author: DAMOORGIAN, J. MAY, C.J.,

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jimmie Lee BROWN, as Personal Representative to the Estate of Roger Brown, Deceased, Appellee.
    No. 4D09-2664.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Gordon James III, Eric L. Lundt and Jeannine Cline Jacobson of Sedgwick LLP, Fort Lauderdale, Stephen J. Kac-zynski of Jones Day, Ohio, Stephanie E. Parker, John F. Yarber, John M. Walker of Jones Day, Georgia, and Gregory G. Katsas of Jones Day, Washington D.C., for appellant.
    Edward S. Schwartz and Phillip M. Ger-son of Gerson & Schwartz, P.A., Miami, and Edward H. Zebersky of Zebersky Payne, Hollywood, for appellee.
   DAMOORGIAN, J.

This case is the first of the post-Engle cases to reach this court following the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (hereinafter “Engle III ”). The primary issue on appeal is how the Engle jury findings should be applied in individual cases.

Historical Background of Engle

Engle began as a nationwide smokers’ class action lawsuit filed in 1994 against cigarette companies and tobacco industry organizations for injuries allegedly caused by smoking. Liggett Group Inc. v. Engle, 853 So.2d 434, 440-41 (Fla. 3d DCA 2003) (hereinafter “Engle II”). The class encompassed “‘[a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’” Id. at 441. In 1996, the Third District affirmed the trial court’s certification of the class, but reduced the class to include Florida smokers only. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 42 (Fla. 3d DCA 1996) (hereinafter “Engle I ”).

In February 1998, the trial court issued a trial plan dividing the proceedings into three phases. Phase I consisted of a yearlong trial to consider the issues of liability and entitlement to punitive damages for the class as a whole. Engle III, 945 So.2d at 1256. The jury considered “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking.” Id. The verdict form in Phase I asked the jury to answer “yes” or “no” to a series of questions for specific time periods for each of the defendants. At the conclusion of Phase I, the jury rendered a verdict against the tobacco defendants (hereinafter “Tobacco”) on almost every count. Id. at 1256-57.

Engle Jury Findings

The Phase I jury made the following findings (hereinafter “Engle findings”), which the Florida Supreme Court approved:

1 [generic causation] (that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer), 2 [addiction/dependence] (that nicotine in cigarettes is addictive), 3 [strict liability] (that [Tobacco] placed cigarettes on the market that were defective and unreasonably dangerous), 4(a) [fraud by concealment] (that [Tobacco] concealed or omitted material information not otherwise known or available knowing the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both), 5(a) [civil conspiracy-concealment] (that [Tobacco] agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment), 6 [breach of implied warranty] (that [Tobacco] sold or supplied cigarettes that were defective), 7 [breach of express warranty] (that [Tobacco] sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by [Tobacco] ), and 8 [negligence] (that [Tobacco was] negligent).

Id. at 1276-77.

“In Phase I, the jury decided issues related to Tobacco’s conduct but did not consider whether any class members relied on Tobacco’s misrepresentations or were injured by Tobacco’s conduct.” Id. at 1263. “The questions related to some, but not all of the elements of each legal theory alleged.” Engle II, 853 So.2d at 450. Critical elements of liability, such as reliance and legal causation, were not determined by the Phase I jury. Id. Accordingly, the Phase I jury did not determine Tobacco’s ultimate liability to any individual class member. Id.; Engle III, 945 So.2d at 1263.

In Phase II, the same jury determined that Tobacco’s conduct was the legal cause of three individual class representatives’ injuries, awarding $12.7 million in compensatory damages offset by their comparative fault. Engle II, 853 So.2d at 441. Thereafter, the jury determined the lump-sum amount of punitive damages for the entire class to be $145 billion, without allocating that amount to any class member. Id.

In Phase III, new juries were to decide the individual liability and compensatory damages for each of the estimated 700,000 class members. Id. at 442.

Before Phase III proceedings began, Tobacco appealed the verdicts. Id. In En-gle II, the Third District reversed the final judgment with instructions that the class be decertified. Id. at 440. The court concluded that class action treatment was inappropriate because “the plaintiffs smokers’ claims [we]re uniquely individualized and [could not] satisfy the ‘predominance’ and ‘superiority1 requirements imposed by Florida’s class action rules.” Id. at 444 (footnote omitted). The class appealed the Engle II decision to the Florida Supreme Court. See Engle III, 945 So.2d at 1254.

In Engle III, the Florida Supreme Court made several rulings relevant to the instant case. First, the court decertified the class prospectively, finding class treatment no longer viable for Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate,” and allowed class members to file individual lawsuits within one year of the court’s mandate. Id. at 1268, 1277. Second, the court retained the Phase I jury findings and gave these “common core findings ... res judicata effect” in any subsequent individual action by class members. Id. at 1269. It is these findings and their application to the instant case we now address.

The Present Case

The decedent, Roger Brown was a long time smoker of Camel, Pall Mall, and Winston cigarettes who developed lung and esophageal cancer. Mr. Brown’s death certificate listed esophageal cancer as the cause of death. Camel and Winston cigarettes were brands manufactured and sold by R.J. Reynolds (hereinafter “RJR”); Pall Malls were manufactured by Brown and Williamson, which was later purchased by RJR. Mr. Brown’s widow sued RJR as an Engle class member seeking damages for her husband’s death. She filed a complaint against RJR for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment. At issue in this appeal is the viability of Mrs. Brown’s negligence and strict liability claims.

The case proceeded to trial in two phases. In the first phase, the jury was asked to decide whether Mr. Brown was a member of the Engle class, ie. whether he was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death. Mrs. Brown presented evidence from two experts, Dr. Neil Be-nowitz and Dr. Michael Cummings, who testified generally about smoking and nicotine addiction.

In particular, Dr. Benowitz testified concerning the medical standards for diagnosing addiction. He testified regarding the Fagerstrom Test for Nicotine Dependence, which consists of several questions and is the most commonly used test to assess nicotine addiction. The test examines (i) how soon an individual smokes the first cigarette upon waking up; (ii) whether it is difficult to smoke when the person is not supposed to; (iii) how many cigarettes are smoked per day; and (iv) the loss of control of drug use.

He also testified about certain predictors of addiction. The shorter the time interval before a person smokes upon waking up, especially if first thing in the morning, the more highly addicted the person. An individual who smokes ten or more cigarettes per day, and never attempts to quit smoking, does not need to attempt to quit to be considered addicted to nicotine because a vast majority of individuals are, in fact, addicted. Another strong indicator of addiction is if a person continues to smoke after being diagnosed with a disease caused by smoking. On cross-examination, Dr. Benowitz admitted that he had no personal knowledge about the facts or Mr. Brown in the instant case.

Following his testimony, Mrs. Brown and her daughter testified about Mr. Brown’s smoking history. Mr. Brown had been smoking since he was twelve years old. At some point, Mr. Brown switched from smoking Camels to smoking Pall Malls, Marlboros and Winstons. He smoked a cigarette first thing in the morning, and smoked about three cigarettes before brushing his teeth. He smoked a pack and a half of cigarettes per day from the time he met his wife at age twenty-two until he died. He smoked at all hours of the day and night. He had attempted to quit, but simply could not stop. When he was diagnosed with cancer, he did not stop smoking even though the doctors told him that smoking caused his cancer. Both Mrs. Brown and her daughter testified that Mr. Brown was addicted to cigarettes.

Dr. Cummings testified next, essentially corroborating the testimony of Dr. Benow-itz with respect to the behavioral indicia of addiction. He explained that if the smoker was unavailable, he relied on information from people who knew the smoker to determine if the smoker was addicted.

Finally, Dr. Vinod Patel testified that there was a high probability that Mr. Brown’s cancer was related to smoking. He based this conclusion solely on a review of Mr. Brown’s medical records.

At the end of the first phase, the trial judge instructed the jury, in part, as follows:

I now instruct you that the following facts are not in dispute. One, nicotine in cigarettes is addictive. Two, Reynolds cigarettes contain nicotine. Three, Camel, Pall Mall and Winston brand cigarettes are Reynolds cigarettes. Four, smoking cigarettes causes lung cancer. Five, smoking cigarettes causes esophageal cancer.
Addiction is a legal cause of loss if it directly in a natural and continuous sequence produces or contributes substantially to producing such loss, so that it can reasonably be said that but for the addiction, the loss would not have occurred.
Now, with regard to the issue of legal cause, in order to be regarded as a legal cause of loss, addiction need not be the only cause. Addiction may be a legal cause of loss, even though it operates in combination with some other cause if the other cause occurs at the same time as the addiction and if the addiction contributes substantially to producing such loss.
I will now read that verdict form to you. It reads: Verdict, one question, was Roger Brown addicted to Reynolds cigarettes containing nicotine and if so was such addiction a legal cause of Mr. Brown’s death? Answer yes or no.

The jury found that Mr. Brown was a member of the Engle class, and that his addiction to RJR cigarettes containing nicotine was a legal cause of his death in the first phase.

In the second phase, the jury was to determine (i) whether RJR’s conduct was a legal cause of Mr. Brown’s death; (ii) comparative fault; and (iii) damages. Before opening statements, the trial court instructed the jury that because it had determined Mr. Brown to be a member of the Engle class, the following findings were binding upon it: “One, R.J. Reynolds Tobacco Company failed to exercise the degree of care with which a reasonable cigarette manufacturer would exercise under like circumstances. Two, R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous.” The court advised the jury that Mrs. Brown had admitted Mr. Brown was comparatively negligent.

At the close of the- evidence, the trial court instructed the jury as follows:

As I instructed you previously, a prior court decided certain issues and made certain findings that are binding on you and the parties in this case. Therefore, I am now instructing you that R.J. Reynolds Tobacco Company did the following: One, failed to exercise the degree of care that a reasonably careful cigarette manufacturer would exercise under like circumstances and placed cigarettes on the market that were defective, and unreasonably dangerous. There are two claims that have been presented to you in this case. The first is one of negligence. The issue for your determination on plaintiffs negligence claim, is whether the failure to exercise reasonable care on the part of R.J. Reynolds Tobacco Company was a legal cause of Roger Brown’s death.... Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that but for the negligence the loss, injury or damage would not have occurred. In order to be regarded as a legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss even though it operates in combination with some other cause, if the other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing the loss. The second claim, the issue for your determination on the plaintiffs strict liability claim is whether the defective and unreasonably dangerous cigarettes R.J. Reynolds Tobacco Company placed on the market were a legal cause of Roger Brown’s death.... A defect in a product is a legal cause of loss, injury or damage if it directly and in natural continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that but for the defect the loss, injury or damage would not have occurred. In order to be regarded again as a legal cause of loss, a defect need not be the only cause, a defect may be a legal cause of loss even though it operates in combination with some other cause if the other cause occurs at the same time as the defect and if the defect contributes substantially to producing such loss.

The trial court further instructed that if the jury rendered a verdict for Mrs. Brown on either claim, it would then consider the issue of comparative fault and damages. The jury found RJR’s negligence was a legal cause of Mr. Brown’s death; RJR’s defective and unreasonably dangerous cigarettes were a legal cause of Mr. Brown’s death; and RJR and Mr. Brown were each 50% responsible for Mr. Brown’s death. The jury awarded Mrs. Brown $1.2 million in compensatory damages, which the court later reduced to $600,000 based on the jury’s apportionment of fault. The trial court entered a Final Judgment for Mrs. Brown.

On appeal, RJR primarily argues that the trial court gave the Engle findings overly broad preclusive effect, relieving the plaintiff of her burden to prove that RJR committed particular negligent acts in violation of a duty of care owed to Mr. Brown and to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown. RJR interprets the Florida Supreme Court’s use of the term res judicata to necessarily mean collateral estoppel or issue preclusion. Thus, in accordance with the doctrine of issue preclusion, RJR claims that post-Engle plaintiffs must demonstrate that the issues on which they seek preclusion were “actually litigated” in the prior Engle trial. RJR also contends the trial court erred in permitting Mrs. Brown to prove Mr. Brown’s addiction to cigarettes solely through lay opinion testimony.

Mrs. Brown contends the Florida Supreme Court clearly held the Engle findings were to be given res judicata effect, and not merely analyzed through the doctrines of issue preclusion or collateral es-toppel. Mrs. Brown argues that res judi-cata bars relitigation of causes of action and claims as a whole, not just the particular issues “actually litigated” in the prior action. She submits the trial court properly applied the Engle findings as the supreme court intended, and requests an affirmance. On the issue of addiction, she maintains that Florida law neither requires expert testimony nor prohibits lay opinions. Furthermore, she asserts that nothing in Florida law prevents juries from relying on a combination of expert and corroborating lay testimony. Consequently, the trial court did not err in allowing lay testimony, in addition to expert testimony, concerning addiction.

Analysis

For reasons hereinafter explained, we approve the trial court’s procedure of bifurcating the trial into two phases. The first phase allowed the jury to determine whether Mr. Brown is a member of the Engle class. The second phase allowed the jury to focus on the elements of the actual claims alleged, but not otherwise established by the Engle findings.

From a jurisprudence standpoint, the issue of how to apply the Engle findings is in its infancy. Presently, two opinions have addressed the issue: R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010) and Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010). In Martin, the First District concluded that the Engle Phase I findings established the conduct elements of the asserted claims. Martin, 53 So.3d at 1069. Martin also determined the plaintiff in that case had proven legal causation on her negligence and strict liability claims. Id. In making that determination, the Martin court pointed to the trial court’s instruction on legal causation with respect to addiction, which established plaintiffs membership in the class. Id. We read Martin to approve the use of the class membership instruction for the dual purpose of satisfying the element of legal causation with respect to addiction and legal causation on the underlying strict liability and negligence claims.

In contrast, the Eleventh Circuit in Brown refused to give the Engle findings such broad application. Brown determined that the Florida Supreme Court’s discussion of the res judicata effect of the Phase I findings necessarily referred to issue preclusion. 611 F.3d at 1338. Under that doctrine, “the Phase I approved findings may not be used to establish facts that were not actually decided by the jury.” Id. at 1334. Brown remanded the case to the district court to determine the scope of the factual issues decided in Engle Phase I, and then to decide “which, if any, elements of the claims [were] established” by those findings. Id. at 1336. “Until the scope of the factual issues decided in the Phase I approved findings is determined, it is premature to address whether those findings by themselves establish any elements of the plaintiffs’ claims.” Id. (emphasis added). We conclude that the Martin court did not go far enough and the Brown court went too far.

By and large, we agree with the Eleventh Circuit’s determination in Brown that the Florida Supreme Court’s reference to the res judicata effect of the Engle findings necessarily meant issue preclusion, not claim preclusion. However, we do not go as far as Brown, to require trial courts to evaluate whether any elements of post-Engle plaintiffs’ claims are established by the Engle findings. We are constrained by the Florida Supreme Court’s decision in Engle III, which held the conduct elements of certain claims were established. In Phase I of Engle, “common issues” relating to “the defendants’ conduct and the general health effects of smoking” were litigated, not the entire causes of action. Engle III, 945 So.2d at 1256; see also Rice-Lamar v. City of Fort Lauder-dale, 853 So.2d 1125, 1131 (Fla. 4th DCA 2003) (stating that issue preclusion “does not require prior litigation of an entire claim, only a particular issue”). Therefore, we conclude, as Martin did, that individual post-Engle plaintiffs need not prove the conduct elements in negligence and strict liability claims, as asserted here. Martin, 53 So.3d at 1069.

We hold that to prevail in the tobacco cases post-Engle, plaintiffs must prove more than mere class membership and damages. Like Martin, and in accordance with Engle III, the Engle findings preelu-sively establish the conduct elements of the strict liability and negligence claims as pled in this case. Those elements are not subject to relitigation. Nevertheless, the remaining elements of the underlying claims, i.e. legal causation and damages, must be proven in the second phase of trial. In so holding, we restate our approval of the trial court’s method of conducting the trial in two phases. In the first phase, the trial court properly gave an instruction on legal causation as it pertained to addiction. The jury determined Mr. Brown’s addiction to RJR cigarettes containing nicotine was a legal cause of his death, placing Mr. Brown in the Engle class. In the second phase, the trial court gave an instruction on legal causation, but this time as it pertained to the negligence and strict liability claims.

Legal causation on the issue of addiction is separate and apart from legal causation on the strict liability and negligence claims in this instance. Post-Engle plaintiffs do not satisfy their burden of proving legal causation in a strict liability or negligence claim by merely establishing class membership in the first phase of trial. To satisfy this requirement, a jury must be asked to determine (i) whether the defendant’s failure to exercise reasonable care was a legal cause of decedent’s death; and (ii) whether the defective and unreasonably dangerous cigarettes were a legal cause of decedent’s death. In the present case, the trial court correctly required the jury to make these critical determinations.

It is at this point that we depart from the First District’s decision in Martin, because there specific instructions on legal causation on the negligence and strict liability claims were not given to the jury. Martin, 53 So.3d at 1064-66. In Martin, the First District conceded that causation must still be proven on the underlying claims. Id. at 1069. Nonetheless, when explaining that the plaintiff had been required to prove legal causation on her strict liability and negligence claims, the First District pointed to the trial court’s instruction on class membership. Id. The class membership instruction requires a finding that addiction is a legal cause of death. Id. Nowhere does it require a finding of legal causation on negligence or strict liability independently. Moreover, the Martin opinion sets out the other instructions given to the jury at trial, during which no mention is made of instructions given on legal causation as to negligence or strict liability. Id. at 1064-66. Notably, there was mention of a specific instruction with respect to legal causation on a conspiracy claim, lending further support to our reading of Martin. Id. at 1065-66.

By equating the legal causation instruction used on the issue of addiction with a finding of legal causation on the plaintiffs strict liability and negligence claims, the First District effectively interpreted the “res judicata” language in the Florida Supreme Court’s decision in Engle III to mean claim preclusion instead of issue preclusion. We do not read the Florida Supreme Court’s decision in Engle III so broadly, and we do not think the Florida Supreme Court intended for claim preclusion to be applied with respect to the Engle findings in subsequent trials. Accordingly, to the extent that the First District does not require a separate causation instruction for each claim, we disagree. As discussed in more detail in the special concurrence, we are concerned the preclu-sive effect of the Engle findings violates Tobacco’s due process rights, but remain compelled to follow the mandate of the supreme court. See Richards v. Jefferson County, 517 U.S. 793, 797, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996) (“We have long held ... that extreme applications of the doctrine of res judicata may be inconsistent with a federal right that is ‘fundamental in character.’”) (quoting Postal Tel. Cable Co. v. City of Newport, 247 U.S. 464, 476, 38 S.Ct. 566, 62 L.Ed. 1215 (1918)).

We continue our analysis with a review of the relevant Engle findings and their application to the specific claims of this case.

Brown’s Membership in the Class

In the first phase of this trial, the jury was asked to determine whether Mr. Brown was, in fact, a member of the Engle class. The jury was instructed that certain facts were not in dispute: (i) nicotine in cigarettes is addictive; (ii) RJR cigarettes contain nicotine; (iii) Camel, Pall Mall, and Winston brand cigarettes were RJR cigarettes; (iv) smoking cigarettes causes lung cancer; and (v) smoking cigarettes causes esophageal cancer. The jury determined that Mr. Brown was addicted to RJR cigarettes containing nicotine, and such addiction was a legal cause of his death. We conclude that this phase was properly conducted and find no error in the application of the Engle findings to Mr. Brown’s membership in the class. The jury was properly advised that Mr. Brown smoked cigarettes manufactured by RJR containing nicotine, that nicotine was addictive, and that he died of one of the specific, enumerated diseases.

Evidence of Addiction

RJR argues that the evidence used to prove Mr. Brown’s addiction to cigarettes was insufficient because solely lay testimony was used to prove addiction. In this case, addiction was not proven solely through lay testimony. Mrs. Brown provided expert testimony from three witnesses on the behavioral indicia of nicotine addiction. One of these experts reviewed Mr. Brown’s medical records. Mrs. Brown and her daughter provided lay opinion testimony, which, when viewed with the expert testimony, supported a finding of addiction. See Peters v. Armellini Exp. Lines, 527 So.2d 266, 269 (Fla. 1st DCA 1988) (“[L]ay testimony is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant[.]”). After viewing the expert and lay testimony collectively, we hold sufficient evidence existed for a jury to conclude Mr. Brown was addicted to RJR cigarettes containing nicotine, and that this addiction was the legal cause of his death.

Brown’s Strict Liability Claim

Product liability cases under Florida law require proof of two things. Liggett Group, Inc. v. Davis, 973 So.2d 467, 475 (Fla. 4th DCA 2007) (citation omitted). First, the product is defective; and, second, the defect caused plaintiffs injuries. Id. In response to Question 3, concerning strict liability, the jury in Engle found that RJR placed cigarettes on the market that were defective and unreasonably dangerous both before and after July 1, 1974. See Engle III, 945 So.2d at 1257 n. 4.

We hold that the third Engle finding conclusively establishes the conduct portion of a strict liability claim in post-Engle actions, i.e. that RJR placed defective and unreasonably dangerous cigarettes on the market. Post -Engle plaintiffs need not reestablish that cigarettes manufactured by an Engle defendant are defective as that conduct element was determined. Moreover, the defective cigarettes manufactured by RJR were the same brands smoked by Mr. Brown.

RJR argues that post-Engle plaintiffs should be required to point to a specific defect existing in the particular cigarettes smoked in each case to benefit from the Engle finding. Such a requirement would constitute a relitigation of conduct previously determined by Engle. Nevertheless, it is essential for post-Engle plaintiffs asserting strict liability to prove the remaining elements of legal causation and damages and trial courts must instruct the jury on those elements.

Here, Mrs. Brown was required to prove the remaining elements of her strict liability claim, i e. legal causation and damages. Moreover, the trial court correctly instructed the jury on legal causation as it related to the claim, and submitted the relevant question to the jury. The jury found that the defective and unreasonably dangerous cigarettes manufactured by RJR were a legal cause of Mr. Brown’s death. Accordingly, we find no error on the strict liability claim.

Brown’s Negligence Claim

To prevail on a negligence claim, a plaintiff ordinarily has to prove the four elements: duty of care, breach of that duty, causation and damages. Gibbs v. Hernandez, 810 So.2d 1034, 1036 (Fla. 4th DCA 2002). In response to Question 8, the Engle jury determined that Tobacco failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances. See Brown, 611 F.3d at 1327.

We hold the eighth Engle finding established that: (1) RJR had a duty to exercise reasonable care which a reasonable cigarette manufacturer would exercise under like circumstances in the manufacture of the brands of cigarettes smoked by the decedent; and (2) RJR breached that duty. As with the strict liability claim, post-Engle plaintiffs are not required to reprove specific tortious conduct, i.e. that Tobacco committed particular negligent acts when asserting a negligence claim. Imposing this burden would render the Florida Supreme Court’s opinion in Engle III meaningless. We reiterate that post-Engle plaintiffs still must prove the remaining elements of each legal theory alleged. Trial courts must instruct the jury on the remaining elements, causation, comparative fault, and damages and allow the jury to make those decisions.

Mrs. Brown was required to prove legal causation, comparative fault, and damages. The trial court correctly instructed the jury and submitted the questions of legal causation as it related to the negligence claim and damages to the jury. The jury then found that RJR’s negligence was a legal cause of Mr. Brown’s death; that Mr. Brown was 50% at fault, and determined damages. We find no error.

Conclusion

The cases cited by the Florida Supreme Court in Engle III regarding prospective decertification support the proposition that in post-Engle actions the focus should be on the individualized issues of legal causation, comparative fault, and damages, and not on relitigating the conduct elements of the claims as RJR proposes. See, e.g., Slaven v. BP Am., Inc., 190 F.R.D. 649, 658 (C.D.Cal.2000) (maintaining class status “solely for the determination of liability” because “virtually all potential claimants share common factual proofs as to the conduct and behavior of Defendants” but decertifying the class for purposes of causation and damages). This Court has acknowledged that it is not free to disregard the binding precedent of the Florida Supreme Court. Harbaugh v. State, 711 So.2d 77, 83 (Fla. 4th DCA 1998).

Here, the trial court properly applied the Engle findings, instructing the jury on the issue preclusion effect of the Phase I findings, and making certain to submit the remaining elements of each legal theory to the jury for its determination. Accordingly, we affirm the final judgment.

Affirmed.

LEVINE, J., concurs.

MAY, C.J., concurs specially with opinion.

MAY, C.J.,

specially concurring.

I concur in the majority opinion, but write to express my concern about the questions left unanswered in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), that are causing confusion in the trial courts. Our supreme court made clear that the Engle jury’s factual findings are binding on future litigation. Id. at 1269. Trial courts, and indeed appellate courts, struggle with the extent to which these findings resolve ultimate issues in the trial of individual claims. At least two courts have reached completely different conclusions on the preclusive effect of those findings. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010); Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328 (M.D.Fla.2008), vacated, 611 F.3d 1324 (11th Cir.2010).

In Martin, the First District Court of Appeal held the trial court had properly applied the supreme court’s decision in Engle. The “preclusive effect in Engle established the conduct elements of [the plaintiffs] strict liability, fraudulent concealment, civil conspiracy and negligence claims against [the defendant].” Martin, 53 So.3d at 1072. The court further held that the plaintiff had “produced sufficient independent evidence to prove causation, detrimental reliance, and entitlement to punitive damages.” Id. at 1072-73.

The Middle District reached a contrary conclusion in Brown. It found that allowing the Engle Phase I approved findings to establish elements of the plaintiffs’ causes of action would violate the defendants’ due process rights. 576 F.Supp.2d at 1344-46. Admittedly, Brown reviewed the preclu-sive effect of the Engle factual findings in a different procedural setting. There, the district court entered a pre-trial order that required the plaintiff to prove its entire case from scratch. Id. at 1348.

When the Eleventh Circuit reviewed the district court order in Brown, it found the court had reached its conclusion “without first giving preclusive effect to the Phase I approved findings.” Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1335 (11th Cir.2010). The Eleventh Circuit also found it “premature to address whether [the Engle ] findings by themselves establish any elements of the plaintiffs’ claims.” Id. at 1336. It then remanded the case for further consideration. Id.

These decisions call attention to the unsettled questions remaining since the supreme court’s decision in Engle. In fact, Justice Wells’ dissent in Engle foretold of the very concerns now being played out in the trial courts.

In what I conclude will be harmful and confusing precedent, the majority saves some of the jury findings in Phase I of the class action before decertifying the class. I do not join in doing that; rather, I would follow the overwhelming majority of courts and hold that this was not a proper class action. The result of the majority “retaining the jury’s Phase I findings” is not, as the majority asserts, “pragmatic,” majority op. at 1269; rather, it is problematic. Under the majority’s holding, the class closed a decade ago. Who are the individuals that are to get the use of these “findings”? How will a trial court make that determination? Does the individual only have to have an injury manifest prior to November 21,1996, or does the individual have to have notice of the class action? Does the majority’s holding mean that the statute of limitation has not run on any Florida resident’s claim whose injury manifested prior to November 21, 1996? How long do individuals have to file such individual actions? How are these findings to be used in cases in which the findings are used? I assume that any individual cases filed on claims in which injuries manifested on November 22, 1996, or later do not get the benefit of these findings, so that there will be two classes of claimants. These are only a few of the issues which arise in application of the majority’s holding.

Engle, 945 So.2d at 1284.

Indeed, the Eleventh Circuit expressed a similar concern.

For example, Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes,” for every time period for every defendant except Brooke Group, Ltd., Inc. Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type or brand of cigarette sold by a defendant during the relevant time period was defective and unreasonably dangerous. Under the plaintiffs’ broader view the jury’s finding must mean that all cigarettes the defendants sold were defective and unreasonably dangerous because there is nothing to suggest that any type or brand of cigarette is any safer or less dangerous than any other type or brand. One problem with that argument is that the plaintiffs have pointed to nothing in the record, and there is certainly nothing in the jury findings themselves, to support their factual assertion. Under Florida law the issue preclusion standard requires the asserting party to show with a “reasonable degree of certainty” that the specific factual issue was determined in its favor.

611 F.3d at 1335 (footnotes and citation omitted).

What the trial courts are playing is a form of legal poker. They must use the legal cards they have been dealt — the En-gle factual findings are binding. But, as R.J. Reynolds argues, a number of ultimate factual issues remain unresolved as identified by the dissent in Engle and the Eleventh Circuit in Brown.

And, a lurking constitutional issue hovers over the poker game: To what extent does the preclusive effect of the Engle findings violate the manufacturer’s due process rights?

Until our supreme court answers these and other questions, parties to the tobacco litigation will continue to play legal poker, placing their bets on questions left unresolved by Engle and calling the bluff of trial courts on a myriad of issues sure to rise from the hundreds, no thousands, of cases pending in trial courts throughout our State.

      . Engle I is the interlocutory appeal to the Third District concerning the trial court’s certification of the Engle class. Engle II is the appeal from the final judgment of the trial court in the class action to the Third District. Engle III is the appeal from the Third District to the Florida Supreme Court, following the Third District's reversal of the final judgment with instructions to decertify the class.

      . The cigarette companies sued in Engle were: R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Philip Morris Incorporated (Philip Morris U.S.A.); Philip Morris Companies, Inc.; Lorillard Tobacco Company; Lor-illard, Inc.; Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company; Liggett Group Inc.; Brooke Group Holding Inc., and Dosal Tobacco Corp. The industry organizations are The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.- (collectively referred to as "Tobacco”).

      .The jury found that smoking did not cause asthmatic bronchitis, infertility, or bronchio-loalveolar carcinoma. The jury found that one of the defendants, Brooke Group, Ltd., did not: sell or supply defective cigarettes until after July 1, 1974; sell or supply cigarettes in breach of an express warranty until after July 1, 1974; or fail to exercise the degree of care that a reasonable cigarette manufacturer would exercise under like circumstances until after July 1, 1969. The jury also found that one of the defendants, R.J. Reynolds Tobacco Company, did not: sell or supply cigarettes in breach of an express warranty after July 1, 1974.

      . The Florida Supreme Court threw out the jury’s findings with respect to question 4 [fraud and misrepresentation] and question 9 [intentional infliction of emotional distress], explaining that those findings were "nonspecific” and "inadequate” to allow a subsequent jury to consider individual questions of reliance and legal cause. Id. at 1255. The Florida Supreme Court also threw out question 10 [entitlement to punitive damages] as premature. Id. at 1269.

      . The Final Judgment and Amended Omnibus Order entered in the Engle class action reflects that Camels, Pall Malls and Winstons, the brands Mr. Brown primarily smoked, were named in the Phase I jury findings. Engle v. R.J. Reynolds Tobacco, No. 94-08273, 2000 WL 33534572 at *1 (Fla.Cir.Ct. Nov.6, 2000).

      . During trial, RJR moved for a directed verdict on the fraudulent concealment and conspiracy claims because Mrs. Brown failed to present evidence of detrimental reliance. The trial court granted the motion.

      . These facts were stipulated to by the parties and relate to Engle findings (1) and (2) respectively.

      . The federal district court noted that the Engle findings failed to determine exactly what the defendants did wrong and when for the negligence claim, and what defect rendered the product defective for the strict liability claim. Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328, 1342-44 (M.D.Fla.2008).


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Ivan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3253.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Carey Haughwout, Public Defender, and Tom. Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Ivan Santiago appeals his conviction for possession of cocaine, a lesser-included offense of the charge of trafficking in cocaine. He argues that the trial court erred in denying his motion for judgment of acquittal on the trafficking charge and in admitting Williams rule evidence of a prior drug sale. We affirm as to both points on appeal.

Before trial, the state filed a motion to introduce evidence of the defendant’s sale of cocaine to an undercover officer two weeks before events that led to the drug trafficking charge. At the hearing on the Williams Rule evidence, an undercover officer for the Palm Beach County Sheriffs Office testified that on February 6, 2008, she went to a mobile home located in West Palm Beach, Florida. She was accompanied by a confidential informant. Once inside, the confidential informant directed the officer to the defendant, who was sitting on a couch in the living room. The confidential informant told the officer that she knew the defendant by the nickname “Snow.” The officer approached the defendant and purchased $40 worth of crack cocaine from him. The defendant took the cocaine out of a cylinder tube and placed it in her hands. During the transaction, the defendant had a gun in his possession and asked the officer if it scared or frightened her. The officer acknowledged at the hearing that she was a little afraid, because she was not armed nor in communication with any other officers.

The case agent testified at the hearing that he obtained a search warrant and executed it on the same residence on February 20, 2008. Before applying for the search warrant, he had information that drugs were being sold at that residence by several different individuals; the defendant was not the owner of the home. To remain anonymous during execution of the warrant, the undercover officer who purchased crack cocaine on February 6 stayed outside in a darkened vehicle. The SWAT team entered the residence and removed everyone from the house, including the defendant. During a search of the residence, officers found several bags of crack cocaine, marijuana, and a gun in the back bedroom behind a wall panel. Individually packed cocaine baggies had the name “Snow” written on them. The undercover officer identified the defendant to the case agent as the person who sold her the crack cocaine on February 6.

The trial court granted the state’s motion to allow Williams Rule evidence, explaining that the gun displayed on February 6 and found hidden next to the drugs on February 20, along with the nickname “Snow” written on the cocaine baggies, met the requirement of unique similarities to justify admission of the evidence.

At trial, the undercover officer testified that she purchased crack cocaine from the defendant on February 6, 2008 at the mobile home; that the confidential informant told her the defendant went by the nickname “Snow”; and that the defendant had a gun in his possession. She testified that she waited outside in a darkened vehicle during the search of the mobile home on February 20, 2008, and that after the drugs and gun were discovered, she identified the defendant as the person who sold her crack cocaine on February 6, 2008 and identified the gun as the same one the defendant displayed during the February 6 sale of cocaine.

The case agent testified that he executed a search warrant on the same home on February 20, 2008 and that the defendant was in the home when the police arrived. The search revealed plastic bags of cocaine with the word “Snow” written on them, a marijuana cigarette, and a gun next to them behind a wall panel in a back bedroom. The officer acknowledged that the residence belonged to someone other than the defendant and that drug arrests and investigations of other individuals had taken place at that same residence in the past.

An officer who participated in the search warrant on February 20 made contact with the defendant when he was just outside the front door, but he did not know who the defendant was. The officer said he was told to get the person known as “Snowball.” When he asked the people in the home who Snowball was, no one said anything, but several people looked in the defendant’s direction. When the officer asked the defendant directly, “Are you Snowball?” the defendant said, ‘Tes, but you can call me Ivan.”

A crime lab technician tested the substances from the plastic bags that were recovered on February 20 and verified that they contained cocaine. The total weight was 40.93 grams. The bags had writing on the packaging. Package 1-la was labeled “Jay 0.” Package 1-lb was labeled “Snow,” and 1-1 c was labeled “M.”

After the state rested, the defendant moved for judgment of acquittal. He argued that the state had not established a prima facie ease of trafficking because there was no evidence of actual possession on February 20, 2008, and the elements of constructive possession were not proved. The trial court denied the motion, finding that there were independent incriminating circumstances from which the jury could infer the defendant’s knowledge of the presence of drugs and dominion and control over them. The defendant rested without presenting any witnesses, then renewed his motion for judgment of acquittal. The court denied the motion. The defendant was convicted of possession of cocaine, a lesser-included offense of trafficking.

The defendant argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to present sufficient evidence that he was in constructive possession of the crack cocaine recovered during execution of the search warrant on February 20, 2008. He also argues that the trial court erred in granting the state’s pre-trial motion to introduce Williams Rule evidence of the February 6 sale of crack cocaine at his trial on the charge of trafficking in cocaine.

In moving for a judgment of acquittal, the defendant admits all facts adduced and every conclusion favorable to the state reasonably inferred from the evidence. Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005). A motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). In a circumstantial case, the state is not required to rebut every possible variation of the events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. The question of whether the evidence fails to exclude any reasonable hypothesis of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. State v. Law, 559 So.2d 187, 188 (Fla.1989).

The cocaine trafficking statute, section 893.135(1)(b)1.a., Florida Statutes (2008), prohibits one from “knowingly” being “in actual or constructive possession” of a certain quantity of cocaine. See also Earle v. State, 745 So.2d 1087, 1088 (Fla. 4th DCA 1999). In this case, where the premises were jointly occupied by several people when the drugs were found, the state relied on a theory of constructive possession. As we stated in Edmond v. State, 963 So.2d 344 (Fla. 4th DCA 2007):

To establish constructive possession, the State must prove (1) that the defendant had “dominion and control over the contraband” and (2) that the defendant had “knowledge the contraband was within his presence.” The defendant’s knowledge of the presence of the drugs will be inferred if the premises where the drugs are found are in the exclusive possession of the defendant. Where, however, the premises are in the defendant’s and another’s joint possession, knowledge of the contraband’s presence and the defendant’s ability to control the same will not be inferred and must be established by independent evidence. Such evidence “may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge.”

Id. at 345-46 (internal citations omitted).

The defendant argues that Edmond supports reversal of his conviction because there was insufficient evidence of constructive possession. In Edmond, during execution of a search warrant on a home, the police found narcotics in two locations: in a bedroom where the defendant’s identification card and driver’s license and a phone bill were also found, and inside holes of concrete block walls of a utility room. The home was occupied by at least two other people. We found the evidence insufficient to prove constructive possession because, although the defendant’s identification and bill were found in a bedroom where drugs and money were found, there was no evidence as to where these items were found in relation to the drugs and money. Further, the only evidence suggesting that the defendant had knowledge of drugs and paraphernalia found in the utility room, and ability to control them, was the fact that the cocaine was wet, suggesting it had recently been cooked, and the defendant’s attempt to flee when the police arrived. We concluded that the state failed to not only establish that the defendant knew of and had the ability to control the drugs, but that the state also failed to establish “evidence inconsistent with [the defendant’s] reasonable hypothesis of innocence, i.e., that he had no knowledge of the contraband and it belonged to another.” Id. at 346.

Here, unlike in Edmond, there was sufficient evidence indicating that the defendant knew of and had dominion and control over the crack cocaine found in the residence. The state introduced evidence that the defendant went by the nickname “Snow” or “Snowball,” and that one of the bags found during the February 20 search had “Snow” written on the outside of the package. Further, officers found a handgun hidden next to the cocaine labeled “Snow” that an officer identified as the same gun the defendant displayed during the sale of crack cocaine to the officer on February 6 at the same residence. These facts, viewed in the light most favorable to the state, provided independent evidence from which the jury could infer the defendant’s knowledge, dominion, and control over the drugs. Moreover, this evidence was inconsistent with any reasonable hypothesis of innocence. For these reasons, we affirm the trial court’s denial of the motion for judgment of acquittal.

In his second point on appeal, the defendant argues that the trial court abused its discretion in admitting evidence of the defendant’s sale of cocaine to an undercover officer two weeks before the police found drugs during execution of the search warrant. The state sought admission of this evidence as Williams rule evidence. Williams rule evidence is “admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat.; see also Williams v. State, 110 So.2d 654, 663 (Fla. 1959). “In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.” Audano v. State, 641 So.2d 1356,1359 (Fla. 2d DCA 1994) (citing §§ 90.402, 90.403 and 90.404(2), Fla. Stat.); see also Alsfield v. State, 22 So.3d 619, 621 (Fla. 4th DCA 2009).

Relevancy is the threshold question. McLean v. State, 934 So.2d 1248, 1259 (Fla.2006). As the Florida Supreme Court stated in Williams, “If found to be relevant for any purpose save that of showing bad character or propensity, then [the evidence] should be admitted.” Williams, 110 So.2d at 662. Relevant evidence is defined as evidence that tends to prove or disprove a material fact. See § 90.401, Fla. Stat. (2008).

In this case, the February 6 drug transaction was relevant to prove that the defendant had knowledge of and control and dominion over the crack cocaine seized during the search on February 20. The state’s evidence on its Williams rule motion showed that on February 6, the confidential informant told the undercover officer that she knew the defendant by the street name of “Snow”; the defendant showed a gun to the officer at the residence; and the defendant sold crack cocaine to the officer at the residence. The state’s evidence further showed that at the execution of the search warrant on February 20 at the residence, the police seized packages of crack cocaine and a gun hidden next to each other behind a wall; one of the packages of crack cocaine was labeled “Snow”; the officer identified the gun as the one which the defendant showed her on February 6; the undercover officer identified the defendant as the person who sold her the crack cocaine on February 6; and when the police asked the other persons present who “Snowball” was, they looked at the defendant. The details of the February 6 event were sufficiently similar to the details of the February 20 event — especially regarding the defendant’s unique street name of “Snow” and the unique label of “Snow” on the package of crack cocaine — to allow the state to introduce the details of the February 6 event to prove that the defendant knew of and had control and dominion over the crack cocaine seized on February 20. Cf. Parker v. State, 20 So.3d 966 (Fla. 3d DCA 2009) (holding that two prior drug transactions were improperly admitted as collateral crimes evidence in a drug prosecution where the two prior transactions were not relevant to any material issue of fact).

The standard of review for the admission of Williams rule evidence is abuse of discretion. Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003) (citing Geldreich v. State, 763 So.2d 1114, 1116 (Fla. 4th DCA 1999)). Considering the unique facts of the Williams rule evidence in this case, the relevancy of this evidence to proving the defendant’s knowledge and control of the drugs, and that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, we cannot say that the trial court abused its discretion. Accordingly, we affirm the judgment of conviction and sentence for possession of cocaine.

Affirmed.

GERBER, J., and PEGG, ROBERT L„ Associate Judge, concur.


author: GROSS, J.

text:
    Joseph Nathan WILLIAMS, II, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-717.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Joseph Williams appeals his conviction for the first-degree murder of his estranged wife. At the jury trial, Williams’ defense was that he acted in the heat of the moment, so the killing was not premeditated. On appeal he argues that the state did not establish premeditation and that the trial court abused its discretion in admitting two photographs of his wife’s body. Because the evidence presented a jury question on premeditation, and the photographs were relevant and not unduly prejudicial, we affirm.

I. FACTS

Williams and his wife were married in late November 2006. They had a three-year-old son. Williams and his wife began experiencing problems soon after the marriage. In December 2006, Williams told a former girlfriend with whom he had recently reestablished contact that “if she [the wife] continued the physical abuse he would retaliate and kill her or something like that.” The former girlfriend did not remember the exact words Williams used, but was otherwise certain of the content of the statement.

The bulk of the state’s evidence detailed Williams’ movements on Saturday, January 20, 2007, the day the wife died, and the weeks thereafter. Relevant here is that Williams was with the wife and their son early that Saturday morning. At that time, Williams called the police to request that an officer stand by as he went home to collect some belongings. Williams called the same officer a couple of hours later, reporting he was being kicked out of the home. The officer responded, but he determined there was no violence and left.

At around noon, while driving in a white van on the highway with his son and wife, Williams ran out of gas. A friend met up with Williams to bring gas and, while Williams filled the tank, his wife and son remained in the vehicle. With a full tank, the three then headed over to an area where some of Williams’ friends lived. Williams, along with his wife and son, went back and forth between the houses of two of Williams’ friends for a while. Eventually, Williams returned to one friend’s house with his son, but without his wife. Williams, who was in a sweaty T-shirt and chain-smoking, then left in the white van, leaving his son at the friend’s house.

Williams asked the friend to drop his son off at the house of the wife’s mother. The mother had received a phone call from her daughter at around noon that day. The wife had reported that she was with Williams and their son at a park. Although the wife had said she would be leaving Williams and the son to come to her mother’s house, the wife never arrived. The mother later received two calls from her daughter’s cell phone; both times it was Williams. Williams said, “I need you to watch [my son] for me for a couple of hours.” The mother asked, “Where’s [the wife]?” Williams answered, “She’s gone.” The mother persisted, “Gone, where?” Williams said, “I don’t know, she’s gone.”

The mother became concerned about the wife and began calling her daughter’s cell phone. No one picked up. The mother called the wife’s friends; none had seen or heard from her. The mother made further efforts to track the wife down, to no avail. She called the police on Sunday, the 21st, and filed a missing person’s report. She told the assigned officer that the last person she knew her daughter to be with was Williams. According to other witnesses, Williams remained in Broward County until around January 23.

On February 5, a construction manager found the wife’s body at a work site and called the police. The Broward County Sheriffs Office responded to the scene and removed the body from the wooded area. The body was wrapped inside a cloth mattress cover, with a zipper on one end. One foot was sticking out of the cover, and it appeared an animal had gnawed on the foot. The detectives unzipped the cover and exposed the body. From the neck up, the body “was almost completely skeleton-ized” due to decomposition. They were able to identify the body because the wife’s purse was inside the cover. Williams and the state stipulated that this body was the wife’s.

Williams was apprehended in Tallahassee. Although he was arrested for outstanding traffic warrants, officers from Broward told Williams that they wanted to talk to him about his missing wife. They transported him to the Leon County Sheriffs office. After they read him his rights, Williams agreed to speak with the officers. Seeing that he was visibly upset, the officers went into the interrogation room to ask if he was okay.

Immediately, Williams told the officers, “I killed [my wife].” They asked Williams how he killed her. Williams responded, “I stabbed her in the neck” with a kitchen knife. When asked where, he said: “In the van, in the white van.” The officers asked: “Joe, why, why did you do this?” Williams replied, “I lost it, I prayed before I did it, but I lost it.” He continued, “I drove around with her body all day in the van. I took her, wrapped her up in a cover and I threw her next to some dumpsters over a fence.” At the time of the interrogation, Williams had several cuts on his hands. When the officers asked him about the cuts, Williams explained that he received them from the knife he used to stab his wife. The white van was later found, and there were blood stains throughout. According to a stipulation, a blood test revealed that the blood found in the van was the wife’s.

Dr. Joshua Perper, Broward County’s chief medical examiner, saw the wife’s body where it was found and observed the autopsy of her decomposed body the next day. Because maggots usually attack stab wounds, Dr. Perper concluded that the fact that the wife’s neck was infested with a concentration of maggots revealed that there had been a neck injury. Indeed, the autopsy revealed trauma to the side of the neck, likely resulting from a stab wound.

The prosecutor showed Dr. Perper two photographs of the decomposing body, state’s exhibits 33 and 34. Both of the photographs were taken where the body was found, but after law enforcement had removed the body from the wooded area. The first photograph, 33, showed the wife’s back and buttocks. A tattoo of the name “Joe” was in the middle of the back just above the waistline. Maggots were scattered on portions of the body. The second photograph, 34, showed almost the entire front of the naked body. It is a gruesome photograph. Parts of the body are badly decomposed and infested with maggots, and most of the flesh from the neck up is gone, showing the skull. Dr. Perper testified that the photographs would assist him in .describing the decomposition for the jury.

The prosecutor moved the photographs into evidence. Williams objected, arguing that they were extremely graphic, and that the photograph of the tattoo was superfluous because he had already stipulated to identity. The trial court overruled the objection, finding that the photographs would aid Dr. Perper in describing what the body looked like and what he did. The court also noted that the state was entitled to prove the manner and cause of death.

Dr. Perper used exhibit 33 to describe the decomposition of the wife’s body. He used exhibit 34 to further describe the decomposition and, also, to explain that environmental factors caused the head area to experience more decomposition than the rest of the body. Additionally, Dr. Perper pointed to the neck area of the body and noted, “there was an area which looked like a defect which, in my opinion, was caused more slightly by a stab wound and this was confirmed later on and there were maggots which enlarged this area as maggots do, if there’s a bleeding injury the fly will stay there.” Dr. Perper could not say with certainty how many times the wife had been stabbed, only that she had been stabbed one or more times.

After the state rested, and in lieu of a motion for judgment of acquittal, Williams moved the trial court to reduce the first-degree murder charge to second-degree murder or manslaughter. He argued that the state failed to introduce any evidence of premeditation. In response, the prosecutor asserted that the law does not require a certain amount of time to pass between the formation of intent and the killing, and that Williams’ statement that he prayed before killing the wife suggested a sufficient amount of time had passed. The court agreed and further observed that if Williams had time to pray, he had enough time for reflection. Concluding that intent is a question of fact, the court denied Williams’ motion.

The jury found Williams guilty of first-degree murder. The trial court sentenced Williams to life in prison without parole. It denied Williams’ motion for a new trial on the two points he raises on appeal.

II. ANALYSIS

A. Evidence of Premeditation

Williams first argues that the state failed to establish premeditation, so the evidence against him was insufficient to prove first-degree murder. He contends his statement to the former girlfriend could not be construed as a threat, and his confession that he prayed before stabbing the -wife was countered by the second part of the confession that he “lost it.” We reject this argument. The confession and threat together established direct evidence of premeditation, which was further buttressed by circumstantial evidence.

A “motion to reduce charge” is governed by the same standards that govern a motion for judgment of acquittal, as both challenge the sufficiency of the evidence. See Pellot v. State, 582 So.2d 124, 125-26 (Fla. 4th DCA 1991). Thus, on appeal, we review the trial court’s denial de novo and we will affirm if the conviction is supported by competent, substantial evidence. Floyd v. State, 913 So.2d 564, 571 (Fla.2005); Pagan v. State, 830 So.2d 792, 803 (Fla.2002). When a defendant moves for a judgment of acquittal or, as here, for a conviction on a lesser charge, he admits all the facts in evidence, and the trial court must draw all reasonable inferences in the state’s favor. Floyd, 913 So.2d at 571. “If ... a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain the conviction.” Pagan, 830 So.2d at 803 (citation omitted).

The element at issue here is premeditation. “Premeditation is the essential element which distinguishes first-degree murder from second-degree murder.” Coolen v. State, 696 So.2d 738, 741 (Fla.1997) (citing Wilson v. State, 493 So.2d 1019 (Fla.1986)); see also § 782.04(1), Fla. Stat. (2007). “Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Asay v. State, 580 So.2d 610, 612 (Fla.1991) (citations omitted). Put differently, the defendant needs only enough time to allow him to reflect on the nature of the act. Perry v. State, 801 So.2d 78, 84 (Fla.2001).

Williams contends that this case involves only circumstantial, indirect evidence. That is usually true of cases turning on premeditation — a matter involving the internal processes of the defendant’s mind. In such a situation, the state’s evidence must satisfy a special, more stringent standard. This case, however, involves direct evidence, as “[a] confession is direct, not circumstantial evidence.” Woodel v. State, 804 So.2d 316, 321 (Fla.2001). Accordingly, the normal standard articulated above applies.

In Woodel, the supreme court held that the defendant’s confession — “I was hoping to hit [the victim] on her head to make her pass out, and then I was going to leave. I thought that’s what would happen if you got hit in the head, you know” — was direct evidence of premeditation because it “indicated that he had reflected on his actions prior to killing [the victim].” Id. at 321. Similarly, here, Williams admitted he had prayed before killing his wife, which indicates he had a fully formed conscious purpose to kill her, and enough time to reflect on the nature of the act. Williams attempts to minimize the prayer by combining it with the statement that he “lost it,” and concluding that the prayer could have been a desperate attempt to remain in control. However, a rational trier of fact could still determine that the prayer does not eliminate the evidence of premediation.

The statement that Williams made to his former girlfriend one month before the murder provided further direct evidence of premeditation. In LaMarca v. State, 785 So.2d 1209 (Fla.2001), the supreme court confronted a defendant’s similar statement. There, the defendant had told a witness five months before the murder that he was going to kill the victim. See id. at 1211, 1215. When that witness asked the defendant why, the defendant responded, “I’m gonna kill him.” Id. at 1211. The court concluded that the statement was direct, competent, and substantial evidence that the defendant had a “ ‘fully formed conscious purpose to kill.’ ” Id. at 1215 (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)). Like he did with his confession, Williams tries to minimize his December statement by arguing that it was too conditional to be taken seriously. That, however, is a matter of the weight and not sufficiency of the evidence and, therefore, beyond the purview of a motion for judgment of acquittal or a motion to reduce charge.

In addition to those two pieces of direct evidence of premeditation, there is some circumstantial evidence. “Multiple stab wounds deliberately aimed at vital organs support a finding of premeditation for first-degree murder.” Davis v. State, 26 So.3d 519, 530 (Fla.2009) (citation omitted). Here, Williams stabbed his wife in the neck. Although Dr. Perper could not determine how many times the wife had been stabbed, the multiple cuts on Williams’ hands — received from the knife he used to stab her — permits the inference he made several stabbing motions at her.

There was sufficient direct and circumstantial evidence of Williams’ premeditation to create a jury question. Accordingly, we hold that the trial court did not err in denying Williams’ motion to reduce the charge from first-degree to second-degree murder.

B. Photographs of the Victim’s Body

In his second issue, Williams argues that the trial court abused its discretion when it admitted into evidence the photographs of his wife’s body. He argues that they had no relevance because the body was too decomposed to show the cause of death and, with reference to the photograph showing the “Joe” tattoo, because the parties had stipulated to the victim’s identity. Alternatively, Williams argues that if they were relevant the photographs were so gruesome and inflammatory that their prejudice substantially outweighed their probative value. We disagree, because the photographs were relevant and not unduly prejudicial.

We review the trial court’s admission of the photographs for an abuse of discretion. Doorbal v. State, 983 So.2d 464, 497 (Fla.2008). The Florida Supreme Court articulated the relevant analysis in Douglas v. State:

The test for admissibility of photographic evidence is relevancy rather than necessity. Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. This Court has upheld the admission of autopsy photographs when they are necessary to explain a medical examiner’s testimony, the manner of death, or the location of the wounds.
However, even where photographs are relevant, the trial court must still determine whether the “gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jurfors] and [distract] them from a fair and unimpassioned consideration of the evidence.” In making this determination, the trial court should “scrutinize such evidence carefully for prejudicial effect, particularly when less graphic photos are available to illustrate the same point.” As we explained in Almeida v. State, 748 So.2d 922, 929 (Fla. 1999), the relevancy standard “by no means constitutes a carte blanche for the admission of gruesome photos.”

878 So.2d 1246,1255 (Fla.2004) (alterations in original) (all citations but one omitted).

Exhibits 38 and 34 were relevant for the same reasons the photograph in Douglas was relevant. In Douglas, the trial court admitted a photograph of the victim’s body “as she was found at the crime scene.” Id. The supreme court found that the photograph was relevant because it showed how the “body appeared at the time the police and [the associate medical examiner] arrived on the scene.” Id. at 1255-56. Additionally, the medical examiner “referred to this photograph when explaining his initial impressions and assessment of the injuries sustained by [the victim].” Id. at 1256.

Here too the photographs depicted the wife’s body at the scene of its discovery. The photographs aided Dr. Perper in describing the condition of the body when it was found and his initial impressions of the wife’s injuries, despite the decomposition. These impressions led Dr. Perper to conclude that the wife likely died of a stab wound to the neck — the manner of her death — contrary to Williams’ argument that the body was too decomposed to reveal the cause.

Exhibit 33, the photograph depicting the tattoo, was relevant for the additional reason that it went toward establishing the identity of the body. Contrary to Williams’ argument, it is not significant that the parties had stipulated to the identity of the victim, or that he did not dispute the manner of death. As we stated in Gryczan v. State, 726 So.2d 345, 347 (Fla. 4th DCA 1999), “regardless of the stipulation [of identity and cause of death], the state is not relieved of the burden of proving the elements of defendant’s guilt.” See also Foster v. State, 369 So.2d 928, 930 (Fla.1979) (“A defendant cannot, by stipulation as to the identity of a victim and the cause of death, relieve the state of its burden of proof beyond a reasonable doubt.”).

Although the photographs were relevant, we must next determine whether their probative value was substantially outweighed by their prejudicial effect. See § 90.403, Fla. Stat. (2007). The photographs showed advanced decomposition, including maggot infestation. But, “[t]he mere fact that [the] photographs may be gruesome does not necessarily mean they are inadmissible.” Harris v. State, 843 So.2d 856, 864 (Fla.2003). The photographs must be so gruesome and inflammatory that they create an undue prejudice in the minds of the jurors and distract them from a fair and unimpassioned consideration of the evidence. We cannot say that the photographs, while gruesome, were so grisly that they prevented the jury from rationally analyzing the state’s evidence.

Williams relies on Czubak v. State, 570 So.2d 925 (Fla.1990), but that case is distinguishable. In Czubak, the defendant challenged the admission of “several particularly gruesome photographs of the victim’s body.” Id. at 928. The photographs showed a victim who had been dead “at least a week” and was “severely decomposed and discolored.” Id. They also showed that “portions of [the victim’s] left arm and leg were missing, apparently eaten away by two small dogs,” as well as a “leg bone exposed where the flesh had been eaten away.” Id. The supreme court determined initially that the photographs “had little or no relevance.” Id. at 929. What little relevance they may have had was greatly undermined by the fact the damage was caused “by factors apart from the crime itself’: “the length of time she had been dead and the ravages of the dogs.” Id. “Under these circumstances,” the court wrote, “where the probative value of the photographs was at best extremely limited and where the gruesome nature of the photographs was due to circumstances above and beyond the killing, the relevance of the photographs is outweighed by their shocking and inflammatory nature.” Id.

Williams contends the photographs were unduly prejudicial because the condition of the body was the result of the environment, maggots, and animal depredation— circumstances not attributable to him. To the contrary, the severe decomposition around the wife’s neck was arguably the result of the crime: as Dr. Perper testified, maggots attack stab wounds first. Section 90.403 required the trial court to balance the photographs’ relevance against their prejudicial nature. In Czubak, the limited relevance on one scale meant that the gruesomeness of the photographs on the other scale tipped the balance in favor of exclusion. That is not the case here. The gruesome nature of the photographs, attributable to Williams, did not outweigh their relevance to Dr. Perper’s descriptions of the scene, his initial impressions, and the cause of death, and in establishing identity.

We hold that the trial court did not abuse its discretion in admitting exhibits 33 and 34.

Affirmed.

POLEN and DAMOORGIAN, JJ., concur.


author: MAY, C.J. WARNER, J.,

text:
    Anthony Howard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1841.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction for second degree murder with a firearm and shooting into a building, and his concurrent sentences of life and fifteen years imprisonment. The defendant raises four issues, none of which require a reversal. We affirm.

The tragic events giving rise to this prosecution began when the victim’s mother awoke to her daughter, the victim, banging on her bedroom window. She let the victim and her boyfriend into the house and returned to bed. The victim stayed in her mother’s bedroom while the boyfriend used the bathroom to change his clothes. While the boyfriend was in the bathroom, the victim called 911 on her cell phone.

The boyfriend walked into the bedroom while the victim was on the phone. He asked the victim if she was talking to the police and then said she wouldn’t call anybody else. He pulled out a gun and shot the victim in the leg. The victim reached across the bed and grabbed onto her mother’s arms, asking for help. The boyfriend then shot the victim in the head. The mother heard three shots in total.

The boyfriend immediately left through the back door. The mother stayed inside the house for about fifteen to thirty minutes. She then went out the front door and asked a girl walking up the street to call the police. The girl called the police and passed the phone to the mother. When the 911 operator asked her about the gun, the mother hung up the phone.

When law enforcement responded, the mother ran up to one of the officers screaming and upset. She said the victim’s boyfriend had shot the victim in the head. She identified the defendant as the boyfriend. The trial court admitted the mother’s statement as an excited utterance over the defendant’s objection. The defendant argues the admission of this statement was error. We disagree.

“In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2) ... ‘the statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.’ ” Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (quoting Hudson v. State, 992 So.2d 96, 107 (Fla.2008)). Here, the startling event, the shooting of the witness’s daughter as she clung to her mother, occurred only fifteen to thirty minutes before the hearsay statements were made to the responding officer. The trial court properly admitted the statement as an excited utterance.

Next the defendant argues the trial court erred in limiting the defendant’s cross-examination of one of the detectives. “One accused of [a] crime ... has an absolute right to [a] full and fair cross-examination. A limitation on cross-examination that prevents the defendant from achieving the purposes for which it exists may be harmful error.” Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982) (citation omitted). The trial court sustained the State’s objection to questions concerning whether the detective had read in a CAD report that a man with the name of the victim’s ex-husband was hanging around the scene that night. The trial court properly limited the cross-examination because it constituted inadmissible hearsay. The trial court then suggested another question that would elicit the information defense counsel sought to introduce.

The defendant next argues the trial court erred in allowing the crime scene investigator (CSI) to provide opinion testimony concerning the victim’s cell phone. “Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience.” Fino v. Nodine, 646 So.2d 746, 748 (Fla. 4th DCA 1994) (quoting Floyd v. State, 569 So.2d 1225, 1232 (Fla.1990)). Here, the opinions offered by the CSI did not require any special knowledge, skill, experience, or training, and were within the CSI’s knowledge. There was no error in the admission of this testimony.

Lastly, the defendant argues the trial court erred by commenting on the evidence in a curative instruction to the jury. When defense counsel began to argue that perhaps another of the victim’s male friends was responsible for her death and that the victim’s mother may have been mistaken in her identification of the defendant, the State objected. The court responded, “The objection is sustained. Jurors will decide the case only on the evidence and there has been no evidence of other guys throughout the years.” The State responds that the trial court’s comment was not error because it did not go to the weight or credibility of a witness and it showed no bias against the defendant. The State alternatively argues that any error was harmless.

“A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” § 90.106, Fla. Stat. (2009). Although ordinarily a judge may not sum up the evidence, the single and isolated remark of the judge was not prejudicial or improper under the circumstances. See Crews v. Warren, 157 So.2d 553, 559 (Fla. 1st DCA 1963).

We find no error in any of the issues raised. Even if error occurred, it was harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); Erickson v. State, 565 So.2d 328, 334 (Fla. 4th DCA 1990).

Affirmed.

POLEN J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

While I concur in affirming the conviction and sentence, I conclude that the court’s comment on evidence was improper. In closing, defense counsel made the statement that the victim had been “with one more guy — one more guy in a long line of folks that she’s hung out with through the years.” The state objected “to all of this.” The court immediately told the jury: “The objection is sustained. Jurors will decide the case only on the evidence and there has been no evidence of other guys throughout the years.” This is a comment on the weight of the evidence. See Jacques v. State, 883 So.2d 902, 905 (Fla. 4th DCA 2004) (judge’s statement during defense closing argument “That’s not what she said and that’s not what the record shows” was a comment on weight of evidence and improper). It was improper. Nevertheless, I agree with majority that any error was harmless.


author: PER CURIAM.

text:
    Arthur Lee BATTEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3652.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Arthur Lee Batten, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus challenging his judgment and sentence in Duval County Circuit Court case number 96-5127-CF. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Duval County Circuit Court case number 96-5127-CF. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Richard E. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2173.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Richard E. Wilson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Richard E. Wilson, appeals the summary denial of his postcon-viction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one and two without further discussion. However, for the reasons discussed below, we reverse and remand the denial of ground three.

In October 2007, following a plea of nolo contendere, Wilson was convicted of lewd and lascivious battery in case 06-750. At the time he committed the lewd and lascivious battery, Wilson was apparently on probation for cases 96-1043 and 96-1046. When he pleaded to lewd and lascivious battery in case 06-750, he also admitted violating probation/release in cases 96-1043 and 96-1046. Wilson was sentenced to a total of ten years’ imprisonment to be followed by ten years of probation in all three cases.

In ground three, Wilson asserts that his counsel misadvised him that he would receive gain time for the 1996 cases, so that only 2 1/2 years would remain for him to serve in those cases. However, upon his transfer to the Department of Corrections (DOC) he realized that his gain time in those cases would be forfeited. Wilson alleges that he would not have entered a plea/admission had he known that there was a possibility that his earned gain time would be forfeited. Wilson has filed a timely, facially sufficient claim which is not refuted by the record. See O’Neal v. State, 860 So.2d 456 (Fla. 1st DCA 2003) (holding that affirmative misadvice by counsel as to the eligibility for gain time is a basis for postconviction relief).

Accordingly, we AFFIRM the denial of grounds one and two, but REVERSE and REMAND for the trial court to attach records conclusively refuting ground three or hold an evidentiary hearing.

DAVIS, PADOVANO, and ROWE, JJ., concur.


author: WOLF, J.

text:
    Sterling S. MALLORY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3612.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Sheila Callahan, Assistant Conflict Counsel, Office of Criminal and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Sterling S. Mallory, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   WOLF, J.

Appellant appeals his judgment and sentence for attempted second-degree murder with a firearm, inflicting death or great bodily harm. Appellant’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991).

We find no error in appellant’s judgment and sentence. However, we find the trial court erred in imposing, in the written judgment and sentence; a $2,100 fine pursuant to section 775.083, Florida Statutes (2009); a 5% surcharge in the amount of $105 pursuant to section 938.04, Florida Statutes (2009); and a $20 court cost pursuant to section 938.06, Florida Statutes (2009). As the State properly concedes, the trial court failed orally to pronounce the fine; therefore, the imposition of the fine, surcharge, and cost was error. See Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011).

Accordingly, we affirm the judgment and sentence but remand for entry of a corrected judgment striking the $2,100 fine, the $105 surcharge, and the $20 court cost.

CLARK and RAY, JJ., concur.


text:
    Samuel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3300.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    Samuel E. Johnson, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sarmiento v. State, 816 So.2d 826, 827 (Fla. 3d DCA 2002) (denial of petition for return of property was affirmed “where civil forfeiture proceedings against the property were pending at the time of the filing of the petition”); City of Miami v. Barclay, 563 So.2d 203, 204 (Fla. 3d DCA 1990) (“a defendant is not entitled to have his vehicle returned during the pendency of the forfeiture proceeding”).

TORPY, LAWSON and EVANDER, JJ., concur.


author: COHEN, J.

text:
    Arizona WILLIS, III Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3311.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Arizona Willis, III, Appellant, was convicted of attempted second-degree murder and robbery with a deadly weapon. His sole argument on appeal is that the jury instruction on the lesser included offense of voluntary manslaughter constituted fundamental error, entitling him to a new trial on the charge of attempted second-degree murder. We agree and reverse.

At trial, the evidence showed that Fredo Hilaire, a cab driver, picked up a fare, later identified as Willis, from the Sands Hotel. As Hilaire drove, Willis stabbed him in the neck and back. The cab crashed into a parked car and Hilaire, covered in blood, exited the cab. Hearing the crash, two witnesses exited their home and observed Willis as he continued to stab Hilaire and demand money. Witnesses from the hotel identified Willis as the individual who ordered the cab. The two witnesses from the home, and the victim, all identified Willis as the perpetrator. Blood on one of Willis’ shoes matched that of the victim. Willis’ defense was mistaken identity.

The trial court’s instruction on the lesser included offense of voluntary manslaughter stated that “Arizona Willis, III committed an act which was intended to cause the death of Fredo Hilaire.” Willis did not object to this instruction.

In State v. Montgomery, 39 So.3d 252 (Fla.2010), the supreme court held that under Florida law “the crime of manslaughter by act does not require that the defendant intended to kill the victim,” and any such instruction which required proof of an intent to kill constituted fundamental error. Id. at 255, 258.

Willis argues that Montgomery applies equally to attempted voluntary manslaughter by act. The State disagrees and posits, citing Williams v. State, 40 So.3d 72, 75 (Fla. 4th DCA 2010), that this distinction is supported by the fact that “the Supreme Court has not amended the attempted manslaughter instruction, even though it has twice amended the manslaughter instruction within the last [three] years.”

This court has recently weighed in on the issue in Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011), certifying conflict with Williams. In Burton, we agreed with the First District, which concluded that an instruction on attempted voluntary manslaughter by act, requiring the jury to find an intent to kill, suffers from the same infirmities found in Montgomery. Burton, — So.3d at-. See also Bass v. State, 45 So.3d 970 (Fla. 3d DCA 2010); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010). Therefore, we reverse the conviction for attempted second-degree murder, and affirm the conviction for robbery with a deadly weapon.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

ORFINGER, C.J., and JACOBUS, J., concur.

      . Willis was originally charged in a three-count information with attempted first-degree murder with a weapon, robbery with a deadly weapon, and aggravated battery with a deadly weapon. Post-trial, the aggravated battery with a deadly weapon charge was dismissed.


author: MONACO, J.

text:
    Jesus VELAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2425.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    David Casals, of Law Office of David Casals, West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

Appellant, Jesus Velazquez, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The record is exceedingly clear that the trial court intended to impose upon him a three-year prison sentence, but by inadvertence announced a six-year sentence. Inasmuch as defense counsel failed to object to the miscalculated sentence, and because Mr. Velazquez is currently serving the six-year sentence, we reverse.

Describing in detail the convoluted sentencing of Mr. Velazquez would serve no purpose other than to confuse. Briefly, however, Mr. Velazquez was before the court to be sentenced on a violation of probation. The trial judge stated his intention on several different occasions to sentence Mr. Velazquez to six years of confinement, but with credit for three years time served. The court unquestionably intended the net remaining sentence to be confinement for an additional three years. In the final analysis, however, the court announced a sentence of three consecutive five-year sentences with credit for time served of three years for each, and a fourth five-year term with similar credit to run concurrently. Somehow the fact that this would mean that Mr. Velazquez would serve an additional six years of confinement was not recognized, and not objected to by the defense. We conclude that such a lapse amounted to ineffective assistance of counsel.

When Mr. Velazquez sought post-conviction relief, a different trial judge denied his motion. The new judge concluded that, “In the absence of a plea agreement contemplating a specific sentence, the court is obliged to conclude that the defendant cannot state a basis for relief under Rule 3.850.” We think the trial court’s focus was misdirected.

A defendant’s “sentence is properly what the trial court intended it to be.” See Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993) (citing Gonzales v. State, 488 So.2d 610 (Fla. 4th DCA 1986), disapproved of on other grounds by, Frey v. State, 708 So.2d 918 (Fla.1998)). The intention here was that Mr. Velazquez be confined for three years in addition to his credit for time served. In fact, in an earlier iteration of the present case we specifically suggested that the sentence was miscalculated, and indicated that our affirmance of the earlier case was “without prejudice to Velazquez seeking relief pursuant to Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel.” See Velazquez v. State, 35 So.3d 948, n. 2 (Fla. 5th DCA 2010).

Here there was a specific act or omission amounting to ineffective assistance that fell within the requirements of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, the prejudice resulting from the omission is patent. See Connor v. State, 979 So.2d 852 (Fla.2007). Accordingly, we reverse and remand for entry of a corrected sentence consistent with this opinion.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.


text:
    Reginald PRIVETTE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2594.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    Reginald Privette, Indiantown, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 2008-CF-002679-A-0, in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, PALMER and EVANDER, JJ., concur.