text:
    Patrick O’HEARN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2158.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Patrick O’Hearn, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Patrick O’Hearn (Defendant) appeals an order of the Broward County circuit court, summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm without prejudice.

Defendant asked the court to correct his jail time credit, alleging he received 329 days of credit against his sentences in his 2006 case, but only 49 days of credit against his sentences in his 2008 case, requiring him to serve 280 days more than he believed the trial court intended. All his sentences were imposed on the same date and were to run concurrently, but it was also his position, which he alleged was consistent with his plea agreement, that the sentencing court intended for his sentences to begin and end on the same date.

The postconviction court denied the motion with an order that stated that the amount of time served on each case would not be the same because Defendant was arrested on each case on separate dates; the time served on each case was accurate.

Defendant was not entitled by law to have the 329 days of credit he received in the 2006 case applied as well to the 2008 case; a defendant is entitled to receive credit only for the amount of time he or she actually served before sentencing for the charge for which he or she is being sentenced. E.g., Harris v. State, 483 So.2d 111, 113 (Fla. 2d DCA 1986).

However, if Defendant’s plea agreement provided that the sentences for both cases were imposed to run coterminously, but the sentence did not so provide, then his remedy would be to file a sworn rule 3.850 motion to enforce the plea agreement, or to withdraw the plea as involuntary. See Almodovar v. State, 56 So.3d 898 (Fla. 2d DCA 2011).

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

Affirmed without prejudice.

TAYLOR, HAZOURI and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeffery BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3693.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2011.
    Jeffery Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: POLEN, J. WARNER, J.,

text:
    Jeremy KNIPP, Appellant, v. STATE of Florida, Appellee. Brian Kiser, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-2364, 4D09-2365.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    Rehearing Denied Aug. 3, 2011.

      Howard Finkelstein, Public Defender, and Jason B. Blank, Assistant Public Defender, Fort Lauderdale, for appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion for Rehearing En Banc.

POLEN, J.

We deny the motion of appellee/cross-appellant, State of Florida, for Rehearing En Banc. We also deny the appellants’ motions to strike the State’s motion. We do, however, substitute the following for our opinion issued on December 22, 2010, in order to expand on our reasoning for affirming the dismissal of the trafficking charges.

As they present identical legal issues, we have combined Knipp v. State, No. 4D09-2364, and Kiser v. State, No. 4D09-2365 for review.

Appellant, Jeremy Knipp, appeals the trial court’s order withholding adjudication on two counts of withholding information from a medical practitioner and sentencing him to three years probation. The State cross-appeals the trial court’s order granting Knipp’s motion to dismiss as to one count of trafficking in Oxycodone and one count of possession of Alprazolam.

Appellant, Brian Kiser, appeals the trial court’s order withholding adjudication as to one count of withholding information from a medical practitioner and sentencing him to three years probation. The State cross-appeals the trial court’s order granting Kiser’s motion to dismiss as to one count of trafficking in Oxycodone.

As to the charges of withholding information from a medical practitioner (“doctor shopping”), defense counsel and the State agreed to the following facts below, which are the same in each case. The defendant in each case obtained prescriptions from two different physicians in Bro-ward County, and within thirty days from receiving the first prescription, obtained prescriptions for the same medicine from another physician in Broward County. There was no proof that either defendant affirmatively misled a physician or that any physician ever asked either defendant whether he had received a prescription from any other source within the thirty-day timeframe.

Based on the foregoing, defense counsel moved to dismiss the doctor shopping charges on the grounds that neither Knipp nor Kiser affirmatively withheld information regarding the fact they had each obtained a prescription within the previous thirty days. In other words, according to defense counsel, the statute prohibits withholding information from a medical practitioner but does not impose an affirmative duty on an individual to disclose to the practitioner that he has, in fact, obtained another similar prescription within the previous thirty days. In opposing the motion, the State argued that the statute does impose an affirmative duty on an individual to show the doctor that he is entitled to a prescription.

Knipp and Kiser were also charged with trafficking in Oxycodone because the amount of Oxycodone in each man’s possession when he was confronted and searched by the police exceeded the legal limit set by the trafficking statute. In a motion to dismiss, defense counsel argued that the trafficking charges should be dismissed as to each defendant because both Knipp and Kiser possessed a valid prescription for Oxycodone which had been written by a licensed physician, and thus, came within the exclusion provided by section 499.03, Florida Statutes. The State responded that the charges should not be dismissed because where, as here, the prescriptions were obtained in violation of the doctor shopping statute, they are invalid and not within the exception of section 499.03.

The trial court granted in part and denied in part Knipp’s and Kiser’s motions to dismiss. As to the doctor shopping statute, the court determined that “there exists no requirement that an individual first be asked about previous prescriptions in order to have violated section 893.13(7)(a)(8), Fla. Stat.” Accordingly, the court denied the motion to dismiss the doctor shopping counts in each case. On the trafficking counts, the trial court granted the motion, having found at the hearing that each defendant possessed a valid prescription for the drugs in his possession. We affirm.

This court reviews de novo an order on a motion to dismiss. See State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006). When a defendant files a motion to dismiss pursuant to rule 3.190(c)(4), the trial court may dismiss the Information if the undisputed facts do not establish a prima facie case of guilt. State v. Shuler, 988 So.2d 1230 (Fla. 5th DCA 2008). “A motion to dismiss under subdivision (c)(4) of ... rule [3.190] shall be denied if the state files a traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000) (emphasis in original).

A long-recognized defense to a charge of trafficking in prescription drugs is the defendant’s possession of a valid prescription. See § 499.03, Florida Statutes (2008). The statute provides in part:

(1) A person may not possess, or possess with intent to sell, dispense, or deliver, any habit-forming, toxic, harmful, or new drug subject to s. 499.003(32), or prescription drug as defined in s. 499.003(42), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug.

Id. (Emphasis added). The question then is whether section 893.13(7)(a)8., Florida Statutes (2008), also known as the “doctor shopping” statute, vitiates the valid prescription defense found in section 499.03.

Section 893.13(7)(a)8., Florida Statutes (2008), also known as the “doctor shopping” statute, provides that it is unlawful for any person:

To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.

§ 893.1S(7)(a)8., Fla. Stat. (2008). The statute does not define the term “withhold.”

It is undisputed that Knipp obtained prescriptions from two separate practitioners within three days of one another — one on November 3, 2008 and the next on November 6, 2008. Similarly, it is undisputed that Kiser obtained prescriptions from two separate practitioners within a two-day span — one on December 1, 2008 and another on December 2, 2008. Neither Knipp nor Kiser contended that they had not sought these prescriptions.

The sole issue below and on appeal is whether the statute requires an individual to volunteer information to the practitioner that he has received a prescription of like therapeutic use within the previous thirty days. Read in its entirety, the statute refers to an individual who “seeks to obtain a controlled substance or a prescription for a controlled substance” and also uses the word “request.” Whether an individual has actually withheld information in violation of the statute depends on whether s/he requested a controlled substance and failed to disclose the fact that s/he received a drug of like therapeutic use within the previous thirty days. In other words, the statute requires that an individual affirmatively requesting a substance provide information to the practitioner.

The appellants stake their claim of ambiguity in the statute on the word “withhold.” The statute’s use of the term “withholding” is not ambiguous. The meaning ascribed by most dictionaries is “to hold something back” or “to refrain from giving or granting.” Whether one substitutes “hold back” or “refrain from giving” for “withhold,” the statute unambiguously makes it a crime for a person seeking a prescription for a controlled substance not to inform the physician that the person has already obtained a prescription for the same or similar substance within the last thirty days. The statute does not qualify the withholding of information by requiring an affirmative request for such information.

Significantly, appellants do not contest that portion of the charge that they had sought the controlled substances. Instead their sworn affidavits emphasize the fact that the doctors they saw did not ask if they had obtained the same or a similar controlled substance within thirty days. Accordingly, based on the record before the trial court, we affirm the denial of the motion to dismiss as to the doctor shopping charges.

As to granting the motions to dismiss on the drug trafficking charges, we also affirm. The State agreed below that both Knipp and Kiser possessed a prescription issued by a licensed practitioner in the normal course of business. The State argues, however, that our opinion in Simpson v. State, 33 So.3d 776 (Fla. 4th DCA 2010), mandates a reversal. Simpson is distinguished from the present cases, because the traverse in Simpson created an issue of fact. The traverse in this case does not create an issue of fact. Rather, the traverse disputes an interpretation of law.

In Simpson, the female defendant was found in possession of numerous oxyco-done tablets. She claimed that not only did she have a valid prescription for her pills, but she was also the legal custodian of her husband’s pills and that he had a valid prescription. The State’s traverse disputed two issues: (1) whether the defendant’s husband had a valid prescription; and (2) whether she was the custodian of her husband’s oxydodone. Because the State created an issue of fact by its traverse, we affirmed the trial court’s denial of the defendant’s motion to dismiss.

In contrast, here the State stipulated there were no factual issues. Instead, it argued that by obtaining prescriptions in violation of the “doctor shopping” statute, there was no “valid prescription” as a matter of law. The State’s argument rested on the legal issue of whether a violation of the doctor shopping statute vitiates the “valid prescription” defense to trafficking or possession of a controlled substance.

We reject this argument because nothing in either sections 499.03(2) or 893.13(7)(a)8., Florida Statutes, eliminates the valid prescription defense to trafficking or possession of a controlled substance if the prescription is obtained in violation of the doctor shopping statute. That may have been the intention of the Legislature, but we are constrained by the rules of statutory interpretation to follow the plain language of the statute. Holly v. Auld, 450 So.2d 217 (Fla.1984).

Accordingly, we affirm the orders of the trial court as to both issues.

Affirmed.

MAY, C.J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the majority opinion. To require a physician to ask about medications before the patient is required to reveal prior prescriptions not only has no statutory basis, but it would also encourage the unscrupulous doctor not to ask questions simply to fill prescriptions to increase the physician’s income and business. With the increase of “pill mills” in South Florida, such conduct is not unthinkable. See, e.g., Deonarine v. State, 967 So.2d 333, 335 (Fla. 4th DCA 2007) (noting, in case where physician was found guilty of trafficking in controlled substances, that he prescribed drugs without obtaining the patient’s medical history). We should not provide additional methods of skirting the law to those who would “doctor shop” to obtain controlled substances for both personal use and profit, whose overuse causes thousands of deaths each year.

      . To be clear, Knipp and Kiser were not co-defendants below. However, they were each charged with withholding information from a medical practitioner and trafficking in oxyco-done (among other charges), based on nearly identical incidents. The defendants were represented by the same defense counsel and filed identical motions to dismiss, The trial court’s ruling on the motions was also the same in each case, and the issues on appeal and cross-appeal are identical.

      . See Definitions of withhold, onelook dictionary search, http://www.onelook.coin/?w= withhold & ls=a (last visited July 19, 2011).

      . The Legislature may well want to consider amending section 499.03 or 893.13(7)(a)8. to address this issue.


author: GERBER, J.

text:
    Jimmy REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2062.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    Rehearing Denied Sept. 7, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his conviction for first-degree murder. He argues that the trial court erred by denying his motion to suppress his confession where two detectives allegedly: (1) failed to respect his assertion of his right to counsel; (2) failed to answer his question regarding the Miranda waiver form which they asked him to sign; and (3) repeatedly appealed to his religious feelings to coerce his confession. We conclude that these arguments are without merit and affirm.

For better context, we shall provide a full recitation of the material portions of the interview. At the beginning of the interview, one of the detectives read the defendant his Miranda rights. The defendant stated that he understood those rights. The following dialogue then ensued:

DETECTIVE # 1: Would you like to talk to me about what we’re here to talk about?
DEFENDANT: My family attorney is in Fort Pierce ah, Florida.
DETECTIVE # 1: Okay, do you wanna talk to me—
DEFENDANT: They don’t want me to say nothing [until] like they get around, but I can tell you all what happened, you know, I don’t mind cause if you just tell the truth.
DETECTIVE # 1: Okay, do you mind talking to us then?
DEFENDANT: Yeah, I’ll talk to you all.
DETECTIVE # 1: Okay, I need you to sign this saying that you are talking and we’re not coercing, meaning that we’re not forcing you to talk, we’re not trying to trick you to talk or do anything, saying that you will sign this, if you wanna stop talking at any time—
DEFENDANT: This thing isn’t violating my rights or nothing ?
DETECTIVE #1: No sir, I explained it to you and—
DEFENDANT: Yes sir.

(emphasis added).

At that point, the first detective asked the defendant what happened. The defendant said he was called to come home because a man attacked his mother when she tried to break up a fight. The defendant got home and fought with the man, who then left. The man later came back with four or five other men. The defendant said that he and three of his friends walked up expecting a fistfight, but the man with whom he fought fired shots at them. The defendant said he never had a gun.

The first detective told the defendant that several neighbors said they saw him shoot a gun. The first detective also showed the defendant the photo lineups which the neighbors signed to identify him as the person who shot the gun. The following dialogue then ensued:

DEFENDANT: God as my witness, I didn’t kill that man.
DETECTIVE # 1: The Lord as your witness, then we also have witnesses on this earth who said that you did it.
DEFENDANT: But you know what that though—
DETECTIVE # 1: Okay.
DEFENDANT: The Lord’s powerful then [sic] anybody on this earth—
DETECTIVE # 1: Um hum.
DEFENDANT: I didn’t do it, I, I wasn’t the one who pulled the trigger and I know I wasn’t the one who pulled the trigger, I know this in my heart and the Lord know it, as long as He know it He gonna be up by me....

Shortly thereafter, the first detective said he obtained an audiotape of the defendant apologizing to a woman who owned a house near where the shots were fired. The defendant responded that he was apologizing not because he fired the shots, but because one of the bullets could have hit the woman’s granddaughter. The following dialogue then ensued:

DETECTIVE #2: ... [N]ow you gonna go to jail for murder and you can go to jail lying about it, if you want any chance at all, you got to tell the truth and it’s painted on your face, young man, it’s very clear that you’re not telling the truth.
DETECTIVE # 1: Very clear.
DETECTIVE # 2: Why don’t you tell the truth and make yourself feel better?
DEFENDANT: Cause I’m scared.
DETECTIVE # 2: Well—
DEFENDANT: Tell the truth, sir?
DETECTIVE #1: Teh the truth, that—
DEFENDANT: (Indiscernible.)
DETECTIVE # 1: The, the truth—
DEFENDANT: (Indiscernible.)
DETECTIVE # 1: The truth, the truth is, go ahead, the truth will set you free, go ahead?

(emphasis added).

At that point the defendant admitted that the man with whom he fought never had a gun. However, the defendant now said that the victim had a gun and fired it at him, so he pulled his gun and fired back four or five times.

The first detective told the defendant that the neighbors only saw one gun, which the defendant used. The second detective then asked the defendant where the shell casings were from the victim’s gun. The defendant answered that he did not know. However, the defendant insisted that the victim had a gun and shot it. The following dialogue then ensued:

DETECTIVE # 2: Now um, look, I understand where you’re coming from, but for, in order for you to feel better about this and that’s the important thing here, to get it off your chest, that’s the really important thing, you talked about the power of God Almighty a little while ago—
DEFENDANT: Um hum.
DETECTIVE #2: If you want to accept His forgiveness, I think it’s very important you, you tell the complete truth and not just part of it. ... [D]id [the victim] have a gun?

(emphasis added).

At that point the defendant changed back to his original statement that the man with whom he fought had the gun, and the victim did not have the gun. The following dialogue then ensued:

DETECTIVE # 1: So we got witnesses on both side of the streets that’s looking at you.... We’ve got evidence, physical evidence that supports their statements that only one gun was fired. Something ain’t adding up, man. Alright, your story, you the only human being ... saying that there was 2 guns involved in this.... [Y]ou’ve done the hardest thing ... you’ve already manned up to, to saying that you shot the gun, alright. Admitting the truth from here that’s the easy part, you’ve done the hard thing. Alright, trying to cover up one little thing is gonna, when you get on the jury stand, when the jury hear about this and it, it, it’s coming up this one thing it’s gonna make you look like a liar.
DETECTIVE # 2: That’s it, why so big right there, Jimmy, you’ve done the hard part, you’ve told, you’ve told it that, that you pulled that trigger and that’s very important. But what’s even more important is that you tell the whole truth, all the truth, cause then later on down the line you’ll be able to look everybody in the eye and say hey, I got here and told them when, when, when you find yourself in front of your Creator and you talked about God, you’ll be able to tell God yeah, I messed up, I did wrong, the detectives came and talked to me and I told them the whole truth and I accept what happened and God will welcome you into his arms, He will forgive you and admit you into Heaven. Think long time, you’re a young man, ya’ know what I’m saying?
DEFENDANT: Yes sir.
DETECTIVE # 2: You believe in God, I can see it, that’s painted on your face. Tell the whole truth, that’s what this is about, this is about confessing what you have done wrong.

(emphasis added).

At that point the defendant admitted that the man with whom he fought did not have a gun and that nobody else had a gun. But he insisted that he did not try to shoot the victim and that he was not looking in the victim’s direction when he shot the victim. The following dialogue then ensued:

DETECTIVE #1: ... I believe the reason why you didn’t shoot [the man with whom you fought] is because you know that you all was boys, but this dude here [the victim] that’s standing to your left, standing here, you mad because ... you thought [the man] had done fought your momma, disrespected your momma and disrespected your ... friendship and this dude’s [the victim’s] standing there next to [the man], you point the gun and he turned his back, not even giving you the, the, the proper respect of you shooting him in his face, he turned his back on you and you just pull the gun to the left, this is what the witnesses said and you fired, pow, pow, pow, pow.
DETECTIVE # 2: And you know what, if when you get to Heaven, if you wanna look God in the face and say I told the truth, where’s it at, man?
DETECTIVE # 1: Even with the jury, that goes a long way sometime when they come out and say that man showed remorse by telling us the truth, he’s not lying, he came out and he said he’s sorry, he told us exactly what happened. You tell the truth once you tell it a thousand times, but when you lie just like we’re sitting here this past thirty minutes and you had to tell 2 or 3 stories to cover up lies and I’ve come back with stuff that people have told us that, that make you a liar, look crazy, so tell the exact truth, that way when you get into court and you look that jury in them face and you tell them the truth again and say that I’m sorry and that goes a long way and even the, with the Judge that goes a long way.
DEFENDANT: (Inaudible.)
DETECTIVE # 1: It’s not promising you anything, but the truth goes a long way, it’s even in the Bible, it sets you free. It’s gonna set you free here.
DETECTIVE # 2: You’re gonna, you’re gonna feel the relief.
DETECTIVE #1: You gonna feel the relief.
DETECTIVE # 2: Physically feel it.
DETECTIVE # 1: And that goes a long ways when people say this guy told the truth, I believe he was remorseful, but if you keep lying and, and believe you me you’re gonna get through.
DEFENDANT: I just told the truth about everything.
DETECTIVE # 1: Tell the whole, you told 90 percent.... I believe you told 90 percent, but there’s a little, a little bit difference because there was 6 or 7 people that lived on [a] different part of that block that came in and told the exact same thing, they even said what these guys said and these guys who’s angry, who’s scared that you done shot one of their friends, they came in, talked to me at different times and told me the exact same story, the exact same story. So you got somebody that was involved in this thing telling me the same story and you got 6 people that wasn’t even involved in it told me the same story and you that’s involved with it telling me 90 percent of the same story, but there’s one little different thing, so you need to come clean.
DEFENDANT: The first shot me and him were looking right in each other eye.

(emphasis added).

The state charged the defendant with first-degree murder. As mentioned above, the defendant moved to suppress his confession on the grounds that the detectives allegedly: (1) failed to respect his assertion of his right to counsel when he referred to his family attorney in Fort Pierce; (2) failed to answer his question, “This thing isn’t violating my rights or nothing?” when referring to the Miranda waiver form which they asked him to sign; and (3) repeatedly appealed to his religious feelings to coerce his confession.

The trial court entered a written order denying the motion. The court concluded that the defendant understood his Miranda rights and “freely, voluntarily, and knowing[ly] waived those rights and agreed to speak to the detectives.” The court further concluded that “the defendant’s statement was not the product of coercion.” The court reasoned:

A detective’s use of religion to encourage a person to tell the truth does not make a defendant’s statements coerced. See Walker v. State, 707 So.2d 300, 311 (Fla.1997) (the court found no coercion by the officers when the defendant made incriminating statements after he was told that God would not believe his abduction story); see also Smithers v. State, 826 So.2d 916, 925 (Fla.2002) (the court found no coercion in the officer’s tactic of telling the defendant that, if he was a Christian, the right thing to do would be to tell the truth). A detective’s use of the statement “the truth will set you free” is not a coercive statement. See McNamee v. State, 906 So.2d 1171, 1175 (Fla. 4th DCA 2005) (the court found that an officer’s reading of a verse in the Bible and stating that “the truth will set you free” did not amount to coercion).

The case then proceeded to trial. The jury found the defendant guilty of first-degree murder. The court sentenced him to life in prison.

This appeal followed. The defendant contends that the trial court erred by rejecting the three arguments mentioned above. We employ a two-step standard of review. Bevel v. State, 983 So.2d 505, 515 (Fla.2008). We must determine whether competent, substantial evidence supports the trial court’s findings of fact and whether the trial court reached the correct legal conclusion that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. Id,, (citations and internal notations omitted). In making these determinations, we must look to the totality of the circumstances. Id. at 516 (citation and emphasis omitted).

Here, looking at the totality of the circumstances, we conclude that competent, substantial evidence supports the trial court’s findings of fact, and that the trial court reached the correct legal conclusion that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

First, the defendant did not assert his right to counsel. He initially stated that he had a “family attorney” in Fort Pierce and that “they” (his family or his attorney) “don’t want me to say nothing [until] like they get around.” However, in the next breath, the defendant told the detectives “but I can tell you all what happened, you know, I don’t mind cause if you just tell the truth.” Thus, the defendant waived his right to counsel.

This case is similar to Alvarez v. State, 890 So.2d 389 (Fla. 1st DCA 2004). There, the defendant waived his Miranda rights and began speaking to detectives. At some point the defendant stated, “From here on, I’m not supposed to talk about it. Mr. Stanfield told me not to talk about the rest of this.” Id. at 393. One of the detectives then asked, “Now are you saying you don’t want to tell me what happened?” Id. The defendant responded, “No, no, no. I want to tell you what happened.” Id. The first district concluded that the defendant’s statements did not constitute an invocation of his right to remain silent or his right to counsel. Id. at 394-95. The case here is even stronger than Alvarez because here, the defendant on his own volunteered that he “can tell you all what happened, you know, I don’t mind cause if you just tell the truth.”

The defendant now alternatively argues in this appeal that his assertion was at least ambiguous, and so the detectives, pursuant to Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009), had to clarify his assertion before proceeding with the interview. See id. at 745 (“[A]n ambiguous waiver must be clarified before initial questioning.”) (citation omitted). However, this alternative argument is unpersuasive. The defendant unambiguously waived his right to counsel. As such, the detectives had no duty to clarify the defendant’s waiver before proceeding with the interview. Even so, the detectives clarified the defendant’s waiver by asking, “Okay, do you mind talking to us then?” The defendant responded without hesitation, “Yeah, I’ll talk to you all.”

Second, as to the defendant’s question “This thing isn’t violating my rights or nothing?”, referring to the Miranda waiver form which the detectives asked him to sign, the detectives responded with a simple and straightforward answer — “No sir, I explained it to you.” Thus, the detectives complied with the case upon which the defendant relies, Almeida v. State, 737 So.2d 520 (Fla.1999). There, our supreme court held that “if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer.” Id. at 525. We conclude that the detectives here gave a simple and straightforward answer, which also was accurate.

Third, we agree with the trial court’s reasoning that the detectives’ use of religion to encourage the defendant to tell the truth did not make the defendant’s statements coerced. The trial court’s parenthetical descriptions of Walker, Smithers, and McNamee are accurate. In each of those cases, the supreme court and this court considered various religious references in the context of the totality of the circumstances and found that the confessions in those cases were voluntarily given and not coerced. Similarly in this case, the detectives merely played off the defendant’s initial religious expressions of “God as my witness” and “The Lord’s more powerful than anybody on this earth” to encourage him to tell the truth. “Encouraging or requesting a person to tell the truth does not result in an involuntary confession.” Garcia v. State, 60 So.3d 1097, 1099 (Fla. 4th DCA 2011) (internal brackets and quotations omitted).

Moreover, the detectives’ use of religion was not the only technique which they used to encourage the defendant to tell the truth. The detectives equally disclosed the evidence in the case to the defendant in an effort to cause him to realize that his account of the incident was not credible. The detectives confronted the defendant with the neighbors’ statements identifying him as the shooter and as the only person with a gun, the audiotape of him apologizing to the woman who owned the house near where the shots were fired, and the fact that there were no shell casings from a second gun. The detectives then told the defendant that, based on this evidence, the jury would think he was a liar. Given the detectives’ statements, it is reasonable to conclude that the defendant realized his story was not credible and voluntarily confessed.

The defendant nevertheless argues that the detectives’ use of religion here was more akin to law enforcement’s use of the “Christian burial technique” during interrogations. Under that technique, law enforcement tells a suspect “of the need to recover the body for purposes of a Christian burial” to cause the suspect to make an incriminating statement. Roman v. State, 475 So.2d 1228, 1280 (Fla.1985). Our supreme court has referred to the use of this technique as “unquestionably a blatantly coercive and deceptive ploy.” Id. at 1232. However, the supreme court has not found that the use of the technique automatically makes the statement inadmissible. Rather, the court has found that the use of the technique is merely a factor among the totality of the circumstances to be considered. See id. at 1232-33 (“[A]l-though we consider [the technique] as a factor among the totality of circumstances surrounding the giving of this statement ... we find that the deception was insufficient to make an otherwise voluntary statement inadmissible.”). Similarly here, we conclude that the detectives’ use of religion was insufficient to make the defendant’s voluntary statement inadmissible.

The defendant also argues that he was not mentally competent to make an understanding waiver of his rights, and that the trial court erred by overruling his objection to the state’s use of a PowerPoint presentation during closing argument. We affirm as to those arguments without further comment.

Affirmed.

STEVENSON and GROSS, JJ., concur.

      . We commend the trial court for conducting a thorough comparison of the interview's audio recording against the transcript to correct several inaccuracies in the transcript.


author: STEVENSON, J.

text:
    Estate of William R. KING, Appellant, v. Loyda KING, Appellee.
    No. 4D10-1137.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.

      Steven N. Abramowitz of Steven N. Abramowitz and Associates, Miami, for appellant.
    No appearance for appellee.

      . The panel sua sponte substitutes the Estate in place of William R. King.

   STEVENSON, J.

In this appeal, the Estate of William R. King challenges an order of the trial court refusing to allow the Estate to be substituted in place of the now-deceased former husband and requiring it to seek enforcement of the final judgment of dissolution in the probate court or, failing that, to file a new civil suit. We reverse.

William and Loyda King divorced in 2008. The terms of their marital settlement agreement, incorporated into the final judgment of dissolution, permitted the wife to remain in the former marital residence contingent upon her assuming specified financial obligations associated with the home. Approximately a year and a half after the divorce, the Estate of William King filed two motions in the divorce case: one seeking to have the court compel the wife to vacate the former marital residence, alleging she breached her financial obligations associated with the former marital residence and the home was now in foreclosure, and a second, asking the court to permit the Estate to be substituted as a party in place of the now-deceased husband. Rather than grant the Estate’s motion to be substituted as a party, the trial court dismissed the case without prejudice, directing the Estate to proceed in probate court or, if it could not proceed in probate court, to file a new civil action.

The relevant rules of court authorize the trial court to permit the substitution of a party in the event of death provided the claim is not extinguished by the death. See Fla. R. Civ. P. 1.260; Fla. Fam. L.R.P. 12.260. Florida law provides that the death of a spouse prior to the entry of final judgment of dissolution terminates the suit and requires dismissal of the divorce suit. See Marlowe v. Brown, 944 So.2d 1036, 1039-40 (Fla. 4th DCA 2006). The death of a spouse does not, however, terminate the proceeding or the court’s jurisdiction if the final judgment was entered prior to the death and the court retained jurisdiction to resolve remaining property issues. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995); Becker v. King, 307 So.2d 855 (Fla. 4th DCA 1975). The instant case is analogous to this latter circumstance, i.e., the husband died only after entry of the final judgment of dissolution and the trial court expressly retained jurisdiction to enforce the final judgment and the incorporated settlement agreement.

Although not a divorce case, M.R. v. A.B.C., 739 So.2d 118 (Fla. 3d DCA 1999), is instructive. M.R. filed a paternity suit against A.B.C. A settlement was reached and the trial court reserved jurisdiction to enforce its provisions. Thereafter, A.B.C. died and counsel filed a suggestion of death. M.R. filed a motion, pursuant to rule 1.260, to have the personal representative of A.B.C.’s estate substituted as the defendant. The trial court denied the motion, accepting the personal representative’s argument that M.R. was required to file a claim against the estate in probate court and, in the event such claim was rejected, to file a separate action. The Third District reversed as “[r]ule 1.260 does not require the filing of a claim in the probate division as a condition precedent to the substitution of the personal representative in place of the decedent in a pending lawsuit” and “there is no sound reason” to require commencement of a new lawsuit where there was already an action in which the trial court had retained jurisdiction to enforce the settlement. Id. at 119-20.

Here, too, the trial court retained jurisdiction to enforce the marital settlement agreement; thus, there is no reason to require the Estate to file a new suit. Moreover, the instant case does not involve a claim against the Estate, which must be brought by the filing of a claim in the probate proceedings. See § 733.702(1), Fla. Stat. Rather, the Estate is taking action to preserve its rights to a particular set of assets predicated upon the entry of the final judgment of dissolution. Accordingly, we reverse the order appealed and remand the case for further proceedings.

Reversed and Remanded.

GROSS and TAYLOR, JJ., concur.


text:
    Joseph TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6149.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Joseph Taylor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Joseph C. Taylor is hereby afforded a belated appeal from the order denying motion to correct illegal sentence in Jackson County case numbers 99-513CF, 99-514CF, 99-515CF, 99-516CF, 99-567CF, and 99-568CF. Upon issuance of mandate in this cause a copy of this opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    Patricia GAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1092.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.

      Patricia Gay, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Patricia Gay is hereby afforded a belated appeal from judgment and sentence in Duval County case number 2006-CF-13070. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. RApp. P. 9.141(c)(6)(D).

The circuit court is directed to appoint counsel'to represent petitioner in the direct appeal if she qualifies for such an appointment.

PETITION GRANTED.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    Marcial RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0617.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Marcial Rodriguez, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Following remand, the trial court has again summarily denied the appellant’s claims that counsel was ineffective for failing to object to the introduction into evidence of a mock Coke can used to store drugs, and a Florida Department of Law Enforcement report stating that 185.1 grams of cocaine had been confiscated from the appellant in an unrelated Madison County case. We affirm without discussion the claim involving the Coke can. However, because the trial court failed to attach the FDLE report, or other record evidence demonstrating that the appellant was not prejudiced by its admission, we are constrained to once again reverse. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Goodwin v. State, 751 So.2d 537, 547 (Fla.1999) (The erroneous admission of “collateral crime evidence is presumptively harmful.”). If, as the appellant alleges, this report contains evidence of the unrelated Madison County case, which the state had been ordered not to discuss, and the report was presented to the jury, then the trial court must either attach record evidence conclusively refuting that the appellant was prejudiced or else hold a hearing on this claim.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


author: MORRIS, Judge.

text:
    Sheldon RAZIN, Appellant/Cross-Appellee, v. A MILESTONE, LLC, a Florida limited liability company, Appellee, and Michael J.. McDermott, Cross-Appellant/Intervenor, v. Sheldon Razin, Appellant/Cross-Appellee, and Todd K. Norman, Intervenor, v. Sheldon Razin, Appellant/Cross-Appellee.
    No. 2D10-5233.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.

      Erik E. Hawks and Vincent Falone of Akerman Senterfitt, Orlando, for Appellant/Cross-Appellee.
    No Appearance for Appellee.
    Michael J. McDermott of McDermott & Thacker, P.A., Brandon, for Cross-Appellant/Intervenor.
    Todd K. Norman and Kelly Holbrook of Broad and Cassel, Orlando, Intervenor.
   MORRIS, Judge.

Sheldon Razin is one of two managing members of A Milestone, LLC. Razin, in his individual capacity, initiated a collection action to recover monies he lent Milestone. Based on what he perceived to be his right under the parties’ operating agreement, he retained his choice of counsel, Todd K. Norman, to represent Milestone in the collection action. However, the other managing member, Ashwini K. Bahl, retained separate counsel, Michael J. McDermott, to represent Milestone. Both Norman and McDermott filed motions to disqualify the other from representing Milestone. The trial court ultimately determined that neither attorney could properly represent Milestone and, therefore, that both Norman and McDermott were disqualified. The trial court then appointed a custodian to retain counsel to represent Milestone in the collection action and to perform other limited functions. One of those functions was to act as a tie-breaker should Razin and Bahl fail to agree on any management decisions. Razin now appeals the nonfinal orders disqualifying Norman and appointing a custodian. McDermott intervened in this action and filed a cross-appeal from the same orders. For the reasons explained herein, we must affirm in part and reverse in part the orders of disqualification and appointment.

I. BACKGROUND

Razin and Bahl created Milestone for the purpose of owning and operating a shopping plaza as an investment. Milestone’s acquisition of the shopping plaza was financed, in part, by a $1,000,000 unsecured loan which Razin provided. The promissory note between Razin and Milestone provided that the loan was to be repaid by April 14, 2005. The note also provided that Milestone would be considered in default if it failed to repay the loan and that “[u]pon the occurrence of any event of Default, and at the option of the Lender, and without notice to any party, the Lender may declare all of the indebtedness evidenced hereby to be immediately due and payable.”

There is no dispute that Milestone failed to repay the loan by the due date. In March 2010, Razin sent a notice of default and demand for payment to Milestone. Although Razin also sent a tolling agreement which would have extended the time for repayment until May 14, 2010, Bahl refused to sign the agreement. Razin and Bahl’s already acrimonious relationship continued to deteriorate until Razin finally filed his complaint seeking repayment under the note.

Things began to get procedurally complicated just prior to the filing of the complaint. On March 16, 2010, Razin sent a notice of a meeting of the board of managers of Milestone to Bahl and McDermott. The meeting was to be held on March 19, 2010. However, Bahl, through McDer-mott, responded that he would be unable to attend and requested that a different date be chosen. Bahl also raised objections to Razin’s choosing whom to retain as counsel to represent Milestone in Razin’s own suit against Milestone, and Bahl called for a vote on the matter by disinterested managers. Despite Bahl’s request and objections, Razin went ahead with the meeting on March 19, 2010, and at the meeting, Razin voted to authorize the retention of Norman to represent Milestone in the collection action. Razin asserted his authority to retain Norman based on article VII, section 1 of the operating agreement. Article VII, section 1 provides in relevant part that “[njotwithstanding any other provision of this Agreement, during the period that any portion of the Razin loan is outstanding, in the event of a disagreement between the Managers regarding any matter affecting the Company, the decision of Razin shall control with respect to such matter....”

Following the meeting, Bahl again raised objections to Razin’s actions in voting to retain Norman, arguing that Razin had a conflict of interest. Bahl also informed Razin that the notice for the meeting was insufficient and that Razin was in breach of the operating agreement.

Ignoring Bahl’s allegations, Razin proceeded to retain Norman to represent Milestone, and thereafter, Razin and Milestone (represented by Norman) entered into settlement negotiations to resolve the collection action. Eventually, Razin and Milestone drafted a settlement agreement which was contingent upon the trial court’s approval.

Meanwhile, Bahl retained McDermott to represent Milestone. McDermott filed an answer and affirmative defenses on Milestone’s behalf. Milestone (through McDermott) also asserted a counterclaim premised on an alleged prior breach of the operating agreement by Razin.

Razin and Milestone then filed a joint motion to strike the filings by McDermott and to disqualify McDermott from representing Milestone. In turn, McDermott filed a motion on Milestone’s behalf to strike any and all documents filed by Norman and to disqualify Norman from representing Milestone. After a hearing, the trial court ruled that: (1) Razin did not provide reasonable notice of the March 2010 meeting of the board of managers, (2) the meeting did not meet quorum requirements, (3) neither Norman nor McDermott could properly represent Milestone because a majority of the managers (i.e., Razin and Bahl) was required to authorize the retention of counsel, and (4) a custodian was necessary to retain counsel for Milestone and to exercise other limited powers, including breaking a tie vote between Razin and Bahl. The trial court gave Razin and Bahl the opportunity to come to an agreement as to whom should be appointed as a custodian. However, Razin and Bahl could not come to an agreement, and as a result, the trial court appointed a person of the court’s own choosing to act as a custodian.

II. ANALYSIS

A. Jurisdiction

We first write to address a jurisdictional issue raised by McDermott. McDermott has filed a motion to dismiss Razin’s appeal, arguing that because the trial court’s orders did not grant a right to immediate possession of property or appoint a receiver, the orders were not ap-pealable pursuant to Florida Rule of Appellate Procedure 9.180(a)(3)(C)(ii) or (D). McDermott contends that the more appropriate review would be by certiorari.

We acknowledge that certiorari is typically the most appropriate method to obtain review of a disqualification order “because denying a party counsel of his or her choice is a material injury without appellate remedy.” Event Firm, LLC v. Augustin, 985 So.2d 1174, 1175 (Fla. 3d DCA 2008); see also Pinebrook Towne House Ass’n v. C.E. O’Dell & Assocs., 725 So.2d 431, 433 (Fla. 2d DCA 1999).

However, we believe that due to the appointment of the custodian, the orders here fall within the parameter of rule 9.130(a)(3)(D), which allows review of a nonfinal order granting the appointment of a receiver. Although the trial court labeled the appointment as one of a custodian, the reality is that the appointed person could — and most likely will — exercise the same type of authority and powers which are typically given to receivers. For instance, the custodian is not only given the authority to retain counsel, but he is also given the authority to cast a deciding vote on any management or operational decision when Razin and Bahl cannot agree on the particular matter. Given the acrimonious relationship between Razin and Bahl, the allegations that each has made against the other, and their history of being unable to agree on decisions affecting Milestone, it appears almost inevitable that the custodian would be casting tie-breaking votes on a regular basis, thereby effectively managing the business. Furthermore, the custodian’s appointment was not limited in time which is an additional reason that the appointment here was really more in the nature of a receiver. We therefore conclude that based on the unusual facts in this case, we have jurisdiction pursuant to rule 9.130(a)(3)(D) over the nonfinal orders disqualifying Norman and McDermott and appointing a custodian.

B. Razin had sole authority to retain counsel pursuant to article VII, section 1.

Article VII, section 1 of the operating agreement clearly indicates that as long as the Razin loan remains outstanding, Razin had controlling authority over any decision affecting Milestone in the event of a diságreement. And pursuant to article II, section 4(D) of the operating agreement, the decision on the retention of counsel to represent Milestone is within the authority of the board of managers. Because there is no dispute that Razin is a manager and that the loan is outstanding, we believe that the parties to the operating agreement—Razin and Bahl—remain bound by it.

Indeed, where there is “an unambiguous contractual provision ..., a trial court cannot give it any other meaning beyond that expressed and must construe the provision in accord with its ordinary meaning.” Emergency Assocs. of Tampa v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995). This is because the contractual language reveals the intent of the parties, and therefore, the plain language controls. See id.

In its order of disqualification, the trial court noted that it was troubled by what appeared to be Razin’s conflict of interest in retaining counsel to represent Milestone in defense of Razin’s collection action. But even though this scenario does not appear to be an arm’s length transaction, the fact remains that Bahl agreed to the inclusion of article VII, section 1, in return for Razin’s $1,000,000 loan. Parties are free to waive any potential conflicts of interest, see Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148, 150 (Fla. 5th DCA 2005) (noting that shareholders of corporation had expressly waived any conflicts of interest from law firm representing corporation and individual shareholders), and we are powerless to rewrite the agreement in order to make it more reasonable for Bahl. See Emergency Assocs. of Tampa, 664 So.2d at 1003.

C. The operating agreement did not eliminate Razin’s duty of loyalty pursuant to section 608.4225(1) (a), Florida Statutes (2007), nor did Razin violate that duty of loyalty by retaining counsel to represent Milestone.

We reject any argument that any part of the operating agreement is void because it violates the statutes dealing with a manager’s duty of loyalty to a limited liability company. Section 608.423(2)(b) sets forth what provisions may be included in a limited liability company’s operating agreement, but it also specifies that an operating agreement may not “[eliminate the duty of loyalty under s. 608.4225.” Although there are different aspects of the duty of loyalty, the relevant provision is described in section 608.4225(l)(a)(2) as: “Subject to s. 608.4226, [a manager’s] duty of loyalty is limited to: Refraining from dealing with the limited liability company in the conduct ... as or on behalf of a party having an interest adverse to the limited liability company.” A plain reading of article VII, section 1 of the operating agreement, however, reveals that it does not even mention the duty of loyalty nor does it expressly allow Razin to act adversely to Milestone’s interests. And section 608.4225(l)(d) provides that a manager does not violate a duty of loyalty under either chapter 608 or an operating agreement “merely because the manager’s ... conduct furthers such manager’s ... own interest.” Razin’s motivation to retain counsel to represent Milestone might have been to ultimately settle the case. If a settlement occurred, Razin would most likely receive payment for at least some of the monies he lent to Milestone and he would arguably be indirectly furthering his own interest. But as section 608.4225(l)(d) makes clear, such conduct would not violate a duty of loyalty.

Furthermore, although section 608.4226(1) describes conflicts of interest arising from a contract or transaction between a limited liability company and a manager, we believe that Razin’s retention of Norman was fair and reasonable to Milestone. Thus, even if the retention constituted a conflict of interest, we believe it was permitted by section 608.4226(l)(c) which provides that a contract or transaction will not be deemed void or voidable if it was “fair and reasonable as to the limited liability company at the time it [wa]s authorized.” We reach this result because there is nothing in our record to suggest that Norman was representing Milestone in name only and instead actually working to protect Razin’s interests. Although it is true that Razin’s interests differed from Milestone’s in that Razin was seeking to collect the monies owed to him by Milestone, we cannot conclude that Razin’s retention of Norman violated Razin’s duty of loyalty because we do not believe that selecting and retaining counsel violates the precepts of sections 60S.4225(1)(a)(2) and 608.4226(1)(a)-(c).

D. The trial court erred by finding that quorum requirements were not met and that Razin’s notice of the board of managers meeting was insufficient.

As an alternative reason for disqualifying Norman, the trial court held that pursuant to article I, section 4 of the operating agreement, a quorum is required for meetings and that the holders of a majority of the voting power of Milestone constitute a quorum. Thus, because Razin and Bahl both held a 50% interest in Milestone and because only Razin was present at the March 2010 board of managers meeting, the trial court determined that the meeting violated the quorum provision. However, the trial court improperly relied upon article I as that provision deals with the rights and obligations of Milestone’s members rather than managers. McDer-mott concedes error on this point.

The trial court also determined that the notice of meeting which Razin sent on March 16, 2010, “did not give reasonable or sufficient notice of a meeting of the [b]oard of [m]anagers.” However, the trial court did not explain why the notice—which was sent three days prior to the actual meeting—was insufficient. In fact, the trial court commented that the “[n]otice provisions described in the [o]per-ating [a]greement apply only to the members.”

We cannot agree with the trial court that the three-day notice was insufficient. Our decision is based on the fact that only two days notice is required for members meetings pursuant to article I, section 7 of the operating agreement. Although there is no specific notice provision applicable to managers in the operating agreement, we see no reason why the same two-day time limit could not be utilized for managers meetings.

Consequently, we hold that the trial court erred in finding that the March 2010 board of managers meeting violated the quorum and notice provisions of the operating agreement.

E. McDermott is not entitled to relief on his cross-appeal because Bahl lacked authority to retain counsel to represent Milestone.

For the same reason we believe Razin had the authority to retain counsel to represent Milestone, we also believe Bahl lacked that same authority. As we have already explained, article VII, section 1 was included in the operating agreement as consideration for the Razin loan and it provides Razin with control rights while the loan is outstanding. There is no provision in the operating agreement which gives Bahl control rights under any circumstance.

McDermott argues that Bahl was the only person authorized to retain counsel because Razin breached other portions of the operating agreement thereby nullifying Razin’s right to vote on matters affecting Milestone. However, even if the allegation of Razin’s breach were true—and we take no position on that issue as it was never decided by the trial court—the fact remains that article II, section 4 of the operating agreement directs that “[a]ctions of the [b]oard of [m]anagers shall be by majority vote.” There is no provision indicating that a manager loses his voting rights based on a breach of another portion of the operating agreement, and because Razin and Bahl both held a 50% interest, Bahl would be unable to obtain a majority vote by himself. Further, while article II, section 5(b) of the operating agreement provides Bahl with the authority to implement duties “on behalf of the [mjanagers ... which [can] be executed or performed without specific authority of any other officer,” that provision does not trump Razin’s control rights under article VII, section 1 while the Razin loan is outstanding.

There is simply nothing in the operating agreement which would give Bahl the sole authority to retain counsel to represent Milestone. We therefore affirm the trial court’s disqualification of McDermott.

III. ATTORNEYS’ FEES AND COSTS

Prior to filing their motions to intervene as individuals in this appeal, both Norman and McDermott purported to appear on behalf of Milestone. In doing so, they both filed motions for appellate attorneys’ fees based on a prevailing party fee provision located in the promissory note executed by Razin and Milestone. However, neither Norman nor McDermott filed motions for attorneys’ fees in their individual capacities after we granted their motions to intervene. And, more important, the prevailing party fee provision in the note is inapplicable here because this appeal does not address any issues relating to the enforcement or non-enforcement of the note. We therefore deny Norman’s and McDermott’s motions for appellate attorneys’ fees.

Razin also seeks appellate attorneys’ fees and costs. However, Razin has cited the prevailing party fee provision located in article XI, section 6 of the operating agreement which provides:

Cost of Enforcement. In the event that the Company or any Member should seek enforcement of any provision of this Agreement, the prevailing party or parties shall be entitled to an award against the non-prevailing [sic] party or parties (in proportion to the parties’ liabilities) of the cost of enforcement, including, but not limited to attorney’s fees, arbitration fees, mediation fees, witness fees[,] and court costs.

Razin clearly is a member of Milestone, and this appeal was initiated to seek enforcement of article VII, section 1 of the operating agreement. Because we have concluded that Razin was entitled to retain Norman to represent Milestone pursuant to article VII, section 1, we grant Razin’s motion for appellate attorneys’ fees. We do, however, decline Razin’s request to impose attorneys’ fees .as a sanction against either Bahl or McDermott in their individual capacities.

Razin also seeks an award of costs. The request for costs is stricken without prejudice to Razin’s filing an appropriate request with the trial court. See Fla. R. App. P. 9.400(a).

IV. CONCLUSION

We hold that the trial court erred by disqualifying Norman and by appointing a custodian to retain counsel for Milestone and to conduct other limited functions. Conversely, because there is no provision in the operating agreement giving Bahl sole authority to retain counsel for Milestone, we affirm on cross-appeal the disqualification of McDermott.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

      . McDermott actually filed' a petition for writ of certiorari, but because he was seeking relief from the same order that Razin is appealing from, this court elected to convert the certiorari proceeding to a cross-appeal.

      . Our record suggests that Razin had previously made allegations against Bahl regarding certain undocumented transactions which Bahl made as Milestone’s management delegate.

      . Although Razin contends that section 608.4226(1) should be construed as applying only where a manager of a limited liability company is an officer of or has a financial interest in another limited liability company, corporation, firm, association, or other entity, we do not agree with that interpretation. Section 608.4226(1) defines conflicts of interest in relevant part as
      a contract or other transaction between a limited liability company and one or more of its ... managers, or managing members or any other limited liability company, corporation, firm, association, or entity in which one or more of its ... managers, or managing members are managers, managing members, directors, or officers or are financially interested....
      (Emphasis added.) The use of the word or generally means that an alternative option is being presented, though it can be the equivalent of the word and where it is clear it is being used in the copulative and not the disjunctive sense. See Rudd v. State ex rel. Christian, 310 So.2d 295, 298 (Fla.1975) (citing Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967)). This rule applies where to read the word or in the disjunctive sense would lead to an unintended result and would defeat the purpose of the statute. See id. (citing Payne v. Payne, 82 Fla. 219, 89 So. 538, 539 (1921)). But here, there is no indication that the legislature meant to define a conflict of interest as only occurring where a manager was an officer of or had a financial interest in another entity. That interpretation would lead to an absurd result. The more logical interpretation is that a manager can have a conflict of interest if he enters into a contract or transaction with the limited liability company — by himself — unless one of the savings provisions set forth in section 608.4226(l)(a)-(c) apply.

      . In fact, because Norman was hired to represent Milestone, he had no duty to either Razin or Bahl individually; Norman's duty ran only to Milestone. See Rudolf, 901 So.2d at 150, 150 n. 4 (discussing comments to Florida Rule of Professional Conduct 4-1.13 which provide that when a lawyer represents an organization, the entity is the client, not the constituents of the organization).

      . If Bahl believes that Razin has somehow violated his fiduciary duty to Milestone by breaching Razin’s obligations under the oper-aring agreement, then Bahl could elect to seek a remedy by filing a separate action for breach of fiduciary duty.

      . We struck the answer briefs filed by Norman and McDermott on the basis that they were essentially challenging their own disqualification rather than representing Milestone. We provided them with the opportunity to intervene if they wished to challenge the disqualification issue further. Both Norman and McDermott did so.


author: DODSON, CHARLES W., Associate Judge.

text:
    FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellant/Cross-Appellee, v. SHERIFF OF ORANGE COUNTY, Appellee/Cross-Appellant.
    No. 1D10-5279.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.

      G. “Hal” Johnson, Tallahassee, for Appellant/Cross-Appellee.
    Stephen A. Meek, General Counsel, Carlos R. Lopez and Sharon A. Zahner, Assistant General Counsel, Public Employees Relations Commission, Tallahassee, and Brian Koji and W. Reynolds Allen of Allen, Norton & Blue, P.A., Tampa, for Appel-lee/Cross-Appellant.
   DODSON, CHARLES W., Associate Judge.

This is an appeal and cross-appeal from a final order of the Public Employees Relations Commission (PERC), dismissing an unfair labor practice charge, but denying attorney’s fees and costs to the Sheriff of Orange County. We affirm PERC’s final order in all respects, but write only to discuss the merits of its order dismissing the unfair labor practice charge.

At all times relevant to this case, the Florida Police Benevolent Association (PBA) was the certified bargaining agent for units of (1) full-time law enforcement officers and (2) full-time supervisory law enforcement personnel employed by the Sheriff of Orange County. Since the 1980’s and until fiscal year 2009-2010, these employees were afforded merit step pay increases, provided they met certain eligibility requirements.

In February 2009, Orange County issued its budget guidelines for fiscal year 2009-2010. The County advised all agencies, including the Sheriffs Office, not to budget any wage increases for that fiscal year. Accordingly, in April 2009 the Sheriff submitted his budget to the County without including funding for merit step pay increases. No such increases have been paid since October 1, 2009. The employees have been frozen in their steps since the September 30, 2009, expiration of the parties’ collective bargaining agreements.

On November 10, 2009, the PBA filed an unfair labor practice charge with PERC, alleging the Sheriff violated Section 447.501(l)(a) and (c), Florida Statutes (2009), by unilaterally discontinuing the merit step pay increases during the hiatus period between the expiration of the parties’ previous agreement and a successor agreement. The parties agreed the merit step pay increases are “wages” for which the Sheriff cannot unilaterally alter the status quo during negotiations in the absence of certain circumstances. The parties also agreed those circumstances are not present here.

PERC appointed a hearing officer. After a hearing, the hearing officer issued a recommended order concluding the Sheriff violated Section 447.501(l)(a) and (c), by failing to pay merit step pay increases after the expiration of the collective bargaining agreements. The hearing officer concluded the status quo was established by the Sheriffs past practice of affording merit step pay increases since the 1980’s. PERC disagreed, finding the hearing officer should have determined the status quo based on the explicit terms of the collective bargaining agreements.

Following the expiration of a collective bargaining agreement, an employer is prohibited from unilaterally altering the status quo of wages, hours, and the terms and conditions of employment. See City of Winter Springs v. Winter Springs Prof'l, 885 So.2d 494, 498 (Fla. 1st DCA 2004); Nassau Teachers Ass’n, FTP-NEA v. Sch. Bd. of Nassau Cnty., 8 FPER ¶ 13206 (1982); Duval Teachers United v. Duval Cnty. Sch. Bd., 6 FPER ¶ 11149 (1980). The status quo can be established either by an explicit contract provision or by an existing past practice. See Central Fla. Prof'l Fire Fighters, Local 2057 v. Bd. of Cnty. Comm’rs of Orange Cnty., 9 FPER ¶ 14872 (1988). When terms or conditions of employment are in a contractual provision, the status quo is determined by reference to the precise wording of the relevant contractual provision. See Royal Palm Bch. Prof'l Fire Fighters Ass’n, IAFF, Local 2886 v. Vill. of Royal Palm Bch., 14 FPER ¶ 19304 at 672-73 (1988). If the contract provision is explicit, no extrinsic evidence of past practice to determine the status quo will be considered. Id. at 673. Instead, the employees’ reasonable expectations as to the continuation of certain benefits should properly be founded upon the precise contractual language, rather than upon a past practice. Id.

In the present case, Article 25, Section 1(D) of the collective bargaining agreements states:

All future wage adjustments, if any, shall be negotiated among the parties pursuant to Article 33, Duration.

Article 33 of the agreements states:

This agreement shall be effective September 23, 2007, and shall continue in full force and effect until September 30, 2009. Either party may notify the other in writing on or before April 30, 2009 of its intent to terminate or modify this agreement in which event the parties shall negotiate in an attempt to reach a successful agreement in accordance with applicable law.

The precise wording of the agreements controls in this case. As of the filing of the stipulated record before the hearing officer, the parties were still negotiating the successor agreements and had not agreed upon any wage adjustments. Consequently, based on the clear language in Articles 25 and 33, PERC ruled “the affected bargaining unit members could not objectively or reasonably expect to receive any merit pay increases after the expiration of the contracts” on September 30, 2009.

The clarity in the contractual provisions of the parties’ collective bargaining agreements distinguishes this case from our recent decision in Communications Workers of America, AFL-CIO, CLC v. City of Gainesville, 65 So.3d 1070 (Fla. 1st DCA 2011). In that case, the collective bargaining agreement made no mention whatsoever of the health insurance benefits in dispute, and PERC rejected the hearing officer’s ruling that the City had engaged in unfair labor practices by refusing to bargain over changes it had made to health insurance benefits for its employees upon retirement. Because the parties’ collective bargaining agreements did not address the issue, we held the labor unions were free to show, as a factual matter, that the City’s furnishing the benefits to its employees amounted to an established past practice. See id. at 1074 (“The status quo depends both on the provisions of collective bargaining agreements and on the content of established past practices.”). Since we were persuaded the hearing officer’s finding of fact was correct, we reversed PERC’s ruling. Id. at 1074.

However, in the present case PERC correctly concluded the hearing officer arrived at an erroneous conclusion of law by determining the status quo based on extraneous evidence of the parties’ past practice, rather than on the explicit terms embodied in the bargaining agreements. See Escambia Cnty. Educ. Ass’n, FTP-NEA v. Sch. Bd. of Escambia Cnty., 10 FPER ¶ 15160 at 301 (1984). Those terms limited the employees’ merit step pay increases, “if any,” following the expiration of the agreements, to those subsequently negotiated by the parties.

PERC’s final order is AFFIRMED.

BENTON, C.J., and LEWIS, J., concur.


author: MARSTILLER, J. BENTON, C.J.,

text:
    Michael J. AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2308.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Michael J. Austin (“Appellant”) appeals his conviction and probationary sentence for violating section 847.0133, Florida Statutes (2009), which makes it a third-degree felony to “knowingly sell, rent, loan, give away, distribute, transmit, or show any obscene material to a minor.” Citing Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), Appellant asserts the trial court should have modified the jury instruction on obscenity to include a “reasonable person” standard. He also contends the court abused its discretion by proscribing alcohol consumption as a special condition of probation. We affirm Appellant’s conviction and sentence for the reasons that follow.

I. Jury Instruction

At Appellant’s trial, the State presented evidence that Appellant showed a minor several movies in which fully or partially nude adults were engaging in sex acts. In giving the instruction on what is “obscene” material, the trial court told the jury it must find that:

a.The average person applying the contemporary community standards of Santa Rosa County, Florida, would find that the material taken as a whole appeals to the prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political or scientific value.

The instruction tracks the language in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), setting out the three-pronged test for obscenity:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(Citations omitted). Appellant does not contend that the court’s instruction violates Miller. He posits instead that the Supreme Court in Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), modified Miller by adding a reasonable person standard to the third prong of the Miller test. Thus, he argues, omission of the standard from the jury instruction given at his trial rendered the instruction unconstitutional.

Indeed, the Court in Pope stated that “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” 481 U.S. at 500-501, 107 S.Ct. 1918. But we disagree with Appellant that this statement modified Miller.

The jury instruction at issue in Pope specifically applied community standards to all three parts of the Miller test. Holding the instruction incorrect and unconstitutional under Miller, the Court in Pope explained:

There is no suggestion in our cases that the question of the value of an allegedly obscene work is to be determined by reference to community standards. Indeed, our cases are to the contrary. Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), held that, in a federal prosecution for mailing obscene materials, the first and second prongs of the Miller test-appeal to prurient interest and patent offensiveness-are issues of fact for the jury to determine applying contemporary community standards. The Court then observed that, unlike prurient appeal and patent offensiveness, “[ljiterary, artistic, political, or scientific value ... is not discussed in Miller in terms of contemporary community standards.” Id., 431 U.S. at 301, 97 S.Ct., at 1763 (citing F. Schauer, The Law of Obscenity 123-124 (1976)). This comment was not meant to point out an oversight in the Miller opinion, but to call attention to and approve a deliberate choice.
In Miller itself, the Court was careful to point out that “[t]he First Amendment protects works which, taken as a whole have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” 413 U.S., at 34, 93 S.Ct., at 2620.

481 U.S. at 500, 107 S.Ct. 1918 (emphasis added). We conclude from these passages that Miller “deliberately],” though implicitly, employs the objective reasonable person standard in the third prong of the obscenity test, and that Pope clarified, but did not modify, the Court’s earlier decision.

Moreover, we discern nothing in Pope requiring a court to include the reasonable person standard when instructing jurors on the value prong of the obscenity test. Rather, the Court suggests that “[i]n an obscenity prosecution the trial court, in its discretion, could instruct the jury to decide the value question by considering whether a reasonable person would find serious literary, artistic, political, or scientific value in the work, taken as a whole.” 481 U.S. at 501 n. 3, 107 S.Ct. 1918. Accord State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, 471 (1988) (recognizing that “the literary, artistic, political, or scientific value of material is to be determined based upon whether a ‘reasonable person’ would find such value in the material, taken as a whole,” but that the Supreme Court in Pope “has indicated that the decision in a particular case as to whether to instruct the jury to apply the reasonable person test in this regard is a matter in the discretion of the trial court.”). Appellant presents no other authority — and we have found none — mandating that the reasonable person standard be made part of a jury instruction on obscenity.

Unlike Pope, where the trial court incorrectly applied community standards to part three of the Miller test, the court in Appellant’s case correctly instructed jurors to apply contemporary community standards only to the prurient interest and patent offensiveness prongs of the test. As to the value prong, the court did not refer to community standards in explaining to jurors what to consider in determining whether the movies Appellant showed a minor had literary, artistic, political or scientific value. The trial court’s decision not to add the reasonable person standard to the obscenity instruction was neither a constitutional violation nor an abuse of discretion.

II. Special Condition of Probation

The trial court sentenced Appellant to 48 months’ probation and imposed, as a special condition, a requirement that Appellant “abstain entirely from the use or possession of alcohol” during the probationary period. Appellant argues the condition should be stricken because it is not reasonably related to his crime.

Trial courts have broad discretion to impose conditions of probation, but special conditions must be reasonably related to rehabilitation. See Stephens v. State, 659 So.2d 1303, 1304 (Fla. 1st DCA 1995). Biller v. State, 618 So.2d 734, (Fla.1993), held that a special probation condition “ ‘is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality,”’ (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979)). Id. at 734-35. All three Rodriguez factors must exist for an appellate court to strike a special probation condition as an abuse of discretion. Stephens, 659 So.2d at 1304.

In Biller, the supreme court struck a condition prohibiting the petitioner from using or possessing alcohol while on probation for carrying a concealed firearm and carrying a concealed weapon. 618 So.2d at 735. The court reasoned there was no connection between alcohol use and the petitioner’s crimes, alcohol use by adults is legal, and “there was nothing in the record, such as information in a presentence investigation report, which would suggest that Biller has a propensity towards alcohol or that his judgment becomes impaired as a consequence of using it.” Id. In the instant case, two of the Rodriguez factors clearly are met: nothing in the record connects Appellant’s alcohol use to the crime he was convicted of, and it is legal for Appellant, who is an adult, to use alcohol. But unlike Biller, the record here contains information indicating Appellant’s “propensity towards alcohol.” Specifically, the presentence investigation report (“PSI”) reveals that in Arkansas in 2005, Appellant was found guilty and convicted of DUI. He failed to complete court-ordered substance abuse treatment. The following year, Appellant was arrested in Pensacola for DUI, pled to the lesser-included offense of reckless driving, and was ordered to attend first offender DUI school and receive substance abuse treatment. Further, the report states that Appellant admitted having used alcohol “to mask things that bothered him.” Under the reasoning in Biller, the information in the PSI suffices to negate the third Rodri guez factor. Therefore, the trial court did not abuse its discretion by prohibiting Appellant from consuming or possessing alcohol as a special condition of probation.

AFFIRMED.

BENTON, C.J., Concurs With Opinion; CLARK, J., Concurs in Result Only.

BENTON, C.J.,

concurring.

“ ‘Florida law is clear that a defendant is entitled to have a jury instruction on any valid defense supported by the evidence,’ but ‘a trial judge is not required to give an instruction where there is no nexus between the evidence in the record and the requested instruction.’ Mora v. State, 814 So.2d 322, 380 (Fla.2002).” Wheeler v. State, 4 So.3d 599, 605 (Fla.2009). In “ ‘order to be entitled to a special jury instruction, [the defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and ,(3) the special instruction was a correct statement of the law and not misleading or confusing.’ Stephens v. State, 787 So.2d 747, 756 (Fla.2001) (footnotes omitted).” Id. While the special instruction here was a correct statement of the law and not misleading or confusing, appellant has not made a persuasive case that the special instruction was supported by the evidence or that the standard instruction was inadequate. See Lee v. State, 214 Ga.App. 164, 447 S.E.2d 323, 325 (1994); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, 471 (1988).

      . A jury acquitted Appellant of a second charge, lewd or lascivious conduct.

      . Section 847.0133, Florida Statutes, incorporates the definition of "obscene” found in section 847.001(10), Florida Statutes.
      "Obscene” means the status of material which:
      (a) The average person, applying contemporary standards, would find, taken as a whole, appeals to the prurient interest;
      (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and
      (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

      . Our decision in Haggerty v. State, 531 So.2d 364 (Fla. 1st DCA 1988), as Appellant recognizes, is inapposite to the instant case. There the appellant asserted that section 847.001(7), Florida Statutes (1987), defining "obscene,” was facially unconstitutional because it did not expressly apply "contemporary community standards” to the first two prongs of the
        Miller test or the reasonable person standard to the third prong. (Section 847.001(7) was renumbered to section 847.001(10), without substantive change, effective July 1, 2001. See ch. 2001-177, § 1, Laws of Fla.) We concluded that because the trial court articulated both standards when instructing the jury, the appellant could not claim violation of his constitutional rights. Haggerty, 531 So.2d at 366.


author: LaROSE, Judge.

text:
    Derrick McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5251.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2011.

      James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Derrick McNeal appeals his convictions and sentences for first-degree murder, two counts of attempted first-degree murder, assault, three counts of aggravated stalking by repeated telephone calls, and attempted second-degree murder with a weapon. We affirm. We write solely to address Mr. McNeal’s claim that, as to the murder charge, the trial court gave a fundamentally erroneous jury instruction for manslaughter.

The State charged Mr. McNeal with the first-degree murder of Demon-taye Simmons in July 2005. At Mr. McNeal’s 2009 trial, the trial court instructed the jury, without objection, on first-degree murder and the lesser included offenses of second-degree murder and manslaughter. The jury instruction on manslaughter provided, in part, as follows:

To prove the lesser crime of manslaughter, the State must prove the following beyond a reasonable doubt:
1. Demontaye Simmons is dead, and
2. (a) he intentionally committed an act that caused the death of Demon-taye Simmons, or
(b) his death was caused by the culpable negligence of Derrick Anthony McNeal....

(Emphasis added.)

Mr. McNeal argues that this instruction is improper under State v. Montgomery, 39 So.3d 252 (Fla.2010). Specifically, he contends that the phrase, “intentionally committed an act that caused the death,” required the jury to find that he possessed an intent to kill the victim. Mr. McNeal claims that the jury might have convicted him of manslaughter if the trial court had not given the allegedly defective instruction.

To constitute fundamental error, the error must infect the validity of the trial to the extent that the verdict would not have been the same absent the error. State v. Delva, 575 So.2d 643, 644-45 (Fla.1991).

In Montgomery, the defendant was charged with first-degree murder. The jury convicted him of second-degree murder. The standard manslaughter instruction given in Montgomery provided that the “[Defendant] intentionally caused the death of [the victim].” 39 So.3d at 257; Fla. Std. Jury Instr. (Crim.) 7.7 (2006). Manslaughter is a lesser included offense of and one step removed from second-degree murder. See Montgomery, 39 So.3d at 254-55. The supreme court held that the manslaughter instruction constituted fundamental error because the second-degree murder conviction was only one step removed from manslaughter and the instruction erroneously required the jury to find that Montgomery intended to kill the victim. Id. at 259.

In Mr. McNeal’s case, the manslaughter instruction focuses on an intent to commit an act that caused death; it does not require an intent to kill. Moreover, the jury found Mr. McNeal guilty of .first-degree murder, two steps removed from manslaughter. In Montgomery, the supreme court stated:

Second-degree murder as a lesser included offense is one step removed from first-degree murder, and manslaughter as a lesser included offense is two steps removed from first-degree murder. In Pena[v. State, 901 So.2d 781, 787 (Fla.2005) ], we concluded that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.”

39 So.3d at 259.

Mr. McNeal contends that the manslaughter instruction required an intent to kill. See In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853, 854 (Fla.2010) (amending the manslaughter instruction language to require proof that “(defendant’s) act(s) caused the death of (victim)”). We need not decide whether the instruction was erroneous, fundamental or otherwise. The jury convicted Mr. McNeal of first-degree murder. Manslaughter is two steps removed from first-degree murder and any error is subject to a harmless error analysis.

The jury had the opportunity to convict Mr. McNeal of second-degree murder. It did not do so. Upon careful review of the record, we conclude that any error in the manslaughter instruction was harmless.

Affirmed.

SILBERMAN, C.J., and KELLY, J., Concur.