author: DAMOORGIAN, J.

text:
    Scott Alfred STROHM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5278.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Scott Strohm appeals his judgment and sentence after being found guilty of committing capital sexual battery against a minor. We affirm.

By way of background, Strohm was previously tried for the same crime and was found guilty. See Strohm v. State, 985 So.2d 640, 641 (Fla. 4th DCA 2008) (hereinafter “Strohm /”). He appealed, and this Court reversed his conviction and remanded for a new trial because impermissible collateral crimes evidence was admitted at trial. Id. at 642. In addition to the issue relating to the inadmissibility of the collateral crimes evidence, Strohm raised the following four other issues in his first appeal: (1) the denial of his motion for mistrial; (2); the admissibility of child hearsay testimony; (3) the prosecutor’s closing argument; and (4) the denial of his motion to dismiss based on a violation of his constitutional right to speedy trial. With respect to these issues, we held that they were “without merit and affirm[ed] without discussion.” Id. at 641.

In this appeal, Strohm raises several new issues as well as the same issues which we previously held had no merit. We recognize that “[ujnder the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case.” City of Hollywood v. Witt, 939 So.2d 315, 318 (Fla. 4th DCA 2006) (quot-mg Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001)). We now turn to the issues raised from the second trial.

During jury selection, defense counsel objected to the State’s peremptory challenge of a prospective juror (“E.M”) and requested a race-neutral reason for the peremptory strike. The State responded that E.M. indicated that he could make up his mind without hearing both sides of the evidence. In support of its explanation to the trial judge, the State points out on appeal that during defense counsel’s questioning of the venire, E.M. expressed his opinion that he believed children can be influenced by their peers into making a false accusation of abuse, and that children can be influenced by their parents into making these false accusations. The trial judge concluded that the reason for the strike was race-neutral and genuine, and it allowed the State to use its peremptory challenge.

“ ‘[T]he appropriate standard for appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is the abuse of discretion standard.’ ” Hoskins v. State, 965 So.2d 1, 7 (Fla.2007) (quoting Files v. State, 618 So.2d 1301, 1304 (Fla.1992)). Appellate courts must follow two guiding principles when reviewing a challenge of peremptory strikes on racial grounds: “(1) peremptory challenges are presumed to be exercised in a nondiscriminatory manner; and (2) the trial judge’s ruling on a peremptory challenge, which turns primarily on an assessment of credibility, will be affirmed on appeal unless it is clearly erroneous.” Cobb v. State, 825 So.2d 1080, 1085-86 (Fla. 4th DCA 2002) (citations omitted).

Strohm argues that the trial court erred in allowing the State’s peremptory challenge of E.M. because “the prosecutor gave no reason for her challenge of [E.M.] other than her protestations of good faith in exercising the challenge....” Strohm’s argument is without merit. After reviewing the record, we hold that the trial court properly ruled that the State provided a genuine race-neutral reason for striking E.M. See Chavers v. State, 827 So.2d 279, 281 (Fla. 4th DCA 2002) (“Reasonable doubts ... as to a juror’s impartiality, should be resolved in favor of excusing the juror.”) (citations omitted).

Strohm next argues that the “trial court reversibly erred in allowing the State to introduce into evidence inadmissible hearsay statements made by the victim and her sister, without making the reliability findings required by section 90.803(23), Florida Statutes (2009).” The State counters that this issue is barred by the law of the case doctrine because the admissibility of these hearsay statements was previously raised in Strohm I, and this Court affirmed the trial court’s ruling admitting the same evidence. The State is correct. In Strohm I, this Court determined that Strohm’s argument against the admissibility of the same child hearsay, which is now at issue, was without merit and affirmed it without discussion. See Strohm I, 985 So.2d at 641; Witt, 939 So.2d at 318.

Strohm also asserts that the trial court erred by admitting the hearsay evidence of the victim’s sister because the probative value of her testimony was outweighed by its prejudicial effect. The trial court admitted the evidence by concluding that the issue regarding its probative value was precluded by the law of the case doctrine. Although this issue was never raised in Strohm I, we nonetheless hold that the trial court reached the correct result, but for the wrong reason. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (Under the “tipsy coachman” rule, “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

In Griffin v. State, 639 So.2d 966 (Fla.1994), the Florida Supreme Court stated:

[EJvidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged ... is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Id. at 968 (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). Here, the victim’s sister’s testimony was inextricably intertwined with the crimes charged because it explained how the victim’s mother became aware of Strohm’s sexual abuse against the victim. See Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (“Evidence is inextricably intertwined if the evidence is necessary to ... establish the entire context out of which the charged crime(s) arose ....”) (internal citations and emphasis omitted). Accordingly, we hold that the probative value of the testimony was not outweighed by its prejudicial effect.

Strohm also assigns error to the admission of the testimony of the child protection team nurse who testified “about the common response of child abuse victims” who were about to be examined. Over defense counsel’s relevancy objection, the nurse was allowed to testify that the victim’s behavior was a common response of child abuse victims in a similar setting. In support of his argument, Strohm cites to our holding in Calixte v. State, 941 So.2d 570 (Fla. 4th DCA 2006). In Calixte, a police officer testified about the reliability of eyewitness identification. See id. at 571. This Court held that “[bjecause the identification of Calixte was the crucial issue at trial and the testimony of the investigating detective was directly related to this issue, we find that the trial court erred in permitting this testimony....” Id. at 573. Strohm’s reliance on our holding in Calixte is misplaced.

In this case, the nurse did not testify about the reliability of a child victim’s testimony, nor did she implicate Strohm. Rather, her testimony served to explain that the victim’s behavior was consistent with children not wanting to be physically examined by a stranger. Moreover, the nurse stated that she saw no physical signs of abuse on the victim. See State v. Gerry, 855 So.2d 157, 160-61 (Fla. 5th DCA 2003) (holding that the probative value of a child protection team nurse’s medical testimony regarding her examination of three alleged child abuse victims was not substantially outweighed by the danger of unfair prejudice).

Next, Strohm alleges that the trial court erred in denying his motion for a mistrial because the prosecutor commented on his right to remain silent during closing argument. During closing, Strohm’s lawyer argued that if Strohm’s mother was alive, her testimony would establish that daily life in the Strohm home was normal. On rebuttal, the State argued that Strohm’s mother’s testimony as to the suggestion of normality in the Strohm home would have served no purpose because the crimes occurred at night when no one was home. The prosecutor went on to explain, “The people who could tell you about that, the only two people who were there [are the victim] and the defendant.” Strohm moved for a mistrial on the ground that the State’s argument emphasized his right to remain silent. The trial court denied the motion, but provided a curative instruction.

We conclude that the trial court did not err in denying Strohm’s motion for mistrial. The State was permitted to argue that Strohm’s deceased mother’s testimony would be irrelevant when the two people involved were the victim and Strohm. Such a comment was not a remark on Strohm’s right to remain silent, but instead was a response to Strohm’s suggestion that his mother knew what was taking place at all times inside the home. Furthermore, the State’s comment was not so prejudicial as to vitiate the entire trial when considering the nature of the comment itself and the fact that a curative instruction was given. See Ford v. State, 802 So.2d 1121, 1129 (Fla.2001) (“Both the prosecutor and defense counsel are granted wide latitude in closing argument. A mistrial is appropriate only where a statement is so prejudicial that it vitiates the entire trial.”) (footnotes omitted). Any prejudice from the State’s comment was cured by the trial court’s instruction to the jury. Finally, even if we concluded that the trial court erred, we would hold that there is no reasonable possibility that the State’s comment affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

Lastly, Strohm claims that his right to a speedy trial was violated, even though he concedes that this same issue was raised in his first appeal. In Strohm I, we concluded that this argument had no merit and affirmed the trial court’s ruling. In the second trial, the trial court correctly denied Strohm’s motion to discharge on the grounds that his right to a speedy trial had been violated because the issue was precluded by the law of the case doctrine. See Strohm I, 985 So.2d at 641; Witt, 939 So.2d at 318.

Based on the foregoing reasons, we affirm Strohm’s judgment and sentence.

Affirmed.

MAY, C.J., and GERBER, J., concur.


source: Caselaw Access Project

author: BENTON, C.J.

license: Public Domain

text:
    Nino Chet TARTARINI, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-4877, 1D10-4879.
    District Court of Appeal of Florida, First District.
    April 4, 2012.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, C.J.

Nino Chet Tartarini appeals judgments of conviction in two, consolidated cases, contending that their joinder in the trial court compromised his right to be tried in each case solely on evidence germane to each case. We reverse and remand for separate new trials.

I.

“ ‘The primary “purpose of requiring separate trials on unconnected charges is to assure that evidence adduced on one charge will not be misused to dispel doubts on the other, and so effect a mutual contamination of the jury’s consideration of each distinct charge.” ’ ” Hart v. State, 70 So.3d 615, 617 (Fla. 1st DCA 2011) (quoting Garcia v. State, 568 So.2d 896, 898 (Fla.1990)). See also Crossley v. State, 596 So.2d 447, 450 (Fla.1992) (“The danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other. While the testimony in one case standing alone may be insufficient to convince a jury of the defendant’s guilt, evidence that the defendant may also have committed another crime can have the effect of tipping the scales. Therefore, the court must be careful that there is a meaningful relationship between the charges of two separate crimes before permitting them to be tried together.”).

“ ‘[I]nterests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.’ ” Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (quoting Wright v. State, 586 So.2d 1024, 1030 (Fla.1991)). Here, the state originally filed two informations, each alleging sexual misconduct with one of two underage girls. Then, a few weeks before trial, the state moved to consolidate on grounds the cases were “inextricably intertwined with each other.” Conceding that the two cases were not linked “in an episodic sense” and that the offenses were not alleged to have occurred in the same place, the state argued that there was a “meaningful relationship” between them, nevertheless; and that, taken together, the cases “provide[d] the entire context of the Defendant’s criminal actions against each of [the victims], how each were disclosed, then investigated, then ultimately prosecuted.” The state also asserted that evidence of the crimes committed in each case would be admissible in the trial of the other as similar fact evidence.

Over objection, the trial court granted the motion to consolidate, finding a meaningful relationship between the cases that went “beyond the mere fact that the defendant is alleged to be guilty and that he is alleged to be guilty of sexual crimes that involve two different victims.” The trial court found that all of the charged crimes allegedly occurred during the same general time period at (various) places Mr. Tar-tarini was residing at the time, and that they were allegedly committed in a similar fashion. But the trial court explicitly refrained from passing on any Williams rule question.

II.

As a preliminary matter, we reject the state’s argument that Mr. Tartarini did not preserve his misjoinder argument for appeal. Trial counsel argued against consolidation, and the court made its ruling fully aware of appellant’s position. See § 924.051(l)(b), Fla. Stat. (2009) (Preserved “means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”). Cf. State v. Pruitt, 977 So.2d 604, 605 (Fla. 2d DCA 2007) (state failed to preserve issue for appeal when it did not make the argument at hearing on defendant’s motion to dismiss).

The defense provided the court with copies of cases supporting its opposition to the state’s motion for joinder, and argued against the motion at a hearing where the motion was taken up. After the court ruled on the motion, just before jury selection, the defense attempted to object to consolidation again. The trial court responded: “I think for purposes of an appellate court, certainly your record is [preserved, in that you objected to the joinder, you stated succinctly why, you gave me cases as to why. And so, to that extent, I think the record is certainly protected.” Additionally, on the morning before trial, the defense stated a “standing objection to proceeding to trial” on grounds of misjoinder, to which the trial court responded, “Your objections have been noted and you certainly have preserved your record in that regard.”

III.

Here, as below, appellant argues that the trial court abused its discretion by consolidating cases involving two separate victims. See Crossley, 596 So.2d at 450. On the merits, our analysis begins with the governing rule of criminal procedure, which allows informations charging “related offenses” to be consolidated for trial upon proper motion. See Fla. R.Crim. P. 3.151(b). Construing the rule, we recently said:

“[F]or joinder to be appropriate the crimes in question must be linked in some significant way. This can include the fact that they occurred during a ‘spree’ interrupted by no significant period of respite, or the fact that one crime is causally related to the other, even though there may have been a significant lapse of time. But the mere fact of a general temporal and geographic proximity is not sufficient in itself to justify joinder except to the extent that it helps prove a proper and significant link between the crimes.”

Hart, 70 So.3d at 618 (quoting Ellis, 622 So.2d at 1000 (citations omitted)). The “ ‘rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are “connected” only by similar circumstances and the accused’s alleged guilt in both or all instances.’ ” Ellis, 622 So.2d at 999 (quoting Wright, 586 So.2d at 1029).

The state argues, and the trial court concluded, that the two alleged victims’ cases have a “meaningful relationship,” indeed a “significant and unique link” because of the way in which the alleged abuse came to light and was then investigated and prosecuted. See generally Smithers v. State, 826 So.2d 916, 924 (Fla.2002). In Smithers, the supreme court upheld joinder of two murder indictments, even though the murders were not alleged to have been committed in a “ ‘spree’ interrupted by no significant period of respite,” as in Bundy v. State, 455 So.2d 330 (Fla.1984), nor to be causally related, as in Fotopoulos v. State, 608 So.2d 784 (Fla.1992). 826 So.2d at 923. The Smithers court found that joinder was appropriate based on the “unique facts” of record:

Both victims were prostitutes, both were taken from the Luxury Motel to the Whitehurst property, both had sex with Smithers inside the house, both were murdered in a similar fashion in the carport with tools apparently located in the carport, and both bodies were dragged into a pond behind the house. Both murders were committed within a ten-day time frame. Finally, both bodies were discovered at the same time and the defendant confessed to both murders in the same interview.

Id. at 924. Thus, the court found, there was “clearly a ‘meaningful relationship’ between the two crimes and they [were] without question ‘linked in some significant way.’ ” Id. Much closer to the present case were the facts in Roark v. State, 620 So.2d 237 (Fla. 1st DCA 1993). There we held the trial court erred in failing to grant Roark’s motion to sever a count of lewd and lascivious assault on E.B. from charges of sexual battery against her sister C.B., because “the offenses were related only in that they were sex offenses occurring within the same seven-month period, the victims were related to each other, and appellant allegedly was guilty.” Id. at 239.

We stated categorically in Roark that “in child sexual molestation cases, motions to sever should be granted where offenses occurred at different times and places, involving different victims.” Id. In the present case, the evidence showed that the victims (who were not related) learned of Mr. Tartarini’s alleged offense(s) against the other only when they confided in one another. The detective who investigated the offense first reported to the police learned of the other alleged victim from the first alleged victim. But there was no showing that the offenses occurred in a narrow time period. The evidence showed that, while the offenses alleged against each girl may have occurred in the same year, they could also have occurred more than a year apart. There was no showing that the offenses— as opposed to their eventual disclosure— were causally related. The trial court erred in ruling there was a “meaningful relationship” among all the crimes alleged against each victim, and that they were linked in “some significant way,” just because they came to the police’s attention at more or less the same time.

IV.

Although harmless error analysis is appropriate, the trial court’s abuse of discretion in consolidating the two alleged victims’ cases was not harmless. See Livingston v. State, 565 So.2d 1288, 1290 (Fla.1988) (misjoinder subject to harmless error analysis). The defendant in Livingston failed to show prejudice where he confessed to every crime charged, and physical evidence and eyewitness identification alike tied him to each crime. Id. at 1290-91. There was no confession in the present case: the case turned on the two victims’ credibility. We cannot say beyond a reasonable doubt that the evidence in one case did not affect the verdict in the other case. 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 ... that there is no reasonable possibility that the error contributed to the conviction.”). See also Crossley, 596 So.2d at 450; Roark, 620 So.2d at 240 (“If it was determined that misjoinder would constitute harmless error in all familial sexual battery cases where the misjoined offenses would be admissible as collateral crime evidence, then the distinctive legal standards concerning each would begin to blur.”).

The state argues that the same evidence would have been admissible as Williams rule evidence. But our supreme court explained in Robertson v. State, 829 So.2d 901, 908-09 (Fla.2002), that the tipsy coachman doctrine was — on procedural grounds — unavailable where impeachment evidence improperly admitted at trial might have been admissible as Williams rule evidence. The same procedural barrier exists in the present case. There as here the state did not obtain a ruling after filing a notice of intent to use similar fact evidence pursuant to section 90.404(2)(b), Florida Statutes, and thus “the matter was never litigated on the basis of the Williams rule, the trial court never made determinations as to whether clear and convincing evidence existed that Robertson committed the prior crime, whether the prior crime was substantially similar, or whether the prior crime was too remote so as to minimize any potential relevance.” Id. at 908.

The trial court did remark, when ruling on the motion to consolidate the cases, that the crimes were committed in a similar fashion, but, because the admissibility of this evidence under Williams “ ‘was not at issue, [Mr. Tartarini] did not have an opportunity to present evidence or arguments against the admissibility of this evidence under the Williams rule.’” Id. (quoting Robertson v. State, 780 So.2d 106, 118 (Fla. 3d DCA 2001) (Sorondo, J., dissenting)). See also Roark, 620 So.2d at 240 (finding that the standard for determining whether offenses are properly consolidated for trial is “vastly different” from the standard of when evidence of collateral crimes may be introduced, as collateral crime evidence may not become a feature of trial and the defense is entitled to a limiting instruction on the collateral crimes evidence). The trial court never ruled on the state’s Williams rule contentions.

Reversed and remanded for separate trials.

DAVIS and MARSTILLER, JJ., concur.

      . At the outset of the hearing, the trial judge said he would hear arguments on the state’s motion, "[a]nd then we’ll determine, depending on what my ruling on the joinder is, we may or may not have to have a Williams rule hearing.” See Williams v. State, 110 So.2d 654 (Fla.1959).


author: MAY, C.J.

text:
    STATE of Florida, Appellant, v. Donny WOLLARD, Appellee.
    No. 4D10-4328.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, C.J.

The State appeals the sentence imposed by the trial court. It argues the trial court erred in failing to sentence the defendant as a prison releasee reoffender (“PRR”) to the mandatory sentence of fifteen years. The defendant responds that IF he qualifies as a PRR, then the sentence is in error. However, on cross-appeal the defendant argues that the State failed to establish by proper proof that the defendant is a PRR. We reverse and remand.

A jury convicted the defendant of burglary of a dwelling, a second degree felony capable of punishment up to fifteen years. According to the discussion at sentencing, the defendant had been released from prison only a few months before the commission of this crime. The defendant moved for a temporary furlough and a departure from the mandatory minimum sentence, claiming: (1) his involvement was small; (2) he understands the nature of his conduct, but he was substantially impaired at the time of the crime; (3) there is no restitution requested; (4) he acted under pressure from a co-defendant; (5) he cooperated with police; and (6) he is in his early twenties.

The State advised the court that the defendant was a PRR and requested a fifteen-year sentence. Defense counsel requested a departure sentence of five years PRR. Defense counsel then claimed lack of notice of the State’s intention to ask for a PRR sentence.

The court recessed and upon reconvening was advised that notice in the court file was sufficient to place the defendant on notice. Defense counsel then claimed that the documentation to establish the defendant as a PRR was insufficient because the DOC documents were not under seal. The Court noted defendant’s release date of July 16, 2008; the defendant committed the current burglary on August 21, 2008. The Court then sentenced the defendant to ten years as a PRR. The State objected and now appeals.

We have de novo review. Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010).

To sentence the defendant as a PRR, the State must provide evidence of the defendant’s release date. Under Yisrael v. State, 993 So.2d 952 (Fla.2008), the State may use “a signed release-date letter, written under seal, as a means of authenticating an attached DOC Crime and Time Report” to admit the evidence as a public record. Yisrael, 993 So.2d at 960. Alternatively, the State may authenticate a “DOC Crime and Time Report” by attaching a certification to the report, thereby satisfying the business records exception to hearsay. Id.

As the defendant concedes, the trial court must sentence him to fifteen years if he is a PRR. Walker v. State, 955 So.2d 1199, 1200 (Fla. 5th DCA 2007). Unfortunately, the State never “admitted” any records into evidence. Because the evidence was not introduced, the case must be reversed and remanded. Upon remand, the State will have another opportunity to introduce evidence to demonstrate the de-fendant may be sentenced as a PRR. Newby v. State, 17 So.3d 917, 918 (Fla. 4th DCA 2009).

Reversed and Remanded.

GROSS and DAMOORGIAN, JJ., concur.

      . We note that our record on appeal contains a copy of a certified letter from the Office of Executive Clemency indicating that the defendant's rights have not been restored and a copy of the judgment and sentence in two prior cases where the defendant received twenty-four months and 366 days, respectively, in April 2006.


author: TAYLOR, J.

text:
    TALEL CORPORATION, Eliezer Shani, Tal Shani, Aliza Shani, Amir Drarbe and Rita Dratbe, Appellants, v. Shraga SHIMONOVITCH a/k/a Simon Shimonovitch and Talel Group, LLC, Appellees.
    No. 4D10-3886.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    Thomas U. Graner, Steven K. Platzek and Morgan L. Weinstein of Graner Law Group, P.A., Boca Raton, for appellee.
   TAYLOR, J.

The defendants appeal the trial court’s order denying their motion to vacate an arbitration award. At the outset, we affirm the trial court’s ruling that the arbitrator had the discretion to enter a default against the defendants because the record clearly showed that the defendants “violated multiple Arbitration Orders, and ignored the multiple mandates contained in the Order to Show Cause.” However, because the arbitrator deprived the defaulted defendants of a hearing and opportunity to defend against the plaintiffs’ claims for unliquidated damages, the trial court should have vacated the arbitrator’s award under section 682.13(l)(d), Florida Statutes (2008), and directed that the arbitrator hold a hearing on unliquidated damages.

The essential facts of this case are as follows. The circuit court ordered the parties to arbitrate their dispute. The arbitrator adopted the Florida Rules of Civil Procedure for governing the proceedings. After entering a default against the defendants, the arbitrator did not set the matter for a hearing on unliquidated damages. Without holding a hearing on damages, the arbitrator determined that the plaintiffs would be awarded $677,052.72 in damages and costs. The damages consisted of lost profits on contracts, accounts receivable, and the value of certain equipment.

The defendants filed a motion to vacate the arbitration award. Following an evi-dentiary hearing, the circuit court entered an order confirming the arbitration award and denying the defendants’ motion to vacate. The defendants appealed.

To vacate an arbitration award, a party must establish one of the enumerated statutory grounds under section 682.13(1), Florida Statutes. See LeNeve v. Via South Florida, LLC, 908 So.2d 530, 534 (Fla. 4th DCA 2005). One such statutory ground is where the arbitrator “refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.” § 682.13(l)(d), Fla. Stat. (2008).

Absent a waiver, specific statutory provision, or agreement to the contrary, participants in arbitrations are entitled to a full hearing with an opportunity to be heard and to present evidence. See 21 Williston on Contracts § 57:84 (4th ed.); see also Totem Marine Tug & Barge, Inc. v. N. Am. Towing, Inc., 607 F.2d 649, 651 (5th Cir.1979) (“All parties in an arbitration proceeding are entitled to notice and an opportunity to be heard.”). Florida’s Arbitration Code states that unless otherwise provided by the agreement or provision for arbitration, the arbitrator shall appoint a time and place for the hearing, see § 682.06(l)(a), Fla. Stat. (2008), where “[t]he parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing,” see § 682.06(2), Fla. Stat. (2008).

Although an arbitrator need not follow all the niceties observed in court proceedings, the arbitrator must grant the parties a fundamentally fair hearing. See Bell Aerospace Co. Div. of Textron, Inc. v. Local 516, UAW, 500 F.2d 921, 923 (2nd Cir.1974); cf. Nat’l Airlines Inc. v. Metcalf, 114 So.2d 229, 232 (Fla. 3d DCA 1959) (agreement to arbitrate disputes under collective-bargaining agreement does not preclude review by the courts of procedural due process and jurisdictional limitations). Thus, the failure of arbitrators “to give notice and an opportunity to be heard is such misconduct or misbehavior as will vitiate an award, irrespective of the fact that there may have been no corrupt intention on the part of the arbitrators.” Cassara v. Wofford, 55 So.2d 102, 106 (Fla. 1951).

In the context of civil litigation, a default admits a plaintiffs entitlement to liquidated damages under a well-pled cause of action, but not to unliquidated damages. Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006). A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the amount of unliquidated damages. Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 663 (Fla. 5th DCA 1983). Florida Rule of Civil Procedure 1.440(c) requires that “[i]n actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).”

In this case, the arbitrator failed to provide the defaulted defendants with any hearing on unliquidated damages, much less a “fundamentally fair” hearing. The fact that the defendants were defaulted in an arbitration proceeding — as opposed to a civil lawsuit — does not obviate the need for a hearing on the amount of unliquidated damages. Here, the record indicates that most, if not all, of the damages in this case were unliquidated in nature. See Bowman, 432 So.2d at 663 (damages are unliq-uidated “if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment”).

By failing to hold a hearing on unliqui-dated damages, the arbitrator “refused to hear evidence material to the controversy” and thereby “prejudiced substantially” the rights of the defendants. See § 682.13(l)(d), Fla. Stat. (2008). Because the arbitrator deprived the defaulted defendants of a hearing and opportunity to defend against the plaintiffs’ claims for unliquidated damages, we reverse the order confirming the arbitration award. On remand, the trial court shall vacate the arbitrator’s award and direct that the arbitrator hold a hearing on unliquidated damages.

Affirmed in part, Reversed in part, and Remanded for further proceedings consistent with this opinion.

POLEN and HAZOURI, JJ., concur.

      . The arbitrator did, however, disapprove $226,000 in requested damages.


author: STEVENSON, J.

text:
    David RIGBY and Kathlyn Rigby, Appellants, v. WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2007-FXD2 Asset-Backed Certificates, Series 2007-FXD2, Appellee.
    No. 4D10-3587.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Michael Vater, Peter Ticktin and Joshua Bleil of The Ticktin Law Group, P.A., Deerfield Beach, for appellants.
    Heidi J. Weinzetl of Shapiro & Fishman, LLP, Boca Raton, for appellee.
   STEVENSON, J.

This appeal stems from a complaint of foreclosure filed by the appellee, Wells Fargo Bank, N.A., as trustee (“Bank”), against the appellants David Rigby and Kathlyn Rigby. The trial court entered final summary judgment. Because Bank failed to meet its burden on summary judgment, we reverse.

The Bank filed its complaint on May 21, 2008, and attached a mortgage that named Option One Mortgage Corporation (“Option One”) as the lender. Subsequently, the Bank filed an assignment of mortgage, from Option One to Bank, dated May 22, 2008, as well as the undated original note containing a special endorsement in favor of Bank. The parties proceeded to discovery and Bank sought an admission from the Rigbys acknowledging that they had previously received notice that the note and mortgage had been transferred to Bank. The Rigbys failed to respond to this request. Bank then filed a motion for summary judgment, attaching an affidavit wherein the affiant swore that Bank was holder and owner of the mortgage. Based on this record, the trial court entered summary judgment. A trial court’s entry of summary judgment is reviewed de novo. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).

The Bank failed to establish that it had standing to foreclosure upon the note. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). To establish standing, the plaintiff must submit the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010). “A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that Bank did not acquire the mortgage until the day after the complaint was filed. Finally, neither the affidavit, nor the technical admissions made by the Rigbys, establishes the date on which Bank acquired possession of the note and there is no evidence in the record establishing that an equitable transfer of the mortgage occurred prior to the date the complaint was filed. See McLean, 79 So.3d at 174 (reversing final summary judgment of foreclosure because ap-pellee bank failed to establish standing where mortgage was assigned to bank three days after lawsuit was filed; note contained undated special endorsement in favor of bank; and affidavit in support of summary judgment failed to indicate that bank became equitable owner of note and mortgage prior to date lawsuit was filed).

Reversed.

WARNER and CONNER, JJ., concur.


author: GERBER, J.

text:
    Marcus ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-786.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Rehearing Denied May 7, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from a judgment and sentence for possession of cocaine and use or possession of drug paraphernalia. He raises four arguments: (1) the state failed to establish that he was either in actual or constructive possession of cocaine; (2) section 893.13, Florida Statutes (2010), is unconstitutional on its face because it eliminates the scienter requirement in drug prosecutions; (3) his three-year sentence is unconstitutional because section 893.13 creates a strict liability crime with a maximum two-year sentence; and (4) the court imposed a $1500 public defender’s fee without allowing him a meaningful hearing and without requiring any proof of the amount.

On the first three arguments, we affirm without discussion. See Ogle v. State, 820 So.2d 1054, 1056 (Fla. 4th DCA 2002) (the state’s evidence was sufficient to support a finding that the defendant had constructive possession of drugs where, among other things, the police found drugs in his bedroom and he stated that the bedroom’s belongings were his); Maestas v. State, 76 So.3d 991, 996 (Fla. 4th DCA 2011) (‘We hold that section 893.101 did not remove scienter from section 893.13 offenses and did not create an unconstitutional strict liability crime.”).

On the fourth argument, the state properly concedes error. As we held in Johnson v. State, 944 So.2d 474 (Fla. 4th DCA 2006):

Florida Rule of Criminal Procedure 3.720(d)(1) provides that the defendant must be advised at sentencing of his right to a hearing to contest the amount of the public defender’s fee. If such advice is not given, the public defender fee must be stricken, without prejudice to being reimposed on remand after the proper procedure is followed.

Id. at 477 (citation omitted). Here, as in Johnson, the trial court did not advise the defendant of his right to a rule 3.720(d)(1) hearing. Due to this error, we must reverse the entry of the public defender fee without prejudice. Upon remand, the defendant will have thirty days from the date of this court’s mandate to file a written objection with the trial court to the amount assessed. Id. at 477 n. 2 (citation omitted). If the defendant files an objection with the trial court, a new assessment shall not be imposed without notice and hearing pursuant to rule 3.720(d)(1). Id. (citations omitted).

The parties agree that the trial court conducted a rule 3.720(d)(1) hearing after the defendant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. However, the trial court did not enter an order on the motion within the required sixty-days. See Fla. R.Crim. P. 3.800(b)(1)(B) & (b)(2)(B) (2010). Therefore, “the motion is deemed denied and the subsequent order on the motion is a nullity.” Maestas, 76 So.3d at 993 n. 1.

Affirmed in part, reversed in part, and remanded.

CIKLIN and LEVINE, JJ., concur.


author: SUAREZ, J.

text:
    Leopoldo STAGNARO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2021.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.
    Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

Leopoldo Stagnaro appeals from the denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of counsel due to trial counsel’s failure to advise him that accepting a plea would subject him to deportation. We affirm based on Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), wherein this Court: (a) citing Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), found that the trial court’s deportation warning under Florida Rule of Criminal Procedure 3.172(c)(8) did not cure the prejudice arising from defense counsel’s failure to warn that accepting a plea would result in the defendant’s mandatory deportation; (b) certified conflict with Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010) on this legal question; and (c) found that Padilla had no retroactive effect and thus did not apply to pleas taken before Padilla was announced, certifying a question of great public importance to the Florida Supreme Court.

Affirmed.


author: PER CURIAM.

text:
    Gabriel CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-551.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.

      Gabriel Castro, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant appeals the trial court’s order summarily denying in part his motion seeking credit for time served prior to his sentencing. See Fla. R.Crim. P. 3.800(a). Although the trial court’s form order indicates that it both grants in part and denies in part the motion, the portion of the order denying the motion simply says “Denied. As to all prior credit time served (CTS).” There are no attachments to the order nor any record provided which conclusively establish that the defendant is entitled to no relief.

We therefore reverse that portion of the order which summarily denies the defendant’s motion. See Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the [summary] denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”). Should the trial court, upon remand, determine that the motion should be denied without an evidentiary hearing, the court shall attach those portions of the record which shows conclusively that the defendant is entitled to no relief.

Reversed and remanded for proceedings consistent with this opinion.


text:
    Jose L. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2900.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.
    Jose L. Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); accord Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla. 2011) ], and acknowledging “uncertainty caused by [Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) ]” but reaffirming its view that section 893.13 is constitutional).


text:
    Deborah KLENCK and Orville Klenk, Appellants, v. STATE FARM INSURANCE CO., Appellee.
    No. 3D11-1503.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.
    Roberts & Durkee, and C. David Dur-kee, Coral Gables; and Hunter, Williams & Lynch and Christopher J. Lynch, Miami, for appellants.
    Butler Pappas Weihmuller Katz Craig and John W. Weihmuller, Tampa; and Sutherland Asbill & Brennan, Thomas W. Curvin, and Valerie S. Sanders, Atlanta, appearing Pro Hac Vice, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See O’Brien v. State Farm Fire & Cas. Co., 999 So.2d 1081 (Fla. 1st DCA 2009); Weesner v. United Servs. Auto. Ass’n, 711 So.2d 1192 (Fla. 5th DCA 1998); Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643 (Fla. 3d DCA 1998).


text:
    Angel FONSECA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-365.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.
    Angel Fonseca, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: WETHERELL, J.

text:
    BAPTIST HOSPITAL, INC., Appellant, v. Marc BAKER and Marco Demello, individually and on behalf of all others similarly situated, Appellees.
    No. 1D11-5236.
    District Court of Appeal of Florida, First District.
    April 9, 2012.

      J. Nixon Daniel, III, and Jack W. Lur-ton of Beggs & Lane, RLLP, Pensacola, for Appellant.
    Bobby J. Bradford and R. Jason Richards of Aylstock, Witkin, Kreis & Over-holtz, PLLC, Pensacola, for Appellees.
   WETHERELL, J.

Baptist Hospital, Inc. (BHI) appeals the order certifying two classes in this suit challenging the liens imposed by BHI under Escambia County’s hospital lien law for services rendered at BHI’s satellite facilities in Santa Rosa County. BHI argues, and we agree, that the trial court abused its discretion in certifying Class II because the representative for that class, Appellee Marco Demello, lacks standing and because the trial court’s order is facially inconsistent as to whether Demello meets the typicality requirement for the class. Accordingly, we reverse the certification of Class II. We affirm the certification of Class I and the designation of Appellee Marc Baker as representative of that class without further comment.

BACKGROUND

In October 2010, Demello and William Kollar filed a class action complaint against BHI alleging unjust enrichment and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and seeking damages, injunctive, and declaratory relief. The complaint alleged that Demello and Kollar were each treated in the emergency room of a hospital owned and operated by BHI in Santa Rosa County following automobile accidents; that BHI asserted liens under the Escambia County hospital lien law for the cost of the treatment; and that the liens were invalid because, unlike Escambia County, Santa. Rosa County had not adopted a hospital lien law. The complaint sought certification of two classes, with Kollar (whose lien had not been satisfied) as representative of Class I and Demello (who had paid his lien) as representative of Class II. The complaint was amended to substitute Baker as the putative representative for Class I after the trial court granted summary judgment against Kollar. As reflected in the amended complaint and the amended motion for class certification, the proposed classes were as follows:

Class I
All persons who had a hospital lien asserted by Baptist Hospital, Inc., pursuant to Chapter 30733, Laws of Florida 1955, on or after October 21, 2006, for injuries for which they received medical care at Gulf Breeze Hospital, Baptist Medical Park-Navarre, Jay Hospital, The Andrews Institute and/or The Andrews Institute-Navarre.
Class II
All persons who paid, in whole or in part, from any source a hospital lien asserted by Baptist Hospital, Inc., pursuant to Chapter 30733, Laws of Florida 1955, on or after October 21, 2006, for injuries for which they received medical care at Gulf Breeze Hospital, Baptist Medical Park-Navarre, Jay Hospital, The Andrews Institute and/or The Andrews Institute-Navarre, and for whom Baptist Hospital, Inc., has billed health care and/or insurance entity(ies), including but not limited to Medicare, Medicaid, Med-Pay, Tricare, workers compensation, and no fault automobile insurance, for the medical care provided and received payment from such entity(ies).

On August 31, 2011, after an evidentiary hearing, the trial court entered an order granting the amended motion for class certification. The order included detailed findings on each of the prerequisites for class certification under Florida Rule of Civil Procedure 1.220(a) — numerosity, commonality, typicality, and adequacy — and found that certification of Class I was appropriate under rule 1.220(b)(1) and (b)(2), and that certification of Class II was appropriate under rule 1.220(b)(3). The trial court designated Baker and Demello as the representatives for Class I and Class II, respectively, and redefined the classes as follows:

Class I
All persons who had a hospital lien asserted by Baptist Hospital, Inc., pursuant to Chapter 30733, Laws of Florida 1955, on or after October 21, 2006, for injuries for which they received medical care at Gulf Breeze Hospital, Baptist Medical Park-Navarre, Jay Hospital, the Andrews Institute and/or The Andrews Institute-Navarre and such lien has not been satisfied through a monetary payment from any source.
Class II
All persons who had a hospital lien asserted by Baptist Hospital, Inc., pursuant to Chapter 30733, Laws of Florida 1955, on or after October 21, 2006, for injuries for which they received medical care at Gulf Breeze Hospital, Baptist Medical Park-Navarre, Jay Hospital, the Andrews Institute and/or The Andrews Institute-Navarre and such lien has been satisfied through a monetary payment from any source.

Appellant timely appealed the class certification order to this court. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(vi).

ANALYSIS

We review the trial court’s decision on class certification for an abuse of discretion. See Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102-03 (Fla.2011). We examine the factual findings on which the decision is based for competent substantial evidence and review de novo the legal conclusions underlying the decision. Id. at 105.

When ruling on a motion for class certification, a threshold issue the trial court must address is whether the putative class representative has standing to represent the members of the class. Id. at 116-17. We review de novo the determination that a party has standing. Id.

In order to meet the standing requirement, the putative class representative must establish that a case or controversy exists between himself and the defendant that will continue throughout the litigation. Id. at 117. A case or controversy exists if a party alleges an actual or legal injury that the relief sought will address. Id. The injury must be distinct and palpable, not abstract or hypothetical. Id.

Here, the trial court erred in designating Demello as the representative for Class II because he lacks standing to assert a claim for damages against BHI. Demello and the class he purports to represent seek damages under FDUTPA, which “is intended to ‘protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce’.... ” Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). In order to assert a claim for damages under FDUTPA, the 'plaintiff must establish: “(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. 3d DCA 2008). Actual damages are “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Rollins v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) (quoting Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)).

The record establishes that Demello suffered no “actual damages” as a result of his payment of the allegedly illegal lien. Demello testified in his deposition that he had no issues with the services he was provided by the hospital or the amount he was billed for those services. He further testified that if he was successful in the suit against BHI, he did not anticipate a financial gain and he candidly aeknowl-edged that any money he received from the suit would be given right back to BHI. Under these circumstances, it is clear that Demello did not suffer any actual damages as a result of the imposition or payment of the lien and, therefore, he lacks standing to represent the members of Class II in their claim for damages against BHI.

Not only does Demello lack standing, but he also failed to meet the typicality requirement for Class II. The test for typicality is not demanding and “[m]ere factual differences between the class representative’s claims and the claims of the class members will not defeat typicality.” Sosa, 73 So.3d at 114. Likewise, the fact that the class representative’s damages might vary in amount from those of the other class members does not necessarily defeat typicality. Id. Rather, the “key inquiry” on typicality is “whether the class representative is part of the class and possesses the same interest and suffers the same injury as the class members.” Id.

Here, the differences between Demello and the class members are more than just the amount of damages allegedly caused by the hospital liens. Indeed, the trial court found that Demello’s claims were typical of putative members of Class II in his situation — those without insurance who were satisfied with the services received and agreed that the bill was reasonable— but the court also specifically found that his claims were not typical of the class as a whole because the class included members who, unlike Demello, “may allege that the services were unreasonable or that the billing was incorrect or that BHI failed to bill insurance services.” These findings, which are supported by competent substantial evidence, establish that Demello does not have the same interest and did not suffer the same injury as did the other putative members of Class II.

The trial court attempted to cure this deficiency by redefining Class II as reflected above; however, the membership of Class II certified by the trial court is essentially the same as the class proposed in the amended motion for class certification. Accordingly, for the same reasons the trial court found that Demello’s claims were not typical of the members of the originally proposed Class II, he fails to meet the typicality requirement for the redefined class.

CONCLUSION

In sum, for the reasons stated above, we conclude that the trial court abused its discretion in certifying Class II and we reverse that portion of the class certification order. We affirm the remainder of the order, including the certification of Class I and the designation of Baker as the representative for that class.

AFFIRMED, in part; REVERSED, in part.

PADOVANO and LEWIS, JJ., concur.

      . Chapter 30733, Laws of Florida (1955).

      . Kollar's appeal of the order granting summary judgment is pending in case number 1D11-3890.

      . The following exchange occurred during Demello's deposition:
      Q: If the judge were to order tomorrow that the money be returned to you because the lien was invalid, do you agree that at the moment that it’s returned to you, you would then owe Gulf Breeze the same amount of money because they did, in fact, render services to you which were reasonable?
      [Demello:] Yes.
      Q: Okay. So it’s going to be give it [sic] to you in your right hand, and you’re going to give it back with your left hand; is that how you understand it’s going to work? [Demello:] Yes.

      . In light of this disposition we do not reach BHI's contentions that Demello also failed to meet the commonality and adequacy requirements for class certification and that individual issues for the members of Class II predominate over the common issues.


text:
    DEPARTMENT OF REVENUE o/b/o Socorro FLORES, Appellant, v. Steve ORTIZ, Appellee.
    No. 4D10-4069.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for appellant.
    No brief filed on behalf of appellee.
   MAY, C.J.

The integrity of a Puerto Rican child support order is at issue in this appeal. The Department of Revenue (“DOR”) argues the trial court erred in vacating the Puerto Rican judgment of dissolution and child support, which had been registered in Florida under section 88.6011, Florida Statutes (2010). We agree and reverse.

The long history of this litigation began when the mother sought the dissolution of her marriage and child support from a Puerto Rican court in 1998. The Puerto Rican court found the father had been served by certified mail, specifically noting the father refused to receive the certified mail. Based on the mother’s testimony, the court found the father was employed and had a yearly income of $90,000. The court ordered the father to pay $1,931 per month in child support for two children.

In December 1998, the court heard the final dissolution, at which time the father appeared through counsel, but not in person. The father’s lawyer indicated the father was unemployed, lived in the United States, and could not afford to travel to the hearing. The father’s lawyer had the ability to cross-examine the wife. The court specifically found that the father had “been unjustifiedly [sic] delaying the proceedings.” The court entered the final judgment of dissolution on March 12, 1999, incorporating the prior findings on child support, but reducing the amount to $1,673 per month. There is no indication the father appealed any of the orders.

In October 2011, Puerto Rico transmitted a Registration Statement, requesting to register the Puerto Rican judgment in Florida, pursuant to the Uniform Interstate Family Support Act (“UIFSA”). The Statement included a Certified Statement of Account showing an arrearage of $16,730.

The DOR filed a Notice of Registration of Foreign Order, which provided:

1. The attached registered order from Caguas County, State of Puerto Rico is enforceable as of the date of registration in the same manner as an order issued by a court of this state. This is to inform you that:
(a) YOU HAVE 20 DAYS AFTER THE DATE OF MAILING OR PERSONAL SERVICE OF THIS NOTICE, TO REQUEST A HEARING TO CONTEST THE VALIDITY OR ENFORCEMENT OF THE ATTACHED REGISTERED ORDER. A PHONE CALL WILL NOT PROTECT YOU.
(b) Failure to contest the validity or enforcement of the attached registered order in a timely manner will result in confirmation of the order and enforcement of the order and the arrearages and precludes further contest of the attached order with respect to any matter that could have been asserted.

The Notice further informed the father that he could file a written response. The father failed to file a written response, motion, or pleading. Pursuant to statute, the foreign order was registered. The DOR initiated enforcement proceedings against the father.

The DOR filed three motions for contempt. At each of the three hearings, the father appeared pro se, argued he could not afford to pay the ordered child support, but never contested the validity of the child support order. Each time, a hearing officer recommended the father be found in contempt, established a new ar-rearage, and provided for a period of incarceration and a purge amount. Each time, the trial court ratified and approved the recommendation; the father did not appeal these orders.

When the DOR filed a notice of intent to seek the suspension of the father’s driver’s license, the father filed an emergency motion in opposition. The hearing officer recommended that the father’s driver’s license be suspended due to the child support arrearage. The trial court ratified and approved the recommendation.

In July 2010, the father, through an attorney, filed an “Urgent Verified Motion To Reinstate Passport Privileges, Affidavit in Support of Urgent Motion, and Verified Petition For Relief From Judgment And To Contest Child Support Arrearage And Passport Denial.” In summary, the petition alleged that the wife’s testimony in the dissolution proceedings concerning the father’s income was false and perjurious. The father filed an affidavit outlining the history of the dissolution and child support from his perspective, in which he claimed never to have made $90,000 per year. He also attested to his attempts to resolve the child support arrearage.

The DOR filed a Response in which it argued: (1) the father had appeared in Florida court at least four times and never challenged the validity of the child support order or the orders establishing his child support arrearage; (2) the father failed to timely contest the validity or enforcement of the UIFSA registration of the child support order as required by sections 88.6051 and 88.6061, Florida Statutes (2010); and (3) the trial court lacked jurisdiction to invalidate a divorce decree rendered in Puerto Rico.

At the hearing on the father’s motions, the father’s counsel simply argued the contents of the motion, supported by the father’s affidavit. No other testimony or evidence was introduced. In September 2010, the trial court ruled on the father’s motion. The court was “satisfied that fraud was committed by Respondent/Former Wife in the obtaining of the Puerto Rican decree and determination of child support.” The court then determined that “child support in the Puerto Rican decree is set aside and made null and void as well as any judicial determinations of arrearag-es based thereof.”

Although the court found it had “no authority or jurisdiction to deal with the passport issue, as exclusive jurisdiction thereof is in the Federal Courts,” the court nonetheless ordered the DOR to cooperate in reinstating the father’s passport by providing certification to the Secretary of Health and Human Services (“HHS”) of the new $0 arrearage so that the HHS Secretary could notify the Secretary of State to remove the father’s name from the certified list and reinstate his passport. The DOR appeals the order vacating the judgment.

The issue is whether the trial court had the authority to vacate the child support order. We review orders vacating judgments for an abuse of discretion. Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010).

“Florida has adopted the Uniform Interstate Family Support Act (UIF-SA), Chapter 88, Florida Statutes. The purpose of reciprocal acts ... is to improve and extend by reciprocal legislation the enforcement of duties of support.” Dep’t of Revenue v. Sloan, 743 So.2d 1131, 1133 (Fla. 5th DCA 1999) (footnote omitted). Once a support order is registered in Florida, it has the same effect as a Florida order. § 88.6031(2), Fla. Stat. (2010).

If a party contests the validity or enforcement of a registered order, they “shall request a hearing within 20 days after notice.” § 88.6061(1), Fla. Stat. (2010). That party “has the burden of proving one or more of the following defenses: ... (b) The order was obtained by fraud....” § 88.6071(1) Fla. Stat. (2010). Here, the former husband neither requested a hearing within twenty days nor pled or proved a basis to object to the registration. The order was properly registered.

Rule 1.540 of the Florida Rules of Civil Procedure gives a trial court the authority to provide relief from a judgment. Specifically, the rule provides, “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reason[]: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic).... ” Fla. R. Civ. P. 1.540(b). Here, the father alleged the Puerto Rican judgment was invalid due to the false and “perjurious” representations of the mother concerning his income.

“In order to raise a claim for relief from a judgment due to fraud after the one-year time frame announced in Rule 1.540(b) has expired, the fraud alleged must be extrinsic fraud....” Dep’t of Revenue v. Harris, 684 So.2d 231, 232 (Fla. 2d DCA 1996). Our supreme court has explained “that perjury or even subornation of perjury does not constitute extrinsic fraud.” Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514, 515 (1946) (citations omitted). “ ‘Extrinsic fraud involves conduct which is collateral to the issues to be tried in a case.’ ” Harris, 684 So.2d at 233 (quoting DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984)).

The only allegation of fraud is the mother’s testimony concerning the father’s income. Such fraud is of the intrinsic nature. As such, the former husband has failed to allege the kind of extrinsic fraud that can overcome the one-year limitation on motions under rule 1.540.

The father’s attempt to vacate the child support order fails for three reasons. First, the father’s motion was untimely under both section 88.6061 and rule 1.540. Second, his attack upon the registered order at best created an issue of fact between his testimony and that of his former wife; it did not prove fraud. Third, the father waived any collateral attack on the child support order by participating in three contempt hearings without once raising any issue of its validity or appealing the contempt orders. Dep’t of Health & Rehabilitative Servs. v. Ledford, 621 So.2d 682, 684 (Fla. 4th DCA 1993) (holding that father’s failure to object to child support for seven years and failure to appeal contempt orders constituted waiver). Here, the trial court vacated a twelve-year-old order based upon nothing more than an allegation of “intrinsic” fraud. It erred in doing so.

The trial court recognized that it had no authority or jurisdiction to deal with the passport issue. Yet, the court ordered the DOR to advise the HHS Secretary that the father had a “0” arrearage in child support in an attempt to reinstate the father’s passport. Because the court lacked the authority to set aside the child support order, the additional directive to the DOR must also be reversed.

Reversed and Remanded.

GROSS and DAMOORGIAN, JJ., concur.

      . §§ 88.0011-88.9051, Fla. Stat. (2010).

      . The parties submitted statements pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). The court adopted the father’s statement of proceedings.


author: RAMIREZ, J.

text:
    Maria Chung WILLOUGHBY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2276.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied April 30, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   RAMIREZ, J.

Maria Chung Willoughby appeals her convictions for unlawfully accessing and taking trade secret or confidential data from a computer. We reverse the conviction for unlawfully accessing a computer because Willoughby was authorized to access her employer’s computer. But we affirm the conviction for unlawfully taking confidential data from a computer because she was not authorized to download any data from her employer’s computer.

Willoughby was hired as a financial specialist with Our Kids of Miami-Dade and Monroe Counties, an agency which works with the Department of Children and Families to provide services to abused and neglected children. Willoughby was provided access to Our Kids’ and the Department’s confidential computer network after agreeing to her employer’s computer security requirements. When she complained that the employer-provided computer was too slow, Willoughby’s personal laptop computer was connected to Our Kids’ computer network. Willoughby was told that she was authorized to use her laptop to access her employer’s network but that she could not transfer any data from the employer’s computer system into her laptop.

Subsequently, Willoughby’s supervisor became aware that Willoughby had written a ten-page email outlining perceived inefficiencies in Our Kids’ operation. The supervisor also suspected that Willoughby may have transferred confidential data to her laptop. The supervisor asked to search Willoughby’s computer, and Wil-loughby allowed the search. During the search, however, when she saw that her personal files were being accessed, Wil-loughby took back her laptop, stated that she was resigning, and left the premises.

The police subsequently obtained a warrant to search Willoughby’s home and seized the laptop. Upon inspection, the police discovered that Willoughby had emailed her employer’s client trust fund master list to her laptop. Willoughby was arrested and charged with unlawfully accessing a computer database in violation of sections 815.06(1) and (2)(a), Florida Statutes (2006) (count one), and obtaining trade secret or confidential data in violation of sections 815.04(S)(b) and (4)(a), Florida Statutes (2006) (count two).

At trial, defense counsel moved for judgment of acquittal as to both counts based on the State’s failure to prove that Wil-loughby was not authorized to access the computer database. The motions were denied, and the jury returned a verdict of guilty as to both counts. The trial court withheld adjudication and placed defendant on probation for four years. This appeal followed.

Turning first to count one, section 815.06(l)(a) of the Florida Statutes provides that anyone who “willfully, knowingly, and without authorization ... [accesses or causes to be accessed any computer, computer system, or computer network ... commits an offense against computer users.” Access is defined as “to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.” § 815.03(1). Subsection (6) of section 815.06 clarifies that the section “does not apply to any person who accesses his or her employer’s computer system ... when acting within the scope of his or her lawful employment.” Therefore, to prove this offense, the State must show that: (a) the defendant willfully, knowingly, and without authorization, (b) accessed a computer system, and (c) if the employer’s system, that defendant acted outside the scope of his or her lawful employment.

Here, the State failed to show that Wil-loughby was not authorized to access Our Kids’ computer network. The evidence demonstrated that Willoughby’s supervisor authorized Willoughby to access Our Kids’ computer network to perform her job. Additionally, Willoughby’s personal laptop was connected to the Our Kids computer network by the employer’s network administrator. Accordingly, because Willoughby received authorization to access Our Kids’ computer network, count one is reversed as the State failed to prove that Willough-by’s conduct violated section 815.06.

Count two charges a violation of section 815.04(3)(b) of the Florida Statutes which states, “Whoever willfully, knowingly, and without authorization discloses or takes data, programs, or supporting documentation which is a trade secret ... or is confidential as provided by law residing or existing internal or external to a computer, computer system, or computer network commits an offense against intellectual property.” Therefore, to prove this crime the State must show that the defendant willfully, knowingly, and without authorization disclosed or took a trade secret or confidential data from a computer network.

Here, the State proved that Willoughby did not have authorization to download any data from her employer’s computer system to her personal laptop. The State also proved that Willoughby transferred confidential data from her employer’s system to her laptop. Thus, the State proved all the elements of the crime. Willoughby argues that she committed no crime because she did not have a malicious purpose in transferring the confidential information to her personal laptop, but rather, that her purpose was to work from her home. However, section 815.04(3)(b) does not include a requirement that the defendant have a malicious purpose. Rather, the statute requires only that the defendant’s conduct be willful, knowing, and without authorization. Willoughby repeatedly was informed that she could not obtain any of the data from her employer’s network system. Wil-loughby, nonetheless, emailed her employer’s client trust fund master list to her laptop. Because Willoughby transferred confidential files to her personal computer without authorization, she was properly charged with the taking of intellectual property. Accordingly, we affirm the conviction on count two.

Affirmed in part, reversed in part, and remanded.


author: WELLS, Chief Judge.

text:
    Jules DUCAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1461.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied April 30, 2012.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ, and LAGOA, JJ.
   WELLS, Chief Judge.

Jules Ducas appeals from his convictions and sentences on three counts of armed robbery and one count of armed burglary. We affirm the robbery convictions and sentences, but reverse the burglary conviction because the underlying robberies took place in an area of a drug store that was open to the general public at the time Ducas entered it with the intent to commit an offense therein.

In the early morning hours of March 2, 2008, Ducas entered a CVS Pharmacy located in Miami-Dade County. After taking an item from a store shelf, Ducas approached the check-out counter, pulled a gun, and demanded money. The clerk refused, telling Ducas that the cash register could not be opened without a tender.

After the clerk refused to give Ducas money from his own wallet so that the register could be opened, Ducas turned to two women who had just entered the store, brandished a gun and demanded money. The women complied; Ducas gave the money to the store clerk behind the checkout counter; the clerk opened the register; and Ducas took the money and fled.

Ducas subsequently was arrested, charged with and convicted on three counts of armed robbery and one count of burglary related to these events. He appeals from these convictions and the sentences raising three claims. First, Ducas claims that the trial court erred in refusing to allow him to introduce as substantive evidence the discovery depositions of the two women robbed at the store to establish that they had identified someone (purportedly someone other than Ducas) as their assailant. Second, Ducas claims that the trial court erred in allowing the State to introduce hearsay evidence that inferred that Ducas had touched the counter near the cash register where his palm print was found. Third, Ducas claims that the trial court erred in denying his motion for judgment of acquittal on the armed burglary count because the events at issue occurred in a public place. We find no merit in Ducas’ first two arguments, but agree that a verdict should have been directed on the burglary count.

1. The discovery depositions of the two female robbery victims.

Ducas claims that the trial court erred in refusing to allow him to introduce as substantive evidence the discovery depositions of the two women robbed at the CVS Pharmacy. According to Ducas, after it became evident during trial that these two witnesses could not be located, the State intentionally elicited inadmissible hearsay evidence from a police officer that these two women had been unable to identify anyone as their assailant during a photo lineup despite knowing that the women had in fact identified someone. Ducas claims that under the circumstances, he should have been allowed to use the discovery depositions of these women for two reasons: first, because the State opened the door to admission of these depositions when it adduced inadmissible hearsay testimony that these women were unable to identify anyone from a photo lineup, and second, because the decision in Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), mandates admission of this purportedly exculpatory evidence.

The testimony which gives rise to these arguments came from Detective Michelangelo Rojas who conducted a photo lineup with each of the three victims involved in this case. According to Detective Rojas, the store clerk who was robbed at the CVS Pharmacy identified Ducas’ photograph as that of the individual who took money from the store’s cash register at gunpoint. However, the two female robbery victims were not, according to Detective Rojas, able to identify anyone as their assailant:

Q. And when you met with them, did you present them with the same photographic lineup?
A. Yes.
Q. Okay. And were they able to pick anybody out?
A. No, they weren’t.

Ducas claims that this hearsay testimony opened the door to admission of the hearsay discovery depositions of the two female victims to show that they did in fact identify someone. We reject this argument because it provides no basis for admitting these depositions. More specifically, even if the detective’s testimony had opened the door to further hearsay testimony on the subject of these witnesses’ identification or non-identification of Du-cas, Ducas was not precluded from adducing testimony on this issue below. To the contrary, he pursued this line of inquiry on cross-examination but concededly abandoned the effort for tactical reasons. Du-cas also acknowledged below that even if these otherwise inadmissible discovery depositions were to be admitted as substantive evidence, it would not be on some opening the door theory but under the holding in Chambers v. Mississippi:

The legal basis for my argument is three or four fold. First of all, it’s clear in and the Court already ruled that Florida doesn’t allow the introduction of depositions as substantive evidence ... [ujnless Rule 3.190 is comported with.... [T]hat wasn’t done.... However, [just as] in Chambers and Mississippi [sic], there are times when a court due to the due process clause and fundamental fairness will overlook or set aside a State’s evidentiary and/or procedural rules when justice due process demand.

We disagree with this argument as well.

In Chambers, the defendant sought to call as an adverse witness, and to introduce the -written statement of, another individual who had confessed to committing the murder for which Chambers was being tried. Chambers was not allowed to call this witness as an adverse witness because the court deemed the witness not adverse; and, he was not allowed to introduce the hearsay confession of this witness because it did not come within the exception to Mississippi’s hearsay rule, which allowed only statements against proprietary, but not penal, interest. Concluding that on these facts and under these circumstances Chambers’ due process right to a fair trial had been violated, the Court stated:

Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
We conclude that the exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal ang diminution in the respect traditionallg accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.

Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038 (citations omitted) (emphasis added).

Because our supreme court, in Rodriguez v. State, 609 So.2d 493, 498 (Fla.1992), has held that a discovery deposition, like the one at issue here, that does not comply with Rule 3.190(i) of the Florida Rules of Criminal Procedure is not admissible as substantive evidence, the question becomes whether the constitutional principles espoused by Chambers override the exclusion of these discovery depositions as substantive exculpatory evidence for failure to comply with Rule 3.190(f). They do not.

They do not for at least two reasons. First, the hearsay testimony that Ducas wants to introduce is nothing akin to the murder confession against penal interest involved in Chambers. The hearsay statements at issue here are not contrary to the interests of either witness and concededly are equivocal on the issue of identification :

QUESTION: Then what did you do? What happened? Tell me.
ANSWER: Whichever one I thought it was, I don’t remember. It is like the number next to it. I told him. Then Allison [the other victim] told him what number she did.
QUESTION: Did he ever tell you if you were not sure, don’t pick somebody out?
ANSWER: Yeah. I mean he was like, no, I think. I remember him saying in this lineup these pictures.
QUESTION: Okay. All right. And you picked somebody out?
ANSWER: Yes.
QUESTION:.... How long did it take you to pick somebody out?
ANSWER: After, I mean, I thought I knew the face like in my head. I was like prepared to see something that I recognized right away and I didn’t. So, you know, I kept looking at them back and forth, then cancelling out people. I was pretty sure it wasn’t. So probably took, you know, two — three minutes, but I wasn’t in there for long period of time
QUESTION: Okay. Like, what did you tell him when you picked the person out?
ANSWER: I just said I think the number whatever.
QUESTION: You think it is him?
ANSWER: Yes.

Second, the reliability of this evidence cannot be tested. As our sister court in Leighty v. State, 981 So.2d 484, 494 (Fla. 4th DCA 2008), recently stated, “Chambers stands for the proposition that constitutional rights and protections trump state court rules of evidence which exclude evidence only when the reliability of that evidence can be tested.” Discovery depositions, such as those taken here, are neither “intended as an opportunity to perpetuate testimony for use at trial” nor “designed as an opportunity to engage in adversarial testing of the evidence.” State v. Lopez, 974 So.2d 840, 347 (Fla.2008). Moreover, when a discovery deposition is taken, the testimony adduced often goes untested in an effort “not to further educate” the other side. Thus, without notice that Ducas intended to use these witnesses’ testimony as substantive evidence, the State had neither the motive nor the opportunity to develop their testimony further to test its reliability. Leighty, 981 So.2d at 493-94; see also Rodriguez, 609 So .2d at 499 (“Rule of Criminal Procedure 3.190[ (i) ] was enacted to assure that both parties have an opportunity and motive to fully develop deposition testimony before it can be used as substantive evidence in a criminal case.”). The depositions were not admissible under the holding in Chambers. See Leighty, 981 So.2d at 494 (citing Chambers and Rodriguez, finding that the criminal discovery deposition in that case, which failed to comply with Rule 3.190’s provision concerning a motion to perpetuate testimony, was not admissible as substantive evidence at trial).

2. The palm print testimony

We also reject Ducas’ claim that the trial court reversibly erred in allowing a police officer to testify that while investigating these crimes, he focused on those areas inside the CVS Pharmacy where he “learned” that the crimes at issue had taken place. We do so first because this argument was not preserved for review by an appropriate contemporaneous objection when the testimony was adduced and second because the testimony was not adduced to prove the truth of the matter asserted — that is, that this defendant committed this crime. Rather, the testimony was adduced to establish why this witness acted as he did and served only to confirm the testimony of another witness and a video as to where the crimes at issue took place. No reversible error on this claim has been demonstrated.

3. The burglary count

While we find no reversible error in the trial court’s decision to preclude use of the female victims’ discovery depositions as substantive evidence or in the testimony regarding the location of these crimes, we do find that the court below erred in failing to direct a verdict in Ducas’ favor on the burglary count.

Burglary is currently defined (for crimes committed after July 1, 2001) as entering a dwelling, structure, or conveyance with the intent to commit an offense therein, unless the premises at the time are open to the public or the defendant is licensed or invited to enter:

(l)(b) for offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

§ 810.02(l)(b)l.-2., Fla. Stat. (2008) (emphasis added).

It has long been recognized that the portion of this definition which follows the word “unless” delineates affirmative defenses to this crime, and that entry onto premises open to the public “is a complete defense” to a charge of burglary. See Miller v. State, 733 So.2d 955, 957 (Fla.1998) (emphasis added) (addressing the 1993 version of section 810.02(1) of the Florida Statutes defining burglary).

Despite appearing unequivocal regarding the application of this defense in Miller, the Florida Supreme Court addressed this defense nearly three years later in Johnson v. State, 786 So.2d 1162 (Fla. 2001). This time, the court acknowledged that “complete” in the context of this defense did not necessarily equate with “absolute” and that this defense does not necessarily preclude a burglary charge when a crime takes place in a private or closed area of a place that is generally open to the public:

[In Miller, this] Court ... held that “if a defendant can establish that the premises were open to the public then this is a complete defense” to a burglary charge. However, it was never argued in Miller that although the store was open to the public, the area behind the counter was not open to the public. Hence, the Miller opinion did not address the question of whether the area behind the counter could be “closed” to the public.
We conclude that the question of whether the area behind the counter was open to the public is a question of fact for the jury to decide.

Johnson, 786 So.2d at 1168, 1164 (citation omitted).

More recently, our sister court in Colbert v. State, 49 So.3d 819 (Fla. 4th DCA 2010), considered application of Johnson to a case where a robber smashed a jewelry store display case and stole its contents. Rejecting the claim that the inside of the display case was not. a public area, the court reconfirmed that while the Florida Supreme Court had recently examined the “open to the public” defense in Johnson, the exception to the “open public area” defense recognized in that case applied “only where there is a factual dispute as to whether the area in question is open to the public.” Id. at 822. There, as here, the area was indisputably open to the public.

Because it is undisputed that the CVS Pharmacy was open to the public and because there was no evidence presented below that Dueas was in a restricted area of the store when he committed the underlying robberies, he was entitled to the complete defense to burglary afforded by section 810.02(l)(b)l. On these facts, the trial court should have granted his motion for judgment of acquittal as to the burglary charge. We therefore reverse his conviction and sentence for burglary, and affirm his convictions and sentences on the robbery counts.

Affirmed in part; reversed part; and remanded for further proceedings consistent with this opinion.

      . We note that Ducas does not complain that the court below erred in refusing to grant a continuance to allow him to locate these two witnesses.

      . This testimony drew no objection from Du-cas on any ground.

      . On cross-examination, Ducas asked, without objection, only a single question regarding these victims' identification (or non-identification) of their assailant:
      Q. Now, it's your testimony here that the two ladies, Danielle and Allison, that you had the lineups done with, is it your testimony here it’s not that they didn’t pick somebody out, that they could not pick someone out? Did they select someone or not?
      A. They did not select somebody, neither one.
      He asked no further questions because Detective Rojas’ deposition testimony concededly was consistent with his trial testimony; because this witness concededly could not be impeached with the testimony of a third person; and concededly because it made no sense to inquire further, observing "if you don’t have impeachment material to impeach that witness, you’re stuck with the answer that you’re given.”

      . Ducas’ counsel conceded that it was not possible to determine who was identified or if, as Detective Rojas apparently believed, anyone was identified:
      [By Ducas’ Counsel]: And we’re not saying Rojas is [a] liar or he intentionally lied, we don't know that's the point. These girls believe that they looked, each individually, at lineup photographic sixpacks containing Mr. Ducas and potentially cancelled him out, said it wasn't him, picked somebody out; and we have no idea what their conclusions are or why they came to that.

      . This statute was amended in 2001 in response to Delgado v. State, 776 So.2d 233 (Fla.2000), wherein the Florida Supreme Court receded from several of its prior decisions which had found that the invitee/licensee affirmative defenses failed where the victim withdrew consent to remain on the premises, holding that these defenses, like the "open to the public” defense, was "a complete defense to the charge of burglary.” Id. at 236.
      In direct response to this decision, the Florida Legislature amended the definition of "burglary” to provide express exceptions to the invitee and licensee affirmative defenses. See § S10.02(l)(b)2., Fla. Stat. (2008); see also § 810.015(l)-(6), Fla. Stat. (2008) (stating that Delgado was decided “contrary to legislative intent”; that "it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously”; that it is the Legislature's intent that "consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence”; and that it is the intent of the Legislature that Delgado "be nullified”).