author: STUART, Justice. STUART, Justice

text:
    Ex parte John V. DENSON II, Circuit Judge (In re State of Alabama v. Mary Maxine Neel). Ex parte Mary Maxine Neel (In re State of Alabama v. Mary Maxine Neel).
    1090952 and 1090961.
    Supreme Court of Alabama.
    Aug. 13, 2010.
    John V. Denson II, Opelika; and C.C. (Bo) Torbert, Jr., Opelika, for petitioner John V. Denson II, Circuit Judge.

      Philip O. Tyler of Haygood, Cleveland, Pierce, Mattson & Thompson LLP, Auburn, for petitioner Mary Maxine Neel.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for respondents.
    A. Kelli Wise, presiding judge, and Samuel Henry Welch, Mary Becker Windom, J. Elizabeth Kellum, and James Allen Main, judges, Alabama Court of Criminal Appeals, for respondents.
   STUART, Justice.

John V. Denson II, circuit judge in the Lee Circuit Court, and Mary Maxine Neel separately petition this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its judgment in State v. Neel, 57 So.3d 186 (Ala.Crim.App.2010). For the reasons explained in this opinion, we grant Judge Denson’s petition for the writ of mandamus and issue the writ, and we dismiss Neel’s petition.

In May 2006, Neel was indicted for killing Glenn Hall. At trial, Neel asserted that she was acting in self-defense when she shot Hall. A jury found Neel guilty of murder. Neel moved for a judgment of acquittal. On January 15, 2009, the trial court conducted a hearing, and on April 3, 2009, the trial court, in a 39-page order, granted Neel’s motion for a judgment of acquittal, vacated the jury’s verdict, and discharged Neel.

On April 10, 2009, the State filed a timely petition for a writ of mandamus in the Court of Criminal Appeals, asking that court to order Judge Denson to vacate his order setting aside the jury’s verdict. On April 16, 2009, the Court of Criminal Appeals ordered Judge Denson and Neel to respond to the State’s petition. On March 26, 2010, the Court of Criminal Appeals granted the State’s petition for a writ of mandamus and directed Judge Denson to set aside his order vacating the jury’s verdict finding Neel guilty of murder and to sentence Neel in accordance with her conviction for murder.

On April 9, 2010, Judge Denson and Neel separately petitioned this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order. In his petition, Judge Denson maintains that before this Court can address the substantive merits of this case, we must determine whether the issue is moot. According to Judge Denson, the trial court now lacks jurisdiction to vacate the judgment of acquittal, and the Court of Criminal Appeals did not have jurisdiction to order that the judgment of acquittal be vacated. We agree.

This Court addressed a similar situation in State v. Webber, 892 So.2d 869 (Ala.2004), in which we held that a claim was moot because no court had jurisdiction to act. Webber, who had been indicted for property crimes, agreed to participate in the trial court’s drug-court program and pleaded guilty to the offenses. The trial court deferred adjudications and sentencing until after Webber completed the drug-court program and complied with other conditions. When Webber successfully completed the program and had satisfied the other conditions, the trial court, over the objections of the district attorney, dismissed the cases against Webber with prejudice. The district attorney then petitioned the Alabama Court of Criminal Appeals for a writ of mandamus, asking that court to direct the trial court to vacate its order dismissing the cases against Web-ber, to adjudicate him guilty, and to sentence him. The Court of Criminal Appeals dismissed the petition, with an unpublished memorandum. State v. Webber (No. CR-02-1386), 886 So.2d 187 (Ala.Crim.App.2003) (table). The State then, petitioned this Court for the same relief. We, too, dismissed the petition, stating:

“Because the trial court now lacks jurisdiction to vacate the judgment of dismissal, and the appellate courts of the state now lack jurisdiction to order the judgment vacated, we cannot reach the merits of the claim of the State, as the claim is moot, and accordingly we must dismiss the petition for a writ of mandamus directing that the dismissal of the case be vacated, the charges adjudicated, and the defendant sentenced. Parkerson v. Seventeenth Judicial Circuit Court, Sumter County, 277 Ala. 345, 170 So.2d 491 (1965). See State ex rel. City of Prichard v. Jansen, 271 Ala. 104, 122 So.2d 736 (1960). We will explain.
“The April 24, 2003 dismissal of the case constituted a final judgment, as distinguished from an interlocutory judgment or order. Ex parte Sullivan, 779 So.2d 1157, 1160 (Ala.2000). See also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). The trial court lost subject-matter jurisdiction of the cases at the expiration of thirty days following entry of the final judgments. Ex parte Hitt, 778 So.2d 159 (Ala.2000); Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991); and Shepard v. State, 347 So.2d 1017 (Ala.Crim.App.1977). See Rule 24, Ala. R.Crim. P.
“No party filed an appeal. Because no party filed a timely appeal, no appellate court ever acquired any appellate jurisdiction over the cases. Spina v. Causey, 403 So.2d 199 (Ala.1981); Lewis v. State, 463 So.2d 154 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); and Turner v. State, 365 So.2d 335, 336 (Ala.Crim.App.1978).
“Within seven days after the trial court entered the final judgments, during the thirty days when the trial court did retain subject-matter jurisdiction, the State petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial judge to vacate the dismissal, to adjudicate the charges, and to sentence the defendant. The State did not, however, obtain, from either the trial court or any appellate court, any stay of the final judgment.
“The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. See Ex parte St. John, 805 So.2d 684 (Ala.2001); State ex rel. S.N. v. W.Y., 622 So.2d 378, 381 (Ala.Civ.App.1993); and Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala.1979). The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Ex parte Little, 837 So.2d 822, 824 (Ala.2002). Further, a petition for a writ of mandamus is not a substitute for an appeal. State v. Van Reed, 673 So.2d 857, 858 (Ala.Crim.App.1996); and Ex parte City of Tuscaloosa, 636 So.2d 692, 694 (Ala.Crim.App.1993).
“Therefore, in the case now before us, the filing of the petition for a writ of mandamus neither transferred- the retained subject-matter jurisdiction of the trial court to the appellate court, nor tolled the expiration of the thirty days of retained jurisdiction of the trial court, nor conferred appellate jurisdiction (as distinguished from supervisory jurisdiction over the trial judge) on the Court of Criminal Appeals. Thus, after the thirty days of retained jurisdiction in the trial court expired, and after any applicable period for appeal, if any, expired, the trial court lost all jurisdiction and all possibility of reacquiring jurisdiction to vacate the judgment of dismissal, and the appellate courts lost all possibility of acquiring appellate jurisdiction to remand the case for the judgment to be vacated.”

892 So.2d at 870-71 (footnotes omitted).

In this case, the trial court’s entry on April 3, 2009, of a judgment of an acquittal for Neel constituted a final judgment. The trial court had jurisdiction to enter the judgment. Therefore, the entry of the judgment of acquittal for Neel was lawful and within the jurisdiction of the trial court. When the State filed its petition for a writ of mandamus, it did not ask the trial court or the Court of Criminal Appeals to stay the proceedings. Nothing before us indicates that the case was stayed in the trial court. Because the case was not stayed, the trial court at the expiration of the 30 days from the entry of the judgment of acquittal for Neel lost subject-matter jurisdiction of Neel’s case, and the Court of Criminal Appeals lost all possibility of acquiring appellate jurisdiction to remand the case for the trial court’s judgment to be vacated.

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala.2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).”

Ex parte Chandler, 910 So.2d 763, 764 (Ala.2005). Moreover, “[t]he question of subject-matter jurisdiction is renewable by a petition for a writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).

Because the Court of Criminal Appeals did not have subject-matter jurisdiction to order Judge Denson to vacate his April 3, 2009, order entering a judgment of acquittal for Neel, Judge Denson has established a clear legal right for the relief he requests. Therefore, we grant Judge Den-son’s petition and direct the Court of Criminal Appeals to vacate its order directing Judge Denson to set aside his order vacating the jury’s verdict finding Neel guilty of murder.

Our resolution of Judge Denson’s petition renders moot the claims raised in Neel’s petition. Therefore, Neel’s petition is dismissed.

1090952 — PETITION GRANTED; WRIT ISSUED.

1090961 — PETITION DISMISSED.

COBB, C.J., and LYONS, MURDOCK, and BOLIN, JJ., concur.

STUART, J., concurs specially.

STUART, Justice

(concurring specially).

I regret that this Court is unable to reach the substantive issue in this case. However, we cannot overlook jurisdiction and the well-established precedent holding that a filing of a petition for a writ of mandamus does not stay the proceedings in the trial court. Ex parte St. John, 805 So.2d 684 (Ala.2001).

The State is precluded from appeal when the trial court grants a judgment of acquittal for a defendant and its only remedy is to seek mandamus relief. An argument exists that perhaps our rules of criminal procedure should consider this limitation on the State and, consequently, when appeal is not available, the State should not have to seek a stay of the proceedings in the trial court for the appellate courts to have jurisdiction to order the trial court to vacate its judgment. However, such a dramatic change in the law with regard to criminal procedure and mandamus relief should be addressed in our rules of procedure, not in the caselaw. Therefore, as I stated in my special concurrence in State v. Calhoun, 915 So.2d 569, 570 (Ala.2005), until the rules change,

“the proper procedure for the State to follow is to timely request a motion to stay the proceedings in the trial court and to timely file a petition for a writ of mandamus in the Court of Criminal Appeals. If the trial court denies the motion to stay the proceeding, then the State must file a motion to stay with its petition for the writ of mandamus in the Court of Criminal Appeals. If the Court of Criminal Appeals denies the stay, the State must file a petition for a writ of mandamus with this Court requesting that this Court order the Court of Criminal Appeals to order the trial court to stay the proceedings until resolution of the petition for the writ of mandamus.”

      . The Court of Criminal Appeals provides a thorough recitation of the evidence in State v. Neel, supra.

      . Because the trial court had subject-matter jurisdiction at the time it entered the judgment of acquittal for Neel, this case is distinguishable from cases such as Ex parte Chamblee, 899 So.2d 244 (Ala.2004), and Ex parte Jackson Hospital & Clinic, Inc., 49 So.3d 1210 (Ala.2010). In Ex parte Chamblee and Ex parte Jackson Hospital & Clinic, the parties were not required to move for a stay of the trial court proceedings because at the time the petitions for a writ of mandamus were filed the trial court no longer had subject-matter jurisdiction of the cases.

      . We cannot agree with the State that the actions of either the trial court or the Court of Criminal Appeals lend themselves to "any reasonable interpretation” that a stay was in effect. It is the responsibility of the parties, not the courts, to seek a stay of the case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose Martinez FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3866.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2010.
    Rehearing Denied April 13, 2011.
    Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In 1998, Jose Martinez Flores was charged with possession of cocaine and DUI. He entered drug court but failed to successfully complete the program. A warrant issued for his arrest in March 2000. Flores was arrested on the warrant in November 2007. Immigration and Customs Enforcement (ICE), the federal agency which enforces immigration law, placed a detainer on Flores requesting that he be turned over to them custody upon release. On April 7, 2008, Flores entered a negotiated plea to a lesser misdemeanor offense of possession of drug paraphernalia and was sentenced to time served. Two weeks later, April 21, 2008, ICE sought to deport Flores.

After holding an evidentiary hearing, the lower court denied Flores’ timely Rule 3.850 motion which sought to withdraw the plea. Flores alleged that he entered the plea to this reduced, misdemeanor charge because his attorney assured him that, unlike the felony possession of cocaine charge, this misdemeanor conviction would not cause him to be deported.

During the plea colloquy, the judge gave Flores the standard warning that the con-vietion may result in deportation. Fla. R.Crim. P. 3.172(c)(8) (requiring court to verify before accepting plea that defendant understands “that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service”).

At the evidentiary hearing, Flores admitted that he understood the judge’s warning but relied on his attorney’s advice instead. Flores sought to introduce testimony from his wife that, at or about the time of the plea, she discussed with the attorney her husband’s immigration problem and their concern that he not be deported. The court ruled this was inadmissible hearsay. Flores’ attorney did not testify at the evidentiary hearing. No evidence was presented to dispute Flores’ testimony.

The court denied the motion finding that Flores was not credible. The judge did not believe that Flores had difficulty understanding English or that his attorney had given him misadvice which caused him confusion during the plea hearing. The court appears to have agreed with the State’s argument that the Rule 3.172(c)(8) warning, advising that the plea may result in deportation, cured any deficiency on the part of counsel and that appellant could not rely on the advice of counsel when it was contrary to what the court advised in the colloquy. Bermudez v. State, 603 So.2d 657 (Fla. 3d DCA 1992).

After the hearing, the prosecutor approached Flores’ postconviction counsel and advised that she recalled Flores’ attorney telling her during plea negotiations that Flores would not accept a plea to possession of cocaine because it would lead to his deportation. Postconviction counsel brought this to the court’s attention and attempted to present testimony from the prosecutor, but the judge did not believe this testimony would change the outcome. The court ruled that Flores was not entitled to relief because the case he cited to show that possession of drug paraphernalia is a deportable offense, Alvarez Acosta v. U.S. Atty. Gen., 524 F.3d 1191 (11th Cir.2008), issued after the plea and constituted a change in law.

Flores moved for rehearing and cited authority establishing, well before the date of his plea, that possession of drug paraphernalia is an offense relating to a “controlled substance” which makes appellant deportable. Luu-Le v. I.N.S., 224 F.3d 911, 914 (9th Cir.2000). See 8 U.S.C. § 1227(a)(2)(B) (providing that any alien convicted of any law or regulation “relating to a controlled substance” (other than a single offense of possession of 30 grams or less of marijuana) is deportable). Rehearing was denied. The trial court’s conclusion that there was a change in law which counsel could not have anticipated was incorrect.

Flores argues on appeal that the court erred in ruling that his wife’s testimony about the legal advice counsel had given was hearsay. He also contends that the court should have granted his request to reopen the evidentiary hearing to take testimony from the prosecutor. We need not decide whether either of these rulings was incorrect because the court’s Rule 3.172(c)(8) deportation warning in the plea colloquy cures any prejudice arising from counsel’s alleged misadvice. Flores is not entitled to withdraw his plea on the basis of ineffective assistance of counsel, and we affirm.

We have considered the U.S. Supreme Court’s recent decision in Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which was decided while this case was in the appellate pipeline. Padilla holds that a criminal defense attorney has a Sixth Amendment duty to advise a non-citizen defendant, who is considering entering a plea, whether the plea carries a risk of deportation. 130 S.Ct. at 1486. The Court in Padilla, which involved a similar claim of attorney misad-vice, found that counsel provided deficient performance in advising the defendant that the plea would not result in deportation. The Court remanded for the Kentucky trial court to determine whether Padilla established prejudice, i.e., a reasonable probability that but for counsel’s deficient advice he would not have entered the plea. Id. at 1487. Critically, Padilla was not advised by the trial court during the plea colloquy that the plea might result in deportation. See Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008).

Flores’ case is distinguishable from Padilla, Flores cannot show the prejudice necessary to obtain relief for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores was advised during the plea colloquy that his plea may result in his deportation. He admitted that he understood what the judge said but did not believe this warning applied to him personally. He thought this was something the judge had to say to everyone and relied on what his attorney had told him instead.

A defendant’s sworn answers during a plea colloquy must mean something. A criminal defendant is bound by his sworn assertions and cannot rely on representations of counsel which are contrary to the advice given by the judge. See Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007) (“A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences.”)

When the Court advises that the plea may result in deportation, a defendant has an affirmative duty to speak up if the attorney has promised something different. See Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006) (holding that defendant is bound by his sworn answers during the plea colloquy and may not later assert that he committed perjury during the colloquy because his attorney told him to lie).

The court’s warning that Flores may be deported based on his plea cured any prejudice that might have flowed from counsel’s alleged misadvice. Bermudez, 603 So.2d at 658. When Flores entered his plea, he assumed the risk that he “may” be deported.

In addition, Flores failed to establish that his plea in this case was the sole basis for his deportation. Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008). At the evidentiary hearing, Flores’ wife was asked whether Flores was present in the country lawfully when they married in 2001. Defense counsel’s objection to the question was sustained. Flores did not testify regarding how he entered the country and was not asked if he was present lawfully. If appellant was not lawfully present in the country, or if some other independent ground for deportation existed, then he would not be entitled to withdraw his plea. Rosas v. State, 991 So.2d 1003 (Fla. 4th DCA 2008).

Affirmed.

TAYLOR, DAMOORGIAN and CIKLIN, JJ., concur.

      . In his motion, Flores, a citizen of Mexico, had alleged, that he speaks Spanish, was not provided an interpreter at the plea hearing, and did not fully understand the plea proceedings.

      . The wife is a United States citizen. Flores married his wife in 2001 about seven years before the hearing. They have three children together.

      . The Court explained that, to show prejudice, Padilla would have to "convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).” Padilla, 130 S.Ct. at 1485.

      . Padilla involved a drug trafficking offense which is an "aggravated felony” and treated differently under immigration law. 130 S.Ct. at 1480 (citing 8 U.S.C. § 1101 (a)(43)(B) which enumerates drug trafficking as an aggravated felony); 8 U.S.C. § 1227(a)(2)(A)(iii) (providing that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable”). See also 8 U.S.C. § 1229b(a)(3) (precluding cancellation of removal for those convicted of an aggravated felony); 8 U.S.C. § 1228(c) (creating a presumption of deportability for those convicted of aggravated felonies).


author: EVANDER, J.

text:
    Alan B. GARFINKEL, P.A., Appellant/Cross-Appellee, v. Scott A. MAGER, Mager Law Group, P.A., et al., Appellees/Cross-Appellants.
    Nos. 5D09-1991, 5D09-3273.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.
    Rehearing Denied March 11, 2011.

      Mayanne Downs and Kimberly D. Healy, of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Appellant/Cross-Appel-lee.
    Scott A. Mager of Mager & Mager, LLC, Fort Lauderdale, for Appel-lees/Cross-Appellants.
   EVANDER, J.

Alan B. Garfinkel, P.A. (“Garfinkel”) appeals from orders dismissing with prejudice its complaint and second amended complaint against appellees, Scott A. Mag-er, Mager Law Group, P.A., and National Trial Group, LLC. Garfinkel’s action was based primarily on the alleged breach of a contract entered into by the parties whereby appellees agreed, inter alia, that they would not represent or otherwise assist a party who initiated or maintained a lawsuit or claim against Garfinkel. The trial court found that such provision violated public policy and declared the parties’ contract void and unenforceable. We reverse. We conclude that the contract would not violate public policy where if, as alleged in the complaint, Mager possessed confidential information as the result of his prior employment and fiduciary relationship with Garfinkel and appellees would be able to use that information to the detriment of Garfinkel if they provided representation or assistance to a party who had initiated or maintained a lawsuit ■ or claim against Garfinkel.

From October 2006 to July 2, 2007, attorney Mager was employed by Garfinkel, a law firm, and served as the firm’s managing partner. On July 2, 2007, Garfinkel terminated Mager’s employment. Mager subsequently sued Garfinkel for monies allegedly owed as a result of his contributions to the firm. That lawsuit was dismissed when the parties entered into a global settlement agreement in February 2008.

Pursuant to the terms of the settlement' agreement, Garfinkel paid Mager $175,000 (in addition to $100,000 previously paid to Mager), Mager dismissed the lawsuit against Garfinkel, and the parties released each other from any past or present claims. The agreement provided that ap-pellees would not render any assistance nor give advice to any party who initiated, maintained, or prosecuted any lawsuit or claim against Garfinkel. Appellees expressly acknowledged in the agreement that the promise not to assist or advise a party in litigation against Garfinkel was made to induce Garfinkel to enter into the agreement and was material to Garfinkel’s agreement to pay Mager additional money. Specifically, paragraph 8(c) of the agreement provided:

Scott A. Mager affirmatively undertakes that he has not and will not hereafter render any assistance, advice, counsel, support or information of any kind or description whatsoever to any person, group, company or association to initiate, maintain, or prosecute any lawsuit or claim against Alan B. Garfínkel, individually or Alan B. Garfínkel, P.A. In consideration for the payments received under this agreement, the Mager releas-ees affirmatively represent that, as of the date of this agreement, they have not provided any information to any third party, whether by them own initiation or by request of the third party or its agents or assigns, or any information that could be used to disparage, denigrate or initiate a lawsuit or any provided agency or regulatory matter against the Garfínkel releasees. This representation is made to induce Garfínkel to enter into this agreement and is material to Garfínkel releasees making payment under this agreement.

The settlement agreement also contained'a liquidated damages provision by which ap-pellees acknowledged that a violation of the above provision would be conclusively presumed to cause irreparable harm and would require appellees to return the money paid by Garfínkel.

In October 2008, Garfínkel filed a complaint against Mager seeking damages, in-junctive relief, and a declaratory judgment that the settlement agreement provisions were valid and enforceable. The complaint alleged that appellees breached the contract by, among other things, representing clients in actions brought against Garfínkel. Appellees filed a motion to dismiss the complaint arguing that the settlement agreement was against public policy because it improperly limited the freedom of potential clients to choose Mager as their lawyer and limited Mager’s freedom to accept future clients. The trial court granted appellees’ motion, finding first that the agreement violated Rule 4-5.6 of the Rules Regulating the Florida Bar. That rule provides:

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar -type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

The trial court recognized that a violation of Rule 4-5.6 would not,' ipso facto, require the trial court to void the agreement. The Preamble to the Rules Regulating the Florida Bar provides in part:

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached.... The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons.

Preamble, Ch. 4, R. Regulating Fla. Bar; see also Mark Jay Kaufman, P.A. v. Davis & Meadows, P.A, 600 So.2d 1208 (Fla. 1st DCA 1992) (even assuming that fee-splitting contract divided fee in manner inconsistent with ethical rule, attorney could not rely upon rule to avoid contractual obligations); Miller v. Jacobs & Goodman, P.A., 699 So.2d 729 (Fla. 5th DCA 1997).

However, the trial court found that because the provision limited the right of future clients to select Mager as their attorney, the agreement violated public policy. Garfinkel’s counts for breach of contract, injunctive relief and declaratory relief were dismissed with prejudice.

Garfinkel subsequently filed a second amended complaint for unjust enrichment, monies had and received, conversion, and rescission, seeking return of monies paid to Mager pursuant to the agreement. Garfinkel alleged that at the time the agreement was executed, Garfinkel believed it to be valid and enforceable but Mager’s actions demonstrated that appel-lees never intended to comply with the contract and, therefore, Mager was obligated to return the monies paid, The trial court granted appellees’ motion to dismiss the second amended complaint with prejudice, accepting the argument that the parties were in pari delicto and the court should leave the parties as it found them.

On appeal, Garfinkel argues that the trial court erred in dismissing its complaint and its second amended complaint because the settlement agreement did not violate public policy. We agree.

Because of the public concern that freedom of contract not be lightly interfered with, courts should exercise extreme caution when called upon to declare transactions void as contrary to public policy. Bituminous Cas. Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101 (1944). In Bituminous, our supreme court stated that where a contract is not prohibited under a constitutional or statutory provision, or prior judicial decision, it should not be struck down on the basis that it violates public policy, unless “it be clearly injurious to the public good or contravene some established interest of society,” Id. at 101-02; see also Fla. Windstorm Underwriting v. Gajwani, 934 So.2d 501, 506-07 (Fla. 3d DCA 2005).

In determining whether paragraph 8(c) contravenes public policy, it is appropriate to consider the intent behind the adoption óf Rule 4-5.6. The rule is intended to protect the ability of future clients to retain a lawyer of their choosing and to prohibit attorneys and their present clients and adversaries from limiting that ability by private agreement. See Fla. Ethics Op. 93-4 (“The prohibition contained in rule 4-5.6 seeks to protect the professional autonomy of lawyers as well as clients’ access to the lawyer of their choosing.”). While the right of a party to chose his or her attorney is deeply engrained in our jurisprudence, that right is not unlimited. A party does not have the right to an attorney possessing confidential information of the adversary so as to provide the party with an unfair informational or tactical advantage. See, e.g., Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010). The Rules Regulating the Florida Bar affirmatively restrict attorneys with “inside” knowledge from using it for the gain of other clients. See generally, R. Regulating Fla. Bar 4-1.6 (confidentiality of client information); 4-1.7 (conflict of interest; current client) 4-1.8 (conflict of interest; prohibiting use of client information to disadvantage of client); 4-1.9 (conflict of interest; former client).

In the present case, it was alleged that Mager had not only been the managing partner for Garfinkel, P.A., but had also served as personal counsel for Alan Garfinkel, individually. Furthermore, ap-pellees expressly acknowledged in the settlement agreement that Mager’s services to Garfinkel had been “special, unique and extraordinary” and that he had acquired confidential information concerning Gar-finkel’s operations — “the use or disclosure of which could cause Garfinkel substantial losses and damages which could not be rqadily calculated and for which no remedy at law would be adequate.” The confidential information alleged to be possessed by Mager included financial data, accounting information, legal strategies, business plans, dealings with expert witnesses, and other information that potentially would give an adversary an unfair tactical advantage in litigation.

Thus, this case involves the consideration of two competing public interests. First, as recognized by the trial court, public policy favors providing individuals with the right to retain an attorney of their choosing. However, there is a countervailing public interest in ensuring that a litigant is free from the risk of opposition by a lawyer once privy to that litigant’s confidences and who is able to use those confidences against that litigant. Greene v. Greene, 47 N.Y.2d 447, 418 N.Y.S.2d 379, 391 N.E.2d 1355 (1979). In Greene, the plaintiff brought an action against the law firm of Finley, Kumble, et al., for breach of fiduciary duty, fraud, and other tort claims. Attorneys Grutman and Bjork were members of the law firm that was representing the plaintiff. They had previously been partners at Finley, Kum-ble, et ah, at the time some of the events underlying plaintiffs claims had taken place. The defendant law firm alleged that through their previous employment, attorneys Grutman and Bjork had gained confidential information related to plaintiffs claim. The Greene court found that disqualification of plaintiffs law firm was required. The court initially determined that as former partners in the defendant law firm, Grutman and Bjork owed the firm a fiduciary obligation similar to that owed by an attorney to his client. This was especially so with regard to Grutman who had been the defendant law firm’s managing partner. The court went on to state:

Although it is usually recognized that a party to litigation may select an attorney of his or her choosing, this general right is not limitless. The attorneys may not accept employment in violation of a fiduciary relationship.... To hold otherwise would be to ignore the overriding public interest in the integrity of our adversary system.

Id. at 1359.

Here, the parties appear to have recognized these competing public interests within the agreement itself. Paragraph 8(b) of the settlement agreement contains the following language:

The parties agree that the relevant pubr lie policy aspects of the covenants are the result of joint negotiation and that every effort was made to limit the restrictions placed upon Scott A. Mager to those that are reasonable and necessary to protect the legitimate business interests [of] Garfinkel, Alan B. Garfinkel and/or Alan B. Garfinkel, P.A.

It is also noteworthy that no restrictions were placed on Mager’s ability to represent clients (including former clients of Garfinkel) except with regard to initiating or maintaining a lawsuit or claim against Alan B. Garfinkel, individually, or Alan B. Garfinkel, P.A. If the allegations of the complaint and second amended complaint are accepted as true, then the parties’ agreement reflects a reasoned effort to balance the aforesaid competing public interests and would not be injurious to the public good or otherwise contrary to public policy.

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.

      . Garfinkel also argues that even if the settlement was void, it was error to apply the "in pari delicto " doctrine and dismiss the second amended complaint. See, e.g., Kulla v. E.F. Hutton & Co., Inc., 426 So.2d 1055, 1057 n. 1 (Fla. 3d DCA 1983) ("Where, by applying the rule, the public cannot be protected because the transaction has been completed, where no serious moral turpitude is involved, where the defendant i$ the one guilty of the greatest moral fault, and where to apply the rule would be to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not be applied.”). Because we find the settlement agreement did not contravene public policy, we find it unnecessary to address this issue.
      We further find appellees' cross-appeal to be without merit.


author: COHEN, J.

text:
    CITY OF PALM BAY, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 5D09-1810.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    James D. Stokes, City Attorney, and Andrew P. Lannon, Deputy City Attorney, City of Palm Bay, for Appellant.
    Tracy A. Mitchell and Keith Poliakoff of Becker & Poliakoff, P.A., Amicus Curiae, Town of Southwest Ranches, Fort Lauder-dale, for Appellant.
    Matthew J. Conigliaro and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for Appellee.
   COHEN, J.

The issue in this appeal is whether the City of Palm Bay can grant its code enforcement liens superpriority over a prior recorded mortgage. We conclude it cannot because Palm Bay’s ordinance conflicts with a state statute: section 695.11, Florida Statutes.

In 1997, Palm Bay enacted ordinance 97-07, creating its code enforcement board. Although incorporating by reference the procedures and remedies in Chapter 162, Florida Statutes, ordinance 97-07 altered some of these statutory provisions to fit its individual needs. Among the changes, Palm Bay provided that any liens created by its code enforcement board and “recorded in the public record shall remain liens coequal with the liens of all state[,] eounty[,] district and municipal taxes, superior in dignity to all other liens[,] titles and claims until paid, and ... may be foreclosed pursuant to the procedure set forth in Florida Statutes, Chapter 173.”

In 2007, Wells Fargo filed an action to foreclose its mortgage, recorded in 2004, on residential property located in Palm Bay. Palm Bay was named a defendant in the foreclosure suit due to two code enforcement liens it recorded after the mortgage. In answering the complaint, Palm Bay asserted its code enforcement liens had priority pursuant to ordinance 97-07. At the hearing on Wells Fargo’s motion for summary judgment, the trial court rejected Palm Bay’s claims of lien superpriority. The trial court reasoned that the Legislature’s failure to bestow code enforcement liens priority over a prior recorded mortgage or judgment lien indicated its intent that these liens not have priority and thus, the common law principle of first in time, first in right, applied.

Palm Bay’s primary challenge to the trial court’s ruling is that it had the authority to enact ordinance 97-07, and grant its code enforcement liens superpri-ority, under the home rule powers granted by article VIII, section 2(b) of the Florida Constitution, and codified in section 166.021, Florida Statutes. Asserting that ordinance 97-07 does not encroach into any of the areas prohibited by section 166.021, Palm Bay concludes that it had the right to grant its code enforcement liens superpriority. Although a municipality has broad home rule powers to enact local ordinances, see Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla.2008); City of Kissimmee v. Florida Retail Federation, Inc., 915 So.2d 205, 209 (Fla. 5th DCA 2005), the ordinances may not conflict with a state statute. See Art. VIII § 2(b), Fla. Const.

In relevant part, section 695.11, Florida Statutes, provides that any instruments required to be recorded pursuant to section 28.222, Florida Statutes, will be deemed recorded once an official register number is affixed. -It further provides that recorded instruments with a lower official number will have priority over one with a higher number. This statute codifies, as Palm Bay recognized at oral argument, the common law rule of first in time, first in right. Thus, the Legislature has decided that priority for instruments such ás mortgages and liens will generally follow the first in time rule. Ordinance 97-07 conflicts with this mandate by granting Palm Bay’s code enforcement liens priority over a mortgage, even when the mortgage was recorded before the lien. The only way ordinance 97-07 can be effective is by violating the terms of section 695.11. Consequently, ordinance 97-07 must yield to the statute. See Phantom of Brevard, 3 So.3d at 314 (ordinance conflicts with state statute when complying with one requires violating the other); F.Y.I. Adventures, Inc. v. City of Ocala, 698 So.2d 583, 584 (Fla. 5th DCA 1997) (same).

Based on the foregoing, this court affirms the trial court’s order granting summary judgment in favor of Wells Fargo.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

      . Chapter 162, Florida Statutes, is entitled the "Local Government Code Enforcement Boards Act," and authorizes municipalities and counties to create administrative boards to enforce their codes and ordinances.


text:
    Alain CUPAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1277.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Rehearing Denied April 15, 2011.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Alain Cupas was tried by jury and convicted of three counts of lewd and lascivious molestation of a child. Cupas seeks reversal of his convictions, challenging the admission of collateral crimes evidence (point I), the exclusion of evidence concerning the victim’s suspension from school and the incremental punishment of the school’s disciplinary system (point II), and the giving of a curative jury instruction (point III). We affirm as to points I and III without further comment. As for point II, we find no abuse of discretion in the trial court’s ruling that any probative value in evidence concerning the victim’s prior suspension from school and the incremental punishment of the school’s disciplinary system was substantially outweighed by the danger of unfair prejudice and thus affirm as to this ground as well.

Affirmed.

WARNER, STEVENSON and GERBER, JJ., concur.


author: LAGOA, Judge.

text:
    BARCELONA HOTEL, LLC, Appellant, v. NOVA CASUALTY COMPANY, etc., et al., Appellees.
    No. 3D10-1934.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Arnaldo Velez, Coral Gablesj for appellant.
    Walton Lantaff Schroeder & Carson and Jerry K. McKim and David S. Tadros, West Palm Beach, for appellees.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   LAGOA, Judge.

Barcelona Hotel, LLC (“Barcelona”), the insured, appeals a final summary judgment in favor of insurer Nova Casualty Company (“Nova”). Because the trial court erred in determining that the excavator involved in the property damage claim was not a “vehicle,” and therefore not a named peril, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

In April 2002, a City of Miami Beach contractor was operating an excavator when it struck and damaged the foundation of a hotel owned by Barcelona. Barcelona was insured under a named-peril building and personal property policy issued by Nova. At issue is the following policy section entitled “Causes of Loss-Basic Form”:

A. COVERED CAUSES OF LOSS
When Basic is shown in the Declarations, Covered Causes of Loss means the following:
6. Aircraft or Vehicles, meaning only physical contact of an aircraft, a spacecraft, a self-propelled missile, a vehicle or an object thrown up by a vehicle with the described property or with the building or structure containing the described property. This cause of loss includes loss or damage by objects falling from aircraft.

(Emphasis added). The policy does not define the term “vehicle.”

Barcelona submitted a property damage claim to Nova. In declining the claim, Nova sent Barcelona a letter stating that “the policy provides basic named peril coverage [and that] [t]he loss, as submitted, does not satisfy the criteria for the applicable perils under the policy.” Barcelona sued Nova, seeking damages for Nova’s breach of the policy. Nova filed its amended answer, asserting affirmative defenses and counterclaims for declarations that the loss was not within the policy definition of “covered causes of loss” and that the property damaged was not “covered property.”

Nova filed a motion for summary judgment, arguing, inter alia, that there was no coverage because the damage from the excavator that allegedly struck the building does not fall within the definition of covered cause of loss. At the hearing, the trial court directed the parties to submit memoranda of law, addressing whether the excavator was a “vehicle” under the policy. The trial court granted summary judgment, stating that “the Motion for Final Summary Judgment is hereby granted on the basis that the Komatsu excavation machine is not a ‘vehicle’ and, therefore, not a named peril.” The trial court denied Barcelona’s motion for reconsideration, entered final summary judgment in favor of Nova, and dismissed the amended complaint with prejudice.

On appeal, Barcelona contends that an application of the dictionary definition of the term “vehicle” and consideration of the entire policy demonstrate that the excavator is a “vehicle” and that the damages were caused by a named peril under the policy. For the following reasons, we agree.

II. ANALYSIS

This Court’s review of the trial court’s entry of summary judgment is de novo. See Nova Cas. Co. v. Willis, 39 So.3d 434, 436 (Fla. 3d DCA 2010), review denied, 51 So.3d 466 (Fla.2010). In addition, “a question of insurance policy interpretation, which is a question of law, [is also] subject to de novo review.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla.2010)

“When the language of an insurance policy is clear and unambiguous, a court must interpret it according to its plain meaning, giving effect to the policy as it was written.” E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 676 (Fla. 3d DCA 2005); see also Nova Cas. Co., 39 So.3d at 436. The failure to define a term involving coverage does not necessarily render the term ambiguous. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003). Instead, when an insurance coverage term is not defined, the term should be given its plain and ordinary meaning. See State Farm Fire & Cas. Co. v. Metro. Dade Cnty., 639 So.2d 63, 66 (Fla. 3d DCA 1994); see also Watson v. Prudential Prop. & Cas. Ins. Co., 696 So.2d 394, 396 (Fla. 3d DCA 1997).

Moreover, “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000) (holding that the court “must read [the pertinent] clause in conjunction with the entire policy, including the ... coverage provision and the policy declarations”); see also § 627.419(1), Fla. Stat. (2010); State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1075 (Fla.1998); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Underwriters at Lloyd’s, London, 971 So.2d 885, 888 (Fla. 3d DCA 2007).

Because the policy at issue does not define the term “vehicle,” “the first step towards discerning the plain meaning of the phrase is to ‘consult references [that are] commonly relied upon to supply the accepted meaning of [the] words.’ ” Penzer, 29 So.3d at 1005 (quoting Garcia v. Fed. Ins. Co., 969 So.2d 288, 292 (Fla.2007) (applying definitions in Webster’s Third New Int’l Dictionary)). Indeed, “[i]n construing terms appearing in insurance policies, Florida courts commonly adopt the plain meaning of words contained in legal and non-legal dictionaries.” Watson, 696 So.2d at 396 (quoting Brill v. Indianapolis Life Ins. Co., 784 F.2d 1511, 1513 (11th Cir.1986) (citation omitted)).

The plain and ordinary meaning of “vehicle” includes “a means of carrying or transporting something: conveyance: as ... a piece of mechanized equipment <tractors and farm EBs ... > ctanks, half-tracks and other combat EBs ... >.” Webster’s Third New Int’l Dictionary 2538 (1986) (emphasis added). Here, the broad definition of “vehicle” encompasses an excavator. See 10 Couch on Insurance § 142:7 Vehicle (2010) (“The term ‘vehicle’ is generally given a liberal or broad construction in determining the coverage of a policy.”). The excavator is “mechanized equipment” that may be a means of transporting or carrying the operator, the bucket and the removed material; the excavator is driven by a person who rides on the machine and operates the excavator as it is driven on the job-site (or across a parking lot, as conceded by Nova’s counsel at oral argument) and moves the material it digs up from one place to another. Although the excavator may not travel great distances or at a high speed, the definition of “vehicle” does not require carrying or transporting over a certain distance or at a certain speed, nor does it require that the equipment must be able to travel on a roadway or have wheels. See Cincinnati Ins. Co. v. German St. Vincent Orphan Ass’n, 54 S.W.3d 661 (Mo.Ct.App.2001) (holding that floor scraper is a “vehicle” under specified cause of loss provision of commercial property policy, stating that “there is no question that this ‘ride-on unit’ served as ⅛ means of ... transporting’ the operator while the machine, under his direction, functioned to remove the vinyl flooring” (quoting Webster’s Third New Int’l Dictionary definition of “vehicle”) (emphasis added)); Osborne v. Am. Ins. Co., 37 Pa. D. & C.2d 402, 403 (Pa.Com.Pl.1965) (holding that caterpillar tractor bulldozer is a “vehicle,” under homeowner’s policy, stating that “[t]he fact that a bulldozer moves on caterpillar treads instead of on wheels and bears an earth-moving blade in front does not prevent it from coming within the words of [Webster’s Collegiate Dictionary ] definition of' [vehicle]”). See generally John D. Perovieh, Annotation, “Vehicle” or “Land Vehicle” within Meaning of Insurance Policy Provision Defining Risks Covered or Excepted, 65 A.L.R.3d 824 (originally published in 1975). The trial court therefore erred in concluding that the term “vehicle” does not include an excavator.

Furthermore, the use of the term “vehicle” in the definitions section of the policy provides additional support for this Court’s conclusion that an excavator is a vehicle. Specifically, the policy declarations page lists several endorsements labeled “Common forms that apply to all coverage parts.” “[A]ll coverage parts” necessarily includes the policy part that provides for commercial property coverage as stated in the “Causes of Loss — Basic Form.” One of the applicable endorsements contains a definitions section that defines “Mobile Equipment” as follows:

“Mobile equipment” means any of the following types of land vehicles, including any attached machinery or equipment:
a. Bulldozers ... and other vehicles designed for use principally off public roads;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted:
(1) Power cranes, shovels, loaders, diggers or drills; or
(2) Road construction or resurfacing equipment such as graders, scrapers or rollers:
f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo.

(Emphasis added).

Thus, the definition of “mobile equipment” includes “vehicles” that are maintained primarily to provide mobility to permanently mounted shovels and diggers, i e. excavators. See Bethel v. Sec. Nat’l Ins. Co., 949 So.2d 219, 222 (Fla. 3d DCA 2006) (“When an insurer fails to define a term in a policy, the insurer cannot take the position that there should be a narrow, restrictive interpretation of the coverage provided.”); Abreu v. Lloyd’s, London, 877 So.2d 834, 836 (Fla. 3d DCA 2004) (same). Accordingly, because an excavator falls within this definition of “mobile equipment,” and the policy uses the term “vehicle” to describe it, this provision supports a conclusion that the excavator is a “vehicle” under the policy. Moreover, nothing in the policy indicates that a “vehicle” is excluded from coverage because it also falls within the definition of “mobile equipment.”

Applying the plain meaning analysis to the policy provision under the facts of this case, we hold that the trial court erred in concluding that the excavator is not a “vehicle” under the policy, and therefore not a named peril. Accordingly, the final summary judgment in Nova’s favor must be reversed and the case remanded for further proceedings.

Reversed and remanded.

      . The amended complaint states that "a contractor for the City of Miami Beach was operating a vehicle and was undertaking excavation next to the property of Plaintiff and [i]n that process, the contractor caused the vehicle to come into contact with the foundations of the hotel owned by Plaintiff.”


author: WARNER, J.

text:
    Kellie Irene ALBERT, Appellant, v. Kevin ROGERS, Appellee.
    No. 4D09-4512.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.
    Carla P. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.

      Lori D. Shelby, Fort Lauderdale, for appellee.
   WARNER, J.

A mother appeals an order finding her in contempt and modifying the parties’ visitation schedule with the children. She complains that the court relied on its independent investigation of the facts of the case in making its determination, and the court further erred by modifying existing visitation provisions without the issue being properly raised in pleadings, noticed for determination, or litigated below, and without there being any evidence that any change would be in the best interests of the children. We agree that the court erred, and reverse the order of contempt and modification of visitation.

The father, Kevin Rogers, petitioned for a determination of paternity as to the minor children, and in 2006, the court accepted a general magistrate’s recommended order establishing paternity, establishing child support, requiring the father to purchase health and life insurance, and determining a visitation schedule for the father, with various conditions regarding county of residence, telephone contact, and communication between the parties.

Almost immediately after the entry of the order, the father filed a motion for contempt over the mother’s failure to allow visitation and other issues. A general master found that the father had been denied visitation and ordered make-up visitation, which could be enforceable by contempt.

In February 2009 the mother filed a motion for contempt against the father for nonpayment of child support and failure to provide health and life insurance as specified in the original order. The father reciprocated by filing a motion for contempt and sanctions, alleging that the mother continued to violate the visitation provisions of the 2006 order. In his prayer for relief, the father requested that the court find the mother in contempt, order sanctions to include make-up visitation or even a change of custody, and award him attorney’s fees in presenting the motion.

The case proceeded to a hearing on the parties’ motions. The father testified as to his lack of visitation with the children. He testified that with the exception of the weekend before the hearing, his last visit occurred some six months prior to the hearing. He had not received the children for rotating holidays, as specified in the order. In addition, he had not spoken with the children on the telephone for a year. According to the father, the mother told him to stop calling her residence or else she would call the police. When he tried calling the mother’s number in October 2008, it was disconnected. At one point, the father suspected that the mother had moved. Although the father was supposed to be on the contact list at the children’s schools and day cares, the father did not know where his children were attending school until the week before the hearing, even though he had discussed the purchase of uniforms for the school with the mother prior to the beginning of the school year.

The father acknowledged that he and the mother were supposed to communicate via e-mail, pursuant to the 2006 order. He was unsure of the mother’s e-mail address, though they exchanged e-mail addresses at some point. He also admitted to at least one occasion when he could not make a scheduled visit with the children because of his work schedule, explaining that “there will come times when I actually can’t do it, of course.”

The mother also testified at the hearing, claiming that she had been living at her parents’ home with the children for the last six years. The mother claimed that the father had made harassing phone calls to the residence, but she denied ever telling the father that he could not call. The mother testified that she tried to have the children call the father every night at 7:00 p.m., but that there were times when his phone was disconnected. After August 2008, the mother tried to call the father on occasion, as well as the paternal grandmother’s number, which she tried nine or ten times over the past year. The mother also claimed that she left two messages on the paternal grandmother’s telephone regarding Thanksgiving and Christmas visits.

According to the mother, the father visited irregularly with the children. She claimed that sometimes the father would call a day or two before the visits and say that he could not take the children. The mother also testified that the father is the secondary emergency contact for the children at their school.

The paternal grandmother, Sandra Rogers, also testified, denying that she had received any calls from the mother for a year. She further testified that when she spoke with the mother in September 2008, the mother told her that she would do anything in her power to keep the children from seeing the father or the father’s family-

Following the presentation of testimony and argument, the trial court found the mother in contempt. In explaining his finding, the trial judge stated: “One of the things that [was] stated by the mother was that she had in fact listed the father with the school. That’s not what the school says.... Nowhere does the name of the father appear.” The court stated that this information was “totally inconsistent with the testimony given under oath by the mother. Therefore, I find it very difficult to accept or believe anything that [is] uttered from her mouth.” When counsel for the mother pointed out that there appeared to have been an ex parte communication with the school, the judge explained: “I called the school to find out.... I did it to protect the children.” The mother’s counsel then asked for the name of the person at the school whom the judge spoke to, but the judge replied that he “threw away the name,” explaining that the person was not the principal but was someone in the administration office.

The trial judge suggested to the mother that he could enforce the visitation rights of the father by shipping the children from her home to his and letting the mother worry about visitation just as the father had done for the last three years. However, the trial judge stated that he could not do that to the children because they have been with the mother. Instead, the court increased the father’s visitation to every weekend. The court also ordered that the father would receive telephone calls from the children at 7:00 p.m. every night they were staying with the mother. Subsequently, a written order incorporating these rulings was entered, from which this appeal is taken.

We first address the trial court’s independent investigation of the facts of this matter, which served as the linchpin of the court’s evaluation of the evidence. The judge’s investigation constituted a fundamental denial of due process.

With limited exceptions, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding....” Fla. Code Jud. Conduct, Canon 3B(7). The commentary to this canon states, “A judge must not independently investigate facts in a case and must consider only the evidence presented.” As the Supreme Court of South Dakota has explained, “A judge simply cannot be both a judge and [an attorney] searching out facts favorable to [a party] without abandoning his or her judicial neutrality.” State v. McCrary, 676 N.W.2d 116, 125 (S.D.2004). These principles were riot followed in this case.

“[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939). Our supreme court has adhered to the principle that the courthouse is “temple of justice” where all litigants “may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.” Williams v. State, 143 So.2d 484, 488 (Fla.1962). That neutrality is destroyed when the judge himself becomes part of the fact-gathering process.

A trial judge’s decision must be overturned when “the appellate court cannot determine if the trial judge’s actions were harmless because the trial court’s order was based on-communications outside the record.” Wilson v. Armstrong, 686 So.2d 647, 648-49 (Fla. 1st DCA 1996). We have no difficulty in this case finding that this error was harmful to the proceedings. The trial judge specifically stated that he relied upon his independent communication with the school in determining the mother’s credibility. By initiating communication with the children’s school administration and independently investigating the facts, the trial judge abandoned his role as a neutral arbiter of the dispute. The independent investigation served to deny the mother due process. We reverse and remand.

Furthermore, the court erred in substantially modifying the visitation schedule in the order finding the mother in contempt, because that relief had not been properly requested by the father in any pleadings, and the issue of the children’s best interests was never litigated. Section 61.13(4)(c)6., Florida Statutes (2009), provides that when a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court may “upon the request of the parent who did not violate the timé-sharing schedule, modify, the parenting plan if modification is in the best interests of the child.” In this case, however, the relevant inquiry is not whether the trial court had the authority under the statute to modify the visitation, but rather whether a modification of visitation violated the mother’s right to due process under the circumstances.

“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003); accord Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”). Therefore, “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster v. Foerster, 885 So.2d 927, 929 (Fla. 2d DCA 2004).

In Neumann, for example, the former husband filed a motion for contempt and enforcement. However, neither the pleadings nor the notice of hearing requested that the former husband’s visitation schedule be modified. Nonetheless, the trial court entered an order modifying his visitation schedule. The First District reversed the trial court’s order, holding that “by adjudicating an issue not presented by the pleadings, the trial court violated the Former Husband’s right to due process and abused its discretion.” Neumann, 857 So.2d at 373.

Although we affirmed a trial court’s order of contempt which also modified a time-sharing visitation plan in Ginnell v. Pacetti, 31 So.3d 217 (Fla. 4th DCA 2010), the parties had presented evidence and argument concerning the child’s best interests at the hearing, thus fulfilling the requirements of subsection 61.13(4)(c)6., Florida Statutes (2008), which allows a court to, “upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.” One could say that the issue was tried by implied consent.

Here, however, the trial court’s modification of visitation was an abuse of discretion, as the issue was never “properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster, 885 So.2d at 929. While the motion for contempt included a boilerplate request for a change of custody in the prayer for relief, the motion did not allege that the change would be in the children’s best interests, nor was any evidence presented at the hearing on the children’s best interests. From a review'of the transcript, we cannot conclude that the issue was litigated by implied consent. See Pelliccia v. Arce, 867 So.2d 619 (Fla. 2d DCA 2004) (reversing order changing primary custody where, although the father’s contempt motion sought a change of custody in the prayer for relief, the father did not allege in the motion that it would be in the child’s best interests to modify primary residential custody and that issue was never litigated). Therefore, the wife’s due process rights were violated by the court’s granting relief not within the issues tried.

For the foregoing reasons, the order is reversed and remanded for a new proceeding. Because of the independent investigation conducted by the original trial judge, we direct that further proceedings occur before a different judge.

POLEN and TAYLOR, JJ., concur.

      . The father, however, disputed this, testifying in rebuttal that his phone had never been disconnected.

      . The court's rulings as to the mother’s motion are not at issue in this appeal.

      . Notably, the statute, which was amended in 2008, formerly provided that the court may "award custody, rotating custody,'or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award is in the best interests of the child.” § 61.13(4)(c)5„ Fla. Slat. (2007); see also Ch. 2008-61, § 8, Laws of Fla. The First District interpreted this former version of the statute to require three elements for a modification of custody: (1) a custody modification request by the noncustodial parent; (2) a showing that the custodial parent has denied the noncustodial parent’s visitation rights without "proper cause” and; (3) a determination by the trial court that a modification of custody is in the best interests of the parties children. Kaschak v. Kaschak, 890 So.2d 427, 428 (Fla. 1st DCA 2004).


text:
    Sherif KODSY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5021.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.
    Rehearing Denied April 15, 2011.

      Sherif Kodsy, Delray Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat the appeal as being from an order denying an untimely motion for post-conviction relief and affirm.

WARNER, TAYLOR and HAZOURI, JJ., concur.


author: SALTER, J.

text:
    GENERAL STAR INDEMNITY COMPANY, Petitioner, v. ATLANTIC HOSPITALITY OF FLORIDA, LLC., Respondent.
    No. 3D10-3109.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      White & Case, and Raoul G. Cantero and Michelle Holmes Johnson, Miami; Berk Merchant & Sims, and William S. Berk, Melissa M. Sims, Miami, and D. Carolina Lopez, for petitioner.
    Ginsberg & Schwartz, and Arnold R. Ginsberg; Mintz Truppman, and Mark J. Mintz, Miami, for respondent.
    Before WELLS, SALTER, and EMAS, JJ.
   SALTER, J.

General Star Indemnity Company, a commercial property insurer, seeks a writ of certiorari quashing two discovery orders. Atlantic Hospitality of Florida, LLC, is General Star’s insured and is the respondent. Simply stated, Atlantic Hospitality obtained orders compelling two senior officers of General Star to appear for deposition in a windstorm insurance case. General Star filed an affidavit establishing that these senior officers had no role in the investigation or adjustment of Atlantic Hospitality’s claims.

Certiorari is available to review a discovery order which departs from essential requirements of law and causes injury that has no adequate remedy in a subsequent appeal. Banc of Am. Inv. Servs. v. Barnett, 997 So.2d 1154, 1155 (Fla. 3d DCA 2008). The order departs from essential requirements of law because Atlantic Hospitality has not shown that the president’s deposition is “reasonably calculated to lead to the discovery of admissible evidence” under Florida Rule of Civil Procedure 1.280. See Granada Ins. Co. v. Ricks, 12 So.3d 276, 277 n. 1 (Fla. 3d DCA 2009). General Star has shown that its president is a manager, not an adjuster or other employee with personal knowledge of the factual disputes involved in the lawsuit.

The injury that cannot be remedied in a subsequent, plenary appeal is described by General Star’s president in her affidavit:

12. As President and Chief Executive Officer of General Star Management Company, my signature appears on every policy issued by General Star Indemnity Company in the State of Florida as a standard, pre-printed signature on all policies.
13. Because of the size and nature of the insurance business and the number of people insured by General Star, Genesis, and General Re, the insureds and reinsureds of these entities are involved in hundreds of lawsuits throughout the United States. If I were summoned as a deponent to testify in each of those cases, I would not have time to fulfill my duties as an executive officer of Genesis, General Star or General Re, as I could literally be in depositions every single day. It would be extremely disruptive to my responsibilities to any one of these companies and its policyholders if I were to give depositions in cases involving individual insureds, when I was not involved with their claims or policies, as is the case here.
14. I have not participated in the above-captioned litigation, or in the underlying insurance claim, or in the underwriting of the subject policy, and I am filing this affidavit in support of a motion for protective order.

This is an obvious but compelling point. The job of the president of the company is to manage the company, not to fly around the United States participating in depositions about policy-related claim disputes of which the president has no personal knowledge. While the out-of-pocket costs of such an exercise can be calculated and shifted if appropriate at the conclusion of the case (or in a separate sanctions motion), the effect on the company is much more difficult to measure. If all claimants demand and obtain the same right, the chief executive officer manages his or her deposition schedule, not the company.

The case at hand is not complicated. A commercial insured claims a Hurricane Charley windstorm loss occurred in August 2004, and it filed a lawsuit against its insurer in May 2009. Trial and appellate counsel for the insured are too sophisticated and experienced to believe that a pre-printed signature on a standard form policy would subject the Connecticut-based president of the insurer to a deposition, or that receipt (with 40-plus other members of management) of one loss assessment authored by a field-level employee, warrants a deposition of the recipient before the adjuster has been asked about it. Discovery is intended to be part of the “just, speedy, and inexpensive” determination of disputes — not a device to get greater attention at an adversary’s headquarters.

Petition for certiorari granted; orders compelling deposition quashed.

      . The president and chief executive officer of General Star, based in Connecticut, and the corporate secretary, each a pre-printed "signatory” to General Star's form policies. The corporate secretary is no longer an officer or employee of General Star.

      . Atlantic Hospitality argues that the president received a copy of a "major loss advice” signifying some knowledge of the claim. That document apparently was distributed to 43 other addressees as well and does not rebut the president’s affidavit regarding her lack of particular knowledge of the insured’s claim involved in the lawsuit. So far as the record discloses, the person who prepared the major loss advice had not been deposed.

      . General Star has urged us to apply the "apex doctrine” and to expressly require Atlantic Hospitality to depose lower-level employees involved in the insurance dispute before noticing any deposition of senior managers at the “apex” of the company. This concept has been applied in cases involving the deposition of senior state governmental officers (Dep't of Agric. & Consumer Servs. v. Broward County, 810 So.2d 1056, 1058 (Fla. 1st DCA 2002)) and by federal courts in this district (Little League Baseball, Inc. v. Kaplan, 2009 WL 426277 (S.D.Fla. Feb.20, 2009)), but this Court has not expressly adopted the "apex doctrine.” Because we. need not render such a broad holding in this case, we .note but do not adopt the doctrine. The Fourth District also declined to adopt it, observing that:
      [N]o reported Florida appellate court opinion has expressly adopted the doctrine; a district court of appeal cannot adopt a doctrine which arguably conflicts with the discovery rules. Because discovery rules are rules of practice and procedure, only the Florida Supreme Court has this authority. Art. V, § 2(a), Fla. Const. Florida’s discovery rules do not contain a requirement that a party must show that a high level officer has unique or superior knowledge before the officer can be deposed.

        Citigroup, Inc. v. Holtsberg, 915 So.2d 1265, 1269 (Fla. 4th DCA 2005).

      . Fla. R. Civ. P. 1.010.


author: ROTHENBERG, J.

text:
    Baron MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-958.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      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 SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Baron Moore, appeals from his conviction and sentence for the second-degree murder of Keith Culbertson (“the victim”). For the reasons that follow, we affirm.

The evidence presented at trial revealed that the victim was last seen on August 2, 2003, as he was getting into his vehicle, a Toyota 4Runner SUV, which contained numerous Scooby-Doo items. A couple of weeks later, the -victim’s 4Runner was located, and it was later determined that the blood stain on the front seat matched the victim’s DNA. Following a tip, the police found the victim’s decomposed body in a field, and during a search warrant executed at the defendant’s home, they found Scooby-Doo items taken from the victim’s 4Runner.

Dr. Lew, a medical examiner, testified that the victim was shot three times in the face and once in the neck, and over objection, the State introduced a photograph of the victim’s skull. Dr. Lew opined that the victim’s body had been dragged to where it was discovered because small rocks were found in the waistband of the victim’s boxer shorts, which were partially down. Dr. Lew testified that the presence of these rocks in the victim’s waistband suggested that the victim’s pants were down before he was dragged across the field.

At trial, the State presented the testimony of four witnesses to connect the defendant to the victim’s murder. First, Jerome Bozeman testified that when he went to the defendant’s home to obtain a weapon, the defendant offered him a .357 caliber firearm. Bozeman asked the defendant if there were any “bodies” on the gun, meaning had the gun been used in a prior homicide. When the defendant answered “yes,” Bozeman did not take the gun.

Next, Talesha Sprately, the mother of the defendant’s son, testified that on August 6, 2003, she saw the defendant driving a 4Runner, and during the following week while driving the vehicle, she noticed that it contained Scooby-Doo items, and there were stains in the car that had a bad odor. Although Sprately admitted that she told her friend, Ramonta Thompson, that she had seen the vehicle on the news, she denied telling Thompson that she knew where the victim’s body was buried, and she denied telling the police the defendant had admitted to killing the victim. The State, however, impeached Sprately with her prior statement, wherein she told the police the defendant had admitted to killing the victim.

Ramonta Thompson testified that she saw Sprately driving an SUV with the defendant as a passenger, and after seeing the vehicle on the news, she told Sprately to call crime stoppers. Thompson called in the tip, and the next day, both Sprately and Thompson went to the police station. That evening, Sprately told Thompson that when the defendant learned they had gone to the police station, he became angry and he told Sprately that he had dumped the body. Thompson testified that she called the police and gave them this additional information.

Lastly, T’Aundra Reese testified that in July 2003, the defendant gave her a .38 caliber revolver, and in early August 2003, he asked her to return it. A few days later, he returned to her home in an excited state, and borrowed her phone to call Sprately. It appeared to Reese that the defendant’s shirt had a blood stain. Subsequently, the defendant returned to Reese’s home driving an SUV. Reese admitted that she informed the police that the defendant told her he had killed a “faggot” and then hid the body.

Prior to closing arguments, the defense filed a motion in limine seeking to prevent the State from arguing that the murder was the result of a sexual relationship or that, there was sexual activity between the victim and assailant. In granting the motion, the trial court instructed the State as follows: “I don’t want you to have this jury speculate that the defendant had a sexual relationship with the defendant [sic] when there’s no evidence of that.”

During closing arguments, without objection, the State argued that the evidence showed that the defendant knew the victim was gay, and the defendant told another person that if the victim’s body was ever discovered, the victim would be found with his pants down. Thereafter, the State argued: “[W]hen you look at the exact circumstances surrounding the entire incident that happened to Keith, and everything that happened in the close quarters of that car, there Keith is in the front seat of this car with his pants down, and he died?” The defense objected, arguing that there was no evidence to support the prosecutor’s statement. The trial court overruled the objection,' and instructed the jury to rely on its own recollection. Thereafter, at a sidebar conference, defense counsel moved for a mistrial, and the trial court denied the motion.

The trial court instructed the jury as follows on the lesser included offense of manslaughter:

1. Keith Culbertson is dead;
2.a.' Baron Moore intentionally caused the death of Keith Culbertson, or
b. The death of Keith Culbertson was caused by the culpable negligence of Baron Moore.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.
I will now define “culpable, negligence” for you.... [Cjulpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

(Emphasis added).

The jury found the defendant guilty of second-degree murder. The defendant filed a supplemental motion for new trial, arguing that he was entitled to a new trial because the trial court improperly instructed the jury that for manslaughter by intentional act, the jury had to find that the defendant intentionally caused the death of the victim. The motion was denied. The defendant was then sentenced to life in prison. This timely appeal followed.

First, the defendant contends that the trial court abused its discretion by admitting into evidence a photograph of the victim’s skull where the photograph had no relevance to any issue at trial and was highly prejudicial. We disagree.

“Photographs are admissible if they are relevant and not so shocking in nature as to defeat the value of their relevance.” Czubak v. State, 570 So.2d 925, 928 (Fla.1990); see also Almeida v. State, 748 So.2d 922, 929 (Fla.1999) (“To be relevant, a photo of a deceased victim must be probative of an issue that is in dispute.”). In the instant case, the State argued that the photograph of the skull was relevant to establish that the victim was shot three times in the face, causing extensive trauma to the victim’s teeth and upper jaw. The manner in which the victim was shot was relevant to establish an issue that was in dispute — whether the defendant acted with ill will, hatred, spite, or evil intent, .which is an element of second-degree murder. See Hicks v. State, 41 So.3d 327, 330 (Fla. 2d DCA 2010) (stating that second-degree murder, unlike manslaughter, “is committed when' the element of ill will, hatred, spite, or evil intent is present”); see also Light v. State, 841 So.2d 623, 625 n. 2 (Fla. 2d DCA 2003) (noting that the intent required for second-degree murder — ill will, hatred, spite or an evil intent — mirrors the definition of “malice”). The photograph supports the State’s argument that the victim’s death was not the result of an impulsive or reckless act, but rather an act that was committed with ill will, hatred, spite, or evil intent. Finally, the photograph was “not so shocking in nature as to defeat the value of their relevance.” Czubak v. State, 570 So.2d at 928. As recognized by the trial court, “I don’t think there’s a human being that has not seen a skull or a mandible.” Accordingly, we conclude that the trial court did not abuse its discretion by admitting into evidence the photograph of the victim’s skull.

Next, the defendant contends-that the trial court abused its discretion by denying his motion for mistrial following the prosecutor’s comment during closing argument. He argues that the comment suggested that some type of sexual activity occurred in the vehicle or that the defendant committed an uncharged crime, where there was no evidence to support the prosecutor’s argument. See Anderson v. State, 841 So.2d 390, 403 (Fla.2003) (“A ruling on a motion for mistrial is within the trial court’s discretion.”).

A review of the trial transcript reveals that the prosecutor did not suggest the defendant committed an uncharged crime or that some type of sexual activity occurred in the vehicle. Rather, the record reflects that the prosecutor’s statement was made in support of the State’s theory that the victim was killed because of his sexual orientation, and that the defendant acted with malice. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982) (“Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments.”). The testimony clearly reflects that the defendant knew the victim was gay, and after killing the victim, he told T’Aundra Reese that he killed a “faggot.” Further, based on the medical examiner’s testimony, the State’s comment was supported by the evidence. The victim was found in a field with his shorts partially down with his buttocks exposed, pebbles were found in the waistband of his boxer shorts, and the medical examiner testified that the evidence suggested the victim’s shorts were down before he was dragged through the field. Because the complained-of comment was relevant, there was sufficient evidence to support the prosecutor’s comment, and the comment did not violate the trial court’s ruling on the motion in limine, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion for mistrial.

Lastly, the defendant contends that, although defense counsel did not object to the jury instruction given on the lesser included offense of manslaughter by intentional act, pursuant to State v. Montgomery, 39 So.3d 252 (Fla.2010), the instruction constitutes fundamental error. Because the instruction given differs from the instruction given in Montgomery, and the jury was also instructed on manslaughter by culpable negligence, we find no fundamental error.

Unlike the instruction given in Montgomery, in the instant case, the jury received the instruction that was approved by the Florida Supreme Court in 2008, which materially differs from the Montgomery instruction. Specifically, the manslaughter instruction given in Montgomery was subsequently modified and approved by the Florida Supreme Court by adding the underlined language: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an action'which caused death.” In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008); see also Morgan v. State, 42 So.3d 862, 863 (Fla. 4th DCA 2010) (concluding that the instruction given was consistent with the 2008 amendment to the standard jury instructions, the instruction given materially differed from the Montgomery instruction, and no fundamental error occurred).

More importantly, following the Florida Supreme Court’s-decision in Montgomery, this Court, in Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), held that, because the jury was instructed on both manslaughter by intentional act and manslaughter by culpable negligence, there was no fundamental error requiring reversal of Cubelo’s conviction for second-degree murder. Id. at 268; see also Daniels v. State, 46 So.3d 630, 630 (Fla. 3d DCA 2010) (finding no fundamental error where the manslaughter by culpable negligence instruction was also given, and distinguishing Montgomery); Guerra v. State, 44 So.3d 226, 226 (Fla. 3d DCA 2010) (same); Salonko v. State, 42 So.3d 801, 802-03 (Fla. 1st DCA 2010) (distinguishing Montgomery, noting that the jury was also instructed on culpable negligence, and finding no fundamental or reversible error). In the instant case, as in Cúbelo and the aforementioned cases, the jury was instructed on both manslaughter by intentional act and manslaughter by culpable negligence. Therefore, we conclude that there was no fundamental error requiring reversal of the defendant’s conviction for second-degree murder.

Affirmed.

      . We acknowledge that our decision in this respect directly conflicts with the decisions in the First District Court of Appeal in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010), and Williams v. State, 50 So.3d 1207 (Fla. 1st DCA 2010).


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. John Dixon GENTRY, Appellee.
    No. 5D10-2250.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the order entered by the trial court granting John Dixon Gentry’s (defendant) pre-trial motion to suppress evidence seized pursuant to a vehicle stop. Determining that the trial court erred by granting the suppression motion, we reverse.

The defendant was charged by information with grand theft of a motor vehicle, possession of a schedule IV substance, and driving without a driver’s license. He filed a pre-trial motion to suppress evidence seized pursuant to a vehicle stop and search, arguing that suppression was warranted because the investigating officer did not have a well-founded suspicion that the defendant, who was operating the vehicle, was committing, had committed, or was going to commit a crime, and, thus, the stop of the vehicle was illegal.

At the hearing on the motion to suppress, Sergeant Currie of the Holly Hill Police Department testified that, while he was on patrol at 4:00 in the morning, his attention was drawn to the defendant’s vehicle because the vehicle was stopped at a four-way stop with its brake lights engaged for roughly twenty minutes. Currie contacted Officer Blowers of the Daytona Beach Police Department because the defendant’s vehicle was located in Daytona Beach, not Holly Hill, and thus outside Currie’s jurisdiction. Blowers arrived within five minutes and pulled behind the defendant’s vehicle. He observed that the defendant had his head down. The defendant finally proceeded from the stop sign with Blowers following behind. Blowers then activated his emergency lights and conducted a traffic stop of the vehicle. The defendant was secured in Blowers’ patrol car after it was determined that the defendant did not have a valid driver’s license. Blowers and Currie then searched the vehicle and seized several items from within. The officers also discovered that the vehicle was stolen.

The prosecutor argued that suppression of the items seized pursuant to the search of the vehicle was not warranted because the defendant lacked standing to contest the search since the vehicle was stolen. The trial court rejected this argument and granted the defendant’s suppression motion:

I candidly do find that there was reasonable suspicion for the Holly Hill Police Sergeant Currie to — since the car was stopped for in excess of 20 minutes after 4 a.m. in the morning at a stop sign, four-way stop sign not moving, there was reasonable suspicion for Sergeant Currie to notify Daytona Beach police officer, and with the fellow officer rule there was reasonable suspicion for the officer to be suspicious, be it a DUI, falling asleep situation or ill driver, that the driver did have his head down when he drove up behind him, and then when the driver saw the officer getting out of his car, he immediately drove off. I do find that there was reasonable suspicion to stop the driver, approach him, ask for a driver’s license, and then make an arrest when he found that there was no driver’s — that Mr. Gentry did not have a driver’s license. Arizona [v.] Gant, [— U.S. -] [129 S.Ct. 1710 [173 L.Ed.2d 485] (2009) ].
More troubling aspect is the U.S. Supreme Court decision, the recent decision. And I kind of wish the U.S. Supreme Court had addressed some of those other issues, inadvertent discovery, inventory incident to a towing situation, but they did not. And the most recent Florida appellate court decision we have that has been rendered subsequent to U.S. decision — U.S. Supreme Court decision in Gant, that was the K.S. decision out of the Second DCA, of course did not address those, so I guess that’s matters to be coming up.
Just based on the U.S. Supreme Court decision of Gant and then the — what appears to be, at least from what the attorneys have given me, the first— Florida District Court decision — or Florida appellate decision post Gant, that was the State v. K.S., 28 So.3d 985 (Fla. 2d DCA 2010). I will find that the Defendant had been arrested for no valid driver’s license, was handcuffed, was already in the patrol car, had no way— no access to that vehicle. And at least based on the U.S. Supreme — recent U.S. Supreme Court decision, Arizona [v.] Gant, and the March 5, 2010, decision of the Second — Florida Second DCA decision of K.S. I will grant the Defendant’s motion to suppress.

After the trial court issued its ruling, the prosecutor renewed the argument that the defendant lacked standing to challenge the search. However, the trial court again rejected the argument.

The State challenges the trial court’s suppression order, arguing that the trial court erred in concluding that the defendant possessed standing to challenge the legality of the search of the vehicle since it was stolen. We agree. A driver of a stolen vehicle does not possess standing to challenge the search of the vehicle. State v. Singleton, 595 So.2d 44, 45 (Fla.1992)(citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

The defendant properly acknowledges that he lacked standing to challenge the search of the stolen vehicle, but he maintains that the trial court’s suppression order should be affirmed under the tipsy coachman doctrine. Specifically, the defendant contends that the trial court’s suppression order should be affirmed because Blowers lacked the requisite reasonable suspicion to stop the vehicle. We disagree.

The Florida Supreme Court has recognized that an officer is justified in stopping a vehicle to determine the reason for the vehicle’s unusual operation. Bailey v. State, 319 So.2d 22, 26 (Fla.1975). Similarly, our court has explained:

If a police officer observes a motor vehicle operating in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued. “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” [State, Dep’t of Highway Safety & Motor Vehicles v.] DeShong, 603 So.2d [1349] at 1352 [ (Fla. 2d DCA 1992) ]. In determining whether such an investigatory stop was justified, courts must look to the totality of the circumstances.

Ndow v. State, 864 So.2d 1248, 1250 (Fla. 5th DCA 2004) (citations omitted). Here, under the totality of the circumstances, Officer Blowers’ suspicion that the defendant may have been impaired or ill was reasonable and, thus, justified the investigatory stop of the defendant’s vehicle.

The trial court’s order granting the defendant’s motion to suppress is reversed.

REVERSED and REMANDED.

ORFINGER and COHEN, JJ., concur.

      . Jurisdiction is proper pursuant to rule 9.140(C)(1)(B) of the Florida Rules of Appellate Procedure.

      . See § 812.014(2)(c)6, Fla. Stat. (2008).

      . See § 893.13(6)(a), Fla. Stat. (2008).

      . See § 322.03(1), Fla. Stat. (2008).

      . See Robertson v. State, 829 So.2d 901, 906 (Fla.2002)(explaining that under the "tipsy coachman” doctrine, an appellate court can affirm a trial court's ruling if the trial court reached the right conclusion but for the wrong reasons, so long as there is a legal basis supporting the ruling).