author: EMAS, J.

text:
    Maria ROCAMONDE, Appellant, v. MARSHALLS OF MA, INC., Appellee.
    No. 3D10-1088.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Billbrough & Marks, and Geoffrey B. Marks, Coral Gables, for appellant.
    Wicker Law Firm, and Vivianne A. Wicker, Coral Gables, and James Sherman, Tallahassee, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   EMAS, J.

This is an appeal of a summary final judgment entered in favor of Marshalls of Ma, Inc. Finding that genuine issues of material fact remain, we reverse.

On February 2, 2007, Appellant, Maria Rocamonde (Rocamonde) sustained injuries when she tripped over a mobile clothing rack within Appellee’s premises (Marshalls). Rocamonde filed a negligence action against Marshalls, alleging that Marshalls breached its duty to operate and maintain the store in a reasonably safe condition, free from dangerous conditions or concealed perils within its premises or in failing to warn of such conditions. Marshalls denied the allegations of negligence, and asserted that it had no notice of the alleged dangerous condition or, alternatively, that such condition was open and obvious to Roca-monde. Marshalls moved for summary judgment, attaching Rocamonde’s deposition transcript and the deposition transcript of Marshalls’ employee, Marinna Lopez.

Rocamonde’s deposition testimony established that prior to her fall, she visited the Marshalls store weekly and had done so for more than ten years. On the day of the accident, Rocamonde was walking down the center aisle of the store, toward the shoe department. She noticed a temporary clothing rack in the aisle, which she described as “S”-shaped. Clothing was hanging from the top bar of the rack, and Rocamonde did not see the base of the rack. As she turned toward the shoe department, she tripped over a piece of iron protruding from the bottom of the rack, “got tangled up with the S the rack makes, and ... fell forward.” She had seen these “S racks” in the store before, but testified that she “did not know that on the bottom [of the rack] it has some steel that overlaps.” Rocamonde testified that she attempted to walk around the rack and would have walked more to the side to get around the rack had she known that it was sticking out as much as it was.

Marshalls’ employee, Marinna Lopez, testified in her deposition that the rack in question is a mobile “Z”-rack, and is used to transport merchandise to different areas of the store.

At the summary judgment hearing, counsel for Rocamonde argued there were genuine issues of material fact as to whether a hidden protrusion at the bottom of the rack caused Rocamonde’s fall. Mar-shalls argued it had no duty to warn as the danger was not hidden or concealed, but was open and obvious. The court entered final summary judgment in Marshalls’ favor, and in its order, set forth findings of fact, which were, in pertinent part, that Rocamonde fell over a mobile Z-rack used to transport inventory throughout the store, which had been positioned in an aisle; that Rocamonde “tripped over the lower portion of the rack which protruded further than the upper portion”; that Ro-camonde did not look at the base of the rack prior to her fall, but nothing prevented her from doing so; that Rocamonde observed the rack and nothing prevented her from walking around the other side; and that Rocamonde had visited the store once per week for the year preceding her fall and previously had seen the base of the racks.

The granting of summary judgment is subject to de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). The appellate court is required to “consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009), quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). In negligence suits particularly, “summary judgments should be cautiously granted.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id., (citing Williams v. Lake City, 62 So.2d 732 (Fla.1953)). Summary judgment should not be granted “unless the facts are so crystallized that nothing remains but questions of law.” Id., (citing Shaffran v. Holness, 93 So.2d 94 (Fla.1957)).

A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition. Westchester Exxon v. Valdes, 524 So.2d 452, 455 (Fla. 3d DCA 1988).

These two duties are separate and distinct, and a landowner’s compliance with the duty to warn (or the open and obvious nature of the danger) does not necessarily mean the landowner has satisfied the duty to maintain the premises in a reasonably safe condition:

While the open and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980); see also Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989 (Fla. 2d DCA 1980); Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA) (duty to use ordinary care in keeping premises in safe condition).

Hogan v. Chupka, 579 So.2d 395, 396 (Fla. 3d DCA 1991).

The trial court’s order did not address Marshalls’ duty to maintain the premises in a reasonably safe condition. The trial court found “[Rocamonde] had ample opportunity to perceive the condition and positioning of the rack”, and “would not be able to prove that the Defendant was negligent.” The order concluded that “Defendant does not have a duty to warn against a condition that is patent and obvious,” citing Earley v. Morrison Cafeteria Co. of Orlando, 61 So.2d 477 (Fla.1952).

In Earley, the plaintiff filed a negligence claim after he tripped over a floor mat inside the defendant’s cafeteria. The trial court granted summary judgment for the defendant and the Florida Supreme Court affirmed, holding that although

a business invitee is entitled to expect that the proprietor will take reasonable care to discover the actual condition of the premises and either make him safe or warn him of dangerous conditions, ... the proprietor [also] has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. Id. at 478.

The Earley court found that if the floor mat was dangerous at all, the danger was patent and obvious, and the “ordinary use” of plaintiffs senses “would have disclosed it to her.” Id.

In the instant case, the trial court found, as a matter of law, that Marshalls was not negligent, because Rocamonde saw the mobile rack in the aisle, had the ability to look at the base of the rack, and failed to do so. However, “it is the dangerous condition of an object which must be open and obvious, not simply the object itself.” Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 555 (Fla. 3d DCA 2000). Although the cart itself was open and obvious, a primary issue here is whether the protruding bottom portion of the rack— the condition which is alleged to have caused her to trip and fall — was open and obvious. Viewing the record in a light most favorable to Rocamonde, there is evidence that she tripped over the protruding base of the rack which was hidden or obscured from her view. It cannot be said as a matter of law that Rocamonde was aware of this condition. The factual sitúation is similar to that presented in Hildack v. Adventist Health Systems, 673 So.2d 579 (Fla. 5th DCA 1996). The plaintiff, a pedestrian, tripped and fell while attempting to step over rebar protruding from a concrete parking stop. She filed a negligence action, and the trial court granted summary judgment in favor of the parking lot owner. In reversing the summary judgment, the Fifth District Court found that, given the contradictory versions of the incident contained within the plaintiffs own deposition,

there was a reasonable inference that while [plaintiff] saw the concrete parking stop in advance, she did not see the protruding rebar which caused her to trip — and her contradictory references to seeing “the bar” a couple of steps prior to the fall may have been intended to mean the concrete parking stop itself rather than the rebar protruding from it.

Id. at 580.

Because there exist genuine issues of material fact, it was error for the trial court to grant summary judgment. Accordingly, we reverse and remand.


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    Regernald E. RICHARDSON, Father, Appellant, v. Nicole STARLING, Mother, Appellee.
    No. 1D10-2352.
    District Court of Appeal of Florida, First District.
    March 10, 2011.
    Randall J. Silverberg, Jacksonville, for Appellant.
    No appearance for Appellee.
   CLARK, J.

Regernald Richardson appeals the modification of his child support obligations in a paternity action pursuant to chapter 742, Florida Statutes. Because the trial court failed to comply with its own order of referral to the magistrate and with the procedures set out in rule 12.490, Florida Family Law Rules of Procedure, the orders are reversed and this cause remanded.

After the entry of a final judgment of paternity in 2007, the child’s mother petitioned to modify, the child support to be paid by Appellant. She alleged a substantial change in the parties’ circumstances, both in ability to pay child support and expenses needed for childcare. In accordance with rule 12.490, Florida Family Law Rules of Procedure, the petition for modification was referred to a general magistrate and an evidentiary hearing was conducted and transcribed. The parties testified as to their incomes and the magistrate announced that Appellant’s monthly child support payment would increase from $898.00 to $700.00. The magistrate explained the modified payment thusly: “With the daycare costs included, your child support will be $652 a month.” Because Appellant owed arrearages for daycare expenses, the magistrate concluded: “I’m going to make it an even $700 so its going to be 652 plus 48 per month.” Appellant, who was unrepresented at the hearing, indicated that he understood and agreed with the magistrate’s conclusion regarding the new payment amount.

After the hearing, the general magistrate was required by rule 12.490(e), Florida Family Law Rules of Procedure, to file her report and recommendations to the circuit court and copies to the parties. However, here the record does not contain any report or recommendations, and no exceptions to the report or any recommendations were submitted by either party. See Fla. Fam. L.R.P. 12.490(f). It is also impossible to determine from the record and transcript of the hearing whether a proposed order was drafted by counsel for Appellee and copied to Appellant for his review and objections, if any.

Without further proceedings, the trial court entered the orders on appeal — the income deduction order and the order granting modification of child support. The terms of the orders differ from the terms announced by the magistrate at the hearing. Under the orders entered, Appellant’s monthly child support and arrear-age payment was $748.00, plus $225.00 per month for child care and nominal administrative fees. Appellant timely filed his motion for rehearing with an affidavit in support. He asserted under oath that he had never received a copy of any proposed order, magistrate’s report and recommendations, or any other notice that the circuit judge’s orders would require higher payments than those announced by the magistrate at the hearing. Rehearing was summarily denied by the trial court.

Appellant argues that his due process rights were violated by the trial court’s entry of the orders without affording Appellant an opportunity to object to either a magistrate’s recommendations or a proposed order. He relies on several cases holding that when exceptions to a magistrate’s report are filed and a hearing requested, the hearing required by rule 12.490(f), Florida Family Law Rules of Procedure is mandatory. See Yoxsimer v. Yoxsimer, 918 So.2d 997 (Fla. 2d DCA 2006); Knorr v. Knorr, 751 So.2d 64 (Fla. 2d DCA 1999). However, none of the cases referred to by Appellant involve the complete absence of a magistrate’s report and recommendations and this court has been unable to locate such a case.

The trial court’s order of referral to the general magistrate provided that the magistrate “shall file a report and recommendation” after the hearing, and informed Appellant of the procedure under which he might file objections to that report and recommendation. There is no indication in the transcript of the hearing any document filed in the record that the parties agreed to forego these procedures. The final child support amounts in the orders on appeal are substantially greater than the amounts announced by the magistrate at the hearing, and Appellant timely raised his objections to the trial court’s orders in his motion for rehearing. The trial court entered the orders on appeal without following the procedures set out in its own order of referral and required by rule 12.490(e) and (f).

Under these circumstances, the trial court abused its discretion when it entered the orders modifying Appellant’s child support obligations without benefit of the magistrate’s report and recommendations and without affording Appellant the opportunity to file exceptions, as required by rule 12.490(f), Florida Family Law Rules of Procedure.

The Income Deduction Order and the Order Granting Supplemental Petition for Modification of Child Support and Time-sharing are therefore REVERSED and REMANDED for further proceedings to comply with the referral order and rule 12.490(e) and (f), Florida Family Law Rules of Procedure. If a final order modifying child support is entered, it shall refer to the applicable portions of section 61.30, Florida Statutes and include particular findings thereunder, to facilitate appellate review of such order. See Fla. Fam. L.R.P. (Forms) 12.993(b).

VAN NORTWICK and LEWIS, JJ., concur.

      . Rule 12.490(e), Florida Family Law Rules of Procedure provides: “The general magistrate shall file a report that includes findings of fact and conclusions of law, together with recommendations.”
      Rule 12.490(f) provides: "The general magistrate shall file the report and recommendations and serve copies on all parties. The parties may file exceptions to the report within 10 days from the time it is served on them....”


author: BENTON, C.J.

text:
    Antonio MELTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5557.
    District Court of Appeal of Florida, First District.
    March 10, 2011.

      D. Todd Doss, Lake City, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Antonio Melton appeals an order prohibiting his lawyer from appearing on his behalf, and striking as unauthorized a motion for collateral relief that the lawyer had filed. We reverse. We do not agree that section 27.711(11), Florida Statutes (2009) applies where private counsel is appearing pro bono publico. If the lawyer is willing, the statute does not prevent a lawyer to whom a litigant has entrusted his cause from representing her client without charge.

Originally, representing Mr. Melton in his efforts to set aside a murder conviction and death sentence, the Office of Capital Collateral Regional Counsel for the northern region (CCRC) was appointed, pursuant to section 27.7001, Florida Statutes (2009), which authorized CCRC to undertake the “collateral representation of any person convicted and sentenced to death in this state.” Later, when the CCRC northern region was abolished (or “defunded”), see Ch. 2004-240, § 1, at 763, Laws of Fla.; Ch. 2003-399, § 84, at 3619-20, Laws of Fla., codified at § 27.701(2), Fla. Stat. (2009), a lawyer in private practice listed on the registry of capital collateral counsel, D. Todd Doss, Esquire, was appointed to assume Mr. Melton’s representation, at state expense, to continue the collateral attack on his death sentence and the conviction underlying it.

With a view toward eliminating one of the aggravating factors relied on as justification for the death sentence and obtaining a new capital sentencing hearing, Mr. Doss filed, on appellant’s behalf, a motion under Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence of innocence in another case, a case that had eventuated in a prior conviction that had been considered in the first capital sentencing hearing.

The 3.850 motion was filed in the earlier case. In response, the state filed a “Motion to Prohibit Registry Counsel from Representation and to Strike the Successive 3.850 Motion,” arguing that, because Mr. Doss was appointed in appellant’s capital case, he could not file a 3.850 motion in another, non-capital case. The trial court agreed, citing section 27.711(11), Florida Statutes (2009), and State v. Kilgore, 976 So.2d 1066 (Fla.2007), even though Mr. Doss had made clear his willingness to represent appellant without charge, which the trial court acknowledged. Deeming the fact counsel was forgoing compensation immaterial, the trial court stated flatly: “State-appointed, capital counsel, whether from Capital Collateral Regional Counsel or from the private registry, may not represent a capital defendant in any proceeding except the capital proceeding for which the attorney has been appointed to represent him or her.”

The Kilgore court did say that many sections in part IV of chapter 27 evinced an “intent to limit counsel’s role to capital postconviction proceedings,” 976 So.2d at 1069, and invoked section 27.711(H), stating (in obiter dicta) that “registry counsel are expressly prohibited from representing a capital defendant in a postconviction proceeding other than the capital proceeding for which counsel was appointed.” Id. at 1069-70. But the Florida Supreme Court held in Kilgore only that CCRC (the office itself, not private counsel) was “not authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction that was used as an aggravator in support of a sentence of death.” Id. at 1070.

When read together with section 27.7002(4), however, section 27.711(11) merely prohibits registry counsel from representing a capital defendant in a non-capital proceeding at state expense. Under chapter 27, part IV (“Capital Collateral Representation”), “[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter.” § 27.7002(4), Fla. Stat. (2009). The statute does not say — and Kilgore did not decide — that section 27.711(11) prohibits private attorneys from representing a capital defendant in a non-capital case on a pro bono basis.

In examining this question of first impression, we construe the statute against the background of the common law. See, e.g., McGhee v. Volusia County, 679 So.2d 729, 731 (Fla.1996) (noting the “long-established rule that no change in the common law is intended unless the statute either speaks plainly in this regard or cannot otherwise be given effect” (citing Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla.1977))). Construction of section 27.711(11) properly begins, therefore, with acknowledgment of the venerable common law right parties able to retain counsel have to choose which counsel to engage. The Supreme Court has said that “[i]f in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Citizens able to secure private counsel are not required to face the hazards of litigation without representation by counsel whom they have chosen because of confidence in counsel’s integrity, ability and sound judgment.

A broad right to counsel antedating the Sixth Amendment was so well recognized that the framers took it for granted. This explains the relative “paucity of authority dealing with the existence of a right to counsel in civil cases.” Potashnick v. Port City Const. Co., 609 F.2d 1101, 1117 (5th Cir.1980).

In view of the anomalous procedures in British criminal courts, it is not surprising that the framers of the American Constitution specifically provided for a right to retain counsel in criminal prosecutions. Because English practice had recognized the right to retain civil counsel, there was no need to reaffirm the prerogative. Therefore, the sixth amendment’s rejection of the English criminal practice does not represent the denial of a right to retain counsel in civil litigation. The existence of such a right has, indeed, been generally assumed in the American legal system.

Id. (quoting Note, The Right to Counsel in Civil Litigation, 66 Colum. L. Rev. 1322, 1327 (1966)). “[T]he Supreme Court has indicated in its criminal decisions that the right to retain counsel in civil litigation is implicit in the concept of fifth amendment due process.” Id. But it was also clear at common law.

Florida courts recognize the right to counsel in civil proceedings, and specifically in postconviction proceedings. See Steele v. Kehoe, 724 So.2d 1192, 1194 n. 3 (Fla. 5th DCA 1998) (“We are suggesting that a defendant has the right in all 3.850 cases to employ counsel if one is not appointed.[]”). In any judicial proceeding, a party has the right to be represented by counsel of the party’s choosing, where counsel is willing.

Because trial procedure is based on the adversary system, which our jurisprudence recognizes to be the best means of arriving at a just and legal result in controversies between citizens, the courts generally recognize that an individual has the right to counsel of his or her choice. Although the right to counsel is not absolute in a civil proceeding, judicial protection of that right ensures continued public confidence in our system of justice.

Myers v. Siegel, 920 So.2d 1241, 1243 (Fla. 5th DCA 2006) (footnote & citations omitted). See also Brooks v. AMP Servs. Ltd., 979 So.2d 435, 439 (Fla. 4th DCA 2008) (finding that a court’s broad discretion to deny a motion to appear pro hac vice “must be balanced by a party’s right to representation by counsel of choice”).

Courts’ reluctance to disqualify a lawyer bears witness to the importance of the right to counsel of one’s choice. See Walker v. River City Logistics Inc., 14 So.3d 1122, 1123 (Fla. 1st DCA 2009) (“Disqualification of counsel is an extraordinary remedy.”). The Fourth District has elaborated:

“Disqualification of a pai'ty’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes. Confronted with a motion to disqualify, a court must be sensitive to the competing interests of requiring an attorney’s professional conduct and preserving client confidences and, on the other hand, permitting a party to hire the counsel of choice.

Minakan v. Husted, 27 So.3d 695, 698 (Fla. 4th DCA 2010) (quoting Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004)). Similarly, rules regulating lawyers’ withdrawal from law firms recognize that care must be taken not to intrude unjustifiably on the right clients have to counsel of their choice. It is also the established rule that

a lawyer may not offer or enter into a restrictive covenant with the lawyer’s law firm or other employer if the substantial effect of the covenant would be to restrict the right of the lawyer to practice law after termination of the lawyer’s relationship with the law firm. The rationale for the rule is to prevent undue restrictions on the ability of present and future clients of the lawyer to make a free choice of counsel.

Restatement (Third) of the Law Governing Lawyers § 13 cmt. b (1998). The Rules Regulating the Florida Bar clearly enunciate this principle: “Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do shall have any effect on the exercise of that right.” R. Regulating Fla. Bar 4-5.8(b). Even the Legislature’s competence in this area is circumscribed. See Art. V, § 15, Fla. Const. (“The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”).

In sum, section 27.711(11) should not be interpreted to cut off the long-established right of a party to retain counsel of his or her choice. Reading the prohibition in section 27.711(11) in pari materia with section 27.7002(4), providing that “[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter,” it is apparent that the Legislature intends to contain the costs of collateral representation, not to strip a disfavored group of rights all citizens have long enjoyed. Section 27.711(11) delimits the proceedings in which registry counsel may represent a capital defendant at state expense. But the same lawyer, acting pro bono publico, may represent a capital defendant in proceedings other than capital collateral proceedings without charge.

Reversed and remanded.

PADOVANO and CLARK, JJ„ concur.

      . Section 27.710, Florida Statutes (2009), creates a "registry” for attorneys in private practice willing to represent capital defendants in collateral proceedings. See Olive v. Maas, 811 So.2d 644, 655 (Fla.2002) ("Because the Legislature created [the] registry of attorneys to alleviate CCRC's workload, it is clear that registry attorneys stand in a position similar to CCRC lawyers.").

      . Mr. Doss recently received the Florida Bar President's Pro Bono Service Award for the Third Judicial Circuit. See Jan Pudlow, Kerrigan wins Simon Pro Bono Service Award, Fla. Bar News, Feb. 15, 2011, at 1.

      . The motion also sought dismissal on grounds appellant’s motion was successive, but the trial court did not reach that issue. Nor do we.

      . Section 27.7002(4), Florida Statutes (2009) provides that "[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter,” (emphasis supplied), while section 27.711(11), Florida Statutes (2009) provides:
      An attorney appointed under s. 27.710 [the registry statute] to represent a capital defendant may not represent the capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.
      The specific controls over the general. See Stoletz v. State, 875 So.2d 572, 575 (Fla.2004) (" ‘[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.' ” (quoting McKendry v. State, 641 So.2d 45, 46 (Fla.1994))). "The doctrine of in pari materia requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent." Zold v. Zold, 911 So.2d 1222, 1229 (Fla.2005).

      . The supreme court accepted the State’s argument that restrictions in section 27.711(11) would logically apply to CCRC, as well, saying that, although the statutes did not specifically prohibit CCRC from representing a capital defendant in a non-capital collateral challenge, neither did they expressly authorize CCRC to do so.

      . Section 27.706, Florida Statutes (2009) prohibits lawyers employed by CCRC from engaging in the private practice of law on anybody’s behalf. The parties do not dispute that a lawyer listed on the registry remains a private practitioner free to represent other clients in other matters.

      . "The common and statute laws of England which are of a general and not a local nature, ... down to the 4th day of July, 1776, are declared to be of force in this state." § 2.01, Fla. Stat. (2010). See State v. Egan, 287 So.2d 1, 3 (Fla.1973) (noting that "for more than 100 years” the common law of England has been in effect in Florida "except insofar as it has been modified or superseded by statute”); Fullerton v. Fla. Med. Ass’n, Inc., 938 So.2d 587, 592 (Fla. 1st DCA 2006) (“[A] statute which conflicts with a rule of common law is required to be construed strictly, with the result that no change in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot otherwise be given effect.”).

      . "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. But postconviction proceedings are not "criminal prosecutions." Their historical antecedent is habeas corpus, which is deemed civil, not criminal. This explains why the Sixth Amendment affords no right to appointed counsel in a postconviction proceeding. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969), and we decline to so hold today.”).

      . The Florida Constitution does confer a right to counsel in certain postconviction proceedings. See Williams v. State, 472 So.2d 738 (Fla. 1985). Appellant makes no claim in the present case to a right to appointed counsel under Williams and its progeny.


author: WOLF, J.

text:
    Kurt S. BROWNING, Florida Secretary of State, Appellant, v. FLORIDA PROSECUTING ATTORNEYS ASSOCIATION, INC.; Florida Public Defender Association, Inc.; and State Employees Attorneys Guild, Appellees.
    No. 1D10-4532.
    District Court of Appeal of Florida, First District.
    March 10, 2011.

      Ashley E. Davis, Assistant General Counsel, Department of State, Tallahassee; and Craig D. Feiser of Volpe, Bajalia, Wickes, Rogerson & Wachs, P.A., Jacksonville, for Appellant.
    Arthur I. Jacobs of Jacobs Scholz & Associates, LLC, Fernandina Beach, for Florida Prosecuting Attorneys Association, Inc.; Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Florida Public Defender Association, Inc.; and Thomas W. Brooks and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, for State Employee Attorneys Guild, Appellees.
   WOLF, J.

Appellant, Secretary of State Kurt S. Browning (Secretary), seeks review of a trial court’s order granting declaratory judgment in favor of appellees, the Florida Prosecuting Attorneys Association, Inc. (FPAA), Florida Public Defenders Association, Inc. (FPDA), and the State Employees Attorneys Guild (SEAG), declaring a budgetary proviso prohibiting the payment of Florida Bar (Bar) dues from funds appropriated to state agencies to be unconstitutional. We reverse, determining the trial court incorrectly concluded the budgetary proviso is unconstitutional.

On June 15, 2010, the FPAA filed a petition for a writ of mandamus in the Florida Supreme Court challenging the constitutionality of a proviso in section 8(3)(a)4 of House Bill 5001, which prohibited state agencies from paying Bar dues for that fiscal year. The FPAA argued the challenged proviso impermissibly amended existing law in section 216.345, Florida Statutes (2009), which authorized the payment of those dues. On June 30, 2010, the Florida Supreme Court transferred the petition to the Circuit Court of the Second Judicial Circuit for consideration as an action for declaratory judgment. The FPDA and SEAG claimed they, too, were subjected to the same harms suffered by the FPAA and were granted permission to intervene as plaintiffs on July 19, 2010. The trial court issued its Final Declaratory Judgment on August 18, 2010, in favor of the FPAA and intervenors. In the order, the trial court recognized its obligation to uphold a legislative enactment if possible to do so, and its limited authority to strike legislation only when the legislation plainly violates the Florida Constitution.

However, the trial court found no possible way to construe the challenged proviso, or section 216.345, in a way for the proviso to be upheld. In its ruling, the trial court stated section 216.345 “confers upon the head of any component of state government the right to pay dues for membership in a bar association from funds allocated to the component of state government if the agency head elects to do so.” For this reason, the court held because the challenged proviso eliminated the discretion of agency heads to pay Bar dues out of its allocated state funds, the proviso directly contradicted section 216.345, which authorizes discretion in the payment of such dues. Thus, the trial court declared the proviso to be unconstitutional in violation of article III, section 12 of the Florida Constitution, and ordered the Secretary to expunge the challenged proviso from the official records of the state.

The Florida Supreme Court in Brown v. Firestone found article III, section 12, and article III, section 6 of the Florida Constitution rendered a proviso within an appropriations bill unconstitutional if it conflicted with or modified an existing substantive law. Brown v. Firestone, 382 So.2d 654, 663-664 (Fla.1980). According to Brown, the Florida Legislature has authority to appropriate funds subject to two constitutional restrictions. First, article III, section 12 of the Florida Constitution requires “ ‘laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.’ ” Brown, 382 So.2d at 662 (quoting art. Ill, § 12, Fla. Const.). Second, article III, section 6 requires “‘every law shall embrace but one subject and matter properly connected therewith.’ ” Brown, 382 So.2d at 663 n. 4 (quoting art. Ill, § 6, Fla. Const.). These single subject requirements have two purposes: to prevent “logrolling,” and “to ensure the integrity of the legislative process in substantive lawmaking.” Brown, 382 So.2d at 663-64.

In interpreting these articles, Brown established two principles regarding appropriations: “First, an appropriations bill must not change or amend existing law on subjects other than appropriations.” Id. at 664. Second, article III, section 12 of the Florida Constitution only allows a qualification or restriction on an appropriation if it “directly and rationally relates to the purpose of an appropriation and, indeed, if the qualification or restriction is a major motivating factor behind enactment of the appropriation.” Id. The purpose of this test is to examine whether the Legislature has determined an appropriation is “worthwhile or advisable only if contingent upon a certain event or fact,” or whether “the qualification or restriction [is] being used merely as a device to further a legislative objective unrelated to the fund appropriated.” Id.

The proviso in question is contained in section 8(3)(a)4 of House Bill 5001. This proviso states, “no agency may expend funds provided in this act for Bar dues.” Fla. H.B. 5001, § 8(3)(a)4, at 401 (2010). Appellees claim this proviso violates section 216.345, which provides:

Professional or other organization membership dues; payment
(1) A state department, agency, bureau, commission, or other component of state government, or the judicial branch, upon approval by the head or the designated agent thereof, may utilize state funds for the purpose of paying dues for membership in a professional or other organization only when such membership is essential to the statutory duties and responsibilities of the state agency.
(2) Upon certification by a professional or other organization that it does not accept institutional memberships, the agency or branch may authorize the use of state funds for the payment of individual membership dues when such membership is essential to the statutory duties and responsibilities of the state agency or judicial branch by which the individual is employed. However, approval shall not be granted to pay membership dues for maintenance of an individual’s professional or trade status in any association or organization, except in those instances where agency or branch membership is necessary and purchase of an individual membership is more economical.

§ 216.345, Fla. Stat. (2009) (emphasis added). The issue of whether this statute includes authorization to pay Bar dues has previously been addressed by Florida’s Attorney General. In 1977, immediately following the enactment of the statute, the Attorney General concluded because Bar dues are part of an attorney’s professional or trade status, the plain language of section 216.345(2) prohibited payment of these dues by an agency unless the agency’s own membership was necessary and individual payments were considered more economical. See Op. Att’y Gen. Fla. 247 (1977). While the opinion recognized State agencies were permitted to pay certain membership dues if the requirements in section 216.345 were met, these memberships would not include “professional” or “trade status” memberships. See Op. Att’y Gen. Fla. 247 (1977); Op. Att’y Gen. Fla. 19 (1984).

The Attorney General has consistently delineated that payment of dues for membership in the Bar was not permitted by section 216.345 because the payment of these dues was required to maintain an individual’s professional trade status. See Op. Att’y Gen. Fla. 247 (1977) (stating section 216.345 does not authorize payment of Bar dues for the public defender and his assistant from his agency’s appropriation); Op. Att’y Gen. Fla. 17 (1984) (stating section 216.345 does not authorize the payment of Bar dues for the public defender and his full time assistants); Op. Att’y Gen. Fla. 64 (1987) (stating a state attorney is not authorized to pay from appropriations for his office the dues of the Bar for himself and his assistant state attorneys).

The interpretations rendered by the Attorney General opinions are not unreasonable given the plain language of the statute prohibits payments to maintain an individual’s professional or trade status. As such, these opinions, coupled with the deference we are required to provide to the statute, establish that the proviso enacted by the Legislature does not conflict with Florida law. Accordingly, the ruling of the trial court granting declaratory judgment in favor of appellees is REVERSED.

WEBSTER and ROBERTS, JJ., concur.

      . There is no serious contention that the proviso in question was enacted for any policy purpose other than limiting the ability to expend the funds in a particular manner; we, therefore, do not address this issue.

      . Attorney General opinions are not binding on Florida courts and can be rejected. However, this court has previously held Attorney General opinions "are entitled to great weight in construing the law of this State.” Beverly v. Div. of Beverage of Dep't of Bus. Reg., 282 So.2d 657, 660 (Fla. 1st DCA 1973). Furthermore, "[t]he fact that two different Attorney Generals [sic] have reached the same conclusion with respect to the exact issue now before us lends considerable persuasive influence to their opinions and weighs heavily in favor of our conclusion herein.” Id.

      . While appellees argue another plausible explanation behind the statute’s interpretation, this court is not required to accept this alternative explanation because the court has an obligation to give a statute a constitutional construction where such construction is possible. Tyne v. Time Warner Entm't Co., 901 So.2d 802, 809 (Fla.2005) (finding the court has a duty, if reasonably possible, to resolve doubts as to the validity of a statute in favor of its constitutional validity).

      . In reversing, we recognize the financial burdens on underpaid governmental attorneys. While it is not unreasonable to allow elected officials such as state attorneys and public defenders to exercise discretion in determining whether their budget allows for the payment of Bar dues for their employees, it is for the Legislature and not this court to change the law in this area.


author: PER CURIAM.

text:
    Dennis A. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6142.
    District Court of Appeal of Florida, First District.
    March 10, 2011.
    Dennis A. Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Dennis A. Jones is hereby afforded a belated appeal from judgment and sentence in Duval County case number 2009-CF-012769-AXXX-MA. Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.


text:
    Willie Dan ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4807.
    District Court of Appeal of Florida, First District.
    March 10, 2011.

      James T. Miller, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Willie Dan Roberts, seeks review of the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant was convicted of burglary of an occupied structure and grand theft. The basis for the burglary conviction was that Appellant broke a window display case from the outside of a jewelry store while the store was open for business and was occupied by the store owner. In his motion, Appellant alleged that his trial counsel was ineffective for failing to preserve the issue of whether the area burglarized by Appellant was an occupied structure. Appellant argued that the display case, and not the jewelry store, was the relevant “structure,” which must have been occupied at the time of the burglary to support his conviction. The trial court summarily denied Appellant’s motion, finding that the display case was too small to be occupied or unoccupied and that Appellant’s counsel would never have made that argument. We find that the trial court erred in determining that counsel would never make the proposed argument.

Appellant alleged that defense counsel moved for judgment of acquittal on the burglary charge on the basis that the business was open to the public; thus, Appellant could not be guilty of burglary of an occupied structure. See § 810.02(l)(b), Fla. Stat. (2007) (defining burglary as “entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public....”). Appellant also alleged that the State argued in rebuttal that the display case itself was not open to the public and that the trial court denied the original motion. Thus, contrary to the postconviction court’s assertion, it would have been reasonable for defense counsel to argue that the display case was not open to the public. See Knight v. State, 983 So.2d 64, 64 (Fla. 3d DCA 2008); Davis v. State, 988 So.2d 1125, 1126; Dakes v. State, 545 So.2d 939, 940 (Fla. 3d DCA 1989); see also Colbert v. State, 49 So.3d 819, 821-22 (Fla. 4th DCA 2010); Collett v. State, 676 So.2d 1046, 1047 (Fla. 1st DCA 1996). Accordingly, we reverse the trial court’s summary denial of Appellant’s postconviction motion, and remand for either attachment of those portions of the record conclusively showing that Appellant is entitled to no relief, or for an evidentiary hearing.

REVERSED AND REMANDED.

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Yvette HANNON, as personal representative of the Estate of Nathan Scott Hannon, and on behalf of all survivors, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., d/b/a Shands at Live Oak, Respondent.
    No. 1D10-3688.
    District Court of Appeal of Florida, First District.
    March 10, 2011.
    James W. Gustafson, Jr., of Searcy Den-ney Scarola Barnhart & Shipley, P.A., Tallahassee; John S. Mills of The Mills Firm, P.A., Jacksonville, for Petitioner.
    Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of certiorari stems from a post-verdict court order granting, in part, Respondent’s request to interview jurors. Respondent’s motion was filed 18 days late with the trial court. See Fla. R. Civ. P. 1.431(h) (requiring motion to interview jurors to be filed within 10 days after the verdict is rendered). Although rule 1.431(h) gives the court discretion to accept an untimely motion to interview jurors if “good cause is shown,” in its order, the trial court struck through an express finding that good cause existed, yet it “deemed” the motion timely filed. We hold that the trial court departed from the essential requirements of the law by granting Respondent’s motion without finding that good cause existed to excuse the untimely filing. We note, furthermore, that other means are available to attorneys who seek to communicate with jurors. See R. Regulating Fla. Bar 4 — 3.5(d)(4); see also Ramirez v. State, 922 So.2d 386, 389 (Fla. 1st DCA 2006).

Petition for writ of certiorari is GRANTED. The order granting juror interviews is quashed, and we remand for proceedings consistent with this decision.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.


text:
    Ira La’Ray LANE, Appellant, v. FLORIDA MEDICAL EXAMINERS COMMISSION, et al., Appellees.
    No. 1D10-3613.
    District Court of Appeal of Florida, First District.
    March 10, 2011.

      Ira La’Ray Lane, pro se, for Appellant.
    Richard C. Rockenstein, Assistant General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

This is an appeal from the denial of a petition for writ of mandamus. We treat the appeal as a petition for writ of certio-rari, see Florida Rule of Appellate Procedure 9.040(c), Sheley v. Florida Parole Commission, 703 So.2d 1202, 1205 (Fla. 1st DCA 1997), and deny the petition on the merits.

DENIED.

VAN NORTWTCK, THOMAS, and MARSTILLER, JJ., concur.


author: HAWKES, J.

text:
    STATE of Florida, Appellant, v. Dana S. ADKISON, Appellee.
    No. 1D10-890.
    District Court of Appeal of Florida, First District.
    March 16, 2011.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, for Appellant.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, for Appellee.
   HAWKES, J.

A jury convicted Dana Adkison of Grand Theft over $100,000.00 and Unlawful Financial Transactions ($20,000.00-$100,000.00). The trial court sentenced her to fifty-six months in prison followed by twenty years of probation. The prison sentence was the minimum sentence permitted based on her Criminal Punishment Code Scoresheet. After exhausting her appellate remedies without success, Adki-son filed a motion seeking a downward departure on the prison portion of her sentence. The circuit court granted the motion. We reverse and find the record is void of any evidence supporting the court’s decision that a downward departure was legally permissible.

Facts

At trial, the State demonstrated Adkison had been involved in a twenty-two month scheme that involved theft of tax payments, “lapping” of deposits and “check kiting.” Adkison used three principle elements in executing her “scheme.” The account at Bank A (her personal account), the account at Bank B (an account opened in the name of her young daughter), and the funds stolen from the Santa Rosa County Tax Collector’s Office (her employer over the twenty-two months).

Adkison would write checks from Bank A to pay bills, debts, and other miscellaneous household expenses. The Bank A account would have insufficient funds to cover the various checks Adkison drew against it. Before the Bank A account could be overdrawn, Adkison would write a check from her Bank B account and deposit it with Bank A. This would satisfy the potential overdraft from the Bank A account, but would leave Bank B with insufficient funds to cover the obligation Adki-son created to cover Bank A. However, before Bank B could discover the overdraft, Adkison would write another check from her Bank A account and use it to satisfy the overdraft in Bank B. Adkison would repeat this process with the amount of money “floating” between the two banks constantly increasing.

The flaw in this and other check kiting schemes is that without infusions of new capital, they fail rapidly. Here, Adkison avoided this problem by depositing thousands of dollars stolen from the Tax Collector’s Office. Over the twenty-two month lifespan of the scheme, Adkison used her position at the Tax Collector’s Office and knowledge as to how the Tax Collector’s system worked to manipulate their internal auditing system so that the stolen funds went undetected. Success required Adkison to carefully plan and track each deposit to prevent the Santa Rosa County Tax Collector from discovering the theft. Adkison also had to constantly monitor her own accounts to avoid her banks discovering her check kiting.

Eventually, she stumbled and a deposit bag was sent to the bank without the funds indicated on the deposit ticket. The bank called the Tax Collector’s Office about the apparent oversight, which triggered an investigation. Adkison gave various explanations for the stolen funds, requested her husband not be told and resigned.

At trial, the State was required to present expert witnesses, numerous spreadsheets and financial records to demonstrate and explain to the jury how the complex scheme operated. The jury found Adkison guilty of Count 1 — Grand Theft over $100,000.00; and, Count 2 — Unlawful Financial Transactions ($20,000.00-$100,000.00). After this Court affirmed the direct appeal of her conviction, Adki-son filed her Motion to Modify Sentence with the circuit court. The judge granted the motion and suspended the prison portion of the sentence. In the final order granting the downward departure, the judge expressly cited the need for restitution to the “citizens of this community,” and the unsophisticated nature of the offense as reasons for departure.

Departure Sentences

A sentence consisting of a suspended prison term followed by a probationary period is treated as a downward departure sentence. See State v. White, 842 So.2d 257 (Fla. 1st DCA 2003). Valid reasons must exist for the downward departure. Id. (citing State v. Powell, 703 So.2d 444, 446 (Fla.1997)).

To impose a valid downward departure sentence, a trial court must determine (1) whether there is a factually supported, legal ground for departure; and (2) whether departure is the best sentencing option for the defendant. See Demoss v. State, 843 So.2d 309, 311-12 (Fla. 1st DCA 2003). When reviewing the validity of a downward departure sentence, this Court must determine whether the grounds for departure were supported by competent substantial evidence; and, whether the trial court abused its discretion in departing from the statutory sentencing guidelines. Id. We do not address whether departure is the best sentencing option for Adkison.

A downward departure from the lowest permissible sentence, as calculated pursuant to section 921.0024, Florida Statutes (2007), is prohibited absent competent substantial evidence that supports cireum-stances or factors that reasonably justify departure under the law. The record fails to support departure on either of the grounds the trial court relied on.

§ 921.0026(2)(e) (Need for Restitution)

Pursuant to section 921.0026(2)(e), the “Need for Restitution” only qualifies as a mitigating circumstance justifying a downward departure when “the need for payment of restitution to the victim outweighs the need for a prison sentence.” See also Demoss v. State, 843 So.2d 309 (Fla. 1st DCA 2003).

To warrant downward departure based on the “need for restitution,” the record must contain competent substantial evidence of the victim’s actual need for restitution. See id. (holding downward departure was inappropriate where the record was void of any evidence indicating the victim had a “pressing need” for restitution); see also State v. Quintanal, 791 So.2d 23, 24-25 (Fla. 3d DCA 2001) (reversing downward departure sentence where victims lost approximately $200,000.00 and preferred restitution over incarceration, but no evidence was presented as to victims’ need for restitution); and see State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000) (reversing downward departure sentence based on need for restitution outweighing need for incarceration, where defense counsel failed to present any evidence that victims requested restitution or expressed any particular need for restitution).

As part of the original sentencing order, the trial court ordered Adkison to pay the Tax Collector $250.00 in restitution (an insurance deductible) and $21,597.00 to Travelers Insurance (the Tax Collector’s insurance provider). The record contains no testimony or evidence about either entity having a “pressing need” for these amounts. Although the judge was “convinced that restitution of the moneys due to the [cjitizens of this community is paramount,” the court had no evidence to assess the citizens of Santa Rosa County’s “pressing need” to recover $250.00, or whether that need outweighed the obligation to impose the punishment Adkison earned under the Criminal Punishment Code Scoresheet the Legislature has statutorily mandated. Thus, a need for restitution cannot justify a downward departure under these facts.

§ 921.0026(2)(j) (Unsophisticated Manner)

Pursuant to section 921.0026(2)(j), the “Unsophisticated Manner” of the crime qualifies as a mitigating circumstance under which a departure from the lowest permissible sentence is reasonably justified if “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”

The plain language of section 921.0026(2)(j) indicates departure is warranted if three elements are established: (1) The offense must be committed in an unsophisticated manner; (2) The offense constitutes an isolated incident; and (3) The defendant must show remorse. Record evidence must exist to find each of these elements.

Accepting arguendo Adkison showed remorse at the mitigation hearing sufficient to satisfy section 921.0026(2)(j), it remains difficult to understand how the trial court came to the conclusion that the other two elements were supported by the evidence.

We have held that “[A] crime is committed in an unsophisticated manner when the acts constituting the crime are ‘artless, simple and not refined.’ State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009) (quoting Staffney v. State, 826 So.2d 509, 512-13 (Fla. 4th DCA 2002)) (emphasis added).

As detailed above, Adkison was involved in a very complex criminal scheme that spanned a twenty-two month period. Over this period, she successfully concealed the theft of over $100,000.00. She not only prevented her employer from discovering the theft, she also successfully kept her various personal banking institutions from discovering her illusory financial status. To do this, she had to (1) carefully time her withdrawals to avoid the suspicion of her various banks’ fraud prevention programs; (2) coordinate deposit dates to disguise insufficient funds; and (3) make special effort to prevent her employer from detecting the thousands of dollars stolen. She was required to constantly monitor each account and track various deposits, perform fraudulent “reversals” and engage in “lapping” deposits to conceal her scheme. But for her sending the wrong bag to the Tax Collector’s bank, Adkison’s scheme would have lasted longer than the twenty-two months it spanned. Such a complex endeavor can hardly be labeled artless, simple or unrefined and any scheme that requires such efforts, over twenty-two months, cannot reasonably be said to be an isolated incident.

Accordingly, because the record does not contain competent substantial evidence that supports the circuit court’s downward departure, based on a need for restitution or the isolated and unsophisticated nature of the offense, we reverse the order modifying Adkison’s original sentence.

REVERSED.

WOLF and WETHERELL, JJ., concur.

      . The State was able to prove Adkison had permanently deprived the Tax Collector's office of over $20,000.00 and by use of the expert witnesses and account representatives also proved Adkison, at least temporarily, deprived the Tax Collector’s office of over $100,000.00. Either permanently or temporarily depriving the Tax Collector's Office of the funds qualifies as a violation of Florida's theft statute.


text:
    Kenneth James O’BRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5396.
    District Court of Appeal of Florida, First District.
    March 16, 2011.

      Nancy A. Daniels, Public Defender and Edgar Lee Elzie, Jr. Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Kenneth James O’Brien (“Appellant”) appeals his convictions for sexual battery on a child less than 12 years old. He argues the trial court erred in admitting into evidence his confession, his laptop computer and testimony about child pornography saved on the laptop. We sustain without further discussion the trial court’s rulings as to the laptop and its contents. But we agree the lower court should have suppressed the confession. Because we cannot beyond a reasonable doubt say the error was harmless, we reverse Appellant’s convictions.

Alachua County Sheriffs deputies arrested Appellant the night of September 14, 2008, at the victim’s home. One of the arresting deputies started to elicit information from Appellant about what occurred. When Appellant began explaining that he and the victim had been “just messing around” the deputy advised him of his Miranda rights. Appellant unequivocally indicated his desire to have an attorney present during questioning, and the deputy ceased the interrogation and placed Appellant, handcuffed, in the patrol car. Thereafter, discourse between Appellant and deputies concerned the tightness of the handcuffs, Appellant’s hiccups, and his requests for cigarettes, water and air conditioning.

After roughly 40 minutes, another officer, Sergeant Crews, approached Appellant, who was still sitting in the cruiser, and initiated the following conversation:

... Sergeant with the Sheriffs Office. How you doing, Sergeant.
—would you stand up for a minute? These things are killing me.
You want to stand up? How about you just swing your legs—
Yeah, that’s fíne. That’s fíne. I just— Ah. My legs — I never been in the back of a squad car in my life.
Never been arrested?
No, sir. Never ever.
Do you have an attorney?
No, sir.
No?
No, sir.
Tell you what I — okay—do you have — I need information — involving the crime—
And you told the deputy that you think you need to have an attorney present?
Yes, sir.
Are you willing to contact an attorney tonight and have them present, or do you want to reconsider it and — maybe a detective—
Nah, I’m not sure. I — I don’t want to stick my foot in my mouth. You know what I’m saying? But — actually, they’re real good friends of mine—
So would you be willing to go to the station and talk to—
I’m going to the station, anyway, so it doesn’t make any difference, does it, jail or the station.
We’d appreciate it.
Oh, I know you do.
The long and short of it — You did what you did.
Exactly, exactly.
It’s done — it’s history. So whatever you did is what you did.
Right.
Now, your cooperation is — but an 11-year-old is going to be interviewed by— he’s going to be interviewed by some specialist.
Yes, sir.
In this type of crime. And go forward with the evidence — What happened is going to come out one way or the other. I’d rather just get it over and, you know, try and keep it as simple as possible. I don’t want him to go through all kind of crap.
So you would be willing to—
I don’t want him to be in harm’s way so — I don’t want to go through all kinds of crap.
I understand.
Whatever I say — like you say, it’s going to come out, anyway, so it don’t matter. And I don’t want to hurt him, you know, as much as possible.

The sergeant apparently left Appellant at that point. Appellant continued talking to the other deputies on scene but made no incriminating statements, and no one posed questions to Appellant, directly or indirectly, about the incident leading to his arrest.

Approximately two hours after arresting Appellant, deputies transported him to the Sheriffs Office. There a detective advised him, again, of his Miranda rights. The detective then asked Appellant, “Do you understand each of these rights that I explained to you?” Appellant answered, ‘Tes, sir.” Seeking to ensure Appellant’s apparent waiver of the right to an attorney was voluntary, the detective asked a series of questions ending with “So you did this of your own free will?” Appellant answered, ‘Tes, sir.” And the interrogation proceeded.

Appellant went on to admit performing oral sex on the child victim, touching the victim underneath his pants while the two were in the victim’s swimming pool, and showing the victim adult pornography on the Internet. He denied the victim performed oral sex on him. He also said he threw his laptop computer into the wooded area behind the house after the victim’s parents called police.

Appellant moved to suppress his statements asserting that he invoked his right to counsel but made the incriminating statements after law enforcement unlawfully reinitiated questioning. The trial court denied Appellant’s motion, finding (as pertinent to Appellant’s argument on appeal) that

although it is evident that [Appellant] initially invoked his right to counsel ... he did make a later voluntary decision, after the second reading of Miranda, to waive his right to have counsel present .... Law enforcement did speak with him after the first invocation of his right to counsel, although I don’t find that it rose to the level of interrogation.

When reviewing a court’s ruling on a motion to suppress, we presume the court’s findings as to historical facts correct, but we review de novo the court’s application of the facts to a constitutional standard. See Cuervo v. State, 967 So.2d 155, 160 (Fla.2007); Brye v. State, 927 So.2d 78, 80-81 (Fla. 1st DCA 2006). The standards applicable here are the following. Waiver of one’s Miranda rights must be made voluntarily, knowingly and intelligently. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The accused who invokes his right to counsel “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. 1880. Under Edwards, “once an individual has invoked the Miranda right to counsel, a valid waiver of this right can be found only if the individual is the one responsible for reinitiating contact with the police,” Sapp v. State, 690 So.2d 581, 584 (Fla.1997) (emphasis added). And see Maryland v. Shatzer, — U.S. -,-, 130 S.Ct. 1213, 1219-20, 175 L.Ed.2d 1045 (2010) (explaining that the Edwards rule means “a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel”). But “if the accused initiates further conversation, is reminded of his rights, and knowingly and voluntarily waives those rights, any incriminating statements made during this conversation may be properly admitted.” Welch v. State, 992 So.2d 206, 214 (Fla.2008) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)).

Based on these standards we conclude the trial court’s determination that Appellant voluntarily and validly waived his right to have counsel present during questioning is incorrect. Edwards lays down what our supreme court reads as a bright line rule: once an accused makes clear he wants an attorney present during custodial interrogation — the State does not dispute Appellant’s invocation was unequivocal — waiver of that right does not occur unless the accused reinitiates the dialogue. The state contends Appellant opened the door, unprovoked, to further discussion about the incident leading to his arrest. That is not the case. Rather, during the conversation between Appellant and Sergeant Crews that occurred after Appellant asserted the right to counsel, the sergeant invited Appellant to reconsider waiting for counsel and instead talk to the detective at the station. The question, then, is whether that invitation rendered involuntary Appellant’s relinquishment of his right to counsel.

In Youngblood v. State, 9 So.3d 717 (Fla. 2d DCA 2009), the court found such a waiver involuntary where law enforcement officers made statements designed to persuade the accused to reconsider his invocation of the right. After arresting Young-blood on several outstanding warrants and finding methamphetamine in his apartment, DeSoto County Sheriffs deputies conducted a custodial interrogation. Id. at 719. At the outset, Youngblood declined to answer any questions without an attorney present. But the officers continued to talk to Youngblood, telling him if he admitted the drugs were his, he might help his girlfriend avoid criminal charges. Id. at 719-20. The Second District concluded “the statements of the law enforcement officers amounted to continued interrogation. Mr. Youngblood did not voluntarily reinitiate contact with law enforcement, but rather was effectively pressured into waiving his constitutional rights.” Id. at 721. In this case, a scant 40 minutes passed between the time Appellant asserted his right to an attorney and when Sergeant Crews initiated the subsequent conversation. The sergeant stated his desire to question Appellant about the incident, lamented that he could not do so because Appellant had requested an attorney, and expressly asked Appellant whether he would be willing to “reconsider” and speak with a detective at the station. When Appellant began to vacillate, the sergeant exerted further pressure by saying “We’d appreciate it” and by telling Appellant, inter alia, the truth would come out after authorities interviewed the child victim. Like Youngblood, the tactic employed here amounted to interrogation and rendered Appellant’s subsequent waiver of his right to counsel under Miranda involuntary. See also Cribbs v. State, 378 So.2d 316, 318-19 (Fla. 1st DCA 1980) (reversing suppression denial because misinformation appellant received from police vitiated Miranda, but stating in dicta that appellant’s waiver of right to counsel also was not voluntary because police resumed questioning only a brief time after appellant invoked the right, and made statements that could be characterized as an attempt to persuade appellant to reconsider his request for counsel). Accordingly, the trial court should have suppressed Appellant’s confession.

Notwithstanding, if a trial court errs in admitting a confession obtained in violation of Miranda, the appellate court may uphold the conviction if the error was harmless. See, e.g., Ross v. State, 45 So.3d 403, 434 (Fla.2010). But the State must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

The [harmless error] test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probably than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.

Id. at 1139.

In this case, the answer to that question is yes. The only direct evidence the jury heard was the testimony of the then twelve-year-old victim. The State presented no DNA or other physical evidence. Thus successful prosecution hinged on the victim’s credibility. Serving to bolster his testimony was that of his parents, who found Appellant naked in their son’s bedroom, and of the Sheriffs office computer investigator, who found images of child pornography on Appellant’s laptop. But the record demonstrates the State primarily relied on Appellant’s confession to corroborate the victim’s account of what happened. This is evident from the prosecutor’s closing argument during which he compared the victim’s testimony, count by count, to Appellant’s confession and told the jury, inter alia:

Ask yourself if the testimony of [the victim] was consistent with everything you heard the defendant admit to on the tape, down to the letter, and I would submit — or the state would submit the only discrepancy was Ken O’Brien maintained that he never asked the boy to perform oral sex on him upstairs in the game room. The boy said it did happen; Ken O’Brien said it didn’t. That’s the only discrepancy in this case. That’s the only factual dispute between defendant and victim.
The testimony of [the victim], testimony as corroborated by [the victim’s father], the evidence that’s on the lap top, Ken O’Brien’s attempt to conceal or hide the lap top, and Ken O’Brien’s words, Ken O’Brien’s confession and admission in this case, prove that the defendant is guilty.

Under these circumstances, we cannot say with reasonable certainty the trial court’s failure to suppress Appellant’s statements was harmless and did not contribute to the jury’s guilty verdicts. Therefore, we must REVERSE Appellant’s convictions and remand for further proceedings.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The language quoted here is from the transcript of the suppression hearing. Although the transcription does not identify the speakers, the two voices can be distinguished.

      . Appellant also sought suppression on the basis that he was so intoxicated when arrested, he could not have knowingly, voluntarily and intelligently waived his Miranda rights. But at the suppression hearing, he conceded his intoxication alone would not require suppression because admittedly he appeared coherent on the interrogation recording. And he does not argue this basis on appeal.


author: POLEN, J.

text:
    Gregory PILL, Mark Bennett, Daniel and Barbara Kohn, Margueritte Bassali, as the Personal Representative of the Estate of Maurice Bassali, Margueritte Bassali, Diane Malhorta, Vikrant Malhorta, Harjas Chatwal, Maria L. Mezzomo, Thomas Faso, Jr., Kevin R. Mackey, Michael L. Mackey, Cynthia Raftis, Spiro Raftis, Anastasia Raftis, Richard Hoffman, Sharon Hoffman, Bruce Pincheon, Leonard Rosenblatt and Dianna Rosenblatt, Appellants, v. MERCO GROUP OF the PALM BEACHES, INC., a Florida corporation, Merco Group, Inc., a Florida corporation, Belinda Meruelo, Homero F. Meruelo, Jr., Richard Meruelo, and Antonio J. Castro, individuals, Appellees.
    No. 4D10-2537.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.

      Nadine C. Macon and Michael A. Weeks of Weeks & Macon, LLP, West Palm Beach, for appellants.
    G. Bart Billbrough and Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for appellees.
   POLEN, J.

Plaintiffs seek review of the trial court’s order granting defendants’ motion to dismiss and transferring the case from Palm Beach County to Miami-Dade County. We find that the trial court erred in transferring venue, and reverse.

Plaintiffs sued defendants in Palm Beach County for the return of deposits on pre-construction contracts. The corporate and individual defendants, all residing in Miami-Dade County, filed motions to dismiss based on the “joint residency rule.”

The joint residency rule was first articulated by our supreme court, when it held:

We hold, therefore, that where an individual defendant is joined as a party defendant with a foreign corporation defendant, and the corporate defendant has an agent in the county in which the individual defendant resides, Section 46.02[] cannot be applied to defeat the individual defendant’s venue privilege granted by Section 46.01 .[]

Enfinger v. Baxley, 96 So.2d 538, 540-41 (Fla.1957).

Plaintiffs argue and we agree that the joint residency rule applies only when venue is based upon residency. Here, plaintiffs selected venue based on where the cause of action accrued.

Section 47.011, Florida Statutes (2010), states in relevant part that “[a]c-tions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” (emphasis added). As the First District has stated:

While the primary purpose of venue statutes is to require litigation to be instituted in the forum which will cause the least amount of inconvenience and expense to those parties required to answer and defend the action, it is the prerogative of the plaintiff to select the venue and as long as that selection is one of the alternatives provided by statute, the plaintiffs selection will not be disturbed. The plaintiffs decision regarding venue is presumptively correct, and the party challenging venue has the burden to demonstrate any impropriety in the plaintiff’s choice.

Barry Cook Ford, Inc. v. Ford Motor Co., 571 So.2d 61, 61 (Fla. 1st DCA 1990) (emphasis added); accord Graham v. Graham, 648 So.2d 814, 816 n. 2 (Fla. 4th DCA 1995).

Defendants argue that the joint residency rule is an exception to the general venue statute and mandates venue for this action in Miami-Dade County because the individual and corporate defendants reside there. We disagree.

For the joint residency rule to apply in this case, Miami-Dade County must also be where the cause of action accrued. As this court recently held:

[T]he Florida Supreme Court has determined that venue lies in the county where an individual defendant and corporate defendant share a residence, which is also the location where the cause of action accrued. Enfinger, 96 So.2d at 539-41.
In Enfinger, the Florida Supreme Court stated that an individual defendant has a venue privilege in his or her county of residence in those instances in which the residence of the individual defendant and the location where the cause of action accrued are in the same county. Id. at 539-40.

Brown v. Nagelhout, 33 So.3d 83, 84 (Fla. 4th DCA 2010) (emphasis added); see also Heartland Organics, Inc. v. MC Devs., LLC, 8 So.3d 1227, 1228 (Fla. 1st DCA 2009) (“[T]he joint residency rule is not an exception to section 47.011, Florida Statutes, the general venue statute, which permits a plaintiff to file a civil action where the cause of action accrues.”).

We recognize that our earlier decision in Sinclair Fund, Inc. v. Burton, 623 So.2d 587, 588 (Fla. 4th DCA 1993), suggests that the joint residency venue provision in section 42.021, trumps the choice of venue statute. In that case, which involved a contract action for payment of money, we held that venue was not proper where payment was to be made, but was only proper in the county in which the individual and corporate defendant jointly resided. See id.; see also Heartland Organics, Inc., 8 So.3d at 1228 (“[Rjelying on Enfinger, the Fourth District held in Sinclair Fund, Inc. ... that in a contract action for payment of money, venue was not proper where payment was to be made, but was only proper in the county in which the individual and corporate defendant jointly resided. We reject this interpretation of Enfinger, and certify conflict between Sinclair Fund and our decision in the present case”) However, this court’s subsequent Brown decision clarifies the confines of the joint residency rule more directly, and is now the controlling authority in this district.

In sum, because the cause of action did not accrue in the same county as the residence of the defendants, the joint residency rule does not apply. Accordingly, the general venue statute governs and Palm Beach County qualified as an appropriate venue for plaintiffs’ lawsuit. Therefore, the trial court inappropriately transferred venue in this case.

Reversed.

HAZOURI and CIKLIN, JJ„ concur.

      . A trial court’s order granting a motion to transfer venue based on a plaintiff's erroneous venue selection is subject to de novo review. Brown v. Nagelhout, 33 So.3d 83, 84 (Fla. 4th DCA 2010).

      . Now § 47.021, Fla. Stat. (2010) (“Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.”).

      .Now § 47.011, Fla. Stat. (2010) ("Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”) (emphasis added).


text:
    WELLS FARGO BANK, NA, Appellant, v. Zane G. HAECHERL, Appellee.
    No. 4D09-4569.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.

      Cindy Runyan of Florida Default Law Group, P.L., Tampa, for appellant.
    No appearance for appellee.
   POLEN, J.

Appellant, Wells Fargo Bank, NA, seeks review of the trial court’s order denying its motion to vacate amended notice of voluntary dismissal with prejudice pursuant to Florida Rule of Civil Procedure 1.540(b). Because we agree with appellant that the trial court erred in concluding it was without jurisdiction to award the requested relief, we reverse the trial court’s order and remand for consideration of appellant’s motion on the merits.

On February 8, 2008, appellant filed the underlying mortgage foreclosure action. Appellees (borrowers) filed an answer and affirmative defenses.

On or about April 23, 2008, appellant filed a motion for leave to file amended foreclosure complaint, having learned of the existence of an additional party. The trial court granted leave to amend on June 16, 2008. Appellant alleges that, upon discovering the possibility of another interested party, its counsel intended to seek leave of court to file a second amended complaint. However, counsel inadvertently prepared and filed an amended notice of voluntary case dismissal, pursuant to rule 1.420. The notice of voluntary dismissal was filed on August 20, 2008. Reflecting that the filing was inadvertent, appellant continued to prosecute the matter by filing a motion for default as to the amended complaint and an affidavit of improper service, and by pursuing proper service of the amended complaint.

On April 14, 2009, appellant filed a motion to vacate the amended notice of voluntary dismissal. Therein, appellant alleged that

[t]he file attorney at the time of the filing of Plaintiffs Amended Notice of Voluntary Case Dismissal is no longer with the firm, therefore pursuant to file notes available to the undersigned attorney, it appears that the previous file attorney instructed a paralegal to prepare a Motion for Leave to File Second Amended Foreclosure Complaint. It also appears that the paralegal erroneously] prepared an Amended Notice of Voluntary Case Dismissal with Prejudice instead of the Motion for Leave to File Second Amended Mortgage Foreclosure Complaint as intended, which the previous file attorney inadvertently signed.

Appellant further alleged that the note and mortgage at issue in this action were in default; therefore, as a matter of equity appellant should be permitted to proceed with the foreclosure action. Appellant asserted that denial of its motion to vacate the voluntary dismissal “would result in inequity and a miscarriage of justice, as Defendants would receive a windfall in the form of real property without the encumbrance of the mortgage at issue in this action and Plaintiff would be unable to pursue enforcement of the Mortgage.”

After a hearing the trial court entered its order denying the requested relief, stating it did not have jurisdiction to hear the motion to vacate pursuant to the Florida Supreme Court’s decision in Randle-Eastern Ambulance Service, Inc. v. Vasta, 860 So.2d 68 (Fla.1978). This appeal follows.

Rule 1.420(a)(1) allows a plaintiff to voluntarily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment. In Randle-East-ern, the court held:

The right to dismiss one’s own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction’. If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequence support its apparent rigidity.

Id. at 69.

Citing to Randle-Eastern, the trial court believed that the effect of a voluntary dismissal is to completely remove a case from a court’s jurisdiction. Rule 1.540, however, provides exceptions to the loss of jurisdiction.

As we recently explained in Pino v. Bank of New York Mellon, No. 4D10-378, 2011 WL 309441 (Fla. Feb. 2, 2011) (en banc):

Rule 1.540(b) allows a court to relieve a party from a “final judgment, decree, order, or proceeding” based upon any of five grounds set out in the rule: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied or released. A notice of voluntary dismissal constitutes a “proceeding” within the meaning of the rule. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1224 (Fla.1986). Therefore, the rule may be invoked, even though for all other purposes the trial court has lost jurisdiction over the cause. Id. Indeed, in Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364, 368 (Fla. 4th DCA 1982), approved by the supreme court in Miller, we held: “Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out in the Rule.”

Id. at *3 (emphasis added). We further clarified that the rule “is limited to relieving a party of a judgment, order or proceeding. ‘Relieve’ means ‘[t]o ease or alleviate (pain, distress, anxiety, need, etc.) ... to ease (a person) of any burden, wrong, or oppression, as by legal means.’ The Random House Dictionary of the English Language 1212 (1967).” Id. Here, appellant was adversely impacted by the notice of voluntary dismissal, and was therefore entitled to seek relief pursuant to the rule.

Concluding that the trial court had jurisdiction to hear the motion to vacate, we reverse and remand the matter to the trial court for further proceedings on the merits.

Reversed.

WARNER and STEVENSON, JJ., concur.

      . The order states that counsel for defendants/appellees was duly noticed but failed to appear.


text:
    Greg MATTOX, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6430.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the judgment and sentence entered after he was found guilty by a jury of two counts of armed robbery. Appellant contends the trial court erroneously overruled his objection to the prosecution’s questions concerning the nature of the crime for which he was on probation after Appellant had already admitted on direct examination that he was on probation for a felony. The State properly concedes error, and we reverse. See Rodriguez v. State, 761 So.2d 381, 383 (Fla. 2d DCA 2000) (holding, “When the witness admits his or her convictions, a trial court errs by allowing the State to question the witness about the specific convictions.”). Accord, Kyle v. State, 650 So.2d 127, 127-28 (Fla. 4th DCA 1995).

REVERSED and REMANDED for proceedings consistent with this opinion.

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.


author: WEBSTER, J.

text:
    Ashley WILSON, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, as subrogee of Longhouse Hospitality, Inc. d/b/a Jamison Inn; Longhouse Hospitality, Inc. d/b/a Jamison Inn; and Expert-Med, Inc., Appellees.
    No. 1D10-1959.
    District Court of Appeal of Florida, First District.
    March 16, 2011.

      Raymond L. Roebuck, Mark G. Kahley, and Alexis M. Clay of the Roebuck Law Office, Jacksonville, for Appellant.
    Carl B. Schwait and Andrew A. Morey of Dell Graham P.A., Gainesville, for Ap-pellee Expert-Med, Inc.
   WEBSTER, J.

Appellant seeks review of a summary final judgment entered in a negligence action in favor of her employer and co-defendant, Expert-Med, Inc., based on the trial court’s finding that the employer was not vicariously liable, as a matter of law, for appellant’s conduct which occurred outside the scope of her employment. Expert-Med has moved to dismiss this appeal on the ground that appellant does not have standing to appeal the summary final judgment because appellant has no right to contribution from Experb-Med. We agree and dismiss the appeal.

Florida courts have recognized that a defendant in a tort action has the right to appeal the entry of a judgment in favor of a co-defendant where the defendant has a statutory right to contribution from the co-defendant. U-Haul Co. of East Bay v. Meyer, 586 So.2d 1327 (Fla. 1st DCA 1991); Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), approved sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980). In fact, a defendant in a tort action must oppose a judgment relieving a co-defendant of liability or lose any future right to contribution from that co-defendant. Holton v. H.J. Wilson Co., 482 So.2d 341 (Fla.1986); U-Haul, 586 So.2d at 1331. We have been unable to discover any Florida cases addressing the right of a defendant in a tort action to appeal the entry of a judgment in favor of a co-defendant where the defendant has no right to contribution from the co-defendant whose alleged liability is merely vicarious. However, decisions from other jurisdictions have held that a defendant in a tort action does not have standing to appeal a judgment in favor of a co-defendant where there is no right to contribution. Guy F. Atkinson Co. v. Consani, 223 Cal.App.2d 342, 35 Cal.Rptr. 750 (1963); C.W. Matthews Contracting Co. v. Studard, 201 Ga.App. 741, 412 S.E.2d 539 (1991); Shackelford v. Green, 180 Ga.App. 617, 349 S.E.2d 781 (1986), affirmed, 257 Ga. 9, 356 S.E.2d 27 (1987); Indiana State Highway Comm’n v. Clark, 175 Ind.App. 358, 371 N.E.2d 1323 (1978).

In this case, there were no allegations that Expert-Med was negligent in any manner. Rather, the plaintiffs only sought to hold Expert-Med vicariously liable for appellant’s alleged negligence. Appellant would have no claim against Expert-Med for contribution if appellant were found liable to the plaintiffs for her own negligence. Rather, as the non-negligent employer of appellant, Expert-Med would have a claim for indemnification against appellant if Expert-Med were found vicariously liable for appellant’s negligence. See Safecare Med. Ctr. v. Howard, 670 So.2d 1020, 1023 (Fla. 4th DCA 1996) (noting that an employer held vicariously liable to another may bring an action for indemnity from the employee whose conduct created the liability); Hartford Accident & Indem. Co. v. Kellman, 375 So.2d 26, 30 (Fla. 3d DCA 1979) (recognizing that under the doctrine of respondeat superior, an employer is entitled to indemnity against a negligent employee). Because the summary final judgment in favor of Expert-Med did not adversely affect appellant’s rights against Expert-Med, we conclude that appellant does not have standing to bring this appeal.

Accordingly, we grant Expert-Med’s motion to dismiss this appeal for lack of standing. In light of this disposition, we do not address whether the trial court properly entered summary final judgment for Expert>-Med.

DISMISSED.

BENTON, C.J, and VAN NORTWICK, JJ., concur.


text:
    James David WATTS, Husband, Appellant, v. Amy Alwine WATTS, Wife, Appellee.
    No. 1D10-6199.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Tomislav D. Golik of the Golik Law Firm, PLLC, Jacksonville, for Appellant.
    William Bruce Muench of Muench & Luca, Jacksonville, for Appellee.
   PER CURIAM.

Whereas the notice of appeal failed to timely invoke the Court’s appellate jurisdiction, the appeal is hereby dismissed. See Olson v. Olson, 704 So.2d 208, 210 (Fla. 5th DCA 1998).

DISMISSED.

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Larry Edward OSTEEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0749.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Matt Shirk, Public Defender, and Jon P. Lorimier, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 28, 2010, judgment and sentence in Duval County Circuit Court case number 11-2009-CF-012578-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


author: WHATLEY, Judge.

text:
    Shaun ALMODOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4128.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.
   WHATLEY, Judge.

Shaun Amodovar appeals from the summary denial of his “motion for enforcement of plea contract.” Because the postconviction court denied this facially insufficient motion on the merits without attaching documents to its order that would conclusively refute the claim, we reverse and remand for further proceedings.

Mr. Almodovar alleged that he entered a negotiated plea to several offenses and was sentenced to a three-year minimum mandatory sentence that he claims was to be served both concurrently and coterminously with a previously imposed four-year sentence on an Okeechobee County offense. The minimal record attached to his motion, consisting of the Acknowledgment and Waiver of Rights form, supports that allegation. He contends that the court has violated the agreement. The postconviction court denied the motion on the merits in a brief order, unaccompanied by attachments, and found from a review of the court file, transcript, and the Acknowledgment and Waiver of Rights form that it was not the intention of the court that Mr. Almodovar's sentence run coterminous with his sentence from Okeechobee County-

This court has observed on several occasions that the only avenue for enforcement of a plea agreement is through Florida Rule of Criminal Procedure 3.850. See, e.g., Williams v. State, 51 So.3d 598 (Fla. 2d DCA 2011); Hettick v. State, 977 So.2d 797 (Fla. 2d DCA 2008). Had Mr. Almo-dovar’s motion been properly sworn, the postconviction court could have considered it as a timely rule 3.850 motion. See Pifer v. State, 8 So.3d 1154 (Fla. 2d DCA 2009). Since it was not sworn, however, we must reverse the postconviction court’s decision on the merits and remand for the court to dismiss the motion with leave for Mr. Al-modovar to file a facially sufficient claim within thirty days of the date of its order. See Sweet v. State, 987 So.2d 747, 747 (Fla. 2d DCA 2008) (noting that although the defendant was “only trying to correct his sentence, withdrawal of his plea is a potential consequence”).

In the event that Mr. Almodovar timely files an amended facially sufficient motion and the court again denies the claim, the court must attach sufficient record excerpts to its order to refute the claim, including — at a minimum — the judgment and sentencing documents, the written plea agreement, and the transcript of the plea hearing.

Reversed and remanded.

DAVIS and KELLY, JJ., Concur.


text:
    Andrew WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-928.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    James Dickson Crock, of James Dickson Crock, P.A., Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Williams’ convictions and sentences without prejudice to his right to seek appropriate and timely post-conviction relief. See Dunbar v. State, 35 So.3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue is not raised at sentencing or in timely post-sentencing proceeding pursuant to rule 3.800).

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.