author: SILBERMAN, Chief Judge.

text:
    Emanuel DeJESUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5955.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Emanuel DeJesus seeks review of his judgment and sentence for robbery, battery, and assault. DeJesus argues that the trial court abused its discretion in denying his request for a special jury instruction on taking property as an afterthought. We agree and reverse.

DeJesus stood trial on charges of robbery with a firearm, aggravated battery with a firearm, and aggravated assault with a firearm. The charges arose from an incident that occurred at the apartment of Vanessa Bracho, a woman who had been dating both DeJesus and Nerber Iglesia, the victim. DeJesus had lent Vanessa his cell phone, but she had refused to return it and would not accept Dejesus’s calls. On the day of the incident, the victim was visiting Vanessa at her apartment. DeJe-sus texted Vanessa from the cell phone of his friend Pablo Muniz and asked her to return his phone. Vanessa called Muniz’s cell phone and spoke with Muniz. According to the victim, Vanessa was trying to provoke a fight between the victim and DeJesus. The victim decided to leave because he did not want to be involved. But DeJesus testified that an angry male, presumably the victim, called Muniz’s phone and threatened to beat up DeJesus if he showed up at Vanessa’s apartment.

DeJesus, Muniz, and a third man arrived at Vanessa’s apartment shortly thereafter. According to the victim, the men were wielding firearms and pistol-whipped him, knocked him to the ground, and kicked him. While the victim was curled up in a fetal position pretending to be unconscious, the men talked about killing him. Vanessa interrupted and convinced the men to rob the victim instead. The men took the victim’s cell phone, wallet, Bluetooth earpiece, and car keys. Then they resumed kicking and hitting him, and Vanessa joined in the attack. The men finally left, and Vanessa left with them. On the way out of the apartment complex, they stole some papers from the victim’s car.

Although DeJesus did not testify at trial, the State admitted his prior testimony in which he admitted to hitting the victim but claimed he did so in self-defense. According to DeJesus, when he arrived at the apartment the victim was battering Vanessa. DeJesus, who was a former champion amateur boxer, intervened, and the victim swung at him. DeJesus ducked and hit the victim. Vanessa walked past the two to retrieve Dejesus’s cell phone from her bedroom, and the victim turned on Muniz. After the victim swung at Muniz, Muniz punched the victim, knocking the victim to the floor. According to DeJesus, it was Vanessa who went though the seemingly unconscious victim’s pockets on her own initiative.

At trial, DeJesus requested the following special jury instruction on afterthought: “If the evidence shows that the taking of property occurred as an afterthought to the use of force or violence against the victim, the taking does not constitute robbery, but may still constitute theft.” The trial court refused to give the instruction, and it is this ruling that is the subject of Dejesus’s appeal.

To establish entitlement to a special jury instruction, the defendant must prove the following three factors: (1) the special instruction correctly states the law and is not confusing or misleading, (2) the standard instruction is not adequate to explain the theory of defense, and (8) there is evidence supporting the special jury instruction. Wheeler v. State, 4 So.3d 599, 605 (Fla.2009). In denying Dejesus’s request for the special instruction on taking property as an afterthought, the trial court determined that he had not proven these three factors. We disagree.

As to the first factor, the special instruction correctly states the law and is not confusing or misleading.

One of the differences between a robbery and a theft is that in a robbery, “in the course of the taking there is the use of force, violence, assault, or putting in fear.” If the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.

Perkins v. State, 814 So.2d 1177,1178 (Fla. 4th DCA 2002) (citation omitted); see also Mahn v. State, 714 So.2d 391, 397 (Fla. 1998) (holding that the State failed to prove a robbery because the evidence established that, after the violence, the defendant took the victim’s belongings “to effect his escape from the scene”). Word for word, the proposed jury instruction in this case is almost identical to an afterthought instruction approved by the Fifth District. See Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006) (“If the evidence shows that the taking of property occurred as an afterthought to the use of force or violence which resulted in the death of the victim, the taking does not constitute robbery, but may still constitute theft.”).

As to the second factor, the trial court read the following standard robbery instruction in this case:

I will define robbery for you. Count one, to prove the crime of robbery, the State must prove the following four elements beyond a reasonable doubt. One, Emanuel took property from the person or custody of Nerber Iglesia. Two, force, violence, assault or putting in fear was used in the courses [sic] of taking. Three, the property taken was of some value. Four, the taking was with the intent to permanently or temporarily deprive Nerber Iglesia of his right to the property or any benefit from it.
In the course of the taking means that the act occurred prior to, contemporaneously with, or subsequent to the taking of the property and that the act and the taking of the property constitute continuous series of acts or events.

Both the Fifth and Fourth Districts have determined that the standard robbery instruction is not adequate to explain taking property as an afterthought. See Davis, 922 So.2d at 444; Perkins, 814 So.2d at 1179. We agree. As the Fourth District has explained, the standard instruction erroneously allows the jury to “assume that so long as the force and the taking constituted a ‘continuous series of acts or events’ the motive for the force would be irrelevant.” Perkins, 814 So.2d at 1179.

As to the third factor, there is evidence supporting the special jury instruction. Specifically, the victim testified that Vanessa was trying to provoke the victim and DeJesus into fighting and the idea of robbing the victim was not discussed until after he was attacked. And in Dejesus’s version of events, he attacked the victim in self-defense. The evidence from these witnesses supported the request for a special jury instruction on taking property as an afterthought. Cf. Concepcion v. State, 938 So.2d 559, 562 (Fla. 5th DCA 2006) (holding that the trial court erred in refusing to give an afterthought instruction because there was evidence the defendant attacked the victim in the course of a domestic dispute even though he also drove off with her car and money); Perkins, 814 So.2d at 1178-79 (holding that the trial court erred in refusing to give an afterthought instruction based on the defendant’s testimony that he stabbed the victim in self-defense even though the defendant also left the scene with some of the victim’s belongings).

Because DeJesus proved the three factors necessary to establish entitlement to a special jury instruction on taking property as an afterthought, the trial court erred in refusing to give the instruction. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Lapar Donta CONLEY, Appellee.
    No. 2D11-3481.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   BLACK, Judge.

In this appeal pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), the State challenges the trial court’s order granting Lapar Donta Conley’s motion to suppress evidence seized during a traffic stop made pursuant to section 316.3045(l)(a), Florida Statutes (2010). Subsequent to the stop in Conley’s case, this court issued its opinion in State v. Catalano, 60 So.3d 1139, 1146 (Fla. 2d DCA 2011), wherein we stated that section 316.3045, Florida Statutes (2007), “is a content-based restriction on free expression which violates the First Amendment.” Conley’s amended motion to suppress was based upon the Catalano opinion, as was the trial court’s order granting the motion.

The facts of this case are not in dispute. On January 20, 2011, Conley was stopped for a violation of section 316.3045(1), which provides, in pertinent part:

It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is:
(a) Plainly audible at a distance of 25 feet or more from the motor vehicle....

Following the stop, on March 9, 2011, Conley was charged with possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2010); evidence tampering, in violation of section 918.13(l)(a), Florida Statutes (2010); possession of marijuana, in violation of section 893.13(6)(a) and (b); and obstruction of a law enforcement officer without violence, in violation of section 843.02, Florida Statutes (2010). Notably, Conley was not charged with a violation of section 316.3045.

On March 16, 2011, Conley filed his initial motion to suppress alleging a lack of founded suspicion for the stop. A hearing on his motion was held on April 25, 2011, and continued to June 27, 2011. On May 12, 2011, one day after the issuance of this court’s opinion in Catalano and after presentation of testimony at the April 25, 2011, hearing, Conley filed an amended motion arguing that the traffic stop was illegal as a result of what he alleged was this court’s ruling that section 316.3045 is unconstitutional.

“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). “Nevertheless, ‘mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.’ ” Walker v. State, 957 So.2d 560, 573 (Fla.2007) (quoting Taylor v. State, 937 So.2d 590, 598 (Fla.2006)).

The State argues that the evidence seized during the traffic stop should not have been suppressed because the good faith exception to the exclusionary rule applies to the facts of this case. In response, Conley argues, as he did below, that the officer could not have been acting in good faith and that the exclusionary rule should apply because this court previously determined, in Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996), that the “plainly audible” standard of a comparable county noise ordinance was unconstitutionally vague and overbroad. Although we recognize, as we did in Catalano, that the “plainly audible” standard violates the First Amendment, we disagree with Conley’s assertions that the officer in this ease was not acting in good faith. The issue presented in this case is neither the constitutionality of section 316.3045, see Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), nor the trial court’s provision of procedural due process or application of the essential requirements of law, see Catalano, 60 So.3d at 1143, but rather the narrow issue of the application of the exclusionary rule to an officer’s conduct.

“The primary purpose of the exclusionary rule is to deter unlawful police action.” Jarrett v. State, 926 So.2d 429, 431 (Fla. 2d DCA 2006); see Montgomery v. State, 69 So.3d 1023, 1033 (Fla. 5th DCA 2011). “It is intended to deter police misconduct, not to remedy prior invasion of a defendant’s constitutional rights.” Montgomery, 69 So.3d at 1033. Under the rule, “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Pilieci v. State, 991 So.2d 883, 896 n. 10 (Fla. 2d DCA 2008) (quoting United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Thus, “the exclusionary rule applies when police misconduct is ‘deliberate, reckless, or grossly negligent ... or in some circumstances recurring or systemic negligence,’ but not when police have acted in good faith.” Howard v. State, 59 So.3d 229, 231 n. 2 (Fla. 2d DCA 2011) (quoting Brown v. State, 24 So.3d 671, 680 (Fla. 5th DCA 2009)). The “good faith inquiry is confined to the objectively ascertainable question [of] whether a reasonably well trained officer would have known that the [stop] was illegal.... In making this determination, all of the circumstances ... may be considered.” Leon, 468 U.S. at 923 n. 23,104 S.Ct. 3405. “The objective standard ... requires officers to have a reasonable knowledge of what the law prohibits.” Id. at 919 n. 20. As a result, the exclusionary rule “has been held not to apply to evidence obtained by police who acted in objectively reasonable reliance upon a statute which was subsequently determined to be unconstitutional. In such circumstances, there is no police misconduct to deter.” Jarrett, 926 So.2d at 431 (citations omitted); see also Montgomery, 69 So.3d at 1033.

The Fifth District has considered the issues of whether our Catalano opinion can provide the basis to suppress evidence seized prior to the ruling and whether an officer’s good faith reliance on section 316.3045 is an exception to the exclusionary rule. Montgomery, 69 So.3d at 1033. As the Fifth District did in Montgomery, and as we are required to do pursuant to Illinois v. Krull, 480 U.S. 340, 353, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), and Leon, we apply the objectively reasonable standard to the facts of this case. We conclude that at the time of Conley’s stop a reasonable officer would not have known that the noise ordinance statute was unconstitutional because the Catalano opinion did not issue until after the stop in question in this case. See Thomas v. State, 614 So.2d 468, 471 (Fla.1993) (holding that evidence obtained in reliance on an ordinance should not be suppressed where the ordinance is subsequently declared unconstitutional); State v. Calloway, 589 So.2d 326, 328 (Fla. 5th DCA 1991) (“The fact that an ordinance is subsequently determined to be unconstitutional does not undermine the lawfulness of an arrest which was made in good faith reliance on the ordinance.”).

In Conley’s case, the officer acted in an objectively reasonable manner based on existing precedent and the accepted status of the law from which his authority extended. See Howard, 59 So.3d at 281; Brown, 24 So.Bd at 680; see also Davis, 710 So.2d at 636. “To apply the exclusionary rule in this case cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate.” Brovm, 24 So.3d at 681; accord Howard, 59 So.3d at 231; see also Krull, 480 U.S. 340,107 S.Ct. 1160 (holding that the good faith exception applied where police reasonably relied upon a statute authorizing warrantless administrative searches, but the statute was subsequently found to violate the Fourth Amendment); Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (holding that good faith reliance on a city ordinance was valid despite subsequent ruling that it was unconstitutional).

Accordingly, we reverse the order granting Conley’s motion to suppress and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and LaROSE, J., Concur.


author: WHATLEY, Judge.

text:
    Michelle JACKSON, Petitioner, v. Mark JACKSON, Respondent.
    No. 2D12-817.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.

      Jaime L. Wallace and Mark C. Dungan, Sarasota, for Petitioner.
    H. Stephen Hillebrand, Sarasota, for Respondent.
   WHATLEY, Judge.

Michelle Jackson, the Wife, petitions this court for certiorari review of the order denying her motion to hold Mark Jackson, the Husband, in contempt for failure to pay her temporary alimony and attorney’s fees totaling $92,000 pursuant to the order for temporary support. We grant certio-rari and quash the trial court’s order.

The parties were married in 2005, and the Husband filed for dissolution of their marriage in 2010. The Husband is the sole shareholder and director of, among other corporations, MJ-99, which has a mutual fund account the trial court referred to as the Vanguard account. At the hearing on the Wife’s motion for contempt, the trial court stated that when it entered the order on temporary support, it believed that the Husband had access to the approximately $700,000 in the Vanguard account because of the Wife’s expert’s testimony at the hearing on the motion for temporary support that income was being placed in that account. The Husband appealed the temporary support order soon after the Wife filed her motion for contempt. Another panel of this court affirmed that order.

At the contempt hearing, the Husband argued for the first time that he could not use funds from the Vanguard account to pay temporary support because it is a corporate account and the corporation’s bylaws contain a spendthrift provision. The trial court found that the Husband’s failure to pay the amounts set forth in the order on temporary alimony and attorney’s fees was not willful because the corporate bylaws prohibited him from accessing corporate funds to pay a spousal support judgment. It therefore denied the Wife’s motion for contempt. The court reserved jurisdiction regarding the issue of whether it could require the Husband to liquidate his IRA or annuity. At the hearing, the court ordered the parties to brief the reserved issue, but the appendices submitted by the parties do not contain any orders resolving the issue.

“ ‘The applicable standard of review [by certiorari of a contempt order] is whether the challenged order (1) constitutes a departure from the essential requirements of the law; (2) causes material injury throughout the remainder of the proceedings below; and (3) causes injury that is irreparable, as it effectively leaves no adequate remedy at law.’ ” Reilly v. Design Build Interamerican, Inc., 954 So.2d 673, 674 (Fla. 3d DCA 2007) (quoting Boby Express Co. v. Guerin, 930 So.2d 842, 843 (Fla. 3d DCA 2006)).

In a civil contempt proceeding for failure to pay ... alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has failed to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order.

Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985).

The Husband failed to dispel the presumption of his ability to pay established by the temporary order of support because the spendthrift provision is not a circumstance that intervened since the order was entered nor, more importantly, is it a circumstance beyond his control. The provision is part of the corporate bylaws of a corporation the Husband established in 2006 and of which he is the sole shareholder, officer, and director. He did not bring the provision to the court’s attention at the hearing on the Wife’s motion for temporary support. At that hearing, the Wife’s expert testified that his examination of the Husband’s financial documents showed that the money going into the Husband’s personal account which was used to pay his personal expenses came in part from the Vanguard account. The Husband testified that the funds from the Vanguard account were repayments of loans he made to MJ-99. The Wife’s counsel pointed out that the Husband has consistently listed the Vanguard account shares on his personal financial affidavits on the line for stocks and bonds, and the trial court noted this fact in the temporary support order. Under these circumstances, we find that the trial court departed from the essential requirements of the law in finding that the Husband did not have access to the Vanguard account to pay the Wife the support it had ordered.

In addition to the Vanguard account, the court could have found that the Husband has access to the $70,500 in his IRA, see Siegel v. Siegel, 700 So.2d 414, 415 (Fla. 4th DCA 1997) (“Because a person can obtain access to funds in an IRA account, a trial court may properly look to that account as a source of funds to satisfy a purge amount in a contempt order.”), and the $46,500 in his annuity, see Koll v.Koll, 812 So.2d 529, 533 (Fla. 4th DCA 2002) (“A court is required to consider all assets and property interests of the obligor [sought to be held in contempt], including cash as well as real property and business interests.”)- Before tax penalties, these two amounts alone exceed the $92,000 the Husband owed the Wife as of the date of the contempt hearing.

Accordingly, the trial court departed from the essential requirements of law by finding that the Husband had not willfully failed to pay the Wife the temporary support it had ordered in light of the assets available to the Husband from which to pay the amounts ordered. The court’s error causes the Wife irreparable harm not remediable on appeal because she is deprived of funds to pay her attorneys and to support herself during the dissolution litigation. See Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997) (reaffirming importance of both parties in dissolution of marriage action having a similar ability to obtain competent legal counsel).

Accordingly, we grant the petition for writ of certiorari and quash the court’s order denying the Wife’s motion for contempt.

LaROSE and BLACK, JJ., Concur.

      . We have jurisdiction. See Knorr v. Knorr, 751 So.2d 64, 65 (Fla. 2d DCA 1999) ("prejudgment civil contempt orders are more properly reviewed by certiorari”).

        . The spendthrift provision states in pertinent part: "The corporation will not disburse any of its monies ... to its shareholders, directors or officers in the event such a disbursement would directly or indirectly be used to satisfy any ... spousal support court ruling or judgment. ..."

      . The corporation is not a party to this appeal, and we express no opinion on the validity of the spendthrift provision.

      . In addition, the Husband has approximately $400,000 in equity in his home, but it is unknown whether he has an equity line of credit on the house or how long it would take him to obtain one, assuming there is no impediment to him qualifying for such.


author: SWANSON, J.

text:
    GREGORY COUNCIL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4210.
    District Court of Appeal of Florida, First District.
    July 19, 2012.

      Nancy A. Daniels, Public Defender, and Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this appeal from his conviction for aggravated child abuse, appellant raises two claims: (1) the trial court abused its discretion by excluding the testimony of appellant’s biomechanics expert that the victim could have been injured in an accident; and (2) the trial court erred in denying appellant’s motion for judgment of acquittal because the state’s circumstantial evidence was not inconsistent with his reasonable hypotheses of innocence. We affirm as to the second claim without further discussion. See State v. Law, 559 So.2d 187 (Fla.1989). However, we reverse as to the first claim and remand for a new trial.

At his jury trial, appellant sought to introduce testimony from Dr. John Lloyd, an expert in biomechanics, that a fall from a day bed could have caused the type of brain trauma suffered by the victim and that shaking alone could not have caused such injuries. Although conceding Dr. Lloyd was an expert in biomechanics, the trial court excluded the testimony upon finding it would not be helpful to the jury, and might confuse the jury, because Dr. Lloyd’s findings in the field of biomechan-ics could not translate into a medical diagnosis regarding the extent of the victim’s injury.

Florida courts have held that a biomechanics expert is not qualified to give a medical opinion regarding the extent of an injury. Stockwell v. Drake, 901 So.2d 974, 976 (Fla. 4th DCA 2005); Mattek v. White, 695 So.2d 942, 943 (Fla. 4th DCA 1997). However, it has been recognized that a biomechanics expert is qualified to offer an opinion as to causation if the mechanism of injury falls within the field of biomechanics. See Houghton v. Bond, 680 So.2d 514, 521 (Fla. 1st DCA 1996) (holding that the defense’s biomechanics expert was qualified to testify that 90% of the plaintiff motorist’s injuries were caused by his hitting the dashboard as a result of his failure to wear a seatbelt because the expert was not offering a medical opinion based on brain anatomy and function); Behn v. State, 621 So.2d 534, 536 (Fla. 1st DCA 1993) (recognizing that an expert in the field of biomechanics would be qualified to testify that a delay in an automobile accident would have altered the fatal consequences). In this case, Dr. Lloyd was not offering a medical opinion as to the extent of the victim’s brain injury, a matter which was not in dispute. Rather, based upon his biomechanical studies, he opined that (1) a child of the victim’s height and weight could have sustained similar brain injuries by falling out of a day bed; and (2) shaking alone could not have caused such injuries. We conclude Dr. Lloyd was qualified to offer these opinions as to causation because the mechanism of injury (falls and shaking) fell within the field of biomechanics.

Although the trial court is accorded discretion in ruling on the admissibility of evidence, that discretion is limited by the evidence code and the applicable case law. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). The intent of the evidence code is to admit expert testimony if it will assist the jury in determining a factual issue, particularly one that is hotly contested at trial, where the testimony is not merely cumulative, but is critical in helping the jurors resolve the factual issues. Barfield v. State, 880 So.2d 768, 770 (Fla. 2d DCA 2004). In this case, Dr. Lloyd’s testimony was relevant to establishing a reasonable hypothesis of innocence, i.e., accidental injury, by rebutting the state’s medical testimony that the victim’s injuries were only consistent with non-accidental trauma. Although the state argues appellant failed to put forth any evidence that the victim fell out of his bed on the date of the alleged offense, appellant correctly responds there also was no direct evidence of intentional abuse because no eyewitness testimony was presented as to how the victim was injured. Accordingly, we conclude the trial court abused its discretion in excluding Dr. Lloyd’s testimony, which was relevant and would have aided the jury in resolving a highly contested factual issue at trial. See Bryant v. Buerman, 739 So.2d 710, 713 (Fla. 4th DCA 1999) (holding that the trial court abused its discretion in excluding the testimony of the defense’s biomechanics expert in a personal injury action arising from an automobile collision because the testimony would have been critical in resolving a highly contested factual issue at trial).

Assuming the trial court erred in excluding Dr. Lloyd’s testimony, the state argues any error was harmless beyond a reasonable doubt because (1) appellant presented testimony from Dr. Edward Willey, a former medical examiner who practiced forensic medicine, that the victim’s injury could have been the result of the victim’s own rambunctiousness or playing; and (2) defense counsel’s primary argument during trial was the victim’s injuries could have been intentionally inflicted by the victim’s mother. However, Dr. Lloyd’s testimony was not merely cumulative to the testimony of Dr. Willey, who had not conducted systematic studies on brain injuries due to falls and was not allowed to testify that the victim’s brain injuries could not have been caused by shaking due to the victim’s size. Furthermore, even though defense counsel argued the victim’s injuries could have been inflicted by the victim’s mother, this did not diminish the fact that appellant was not allowed to present relevant evidence on his alternative theory of accidental injury. Accordingly, the state has failed to establish beyond a reasonable doubt that the trial court’s ruling excluding Dr. Lloyd’s testimony did not affect the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129,1135 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

AFFIRMED in part; REVERSED in part; and REMANDED for new trial.

DAVIS and WETHERELL, JJ., concur.


author: WETHERELL, J.

text:
    Curtis A. BLALOCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5057.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Rehearing Denied Aug. 27, 2012.

      Thomas E. Cushman, St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant entered a plea of nolo conten-dere to trafficking in marijuana, reserving the right to appeal the denial of his motion to suppress the evidence discovered during the search of his pick-up truck after a drug-dog’s sniff and alert during a traffic stop. Appellant contends that the trial court erred in denying the motion to suppress for three reasons: 1) the stop was pretextual because Appellant did not commit the alleged traffic violation; 2) the stop was extended beyond the time reasonably required to issue a citation; and 3) the dog’s alert did not give the officers probable cause for the search because the State did not establish the dog’s reliability under Harris v. State, 71 So.3d 756 (Fla. 2011), cert, granted, — U.S. — , 132 S.Ct. 1796, 182 L.Ed.2d 615 (2012). We affirm and write only to address Appellant’s third argument.

On February 3, 2011, after receiving information from the Florida Department of Law Enforcement (FDLE) that Appellant would be traveling through the area with drugs, a Department of Transportation (DOT) officer pulled Appellant over after he observed Appellant commit a violation of section 816.126, Florida Statutes, the “Move Over Act.” During the stop, the officer deployed his dog, Sella, to perform a “walk around” sniff of Appellant’s truck. Sella alerted to the seam between the cab and bed of the truck in the vicinity of the truck’s tool box, and the subsequent search of the tool box revealed 28.6 pounds of marijuana wrapped in a vacuum-sealed package with an overwhelming odor of ammonia.

Appellant was arrested and charged with trafficking in marijuana. He moved to suppress the marijuana, his statements, and any observations of his demeanor during the stop. After an evidentiary hearing, the trial court denied the motion, except as to statements made by Appellant to FDLE officers who arrived on the scene of the traffic stop and questioned Appellant without the benefit of Miranda warnings. Pertinent to the issue we address in this opinion, the trial court found that Sel-la was sufficiently reliable for her alert to provide probable cause for the search of Appellant’s truck.

A trial court’s ruling on a motion to suppress comes to this court clothed with a presumption of correctness. See Perkins v. State, 979 So.2d 409, 411 (Fla. 1st DCA 2008) (citations omitted). This court reviews factual findings supporting a denial of a motion to suppress for competent, substantial evidence, while legal conclusions are reviewed de novo. See McKnight v. State, 972 So.2d 247, 249 (Fla. 1st DCA 2007).

Recently, in Harris, the Florida Supreme Court resolved a split in the district courts over the evidence required to establish probable cause for a warrantless search based on a drug-dog’s alert to a vehicle. The Court approved the approach of the Second District requiring that the trial court use a “totality of the circumstances analysis” in determining whether a dog is sufficiently reliable for its alert to establish probable cause for a search. See Harris, 71 So.Bd at 771. To allow the trial court to make this determination:

the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State’s presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog’s performance in the field, including the dog’s successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog’s ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog.

Id.

Here, Appellant contends that Harris requires reversal because the State failed to introduce evidence of Sella’s field performance, including the number of times that she has been deployed and her success and failure rate, and thus the trial court could not determine Sella’s reliability. However, Officer Kelly, Sella’s handler and partner, testified to her field performance. Although the records were not admitted into evidence, they were made available to defense counsel, who used the records in cross-examining Officer Kelly during the hearing on Appellant’s motion to suppress. While admission of the records is preferable, where, as here, the records were available to both parties and utilized during the suppression hearing, the failure to admit the records is harmless. See Joe v. State, 73 So.3d 791, 793 (Fla. 5th DCA 2011).

Next, Appellant contends that Sel-la’s field performance reveals that she is not sufficiently rehable for her alert to provide probable cause for the search of his truck. We disagree.

Officer Kelly testified that Sella was deployed 522 times and she alerted 258 times, with contraband discovered 122 times and no contraband found 136 times. However, in 22 of the 136 “false alerts” it was confirmed that drugs had been either recently used by an occupant of the vehicle or recently present in the vehicle searched. The State argued based on this information that Sella’s success rate was between 74% and 78%, depending on whether her alerts in the 22 cases involving residual odors were considered failures. In its order denying the motion to suppress, the trial court adopted these calculations in determining Sella’s reliability and finding probable cause for the search of Appellant’s truck.

We agree with Appellant that the trial court erred in determining Sella’s reliability by using the State’s calculation based on the total number of deployments. Indeed, as the trial court pointed out in its order, the State’s calculation gives Sella “credit” for failing to alert when there is no way to assess whether she was correct because no search was performed.

That said, we disagree with Appellant’s contention that, in determining Sella’s success rate, the trial court should only consider the number of verified alerts and the total number of alerts, as was done in Wiggs v. State, 72 So.3d 154 (Fla. 2d DCA 2011). The Florida Supreme Court recognized in Harris that “[a]n alert to a residual odor is different from a false alert,” and in our view, an alert to a residual odor that the dog was trained to detect should not count either “for” or “against” the dog when determining its reliability. Here, taking into account the number of Sella’s successful alerts and discounting the alerts where there was no contraband discovered but there were confirmed residual odors, Sella’s success rate is approximately 52%.

“Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Harris, 71 So.3d at 766 (quoting United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006)) (emphasis in original). Based on this low standard, Sella’s 52% success rate is more than sufficient to establish probable cause for the search of Appellant’s truck. Accord United States v. Carroll, 537 F.Supp.2d 1290, 1297 (N.D.Ga.2008) (“Even if [the dogj’s accuracy rate is only 52%, that level of reliability is sufficient for his alert to establish probable cause. [The dog]’s alert indicates the presence of drugs by more than a preponderance of the evidence. [The dog]’s accuracy exceeds [the] ‘fair probability5 requirement of probable cause.”); see also United States v. Donnelly, 475 F.3d 946, 955 (8th Cir.2007) (a 54 percent success rating for the drug dog did not undermine the existence of probable cause, “taking into account the totality of the circumstances present at the scene ..., [the defendant’s] behavior and condition, [the dog’s] history and pedigree, and [the dog’s] positive indication of drugs within the vehicle”), cert. denied, 551 U.S. 1123, 127 S.Ct. 2954, 168 L.Ed.2d 278 (2007).

Moreover, even counting the alerts with no finds but confirmed residual odors “against” Sella using Appellant’s preferred method of calculation, her success rate is approximately 47%, which itself does not undermine a finding of probable cause. See, e.g., State v. Nguyen, 726 N.W.2d 871 (S.D.2007) (holding that, given the totality of the circumstances, there was probable cause to search a vehicle after a drug-dog’s alert when the dog’s success rate was 46%).

In addition to evidence of Sella’s field performance, the State introduced considerable evidence regarding Sella and Officer Kelly’s training. Initially, Sella received ten weeks of training, five of which were completed with Officer Kelly. During this initial training, Sella learned the odors of cocaine and its derivatives, methamphetamine and its derivatives, heroin and its derivatives, and marijuana and its derivatives. She also received specialized training in “livestock” searches in which there is an overwhelming odor of something other than the narcotic (such as the ammonia in this case). Officer Kelly and Sella also received 16 hours of additional maintenance training per month, and they received yearly' certifications, earning a 100 percent certification rate. Additionally, in 2010, Officer Kelly and Sella earned the “top dog” award, as the highest-scoring dog and handler pair at DOT.

The training and certification evidence, along with the evidence of Sella’s successful field performance, provided the trial court an adequate basis to evaluate Sella’s reliability under the totality of the circumstances analysis required by Harris. The trial court’s finding that Sella is reliable is supported by competent substantial evidence and, based on that finding, the trial court properly determined that Sella’s alert provided the DOT officers probable cause to search Appellant’s vehicle.

In sum, for the reasons stated above, the trial court properly denied Appellant’s motion to suppress. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

THOMAS and MARSTILLER, JJ., concur.

      . Appellant relied on different figures at the hearing on the motion to suppress, but the trial court accepted the figures testified to by Officer Kelly.

      . The percentages correspond to a 26% failure rate calculated by dividing the total false alerts by the total deployments (136 -s- 522 = 0.2605) and the 22% failure rate calculated by dividing the non-residual odor false alerts by the total deployments ([136-22] -*■ 522 = 0.2183).

      .122 h- (258-22) = 0.5169.

      . 122 4- 258 = 0.4728


author: COHEN, J.

text:
    Ralph Joelly DAVILA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2845.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attornéy General, Daytona Beach, for Appellee.
   COHEN, J.

Following a jury trial, Ralph Davila was convicted of both resisting an officer with and without violence. Orange County Sheriffs Deputy Homstead was the victim of each offense. On appeal, Davila argues his conviction for resisting without violence constitutes double jeopardy. We agree and reverse.

If the offenses occurred as part of one criminal episode or transaction, then separate convictions for both resisting with and without violence are prohibited because the lesser offense of resisting without violence has elements which are subsumed by the greater offense of resisting with violence. Swilley v. State, 845 So.2d 980, 933 (Fla. 5th DCA 2003); see § 775.021(4)(b)3., Fla. Stat. (2011). In making this fact-intensive determination, courts examine “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been ‘a temporal break’ between offenses.” Sta-ley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002).

The circumstances of the underlying case reflect that all of the conduct occurred at the same residence, to the same deputy, with no real temporal break. Law enforcement was called to the scene by paramedics who responded to a call for assistance for Davila’s aunt. Davila allegedly interfered with the paramedics. Deputy Homstead testified that they had to physically remove Davila from the home. When he tried to re-enter, the deputy decided to arrest Davila. He was taken to the ground where, after a struggle, he was handcuffed. Essentially, deputies had to carry Davila to the patrol car where, despite his continued resistance, they were able to search him and, with some difficulty, get him into the. car. As the deputy attempted to shut the door, Davila kicked it open, knocking Homstead backwards.

Finding these actions occurred as part of a single episode or transaction, we reverse the conviction for resisting an officer without violence.

REVERSED and REMANDED.

SAWAYA and LAWSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Tomesia E. MOBLEY, Appellee.
    No. 5D11-3606.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellee.
   COHEN, J.

The State appeals the order granting Tomesia Mobley’s motion to suppress certain drugs obtained from her purse. The unsworn motion alleged the drugs were obtained through a warrantless search and without consent.

A hearing on the motion was initially set for September 13, 2011, and the State moved to continue the hearing when the arresting officer did not appear. Mobley was also not present for this hearing. At the hearing rescheduled for October 17, the arresting officer once again failed to appear. This time, however, Mobley was present. Her counsel noted her presence and stated, “I would put on the record, too, this is a warrantless search. So the burden would be on the State.” At no time did the defense seek to present any testimony to meet its initial burden of establishing a Fourth Amendment violation. The court deferred ruling and reset the hearing for October 19.

At the October 19 hearing, neither Mob-ley nor the arresting officer appeared. Defense counsel argued, “My client was here on Monday. The — the [c]ourt recognized on the record that we could establish standing. She was sitting back there. And once we’ve established standing, there’s no warrant, the burden shifts to the State.” Satisfied that standing was not at issue and that a warrantless search occurred, the trial court granted the motion to suppress based on the State’s failure to present rebuttal evidence.

On appeal, the State argues Mobley did not satisfy her initial burden of showing a warrantless search occurred. The proponent of a motion to suppress carries the initial burden of establishing a violation of the Fourth Amendment. Raleas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This is reflected in the provisions of rule 3.190(g)(3), Florida Rules of Criminal Procedure, which require the defense to present evidence in support of the motion, after which time the State may offer rebuttal evidence. The initial burden requires the defense to make some showing that a search occurred and was invalid. Miles v. State, 953 So.2d 778, 779 (Fla. 4th DCA 2007); State v. Gay, 823 So.2d 153, 154 (Fla. 5th DCA 2002). Allegations in the motion to suppress are not evidence and will not shift the burden to the State. Likewise, the defendant’s mere presence in the courtroom is- not sufficient to meet the initial burden.

While the record is unclear, it appears the trial court, sua sponte, took judicial notice of the absence of a search warrant in the court file. Judicial notice is governed by the evidence code. Specifically, section 90.201, Florida Statutes (2011), sets forth matters which must be judicially noticed, and section 90.202 provides matters which may be judicially noticed. Section 90.202(6) includes records of any court of this State or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States. Sections 90.203 and 90.204 provide the procedure to be followed in taking judicial notice pursuant to section 90.202, including when the trial court elects sua sponte to take judicial notice. Neither the parties nor the court complied with those procedures.

We are not unsympathetic to the trial court’s frustration with the State’s inability to produce a witness on three separate occasions. Had the defense met its initial burden at the October 17 hearing by presenting evidence, the trial court would have been well within its discretion to grant the motion to suppress based upon the State’s failure to present rebuttal evidence. See, e.g., State v. Fortesa-Ruiz, 559 So.2d 1180 (Fla. 3d DCA 1990). On remand, Mobley should be allowed another opportunity to set a hearing on her motion to suppress.

REVERSED AND REMANDED.

SAWAYA and LAWSON, JJ., concur.

      .On appeal, the parties also raised the matter of standing. Mobley argues the State did not dispute standing below, presumably referring to the prosecutor’s comment, "Your honor, Ms. Mobley was here, which is sufficient to— to have standing.” This argument, however, takes the prosecutor’s comment out of context. The prosecutor followed that comment with, "However, again, there was nothing put into [ejvidence at this point, so the — so the burden simply was not shifted.” We find the prosecutor’s comments did not constitute a stipulation to Mobley’s standing because what the prosecutor indicated was the fact that the defense offered no testimony or evidence to support its position. The trial court’s reliance upon cases in which standing was not in issue was misplaced.

      . At the October 19 hearing, Mobley’s counsel represented that she had earlier requested the court take judicial notice of the absence of a search warrant within the court file. A review of the transcript of the October 17 hearing reflects this was not accurate. While Mobley’s counsel noted the search was war-rantless, no request to take judicial notice was made. The trial court seemed to adopt this error when delivering its ruling, incorrectly noting that the defense asked the court to take judicial notice of the court file. While common experience tells us in the instant case the deputy did not possess a search warrant, as a general proposition, the absence of a warrant within a court file does not equate to the absence of a warrant for a search.

      . There is some authority for the trial court’s belief that the absence of a search warrant in the court file meets the defendant's initial burden. See State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975). We do not reach the merits of this argument for the reasons outlined above.


author: ALTENBERND, Judge.

text:
    Herold PIERRE-LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6265.
    District Court of Appeal of Florida, Second District.
    July 20, 2012.
    Rehearing Denied Sept. 11, 2012.
    Karen L. Meeks, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Herold Pierre-Louis appeals his judgments and sentences for second-degree murder and attempted second-degree murder. We affirm Mr. Pierre-Louis’s conviction and sentence for second-degree murder. We reverse his conviction and sentence for attempted second-degree murder and we remand for a new trial.

These convictions arise from a drive-by shooting in which one person was killed and another injured. There were several persons in the offending vehicles. The testimony at trial was conflicting as to whether Mr. Pierre-Louis was in one of the vehicles and, if so, whether he actually fired a weapon. The jury found that he did not possess or discharge a firearm and found him not guilty of unlawful discharge of a firearm. Thus, he was found guilty of second-degree murder and attempted second-degree murder as a principal.

The jury was instructed in this case with two controversial jury instructions. First, as to second-degree murder, Mr. Pierre-Louis received an instruction comparable to the instructions given in Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010), and Haygood v. State, 54 So.3d 1035, 1037 (Fla. 2d DCA), review granted, 61 So.3d 410 (Fla.2011). We affirm his judgment and sentence for second-degree murder for the reasons discussed in those opinions and also because sufficient evidence exists to support Mr. Pierre-Louis’s conviction for second-degree murder as a principal. As we did in Haygood, we certify the following question to the Florida Supreme Court as one of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Second, as to attempted second-degree murder, Mr. Pierre-Louis received an instruction comparable to the instruction in Houston v. State, 87 So.Sd 1 (Fla. 2d DCA), review granted, 64 So.3d 1262 (Fla.), and appeal dismissed, 73 So.3d 760 (Fla.2011). As we have in the past, we reverse the judgment and sentence for attempted second-degree murder and remand for a new trial. In so doing, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA), review granted, 64 So.3d 1262 (Fla.2011).

On retrial, we express no opinion as to whether the first jury’s verdict as to possession and discharge of a firearm has established any finding binding on the trial court or the next jury.

Affirmed in part, reversed in part, and remanded.

VILLANTI and BLACK, JJ., Concur.


author: PER CURIAM. LaROSE, Judge,

text:
    Vivian ANDERSON, Appellant, v. MARONDA HOMES, INC. OF FLORIDA, Appellee.
    No. 2D11-4203.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.
    Rehearing Denied Sept. 11, 2012.
    David M. Caldevilla and Michael R. Bray of de la Parte & Gilbert, P.A.; and J. Daniel Clark and Marc J. Semago of Clark & Martino, P.A., Tampa, for Appellant.
    Charles Wachter of Holland & Knight, LLP, Tampa; Scott J. Johnson and Min K. Cho of Holland & Knight, LLP, Orlando, for Appellee.
   PER CURIAM.

Affirmed.

WHATLEY and BLACK, JJ., Concur.

LaROSE, Concurs specially.

LaROSE, Judge,

Specially concurring.

This appeal centers on an arbitrator’s clause construction award holding that Vivian Anderson could not pursue class action arbitration against Maronda Homes, Inc. of Florida. In my view, the arbitrator did not manifestly disregard the law nor did he exceed his authority. Accordingly, the trial court properly confirmed the arbitrator’s award and denied Ms. Anderson’s motion to vacate the award. I agree that the trial court’s order should be affirmed. Some words are necessary, however, to address what are important and not conclusively resolved issues concerning the scope of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (FAA) (2005).

I will summarize the underlying facts briefly. Ms. Anderson contracted to purchase a new home constructed by Maron-da. She paid a $10,197 deposit. Relations soured and the parties terminated the contract. Maronda returned only $7697 of Ms. Anderson’s deposit, claiming that she defaulted under the contract. Maronda retained the remaining $2500 to recoup marketing and carrying costs. The battle lines were drawn.

Ms. Anderson sued Maronda for violations of the Florida Deceptive and Unfair Trade Practices Act, §§ 501.201, et seq., Fla. Stat. (2005). She amended her complaint to assert these claims on a class basis. See Fla. R. Civ. P. 1.220.

Maronda moved to compel arbitration. Paragraph 17 of the contract provided, in part, as follows:

17. RIGHT TO CURE/ARBITRATION/MEDIATION OF DISPUTES:

B. Notwithstanding the provisions of Section 17A hereinabove, the parties hereby agree that as a condition precedent to the commencement of any legal proceeding or action relating to this Agreement and after complying with Seller’s right to cure provisions referenced in Section 17A above, that the parties will attempt to resolve any disputes arising hereunder by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the mediation rules promulgated by the American Arbitration Association. Request for mediation shall be filed in writing with the other party to the Agreement and with the American Arbitration
Association. The request may be made concurrently with the following of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.
C. Without limiting any rights set forth in other Sections of this Agreement, and after the requirements of Section 17A and 17B above have been satisfied, any and all disputes arising hereunder, including without limitation, those disputes concerning the deposit paid by buyer (such as determining which party is entitled to the deposit paid by buyer in the event this Agreement is terminated prior to closing), shall be submitted to binding arbitration and not to a court for determination. Arbitration shall commence after written notice is given from either party to the other, such arbitration shall be accomplished expeditiously in the county where the home is located and shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a single arbitrator who is mutually agreed upon by the parties. The arbitrator shall be selected from a list of arbitrators submitted by the AAA and shall have expertise in the home-building and construction area of law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall pay his/her own, legal fees and costs and any other fees incurred in connection with an arbitration proceeding which arises out of or relates in any way to this Agreement, the home, the relationship between the parties, statutory violations, and/or any alleged duties or obligations between the parties, provided, however, that the arbitration panel shall award the arbitrators’ fees and costs to the prevailing party in its arbitration judgment.
D. By initialing below, buyer agrees to have any controversy or claim arising out of or relating to this Agreement or any other document signed or initialed in connection with this Agreement, the home, the relationship between the parties, statutory violations, and/or any alleged duties or obligations between the parties determined by binding arbitration and hereby acknowledges and agrees that it has unequivocally given up and waived any right or opportunity to file, litigate, or have heard any claims, causes of action or disputes in a federal, state or other court of law or equity. In no event shall buyer be entitled to a trial by jury. In the event that buyer files any action in a court of law against seller, buyer consents to the immediate entry of an order of dismissal with prejudice of all causes of action against seller. In such event buyer shall reimburse seller for all attorneys fees and costs incurred in obtaining such order of dismissal.

Over Ms. Anderson’s objections, the trial court compelled arbitration. We affirmed that decision on appeal pursuant to Fla. R.App. P. 9.130(a)(3)(C)(iv). See Anderson v. Maronda Homes, Inc. of Florida, 37 So.3d 856 (Fla. 2d DCA 2010) (unpublished table decision).

As a threshold matter, the arbitrator set out to determine whether the parties agreed to arbitrate on a class basis. The contract contains no explicit language addressing class arbitration. Ms. Anderson urged the arbitrator not to rewrite the contract to include a class action waiver. Alternatively, she contended that such a waiver is unenforceable under Florida law. Maronda argued that the FAA applied and under Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. — , 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), the arbitration could not proceed on a class basis.

With some reluctance, the arbitrator entered a clause construction award, holding that the parties had not agreed to class arbitration. Because the FAA applied, the arbitrator felt bound by Stolt-Nielsen to deny class-action arbitration.

Maronda returned to the trial court and moved to confirm the award. See § 682.12, Fla. Stat. (2005). Ms. Anderson moved to vacate. See § 682.13. She asserted that the arbitrator exceeded his authority and manifestly disregarded the law. Agreeing with the arbitrator’s reasoned award, the trial court confirmed the award and denied the motion to vacate. From that order, Ms. Anderson appeals. See Fla. R.App. P. 9.130(a)(3)(C)(iv). In reviewing an arbitration award, we review questions of law de novo and findings of fact for clear error. Wachovia Sec., LLC v. Vogel, 918 So.2d 1004, 1007 (Fla. 2d DCA 2006).

A. The FAA applies to this dispute.

The trial court detailed the interstate commerce dimensions of the underlying transaction. The trial court’s analysis on this point is consistent with decisions that apply the FAA to contracts for the construction, financing, and sale of homes. I see no question but that the FAA governs. See 9 U.S.C. § 2 (2005); Vogel, 918 So.2d at 1007 (“Where ... interstate commerce is involved, federal law governs the analysis of the arbitration proceeding.”); Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999) (stating that arbitration clause in a contract involving interstate commerce is subject to the FAA); Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79 (Tenn.1999) (stating the factors that showed construction contract involved interstate commerce and compiling cases).

Ms. Anderson urges us to recognize that the underlying contract specifies that Florida, not federal, law applies. Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008), likely forecloses her position. Ms. Anderson and Maronda agreed to arbitration in accordance with the rules of the American Arbitration Association (AAA). Consequently, the choice of Florida law relates to Florida substantive law governing the parties’ respective rights and obligations. See id. at 359, 128 S.Ct. 978; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). This rule may not anticipate application of state rules or laws of arbitration.

To the extent the underlying transaction involves interstate commerce, the arbitration provision, as a matter of federal law, is valid, irrevocable, and enforceable. See 9 U.S.C. § 2 (2005).

B. 'The arbitrator did not rewrite the contract.

Ms. Anderson vigorously argues that the clause construction award rewrites the arbitration provision to include a class action waiver. Ms. Anderson misunderstands the arbitrator’s role. Because the arbitration provision was silent on the issue of class arbitration, contract interpretation was required to determine whether there was any agreement on the point. Contract interpretation is clearly within the arbitrator’s ken. Moreover, AAA Class Rule 3 provides that the arbitrator will decide the class status issue:

Upon appointment, the arbitrator shall determine as a threshold matter, in a reasoned, partial final award on the construction of the arbitration clause, whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class (“the Clause Construction Award”).

By adopting the AAA rules, the parties recognized that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Am. Arbitration Ass’n, Constr. Indus. Arbitration Rules & Mediation Procedures, R-9(a) Jurisdiction (Oct. 1, 2009); Am. Arbitration Ass’n, Commercial Arbitration Rules & Mediation Procedures, R-7(a) Jurisdiction (June 1, 2009).

In interpreting the arbitration provision, the arbitrator necessarily relied on Stolb-Nielsen. Beyond peradventure, “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolh-Nielsen, 130 S.Ct. at 1775. Assent to class arbitration is needed; agreement cannot be inferred from silence.

An implicit agreement to authorize class-action arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate. This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. But the relative benefits of a class-action arbitration are much less assured, giving reason to doubt the parties’ mutual consent to resolve disputes through class-wide arbitration.

Id. (citations omitted).

On our record, I cannot agree that the arbitrator rewrote the contract. He interpreted the contract. Unfortunately for Ms. Anderson, he reached a conclusion not to her liking.

C. AT & T Mobility has limited application here.

Maronda relies, in part, on the Supreme Court’s recent decision in AT & T Mobility LLC v. Concepcion, — U.S. — , 181 S.Ct. 1740, 179 L.Ed.2d 742 (2011), to bolster its argument that the FAA preempts class arbitration. Maronda paints with too broad a stroke. AT & T Mobility involved a purported consumer class action. The arbitration agreement specifically precluded class arbitration. The California courts invalidated the agreement by virtue of the Discover Bank rule. See Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal. Rptr.3d 76, 113 P.3d 1100 (Calif.2005). Under the Discover Bank rule, a class action waiver in a consumer arbitration agreement is unconscionable if the agreement is an adhesion contract, disputes involve small sums, the parties have unequal bargaining power, and there are allegations of a scheme to defraud. The Discover Bank rule essentially invalidates most class action waivers in consumer arbitration contracts.

The Supreme Court held that the FAA preempted the Discover Bank rule. AT & T Mobility LLC v. Concepcion, 131 S.Ct. at 1747. In so doing, it ruled that the Discover Bank rule was a state-imposed policy preference that “interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” 131 S.Ct. at 1748. The Court continued, “[t]he overarching purpose of the FAA ... is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” Id. According to the Court, “class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA.” Id. at 1751.

Although AT & T Mobility reiterates the long-cited proposition that arbitration is a matter of contract, its application here is limited. Principally, AT & T Mobility involved an explicit class action waiver; that is not our case. Indeed, the result in AT & T Mobility was to enforce the parties’ contractual undertaking. In contrast, the arbitrator in his clause construction award was attempting to discern an intent from the silence of the arbitration provision.

Moreover, it is not entirely clear to me that AT & T Mobility establishes a categorical rule against class arbitration. AT & T Mobility’s reach remains unsettled. It is not impossible to conjure up a situation where a class waiver so thoroughly vitiates the ability to vindicate rights that the waiver cannot stand. See, e.g., In re Am. Express Merchants’ Litig., 634 F.3d 187 (2d Cir.2011).

D. The trial court had no choice but to deny the motion to vacate.

Ms. Anderson argued that the arbitrator exceeded his authority in construing the arbitration provision or, alternatively, manifestly disregarded the law in his clause construction award. Neither argument, in my view, is well placed.

1. Limited grounds are available to vacate an arbitration award.

Faced with a motion to confirm the arbitration award, the trial court was required to confirm the award unless Ms. Anderson established a basis to vacate. See 9 U.S.C. § 9 (2005). Section 10 of the FAA recognizes four statutory bases to vacate an arbitration award:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a) (2005).

Ms. Anderson argues that the arbitrator exceeded his power. I cannot agree. As noted earlier, contract interpretation is a matter particularly within the scope of an arbitrator’s authority. The arbitrator conducted his analysis pursuant to the AAA Rules that the parties agreed would govern any arbitration. And, of course, the arbitrator was bound to apply federal law in rendering his clause construction award. Under these circumstances, the arbitrator acted well within his authority in concluding that the arbitration provision did not allow class arbitration.

2. Non-statutory grounds for vacatur are unavailing.

Alternatively, Ms. Anderson argues that the arbitrator manifestly disregarded the law. Subsumed within this rubric is her contention that the arbitrator made a decision contrary to public policy. Manifest disregard of the law is a judicially-crafted basis to vacate an arbitration award. A court may “vacate an award where there is ‘clear evidence that the arbitrator was conscious of the law and deliberately ignored it.’ ” Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1322 n. 7 (11th Cir.2010) (quoting B.L. Harbert Int'l LLC v. Hercules Steel Co., 441 F.3d 905, 910 (11th Cir. 2006)). On our record, I cannot say that the arbitrator manifestly ignored the law. To the contrary, he scrupulously applied StolL-Nielsen.

Maronda stresses that manifest disregard of the law is no longer a basis to vacate an arbitration award. Maronda relies on Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). According to Maron-da, the Supreme Court held in Hall Street that only the grounds in § 10 of the FAA are available to vacate an award. Some courts, including the Eleventh Circuit, have held that Hall Street eliminates all nonstatutory grounds for vacatur. See Frazier, 604 F.3d at 1314, 1324. The trial court accepted this argument.

Even though the arbitrator did not manifestly disregard the law, I think it is important to note that Hall Street is not as clear as Maronda would argue. After all, in Hall Street, the parties sought to impose additional grounds for vacatur upon the court. Since Hall Street, several courts have limited its scope, holding that it did not dispense with the judicially-crafted grounds to vacate. See Frazier, 604 F.3d at 1322-24 (discussing cases).

The same can be said of any separate public policy basis to vacate. Courts have ‘refuse[d] to enforce arbitration awards where enforcement would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general consideration of supposed public interests.’ ” Frazier, 604 F.Bd at 1B22 n. 7 (quoting Brown v. Rauscher Pierce Refsnes, Inc., 994 F.2d 775, 781 (11th Cir.1993)). Although the validity of a public policy basis for vacatur remains open to question under Hall Street, in this case, the arbitrator’s clause construction award is in line with the policy of the FAA as defined by Stolt-Nielsen.

Unquestionably, the inability to proceed on a class basis may make it difficult, if not impossible, to vindicate statutory rights. The state of the law seems to apply contract law principles rigidly to arbitration provisions. Parties cannot be forced to undertake what they have not agreed to do. If Congress is concerned with limitations on consumer rights, it certainly has the authority to amend the FAA. See S.B. 987, Arbitration Fairness Act of 2011.


author: PER CURIAM.

text:
    Corey JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1752.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Appellant challenges the trial court’s determination that his competency had been restored. The trial court based this determination on a medical report filed by the Department of Children and Families (“DCF”). Appellant argues that the trial court departed from the essential requirements of the law when it disregarded the required competency hearing procedures, based its decision solely on the report filed by DCF, refused to conduct an evidentiary hearing, and did not permit cross-examination or the introduction of defense evidence. The trial court also failed to enter a written order on its determination. The State properly concedes error.

Appellant is charged in one case with attempted first-degree murder, two counts of aggravated battery with great bodily harm, and three counts of aggravated assault with a deadly weapon. In another case, Appellant is charged with first-degree murder, attempted first-degree murder, use or display of a weapon while under indictment, and possession of a firearm by a convicted felon.

Appellant was evaluated by two court-appointed experts who opined that he suffered from mental illnesses and was incompetent to proceed. After a hearing on February 16, 2012, the court adjudicated Appellant incompetent and entered an order committing him to DCF for treatment to restore competency. Less than six weeks later, the treatment facility’s administrator reported that Appellant had regained competency and returned him to the Orange County Jail. On April 19, 2012, at Appellant’s competency hearing, the trial court accepted DCF’s administrator’s report, over defense counsel’s objection, and found Appellant competent to proceed in both cases. The hearing lasted under four minutes. During the hearing, defense counsel stated that he had “grave concerns” about his client’s competency. The trial court acknowledged defense counsel’s concerns but stated that Appellant’s return to jail from DCF custody indicated “that he is competent to proceed.” The trial court refused defense counsel’s requests to hold an evidentiary hearing and to cross-examine the DCF examining physician who had authored the report finding Appellant competent to proceed. Nor was Appellant permitted to present evidence from his own doctors— who had determined that Appellant was not competent to proceed — to rebut DCF’s finding of competency.

Florida Rule of Criminal Procedure 3.210(a) provides that “[a] person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.” See Jones v. State, 740 So.2d 520 (Fla. 1999) (stating due process prohibits states from trying and convicting incompetent defendants). It is well-settled that the legal status of a defendant cannot be adjudicated from incompetent to competent without the benefit of a hearing. Alexander v. State, 380 So.2d 1188, 1190 (Fla. 5th DCA 1980); accord Parks v. State, 290 So.2d 562, 563-64 (Fla. 4th DCA 1974) (holding that legal status of appellant could not be adjudicated from incompetent to competent without a hearing); see Fla. R. Crim. P. 3.212(c)(7) (“If, at any time after such commitment, the court decides, after healing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.” (emphasis added)). “A proper hearing to determine whether competency has been restored requires the calling of court-appointed expert witnesses designated under Florida Rule of Criminal

Procedure 3.211, a determination of competence to proceed, and the entry of a [written] order finding competence.” Molina v. State, 946 So.2d 1103,1105 (Fla. 5th DCA 2006) (internal quotation omitted); see Sledge v. State, 871 So.2d 1020, 1021 (Fla. 5th DCA 2004) (reversing for competency hearing because trial court based competency solely on DCF’s clinical evaluation without formal hearing).

Here, the abbreviated proceeding fell far short of a proper adjudicatory hearing. Accordingly, we grant the petition and quash the challenged order.

PETITION GRANTED; ORDER QUASHED.

TORPY, LAWSON and COHEN, JJ„ concur.


author: PER CURIAM. CLARK, J.,

text:
    Travis Devon SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1817.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Rehearing Denied Oct. 9, 2012.
    Nancy A. Daniels, Public Defender, and Wendy S. Loquasto, Special Assistant Public Defender of Fox & Loquasto, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Brooke Poland and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appel-lee.
    BENTON, C.J. and MAKAR, J., CONCUR, and CLARK, J., concurring specially.
   PER CURIAM.

The appellant’s conviction for armed robbery with a deadly weapon is affirmed, in accordance with Mitchell v. State, 703 So.2d 1062 (Fla.1997), where the Florida Supreme Court answered a certified question and approved Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA 1997). The sentence imposed in connection with this offense is also affirmed.

CLARK, J.,

concurring specially.

I agree with the majority opinion that the sentence in this case must be upheld. I am, however, troubled by the imposition of a 22-year prison sentence for the appellant, a juvenile with no prior criminal or delinquency record, who committed the armed robbery with a BB gun, but did not shoot at or strike the victim.

I am in accord with the concurring opinion in Smith v. State, 93 So.3d 371 (Fla. 1st DCA 2012) (Padovano, J., concurring), and the dissenting opinion in Gridine v. State, 89 So.3d 909 (Fla. 1st DCA 2011) (Wolf, J., dissenting), where my colleagues point out the logic in providing parole opportunities for juveniles sentenced as adults.