said, “you think you’re slick.”

Defendant got into the driver’s seat and turned the car on. He showed Holmes a text message on defendant’s phone that he believed was from Holsey, soliciting sex, and Holmes concluded that this was why defendant was angry. Defendant told Holmes to see what was taking Holsey so long, so Holmes got out and looked through the window and saw Holsey on his phone by the ATM machine. It occurred to him that Holsey might be calling the police, but he was confused as to whether this was a robbery or whether defendant was retaliating against Holsey because of the offensive text message. Holmes got back in the car with defendant, who had turned the car around to face the street.

Holsey testified that defendant demanded money and ordered him to do something against his will. He felt the presence of a gun, although he never saw one, but then defendant yelled that “he was going to make me touch the gun so my fingerprints would be on it.” At the ATM, Holsey withdrew some money, but his whole objective was just to get out of the car and not get back in. He called the police, and saw Holmes through the window, but then he saw Holmes get back in the car. Holsey heard sirens and went outside but the car was gone.

Holmes said that when he began seeing police lights coming toward the convenience store, defendant sped out of the parking lot with Holmes in the car, followed by the police. Defendant had told Holmes back in the parking lot that he was high on pills, so Holmes was afraid for his life. Soon after they sped out of the Circle K, defendant threw something out the passenger window that Holmes believed was a gun. Holmes told defendant to stop, because he smelled rubber, and when defendant turned a corner and came to a brief stop, Holmes tried to get out but couldn’t. When the car slowed, Holmes threw it into park, whereupon the men were apprehended.

In Faison v. State, 426 So.2d 963 (Fla.1983), the court set forth a test for detei*-mining whether the detention of a victim during the commission of a crime also constitutes the separate crime of kidnapping. The taking, movement, or confinement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detention.

Id. at 965. Defendant claims these facts did not satisfy any of the three prongs, because Holmes was already a passenger when the two men picked defendant up; Holmes got back into the car voluntarily at the Circle K; and when the police arrived, defendant panicked and sped off simply to avoid being arrested. Holmes’s presence in the car was merely incidental to the aggravated fleeing and eluding offense and ended naturally with the end of defendant’s flight; his presence had nothing to do with the crimes of grand theft or aggravated fleeing and eluding; and Holmes’s presence in the car did not make the high-speed chase easier to commit.

Defendant cites as most comparable the case of Brown v. State, 719 So.2d 955 (Fla. 4th DCA 1998), in which the defendant opened the victim’s car door after the victim pulled into a parking lot, told her to move to the passenger seat, then raped her and stole money and jewelry from her. He ordered her to get on the floor board while he escaped. The Fourth District reversed the kidnapping conviction, determining that the movement of the victim within the car was incidental to committing the sexual battery.

In Faison, however, the court concluded that the defendant did kidnap his victims when, rather than raping them where he found them, he dragged the first victim from her desk in front of a large window to the rear of the office and then the restroom, and he dragged his second victim from her kitchen to the bedroom. Each asportation was violent rather than slight, inconsequential, or incidental to the sexual batteries; they were not necessary to the commission of the sexual batteries; and they were both from an area where the rapes could be more easily observed to secluded locations which reduced the danger of detection.

In the case at bar, forcibly keeping Holmes in the ear against his will by suddenly driving off in an attempt to escape from the police was not incidental or inherent to the crime of fleeing and eluding, in which the presence of a passenger is not a naturally occurring component; the aspor-tation was consequential and substantial because Holmes was forcibly removed from the Circle K and from the company of Holsey; and fleeing with Holmes still in the car made defendant’s flight more likely to succeed as opposed to ordering him to get out and waiting a few seconds for him to do it, which might have resulted in defendant’s immediate capture. See also Evans v. State, 838 So.2d 1090, 1096 (Fla.2002) (“Although initially all three were voluntarily in the car with Evans, there was sufficient evidence that once the shooting took place, the victims no longer willingly accompanied Evans to the various locations to which he directed he be taken and that he confined them against their will either by force or threat with the intent to terrorize them.”).

In another case, Delgado v. State, 19 So.3d 1055 (Fla. 3d DCA 2009), a mother left her child sleeping in a truck while she went inside to pick up some furniture. Two men drove off in the truck, then left it about four miles away after ransacking it. The court concluded that the defendants’ offenses included kidnapping, because even if they did not initially know the child was in the truck when they took it, they presumably saw her when they ransacked it. Although the defendants could have called the police with an anonymous tip about the child’s location, they instead abandoned the child with the truck, which gave them additional time to flee. The court concluded that the child’s confinement satisfied the Faison test as it was not slight, inconsequential, or incidental to the theft of the truck and its contents; was not inherent in the crime of theft; and had significance independent of the theft. “ ‘The message intended for the would-be wrong-doer, is that if you are going to steal or commandeer a vehicle, let the people in it go.’” Id. at 1058 (quotation omitted). The Florida Supreme Court has granted review of the Third District’s decision in Delgado v. State, 32 So.3d 622 (Fla.2010).

AFFIRMED.

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


text:
    Dennis CREAMER, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D10-3120.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Dennis Creamer, pro se, Appellant.
    Sarah J. Rumph, General Counsel, and Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, an inmate of the state correctional system, seeks review of a final declaratory judgment holding that Florida Administrative Code Rule 23-21.0155, addressing extraordinary review by the Florida Parole Commission of a prisoner’s eligibility for parole, is a valid exercise of delegated legislative authority, and an earlier interlocutory order denying appellant’s motion to waive the filing fee. We affirm the final declaratory judgment without further discussion. However, based on Florida Parole Commission v. Spagiano, 48 So.3d 714 (Fla.2010), we reverse the order denying appellant’s motion to waive the filing fee.

AFFIRMED IN PART and REVERSED IN PART.

BENTON, C.J., WEBSTER, and VAN NORTWICK, JJ., concur.