author: PER CURIAM. COPE, J.

text:
    Eloy Lara GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-237.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Rehearing Denied Nov. 22, 2010.
    Eloy Lara Garcia, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

I concur in part on the merits and in part on a right-for-wrong-reason basis.

This is an appeal of a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 filed by defendant-appellant Eloy Lara Garcia. The trial court conducted an evidentiary hearing. This was for the purpose of considering Ground 2C, which alleged that defense counsel had failed to call a specifically identified defense witness, and Ground 5, which alleged that trial counsel affirmatively misadvised the defendant that if he testified, the exact nature of his prior convictions would be put before the jury. The trial court heard testimony from defense counsel, the defendant, and the proposed witness. The trial court denied the motion and that ruling is fully supported by the record. I concur in affirming on those claims.

In the trial court, the State filed a response which argued that numerous of the defendant’s claims were procedurally barred. The trial court accepted the State’s reasoning. The order now before us summarily denied relief on claims 1, 2A, 2B, 2D, 3A, 3B, 3D, 4, 6, 7, and 8.

Unfortunately the State’s argument was wrong. The State apparently believed that since the defendant appealed his judgment and sentence, it followed that the defendant could raise on appeal any claim he wished — whether there had been an objection in the trial court or not. That is incorrect.

On appeal from a judgment and sentence, a defendant can only raise two types of claim of error: (1) a claim of error which was properly preserved in the trial court, usually by stating an objection, see § 924.051, Fla. Stat. (2007), or (2) a fundamental error. Id. The defendant’s rule 3.850 motion argues that his trial counsel had been ineffective by failing to make certain specific objections, including an objection to certain evidence, an objection to the State’s closing argument, and an objection to the jury instructions. Since there had been no objection at trial, and since none of the complained-of errors were fundamental, there was no way for this defendant to raise those issues on direct appeal. The applicable principles have been explained in cases such as Bruno v. State, 807 So.2d 55, 63 (Fla.2001); Johnson v. State, 3 So.3d 412, 414-15 (Fla. 3d DCA 2009).

I concur in affirming the order now before us, however. Although the evidentia-ry hearing was scheduled for only two issues, the testimony and argument adequately covered all of the defendant’s claims. The postconviction motion was correctly denied.


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Charles WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-234.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Charles Williams, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   On Motion for Rehearing

COPE, J.

On consideration of the motion for rehearing and the memoranda filed by the State, the Public Defender, and the Florida Parole Commission, this court withdraws its previous opinion and substitutes the following opinion.

The question before us is whether Charles Williams is entitled to be resen-tenced for the offenses of aggravated assault and sale of cocaine on authority of Smith v. State, 537 So.2d 982 (Fla.1989). We conclude that the answer is yes.

In 1967, defendant-appellant Williams was found guilty of first-degree murder and was sentenced to life imprisonment. The sentence was parole eligible. At some point he was released on parole.

On October 1, 1983, the sentencing guidelines took effect. See § 921.001(4)(a), Fla. Stat. (1983); ch. 83-87, § 2, Laws of Fla.

On October 13,1983, the defendant committed the crimes of aggravated assault and sale of cocaine. In May of 1984, he was convicted and sentenced to four years under the guidelines, with a three-year mandatory minimum sentence. These sentences are consecutive to the life sentence.

In 1989, the Florida Supreme Court held the sentencing guidelines to be unconstitutional for the period prior to July 1, 1984. This meant that persons whose crime date was between October 1, 1983, and June 30, 1984, were entitled to be resentenced. Smith v. State, 537 So.2d at 987; see Smith v. State, 876 So.2d 682, 683 (Fla. 3d DCA 2004). The defendant filed a motion under Florida Rule of Criminal Procedure 3.800(a) requesting resentencing under the cases just cited. The trial court denied the motion as having been previously adjudicated. The defendant has appealed.

The defendant asserts, and the Parole Commission agrees, that the defendant is within the group of inmates covered by Smith, 537 So.2d at 987. However, he has never been resentenced pursuant to that decision.

The practical significance of this is that a Parole Commission Examiner has recommended that the defendant be paroled from his life sentence into his consecutive four-year sentence (with three-year mandatory minimum). The defendant is not eligible for release on parole until he completes his four-year guidelines sentence. That is so because parole is not available for offenders serving a guidelines sentence. See Gale v. State, 483 So.2d 53, 55 (Fla. 1st DCA 1986). According to the Parole Commission, if the defendant were resentenced under Smith to a parole eligible sentence, then he would be eligible for parole on that sentence after serving the three-year mandatory minimum sentence. In other words, if the defendant were re-sentenced to a parole-eligible sentence under Smith, he would become eligible for release on parole a year earlier than would otherwise be the case.

The State points out that this request for relief was denied in an earlier postconviction motion. As we view the matter, the manifest injustice exception to the res judicata doctrine is applicable here. See State v. McBride, 848 So.2d 287, 291-92 (Fla.2003). That is so because the defendant was sentenced under a version of the sentencing guidelines which was later held to be unconstitutional. Resentencing to a parole-eligible sentence would make the defendant eligible for release a year earlier than would otherwise be the case.

The State also argues that in 1984 the defendant may have affirmatively elected to be sentenced under the sentencing guidelines. We see no basis for that argument. Persons who committed a crime prior to the October 1, 1983 version of the sentencing guidelines had the right to elect to be sentenced under the guidelines if the actual sentencing was held after October 1, 1983. § 921.001(4)(a), Fla. Stat. (1983). That exception has no application here, because the defendant’s crime date was October 13, 1983, after the original version of the sentencing guidelines had gone into effect. Under the sentencing guidelines in effect at that time, sentencing under the guidelines was mandatory. The Florida Supreme Court’s declaration of unconstitutionality did not occur until 1989. There would have been no occasion for the defendant to make an affirmative election of the sentencing guidelines at the time of the 1984 sentencing. The Parole Commission is correct in saying that the defendant is within the group of offenders covered by Smith.

For the stated reasons, the order now before us is reversed and the cause remanded for resentencing in Miami-Dade County Circuit Court case number 83-23370. The defendant shall be represented by counsel at the resentencing.

Reversed and remanded for further proceedings consistent herewith.


author: PER CURIAM.

text:
    Mark David IVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1640.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2010.
    Rehearing Denied Nov. 22, 2010.

      Carlos J. Martinez, Public Defender, and J. Rafael Rodriguez, Specially Appointed Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Mark David Ivey (“the defendant”) appeals his conviction and sentence for vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. We reverse in part, and affirm in part.

While on the interstate, the defendant struck a vehicle and continued driving. After the impact, the other vehicle hit a retaining wall, killing the driver. Florida Highway Patrol investigated, determined that the defendant was drunk, and arrested him.

The State charged and tried the defendant on one count each of vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. The jury returned a verdict of guilty to all charges. The trial court adjudicated the defendant on all three counts, but sentenced him only on the DUI manslaughter to 22 years in prison, followed by 5 years probation. The defendant appealed.

On appeal, the defendant asserts that the constitutional prohibition against double jeopardy bars his conviction on all three counts based on a single death. On the other hand, the State contends that adjudicating the defendant on all three counts while sentencing him only on one does not violate the double jeopardy clause.

Both the federal and Florida constitutions protect against being put in jeopardy for the same offense twice. U.S. Const, amend. V; Art. I, § 9, Fla. Const. The double jeopardy clause prohibits both being tried twice and receiving more than a single punishment for the same crime. Robinson v. State, 901 So.2d 1027, 1028 (Fla. 4th DCA 2005). Thus, withholding the sentence on one of the two convictions does not ameliorate a double jeopardy violation. See Bolding v. State, 28 So.3d 956 (Fla. 1st DCA 2010); Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA 2004).

There is no constitutional prohibition, however, against multiple punishments for different offenses arising from the same criminal episode where the Legislature authorizes separate punishments. Hayes v. State, 803 So.2d 695, 699 (Fla.2001). Absent a clear statement of legislative intent to authorize separate punishments, Florida courts use the Blockburger test to determine when multiple convictions are prohibited. Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Carawan v. State, 515 So.2d 161, 165 (Fla.1987); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985).

The Legislature codified the Blockbur-ger test in section 775.021(4), Florida Statutes (1983), and amended it in 1988, to add subsection (b) which states:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3.Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Here, the controversy centers on exception (b)2.

The State contends that the Florida Supreme Court’s recent decision in Valdes v. State, 3 So.3d 1067 (Fla.2009), makes exception (b)2 applicable only where the two crimes charged are found in the same statute. The defendant, on the other hand, asserts that Valdes did not invalidate longstanding precedent that a single death cannot give rise to two convictions. We agree with the defendant’s assertion.

Prior to Valdes, it was well settled that dual homicide convictions arising from a single death violated double jeopardy. See Houser, 474 So.2d at 1193; Rodriguez, 875 So.2d at 642; Galiana v. State, 868 So.2d 1218 (Fla. 3d DCA 2004). Factually, Houser is identical to this case in that it involved convictions for both DUI (then DWI) manslaughter and vehicular homicide for a single death, and the Court ruled that the defendant could not be punished for both. The Court reasoned that the Legislature never intended to punish a single death under two different criminal homicide statutes. 474 So.2d at 1196.

In contrast, Valdes involved convictions for both shooting from a vehicle and shooting into an occupied vehicle arising from a singular shooting incident that did not result in death. Thus, the Valdes court did not determine the double jeopardy consequences of dual homicide convictions arising from a single death. Moreover, after the Legislature amended section 775.021(4), the Florida Supreme Court did not overrule Houser. State v. Chapman, 625 So.2d 838, 839 (Fla.1993) (“Especially, we do not read the amendment as an overruling of Houser and its holding that a single death cannot support convictions of both DUI manslaughter and vehicular homicide.”). Therefore, we conclude that Valdes did not overrule the well-settled principle that a single death cannot give rise to dual homicide convictions.

Turning to this case, the jury convicted the defendant of vehicular homicide, under section 782.071, Florida Statutes (2005), and DUI manslaughter, under section 316.193(3)(c)Sb, Florida Statutes (2005). Although the defendant’s criminal charges stem from two separate statutes, as stated in Houser and its progeny, we are convinced the Legislature did not intend to punish the single death here by two separate homicide convictions. Accordingly, the defendant’s convictions for both vehicular homicide and DUI manslaughter cannot stand as they violate double jeopardy.

The jury also convicted the defendant of leaving the scene of a fatal accident under section 316.027(l)(b), Florida Statutes (2005). There is no double jeopardy prohibition against convictions for both DUI manslaughter and leaving the scene of a fatal accident. See Kelly v. State, 987 So.2d 1237 (Fla. 2d DCA 2008). Here, however, the defendant’s DUI manslaughter conviction was enhanced from a second-degree felony to a first-degree felony because he left the scene of the fatal accident. Therefore, a separate conviction for leaving the scene of a fatal accident constitutes a double penalty, and violates double jeopardy. See Cleveland v. State, 587 So.2d 1145 (Fla.1991).

Accordingly, we vacate the convictions for vehicular homicide and leaving the scene of a fatal accident, and affirm the DUI manslaughter conviction and sentence.

Affirmed in part, reversed in part.


author: RAMIREZ, C.J.

text:
    M.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-305.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2010.

      Carlos J. Martinez, Public Defender, and Lane Weinbaum, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   RAMIREZ, C.J.

This is an appeal challenging the denial of Appellant M.L.’s motion to suppress physical evidence seeking to suppress a pipe with residue because it was the result of an unlawful search and seizure. We reverse because the evidence in this case was seized without a warrant, and the plain view doctrine exception to the warrant requirement was not satisfied.

At the hearing on the motion to suppress, Officer Nick Garapiño testified that he responded to 21150 Point Place in Aventura to recover a missing juvenile named Camilla. After the officer went to the security desk, he was directed to the second floor mezzanine, which is where people play poker, chips or dominoes. When he entered the common area, he saw M.L. and Camilla about a foot or two feet away from each other asleep on a comforter or blanket on the floor, and they were half-dressed. The officer observed a bunch of personal belongings, men and women clothing strewn around the subjects. He also saw in between M.L. and Camilla a red bag holding a multi-colored pipe. The pipe was more out of the red bag than in the bag. It was about an arm’s reach from M.L.

Officer Garapiño then woke up M.L. and Camilla. As the officer went to pick up the pipe in the red bag, he heard M.L state “it’s my pipe, it’s not hers.” At that point, he placed M.L. in handcuffs, searched him and then escorted him to the police car.

The plain view doctrine requires that three elements be satisfied:

(1) the police officer is in a place where he has a lawful right to be;
(2) in the course of his presence the officer inadvertently comes upon an object which is openly visible; and
(3) it is immediately apparent to the officer that the object constitutes evidence of a crime.

See Neary v. State, 384 So.2d 881, 884 (Fla.1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); State v. Parker, 399 So.2d 24 (Fla. 3d DCA 1981); Daniels v. State, 634 So.2d 187 (Fla. 3d DCA 1994). We hold that the plain view doctrine does not apply.

The State failed to present evidence that it was immediately apparent to the officer that the partially or completely concealed pipe in the bag constituted evidence of a crime or illegal paraphernalia. “[I]mmediately apparent” means that “at the time police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.” Jones v. State, 648 So.2d 669, 678 (Fla.1994).

Furthermore, the State failed to present evidence that the officer, prior to the seizure, had probable cause to believe that the partially concealed pipe in the bag was illegal drug paraphernalia or evidence of criminal activity. Without that, the officer had no right to seize the pipe. See Oliveira v. State, 527 So.2d 959 (Fla. 4th DCA 1988) (“[T]he State failed to present evidence that the officer had probable cause to believe the ‘prescription medicine’ he seized was an illegal substance. Without that probable cause, he had no right to seize the tablets.”).

In Caplan v. State, 531 So.2d 88, 92 (Fla.1988), the Florida Supreme Court stated:

[TJhat the mere observation of an opaque container [such as partially burned cigarette paper], without more, cannot constitute probable cause. There must be at least an additional objective and reasonably specific element justifying the state agent’s inference of wrongdoing. Under a probable cause standard, that is, the officer at the scene must be able to explain to an objective magistrate or judge “just how it is possible to distinguish such a [marijuana] cigarette from other hand-rolled cigarettes.”

Similarly here, the mere observation of a portion of a pipe, without more, cannot constitute probable cause because it could be a tobacco pipe or other lawful object. See Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987) (recognizing that even though “... the stem of the pipe was in plain view, we do not find that the pipe alone could constitute probable cause to arrest for possession of paraphernalia. Because pipes are used to smoke materials other than drugs, they are not contraband per se”). Something more is needed to constitute probable cause.

There was no additional evidence presented justifying the officer’s seizure of the evidence and arrest of M.L. The officer did not observe any suspicious activity or behavior prior to seizing the pipe. There was no evidence that M.L. was at a location known for drug activity. The officer was not at that location due to a tip regarding drug activity but rather to retrieve a missing juvenile. There was no evidence that the room smelled of marijuana. There was no evidence that either juvenile appeared to be under the influence of marijuana or any drug. There was no evidence that prior to seizing the pipe the officer saw marijuana residue in the pipe. Although the State proffered that Officer Garapiño was a ten-year veteran, there was no evidence of the officer’s experience with drug paraphernalia or pipes.

Thus, the trial court erred in denying the motion to suppress. We therefore reverse and remand.


text:
    Javier Dejesus VENTURA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-872.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2010.
    Rehearing Denied Nov. 24, 2010.

      Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and CORTIÑAS, JJ.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

RAMIREZ, C.J.

We reconsider on remand our opinion in Ventura v. State, 973 So.2d 684 (Fla. 3d DCA 2008), which the Florida Supreme Court quashed in part and affirmed in part following its decision in Ventura v. State, 29 So.3d 1086 (Fla.2010). As the Florida Supreme Court ordered, we reconsider our earlier decision in light of State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We determined in our prior opinion that Detective Teppenberg had improperly commented on defendant’s right to silence, but held that the error was harmless under DiGui-lio. We concluded that it was harmless because of the overwhelming evidence of Ventura’s guilt. The Florida Supreme Court quashed the decision, in part, stating that the proper test is whether there is any reasonable possibility that the error contributed to the conviction. The Court quoted the following DiGuilio language:

The test is not ... 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. The burden to show the error was harmless must remain on the state.
Id. at 1139.

Applying this standard, we cannot confirm that the detective’s comments, twice repeated, did not affect the verdict. Accordingly, we reverse Ventura’s convictions.

Reversed and remanded for a new trial.


author: WELLS, Judge.

text:
    REJUVENATE AMERICA, INC., and Farid A. Khavari, Appellant, v. 7300 INVESTMENTS, LLC, Appellees.
    No. 3D09-2289.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2010.
    Thomas J. Butler, for appellant.
    Roth & School and Jeffrey C. Roth, Coral Gables, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   WELLS, Judge.

Rejuvenate America, Inc. and Farid A. Khavari appeal a final judgment entered in favor of the appellee, 7300 Investment, LLC, following a bench trial. Finding that the final judgment is fully supported by competent, substantial evidence, we affirm.


text:
    The STATE of Florida, Appellant, v. Leon PEARSON, Appellee.
    No. 3D09-2620.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2010.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Harvey Sepler, Assistant Public Defender, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.
   RAMIREZ, C.J.

The State of Florida appeals the trial court’s order withholding adjudication. The trial court erred when it imposed a withhold of adjudication for a second-degree felony where the defendant, Leon Pearson, had a previous withhold of adjudication for a felony. Section 775.08435, Florida Statutes (2009), provides that “no adjudication of guilt shall be withheld for a second degree felony offense if the defendant has a prior withholding of adjudication for a felony that did not arise from the same transaction as the current felony offense.” The record reflects that the State made it clear to the trial court that, on January 8, 2009, Pearson had a prior withhold of adjudication entered for possession of a controlled substance. The State showed this prior offense to defense counsel, and there was no dispute regarding the existence of this pri- or offense.

We disagree with Pearson that the error was not preserved for appellate review. The State properly preserved the issue for appeal when it informed the trial court of Pearson’s specific prior conviction for possession of a controlled substance and then objected to the trial court’s withhold of adjudication. Moreover, the record reflects that the State subsequently renewed the objection and directed the trial court to the relevant portion of the statute pertaining to withholding of adjudication for second degree felonies. See State v. Johnson, 990 So.2d 1115 (Fla. 3d DCA2008).

Accordingly, we reverse the trial court’s order imposing Pearson’s downward departure in the form of a second withhold of adjudication and remand so that the trial court can either adjudicate the defendant or allow the defendant to withdraw his plea.

Reversed and remanded.


text:
    Juan VAZQUEZ and Zoraima Vazquez, Appellants, v. Rafael Marrero ARISTY, Appellee.
    No. 3D09-1574.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2010.
    Robert T. Allen, Paul B. Feltman and Keri Lynda Horvat, Pinecrest, for appellants.
    Thomas L. Hunker, Miami, for appellee.
    Before RAMIREZ, C.J., GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. Plana v. Sainz, 990 So.2d 554 (Fla. 3d DCA 2008).


author: BENTON, J.

text:
    DEPARTMENT OF REVENUE, obo Wendy R. SMITH, Appellant, v. Ephraim SELLES, Appellee.
    No. 1D10-0783.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.

      Bill McCollum, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Ira Marcus and Sloan Alexander Carr of Ira Marcus, P.A., Fort Lauderdale, for Appellee.
   BENTON, J.

The Department of Revenue (DOR) appeals a final order entered by an Administrative Law Judge (ALJ), contending that neither the ALJ nor the Division of Administrative Hearings (DOAH) had subject matter jurisdiction to require the mother on whose behalf DOR had initiated a proceeding under section 409.2563, Florida Statutes (2009), to pay child support, where DOR had not referred that question for adjudication and, indeed, lacked any authority to order support payments from a parent for whom it was acting, a parent who is, after all, statutorily denominated “the parent from whom support is not being sought.” § 409.2563(4), Fla. Stat. (2009). We agree and reverse.

“An administrative agency has only such power as granted by the Legislature and may not expand its own jurisdiction.” Rinella v. Abifaraj, 908 So.2d 1126, 1129 (Fla. 1st DCA 2005) (citing State, Dep’t of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So.2d 787, 793 (Fla. 1st DCA 1982)). Whether a lower tribunal had subject matter jurisdiction is a question of law which we review de novo. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 350 (Fla. 1st DCA 2003). “[L]ack of subject matter jurisdiction may be raised for the first time on appeal.” MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000). The cases are also clear that “[s]ubject matter jurisdiction may not be conferred upon the court [or other lower tribunal] by the consent of the parties,” id., much less by their mere acquiescence.

As the state agency responsible for administration of the child support enforcement program under Title IV of the Social Security Act, § 409.2557(1), Fla. Stat. (2009) — see 42 U.S.C. §§ 651-669b (2006) — DOR has the authority to establish child support obligations administratively, absent any preexisting (or superseding) judicial determination:

(a) It is not the Legislature’s intent to limit the jurisdiction of the circuit courts to hear and determine issues regarding child support. This section is intended to provide [DOR] with an alternative procedure for establishing child support obligations in Title IV-D cases in a fair and expeditious manner when there is no court order of support....
(b) The administrative procedure set forth in this section concerns only the establishment of child support obligations. This section does not grant jurisdiction to [DOR] or [DOAH] to hear or determine issues of dissolution of marriage, separation, alimony or spousal support, termination of parental rights, dependency, disputed paternity, except for a determination of paternity as provided in s. 409.256, or award of or change of time-sharing. This paragraph notwithstanding, [DOR] and [DOAH] may make findings of fact that are necessary for a proper determination of a parent’s support obligation as authorized by this section.

§ 409.2563(2), Fla. Stat. (2009). Section 409.2563, Florida Statutes, lays out the procedure DOR must follow to establish child support obligations administratively. After freeform administrative proceedings within DOR, disputed issues of material fact may be resolved in a formal administrative hearing at DOAH.

In the present case, DOR was proceeding on behalf of Wendy R. Smith, who had applied to DOR for assistance in obtaining support for her child from Ephraim Selles, whom she alleged to be the child’s father. DOR complied with the statutory mandate to “provide to the parent from whom support is not being sought and serve the parent from whom support is being sought with a notice of proceeding to establish administrative support order and a blank financial affidavit form.” § 409.2563(4), Fla. Stat. (2009). DOR then calculated Mr. Selles’s “child support obligation under the child support guidelines schedule as provided by s. 61.30, based on any timely financial affidavits received and other information available to the department.” § 409.2563(5)(a), Fla. Stat. (2009). Again in conformity with statutory directives, DOR sent “to both parents ... copies of the proposed administrative support order, its completed child support worksheet, and any financial affidavits submitted by a parent or prepared by the department.” § 409.2563(5)(b), Fla. Stat. (2009).

DOR’s Proposed Order of Paternity and Administrative Support proposed requiring Mr. Selles to pay child support in the amount of $357.60 each month. As it had to, the proposed support order included a notice of rights, including the right to a hearing, for “the parent from whom support is being sought.” § 409.2563(5)(c), Fla. Stat. (2009). When Mr. Selles requested a hearing, DOR forwarded his request to DOAH, which assigned the case to an administrative law judge who set the matter for hearing on January 26, 2010, to determine the issue “[a]s set forth in the proposed order.” See § 409.2563(6), Fla. Stat. (2009) (“If the parent from whom support is being sought files a timely request for hearing, [DOR] shall refer the hearing request to [DOAH].”). In this way, the ALJ acquired final order authority to “issue an administrative support order, or a final order denying an administrative support order.” § 409.2563(7)(a), Fla. Stat. (2009).

At the hearing, Ms. Phillips, the child’s maternal grandmother, testified that the child had been living with her for the past two years. The ALJ decided that Ms. Phillips was the child’s caregiver, and that both Mr. Selles and Ms. Smith should pay child support to her. Concluding that Ms. Smith was on adequate notice that she herself might be ordered to make support payments, because Mr. Selles had filed a motion to compel her to establish arrear-ages and contribute to support, the ALJ entered a Final Administrative Paternity and Support Order that required Mr. Selles to pay $364 a month to Ms. Phillips and that purported to require Ms. Smith to pay Ms. Phillips $262 per month.

On the present appeal, DOR contends that the ALJ lacked jurisdiction to require any payment of Ms. Smith, the child’s mother, or to order any payments to Ms. Phillips, the child’s grandmother. We agree with DOR’s first contention, but not with the second.

Section 409.2563 differentiates between “the parent from whom support is being sought” and “the parent from whom support is not being sought.” The statute requires DOR to calculate the child support obligation only of “the parent from whom support is being sought.” This calculation forms the basis of the proposed administrative support order DOR then issues. The statute confers on “the parent from whom support is being sought” the right to appeal the proposed support order. The statute does not give anyone else the right to request a hearing before DOAH; or confer authority on DOR to litigate or on DOAH to adjudicate any other potential obligor’s rights. The statute contemplates only one parent’s support obligation’s being determined in the hearing at DOAH — that of “the parent from whom support is being sought.” § 409.2563(4), Fla. Stat. (2009).

Insofar as the order under review requires support payments from Wendy R. Smith, it has to be reversed. “This Court must interpret statutes by the well-established norms of statutory construction which require rendering the statutory provisions meaningful.” Crutcher v. Sch. Bd. of Broward County, 834 So.2d 228, 232 (Fla. 1st DCA 2002). Within the meaning of section 409.2563, Ms. Smith is plainly “the parent from whom support is not being sought,” not “the parent from whom support is being sought.” “Where the plain and ordinary meaning of statutory language is unambiguous, we cannot construe the statute in a manner that would extend, modify, or limit its express terms or its reasonable and obvious implications.” Rinella, 908 So.2d at 1129-30.

But the same and similar principles of statutory construction require rejection of DOR’s second contention on appeal, viz., that the ALJ lacked statutory authority to direct that the child support payments for which Mr. Selles was obligated be paid to Ms. Phillips for the child’s benefit, not to Ms. Smith. Under section 409.2563(2)(c), DOR initiated the administrative proceedings below on behalf of the child’s mother, not the child’s grandmother, so DOR can be said to have been proceeding on behalf of Ms. Smith, not on behalf of Ms. Phillips. DOR (or an ALJ acting on its behalf) has clear statutory authority nevertheless, whenever it determines “in a Title IV-D case that a child for whom a support order has been entered by a tribunal of this state resides with a person other than the obli-gee or obligor,” to (re)direct payments from the person obligated for child support to the person with whom the child resides. See § 409.2558(8), Fla. Stat. (2009). This provision does not, however, contain language allowing DOR (or an ALJ in its stead) to order a child support payment obligee (ie., “the parent from whom payment is not being sought,”) to make payments to a third person with whom the child resides. Id. Although a caretaker relative may end up receiving the child support payments, the Legislature has designed an administrative mechanism in Title IV-D cases that relies, as a practical matter, on one parent’s coming forward to secure child support payments from the other, and contemplates DOR’s taking sides.

Unlike DOR, courts do not represent one parent in proceedings against the other, and are under no constraints in ordering both parents to pay child support in a single proceeding. “Support is a dual obligation owed by both biological parents to their child from the moment of the child’s birth. See Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979).” Morris v. Swanson, 940 So.2d 1256, 1257 (Fla. 1st DCA 2006). While creating a supplemental administrative process, section 409.256(2)(f), Florida Statutes (2009), makes clear that the courts remain open:

This section is intended to provide [DOR] with an alternative procedure for establishing paternity and child support obligations in Title IV-D cases. This section does not prohibit a person who has standing from filing a civil action in circuit court for a determination of paternity or of child support obligations.

The Proposed Order of Paternity and Administrative Support Mr. Selles originally received advised him that he “or the custodial parent may file a civil action in an appropriate circuit court at any time to determine your support obligations, if any.” Section 409.2563(2)(d), Florida Statutes (2009), provides: “Either parent, or a caretaker relative if applicable, may at any time file a civil action in a circuit court having jurisdiction and proper venue to determine parental support obligations, if any. A support order issued by a circuit court prospectively supersedes an administrative support order rendered by the department.” Judicial remedies remain available.

The order under review is affirmed insofar as it redirects Mr. Selles’s child support payments to Ms. Phillips, but reversed insofar as it orders Ms. Smith to make child support payments.

PADOVANO and CLARK, JJ., concur.

      . We reject a second DOR contention, viz., that the ALJ had no authority to redirect the child’s father’s child support payments to make them payable, not to the child’s mother, but to the child's grandmother with whom the child resides. The statute authorizes such redirection "in a Title IV-D case [where] a child for whom a support order has been entered by a tribunal of this state resides with a person other than the obligee or obligor.” § 409.2558(8), Fla. Stat. (2009).

      . Section 409.256, Florida Statutes (2009), applies to proceedings to establish both the fact of paternity and the amount of child support. See § 409.256(4)(b), Fla. Stat. (2009).

      . Wendy R. Smith applied to DOR for child support enforcement services for her minor child, and named Ephraim Selles the father of the child in a paternity declaration. After receipt of genetic test results indicating that he was the biological father of the child, DOR sent Mr. Selles a Notice of Proceeding to Establish Administrative Support Order, apprising him that DOR would review financial affidavits it had requested from both parents (along with all other available, reliable information), then prepare a Proposed Order of Paternity and Administrative Support, based on the child support guidelines in section 61.30, Florida Statutes.

      . DOR "may establish a parent’s child support obligation,” by proceeding on behalf of:
      1. An applicant or recipient of public assistance, as provided by ss. 409.2561 and 409.2567;
      2. A former recipient of public assistance, as provided by s. 409.2569;
      3. An individual who has applied for services as provided by s. 409.2567;
      4. Itself or the child, as provided by s. 409.2561; or
      5. A state or local government of another state, as provided by chapter 88.
      § 409.2563(2)(c), Fla. Stat. (2009).

      .When Mr. Selles returned the financial forms to DOR, he wrote on both of them that Ms. Smith was not the child’s "custodial parent” because the child had been living, not with Ms. Smith, but with Hazel Phillips, Ms. Smith’s mother (the child's grandmother), for the past two years. By the time of the hearing, both DOR and Ms. Smith were aware of his contention, and neither contested it. This circumstance does not defeat the standing either of Wendy R. Smith or of DOR. See D.F. v. Dep’t of Revenue ex rel. L.F., 736 So.2d 782, 784 (Fla. 2d DCA 1999).

      . The formula for calculating the child support obligation of the parent from whom support is being sought requires, to be sure, information about both parents' finances, and yields results with implications for both parents.
      Section 61.30 contains the child support guidelines.
      The trier of fact may order payment of child support ... after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and die financial status and ability of each parent.
      § 61.30(l)(a), Fla. Stat. (2009). "[T]he department may establish a parent’s child support obligation pursuant to this section, s. 61.30, and other relevant provisions of state law.” § 409.2563(2)(c), Fla. Stat. (2009).

      . The parties virtually stipulated that the child lived with Ms. Phillips, not Ms. Smith. No party raised any objection as to the adequacy of notice of Mr. Selles’s position that Ms. Phillips, not Ms. Smith, was taking care of the child; or complained concerning DOR’s free-form consideration of (or the extent of its opportunity to consider) this issue.

      . As DOR concedes, a relative caregiver (like Ms. Phillips) can apply to the department for child support services, and DOR can act on her behalf to obtain support from both parents. It is also clear that there is no attorney-client relationship between DOR and the child support obligee. See § 409.2567(2), Fla. Stat. (2009). It is conceivable that DOR, having acted on behalf of one parent in one proceeding, could represent the other parent, after the original proceedings terminated: There could be a change in custody or the other parent could seek assistance in initiating new proceedings to modify a support order. See Barbara Glesner Fines, From Representing "Clients” to Serving "Recipients": Transforming the Role of the TV-D Child Support Enforcement Attorney, 67 Fordham L.Rev. 2155, 2182 (1999). But nothing in the statutory scheme contemplates DOR's acting in the same proceeding on behalf of both parents.


author: LEVINE, J.

text:
    Raymond A. BEANE, as personal representative of the Estate of Lillian G. Wilde, Appellant, v. SUNTRUST BANKS, INC. and Francis Wallin, Appellees.
    No. 4D09-3033.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 16, 2010.

      John J. Pankauski, Allison R. Sabocik and Michele M. Lewis of Pankauski Law Firm, P.L.L.C., West Palm Beach, for appellant.
    Carolyn B. Brombacher of May, Meac-ham & Davell, P.A., Fort Lauderdale, for appellee SunTrust Banks, Inc.
   LEVINE, J.

The issue presented is whether a bank is authorized to allow an individual with a durable power of attorney to transfer money from a Totten trust. We find the bank was authorized to honor the transfer of money and did not violate the enumerated powers of the durable power of attorney. We therefore affirm the trial court’s dismissal of appellant’s complaint.

In 2002, the decedent, Lillian Wilde, executed a durable power of attorney naming her niece, Deborah Lorenzo, as her attorney-in-fact. The durable power of attorney stated:

I, LILLIAN G. WILDE ... do hereby constitute and appoint my niece, DEBORAH LORENZO, my true and lawful attorney-in-fact for me in my name, place and stead and in any way which I myself could do if I were personally present with respect to the following matters:
4. To demand, sue for, collect, recover and receive all goods, claims, debts, monies, interest and demands whatsoever now due, or that may hereafter be due, or belong to me....

The next day, Lorenzo, utilizing the power of attorney, transferred $150,000 from Wilde’s Totten trust account at Sun-Trust Bank, which named Frances Wallin as the beneficiary, to another account in the name of Orson Lorenzo.

In 2007, appellant, as the guardian and personal representative of Wilde’s estate, filed suit against SunTrust for allowing the transfer of the funds from Wilde’s Totten trust. The trial court and the parties agreed that the dispositive issue was whether Lorenzo had the authority under the power of attorney to withdraw $150,000. Appellant claimed that the executed power of attorney did not expressly authorize the withdrawal of money from the Totten trust. Further, the appellant relied on section 709.08(7)(b)5., Florida Statutes (2002), which states that an attorney-in-fact may not “[cjreate, amend, modify, or revoke any document or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney.” Appellant claimed that a Totten trust is a “disposition effective at the principal’s death.”

The trial court determined that the power of attorney allowed Lorenzo to withdraw the funds and that SunTrust could not be held liable as a matter of law. We find the trial court was correct in dismissing the complaint in this case.

“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.” Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). Further, the interpretation of a power of attorney is a question of law subject to de novo review. Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 268 (Fla. 4th DCA 2006).

A Totten trust has been defined as “a tentative trust merely, revocable at will, until the depositor dies.” Seymour v. Seymour, 85 So.2d 726, 727 (Fla.1956) (quoting In Re Totten, 179 N.Y. 112, 71 N.E. 748, 752 (1904)). The act of “[placing a bank account in the name of one individual ⅛ trust for’ another individual creates a tentative or Totten trust.” Serpa v. N. Ridge Bank, 547 So.2d 199, 200 (Fla. 4th DCA 1989). A Totten trust is different from other trusts in that it is not created with any of the formalities of a trust or will. Further, it is specifically excluded from the provisions and restrictions that apply to revocable trusts under the Florida Trust Code. § 736.0102, Fla. Stat. (2007).

Section 709.08(7)(a), Florida Statutes, clearly states that an “attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney.” In the case of In re Estate of Schriver, 441 So.2d 1105, 1106 (Fla. 5th DCA 1983), the language in the durable power of attorney authorized the attorney-in-fact to “execut(e) ... any instrument which may be requisite ... to effectuate any ... thing pertaining ... to me.” The Schriver court found that this language was “obviously meant to be all-inclusive to allow the donee to do any legal act the donor could do on her own.” Id. at 1107. Similarly, in the present case, the durable power of attorney authorized Lorenzo to act for the decedent “in my name, place and stead and in any way which I myself could do if I were personally present.” Because the owner of the Totten trust retained the unfettered ability to withdraw any or all of the funds, the attorney-in-fact retained the same authority as a result of the power of attorney.

Since an owner of a Totten trust can withdraw from the account without constraint, the prospective Totten trust beneficiary cannot object to the depositor’s withdrawal from the Totten trust. As this court explained:

Like a depositor’s withdrawal of funds from a Totten trust bank account, a settlor/trustee’s withdrawal of funds from a revocable trust is tantamount to a revocation or termination of the trust with respect to the funds withdrawn. It is in this context that Malasky held that a prospective trust beneficiary has no standing to object to such a disposition of the property; the settlor retained the right to remove the property from the trust for any purpose and for any reason.

Siegel v. Novak, 920 So.2d 89, 95 (Fla. 4th DCA 2006). Because the depositor can change the beneficiary without constraint, and the prospective beneficiary has no standing to object to such changes, we therefore find that merely withdrawing money from the Totten trust does not, as a matter of law, change the “disposition effective at the principal’s death.” The depositor, or in this case the attorney-in-fact, merely changes the amounts within the Totten trust, which is a right retained by the depositor at all times, or by the attorney-in-fact while the durable power of attorney is in force. SunTrust acted in reliance of the power of attorney, so it “must be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken prior to receipt of written notice [of revocation.]” § 709.08(4)(g), Fla. Stat. (2002).

In summary, we find the trial court was correct in the dismissal, and find the other issue raised on appeal to be without merit.

Affirmed.

POLEN and GERBER, JJ., concur.

      1. In re Malasky, 290 A.D.2d 631, 736 N.Y.S.2d 151 (N.Y.App.Div.2002).


text:
    Zachary SCHIFFMAN, and United States Medical Supply, Inc., a Florida Corporation, Appellants, v. Alan SCHIFFMAN, Appellee.
    No. 3D09-2326.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.

      Hyman Spector & Mars, Andrew R. Spector and Marc A. Rubin, Miami, for appellants.
    Alan Schiffman, in proper person.
    Before GERSTEN, WELLS, CORTINAS, JJ.
   WELLS, Judge.

Zachary Schiffman and United States Medical Supply, Inc., the plaintiffs below, appeal from an order dismissing the instant action on the trial court’s sua sponte determination that no justiciable issues existed and that the matter should be resolved in domestic violence court. Because, at a minimum, the underlying complaint alleges a cognizable claim for breach of contract, we reverse.

Appellant Zachary Schiffman is the president and sole shareholder of co-appellant U.S. Medical Supply, Inc. Appellee Alan Schiffman is Zachary Schiffman’s father. Prior to October 1999, Alan worked in some capacity with his son at U.S. Medical Supply. However, on October 27,1999, after their relationship deteriorated, Zachary, U.S. Medical Supply and Alan entered into a written settlement agreement to resolve any and all claims that each might have against the other with respect to the company.

In exchange for Alan’s acknowledgement that he had no interest as shareholder or otherwise in U.S. Medical Supply and his release of any and all claims arising out of the parties’ business relationship in U.S. Medical Supply, Zachary and U.S. Medical Supply agreed, among other things to: (1) pay Alan $250,000 within ten days of execution the general release; (2) make a 10% payment on a condominium unit and then assign all right, title and interest in that unit to Alan; (3) give Alan 20% of U.S. Medical Supply’s net profits for a period of 5 years; (4) pay Alan $1500 per week as an independent contractor for a period of 5 years, with such compensation to be set off against the above referenced receipt of 20% of U.S. Medical Supply’s net profits; and (5) pay Alan’s automobile lease until it expired. Alan also agreed to stay off U.S. Medical Supply’s premises; to refrain from threatening Zachary or U.S. Medical Supply employees; to refrain from contacting U.S. Medical Supply’s employees and vendors; and to refrain from interfering with U.S. Medical Supply’s operations. Pursuant to an addendum to the agreement, Alan agreed that if he violated any of these requirements: he would forfeit any remaining benefits due him under the agreement from the date of the offending conduct; he would be “responsible for all damages arising out of such conduct”; and he would pay Zachary $250,000 as liquidated damages. In the event of litigation, the parties agreed that their agreement was enforceable by injunction and that the prevailing party would be entitled to attorney’s fees and costs.

In May 2004, Zachary and U.S. Medical Supply brought suit against Alan, claiming that Alan had breached the parties’ contract. The claims were based on allegations that, in the ninety days leading up to the filing of the complaint, Alan had made numerous telephone calls to Zachary, wherein he threatened to interfere with U.S. Medical Supply’s business unless Zachary agreed to renegotiate the settlement agreement and pay Alan more money. That action ultimately was dismissed for lack of prosecution in December 2007.

In February 2009, Zachary and U.S. Medical Supply filed the instant action claiming that Alan had again breached the parties’ agreement. Specifically, the complaint alleged that, in the ten days leading up to the filing of the complaint, Alan had made several harassing telephone calls to Zachary, accusing Zachary of “stealing ‘his’ [Alan’s] company” and threatening to interfere with the company’s business unless he received additional sums.

On February 24, 2009, the lower court entered an order temporarily enjoining Alan from contacting Zachary or U.S. Medical Supply. On March 17, 2009, after Alan allegedly assaulted and battered Zachary and U.S. Medical Supply’s attorney, the lower court enjoined Alan from going to the attorney’s offices. Two months later, during a hearing on a motion for injunctive relief filed by Alan, the court below, expressing frustration over the amount of time the court was spending dealing with the parties’ conflicts, vacated the previously entered temporary injunctions and then sua sponte dismissed the entire action concluding that “this matter is an ongoing domestic violence matter that can and should be resolved in domestic violence court.” In a subsequently entered order denying rehearing, the court below justified its dismissal on three grounds: first, that the underlying complaint failed to state a proper cause of action; second, that the settlement agreement at issue was never ratified nor adopted by a court; and third, that the 2004 dismissal for lack of prosecution barred consideration of the instant action under principles of res judicata. Because none of these reasons support dismissal, we reverse.

First, this matter was properly before the general jurisdiction division of the circuit court because the complaint alleged all of the elements essential to a cause of action sounding in breach of contract. See Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000) (“The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.”). Second, the agreement at issue constitutes a valid, binding contract which need not be ratified nor adopted by a court to be enforced in court. Third, res judicata does not apply to the 2004 action which was dismissed for lack of prosecution. See Houswerth v. Neimiec, 603 So.2d 88, 89 (Fla. 5th DCA 1992) (finding that “a dismissal for lack of prosecution is not a ruling on the merits and therefore cannot be the basis of a subsequent res judicata argument”).

Accordingly, we reverse the order of dismissal and remand with instructions to reinstate instant action and the preliminary injunctions against Alan Schiffman.

      . We also note that the conduct giving rise to the instant breach of contract claim is wholly separate and distinct from the conduct alleged as the basis for the 2004 action. See Inter-Active Servs., Inc. v. Heathrow Master Ass'n., 809 So.2d 900, 902 (Fla. 5th DCA 2002) (recognizing that res judicata does not apply unless the "facts and evidence necessary to maintain suit are the same in both actions”).


author: ROTHENBERG, J.

text:
    Jesus LORENZO, Appellant, v. Isabel MEDINA and Jose Antonio Medina, Appellees.
    No. 3D10-1243.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.

      Osvaldo N. Soto, Coral Gables and Lorenzo Cobiella; and Arnaldo Velez, Coral Gables, for appellant.
    Abrams & Abrams and David S. Abrams, for appellees.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

We reverse an order construing the will of Cecilia Lorenzo (“the Testator”). The Testator passed away on October 20, 2008, with an estate consisting of a parcel of residential property in Hialeah. In 2009, the Testator’s will was admitted to probate. The Testator’s will provided for a bequest of the entire estate as follows:

[T]o my brother, JOSE R. MEDINA and to my brother in law, JESUS LORENZO, in equal shares. If either of them do not survive me, the share of the deceased shall be given to their surviving spouse, JUANA R. MEDINA or MARIA LORENZO respectively.

Without question, the operation of the will provides for a minimum fifty percent share of the Testator’s estate to the Testator’s brother-in-law, Jesus Lorenzo (“the brother-in-law”), who survived the Testator. The issue in this appeal is who is entitled to the remaining fifty percent of the Testator’s estate since the intended recipients, the Testator’s brother, Jose R. Medina, and his wife, Juana R. Medina, both predeceased the Testator. The trial court’s order awarded this disputed portion of the Testator’s bequest to the appel-lees, Isabel Medina and Jose Antonio Medina (“the niece and nephew”), who are the surviving children of Jose R. Medina and Juana R. Medina.

In December 2009, the brother-in-law filed a petition for construction of the Testator’s will, arguing that the bequest to the two deceased relatives, Jose and Juana R. Medina, lapsed, and therefore, he was entitled to an undivided interest in the property. The niece and nephew argued that pursuant to section 732.603(1), Florida Statutes (2008), the anti-lapse statute, they were entitled to a fifty percent share of the property. The trial court issued the instant order finding that the niece and nephew were entitled to a fifty percent share, and the brother-in-law was entitled to a fifty percent share. The brother-in-law’s appeal followed.

As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. Tubbs v. Teeple, 388 So.2d 239, 239 (Fla. 2d DCA 1980) (“When a legatee under a will predeceases the benefactor, the gift lapses.”). The potentially harsh effects of this common law rule are ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator’s grandparents, section 732.603 will “save” the lapsed gift by creating a substitute gift in the devisee’s descendants. § 732.603(1). Because section 732.603 is in derogation of the common law, we must strictly construe its provisions. Drafts v. Drafts, 114 So.2d 473, 476 (Fla. 1st DCA 1959) (“The antilapse statute being directly in derogation of ... the common law, the statute must be strictly construed.”).

In this case, the operation of the Testator’s will prevents any recovery by the niece and nephew. At the moment of the Testator’s death, her will provided for a bequest of fifty percent of the Testator’s estate to Jose R. Medina. Jose R. Medina, however, predeceased the Testator. The will also provided that in the event that Jose R. Medina predeceased the Testator, Jose R. Medina’s share would pass to his wife, Juana R. Medina. Thus, upon the death of the Testator, the named devi-see was Juana R. Medina. Juana R. Medina, however, also predeceased the Testator.

Pursuant to the common law rule outlined above, the bequest lapsed. And because Juana R. Medina is not a descendant of the Testator’s grandparents, the niece and nephew cannot invoke the operation of section 732.603(1) to “save” the bequest and provide them with a substitute gift. Thus, we conclude that the niece and nephew are not entitled to the Testator’s lapsed bequest. Accordingly, we reverse the order under review.

Reversed.


author: SALTER, J.

text:
    Theresa E. PONCE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D10-635.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.

      Theresa E. Ponce, in proper person.
    Louis A. Gutierrez, Senior Attorney, for Unemployment Appeals Commission.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Theresa Ponce, a licensed certified nursing assistant formerly employed at a facility in Miami-Dade County, appeals an order of the Florida Unemployment Appeals Commission (FUAC) dismissing her unemployment appeal for lack of jurisdiction. Ms. Ponce is not an attorney and represented herself throughout the administrative proceedings and this appeal. During the pendency of the case here, Ms. Ponce filed additional information with FUAC and this Court regarding her claim for benefits and her former employer’s allegation of misconduct. In order to assure an orderly and complete consideration of that information before a final review is conducted here, we vacate the order below with directions to FUAC to remand Ms. Ponce’s case to the Agency for Workforce Innovation Office of Appeals for further consideration.

Background

Ms. Ponce worked for Brookwood Gardens, a nursing home in Homestead, Florida, for several years. In late 2008 she was terminated by her employer. She applied for unemployment benefits and was issued a determination of eligibility for weekly benefits of $260 effective December 14, 2008. The following month, she received a notice of determination that benefits would not be paid because she was “discharged for violation of a resident’s rights” and her actions “were not in the employer’s best interests.”

She appealed that redetermination on a standard form and explained “I have worked at the nursing home for three years. I have never been counseled for any resident misconduct. I did not violate the resident’s rights. I am requesting a hearing.” Her appeal was considered “filed” by the Agency for Workforce Innovation over 20 days after the computer-generated “date mailed” on the redetermi-nation, however. The Agency for Workforce Innovation Office of Appeals then mailed to Ms. Ponce a notice for a telephonic hearing to be held March 24, 2009. The hearing was scheduled to address both the timeliness of Ms. Ponce’s appeal and the merits of the employer’s claim of misconduct.

On March 24th, Ms. Ponce apparently-had not received the notice or did not answer the referee’s call, with the result that her appeal was dismissed the same day. The notice of dismissal was certified to have been mailed to Ms. Ponce on March 24, 2009.

In December 2009, Ms. Ponce filed a request to reopen her case noting that there was new information to “clear myself.” The record does not indicate that this request included a copy of a document she filed here as the “new information,” a letter from the Florida Department of Health in August 2009. That Department found no probable cause for action against Ms. Ponce’s license “after reviewing the entire investigative file, including the uniform complaint, witness statements, and the relevant records.” FUAC docketed Ms. Ponce’s request as a “request for review” and, in February 2010, entered an order finding her request untimely and dismissing it. Her timely appeal to this Court followed.

By letter dated February 20, 2010, Ms. Ponce provided more information, including a copy of the August 2009 letter from the Department of Health. So far as the record indicates, FUAC and the Agency took no further action regarding Ms. Ponce’s latest submission.

Analysis

Although the provision is more commonly invoked by employers contesting a favorable determination of benefits claimed by a former employee, section 44S.151(3)(c)l, Florida Statutes (2009), states that the Agency for Workforce Innovation “may reconsider a determination if it finds an error or if new evidence or information pertinent to the determination is discovered after a prior determination or redetermination.”

The provision does not permit re-determination if the “new information” was actually available at the time of the initial determination or hearing. Reeves v. Fla. Unemployment Appeals Comm’n, 782 So.2d 525 (Fla. 1st DCA 2001); Guido v. Vincam Human Resources, Inc., 729 So.2d 968 (Fla. 3d DCA 1999). But in this case, Ms. Ponce sought to provide information that, on its face, appears to be quite pertinent to her claim — the agency regulating nursing assistants had conducted an investigation and determined, five months after Ms. Ponce’s scheduled telephonic unemployment compensation hearing, that-based on witness interviews, records, and investigation there was no probable cause for action against Ms. Ponce’s license.

In this and similar cases, FUAC cannot be criticized for not immediately re-opening Ms. Ponce’s claim and remanding it to the Agency. Sparse details are often provided, many times in a handwritten letter. The claimants are typically unemployed and in dire financial straits, are not represented by an attorney, and are unable to afford an attorney. The relatively small sums in controversy often deter private counsel from taking the cases.

However, the difficulty of a typical claimant at this level of review cannot be fully appreciated. In this case, Ms. Ponce’s handwritten letter to FUAC described her efforts to obtain reconsideration based on new evidence:

I would like to apologize to the state’s office for being so naive and ignorant as to how your organization operates. I am a 51 year old woman who has never been to the unemployment office until this problem happened. I did not even know what requesting an appeal meant then as I was calling in my weeks I was told my case was closed so I went to the unemployment office for help because I did not understand what they meant but I was told that their employees are there to find people jobs not to help with unemployment. Because of all this information I lost my home, my vehicle, and have no income. I am begging your office to help me with the appeal. I know the good Lord above will help me get past this. When they told me my case was closed I gave up on myself and gave up on fighting, but then in August I received a letter telling me I was cleared of all charges so I called the state again and reopened my case. Ever since then I have been calling every 2 weeks and fighting the best I could to get you guys to approve my appeal. I am begging you to help me. I am begging you to allow me another chance to appeal this case, please give me a chance. I really need your assistance and help. Thanks very much for your time and assistance. Please I know the Lord above will bless you and your entire office. [Signed].

Although the August 2009 letter is hearsay, Ms. Ponce should have an opportunity to demonstrate below that it is “new information” under the redetermination statute. If fully developed in a further hearing, the documents and witnesses considered by the Board of Nursing may substantiate Ms. Ponce’s original grounds on appeal (denying some unidentified person’s extra-record claim of misconduct in the care of a resident at Brookwood Gardens). The Agency for Workforce Innovation, FUAC, and this Court are directed to liberally construe the unemployment compensation statute in favor of claimants who are unemployed through no fault of their own. § 443.031, Fla. Stat. (2009). This Court treats a party’s request for an improper remedy (the consideration of new evidence or information that must first be considered by the lower tribunal) as if the proper remedy had been sought. Fla. R. App. P. 9.040(c).

We therefore vacate the order below and remand this case to FUAC for further remand to the Agency’s office of appeals for consideration of Ms. Ponce’s new information (including any testimony Ms. Ponce may obtain from the investigative witnesses), under section 443.151(3)(c) in a further telephonic hearing. We direct our Clerk to enclose with the parties’ service copies of this opinion a copy of the Court’s “Information for Persons Who Do Not Have a Lawyer” pamphlet in order that Ms. Ponce can seek legal assistance from a nearby legal services provider or volunteer “pro bono” attorney without charge.

Order vacated and case remanded for further proceedings.

      . Her employer for record purposes below was "Signature Payroll Services” of Palm Beach Gardens.

      . The Agency considers the "date mailed” shown on the form to be controlling. It does not certify a date of service, include any identifiable person's signature, provide a postmark, or provide any evidence of a standard business practice for mailing the notices once the computer generates them.

      . In her reply brief (a handwritten letter), Ms. Ponce alleges that she did not receive the information about the telephonic hearing until it had already taken place. She further alleges that she was then told when she "called the state” that the case was closed.

      . The letter was received by FUAC on March 5, 2010 and by this Court as part of Ms. Ponce's appeal on March 22, 2010. FUAC evidently concluded that jurisdiction had been assumed by this Court, and thus took no further action.

      . The alleged “new evidence or information” was timely under § 443.151(3)(c), as it was submitted within one year of the applicable benefit year, i.e., before December 13, 2010. The existing record contains no evidentiary support for the conclusion by the Agency's claims adjudicator that Ms. Ponce "was discharged for violation of a resident’s rights” as set forth in the Januaiy 2009 redetermination.


text:
    ATLANTIC USA, INC., Appellant, v. Johnny O. LOPEZ, et al., Appellees.
    No. 3D09-3219.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Murai, Wald, Biondo & Moreno, Allen P. Pegg, Gerald B. Wald, and Javier A. Reyes, Miami, for appellant.
    Shubin & Bass, John K. Shubin, and Lucinda A. Hofmann, Miami, for appellee, Johnny and Elizabeth Lopez; Weiss Sero-ta Helfman Pastoriza Cole & Boniske, Stephen J. Helfman, and Laura K. Wendell, Miami, for appellee, Village of Key Biscayne.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dep’t of Envtl. Prot. v. PZ Constr. Co., 633 So.2d 76 (Fla. 3d DCA 1994).


text:
    Norberto O. EASON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2611.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Norberto O. Eason, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

We reverse the order summarily denying Norberto O. Eason’s motion for additional credit for time served because nothing attached to the order on appeal demonstrates that Eason is not entitled to the additional credit he seeks. Aristides v. State, 44 So.3d 195 (Fla. 3d DCA 2010); Parks v. State, 18 So.3d 1199 (Fla. 3d DCA 2009). This cause is remanded for further proceedings.

Reversed and remanded.


text:
    Jerrold WINGATE and The Wingate Law Firm, Appellants, v. CELEBRITY CRUISES, et al., Appellees.
    No. 3D09-1241.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, for appellant.
    Mase, Lara, Eversole and Curtis J. Mase, Valentina M. Tejera, and Leah H. Martinez, Miami, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The appellants, Jerrold Wingate and The Wingate Law Firm, appeal from an Order of Contempt, finding them in contempt for willfully disobeying the lower tribunal’s prior court order and knowingly receiving money in violation of that order. Following our review of the order, we agree with the appellants that the Order of Contempt contains a mathematical error, and therefore, remand with directions to enter an amended order, reflecting that appellants must repay $219,653.07, not $333,727.74. In all other respects, we affirm, finding that the appellants’ remaining argument lacks merit.

Affirmed; remanded with directions.


author: WARNER, J.

text:
    J.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3457.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.

      Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

J.T. appeals an order finding him guilty of possession of a weapon or firearm on school property. He contends that the state failed to prove that the BB gun he brought onto school property was operable and thus a weapon. Because the state produced the BB gun at trial, and the officer testified regarding its operation and ability to inflict harm, the deadliness of the weapon was a question of fact, and the trial court properly denied J.T.’s motion for judgment of dismissal.

At the adjudicatory hearing, the evidence revealed that J.T. brought a BB gun to his middle school in his backpack. He showed it to several students. After one of the students notified the principal, the school resource officer investigated and found the gun in J.T.’s backpack. When the officer inspected the gun, he found that the C02 gas cartridge, necessary to make the gun operable, was in the gun, as was at least one pellet. The officer testified that a BB pellet shot from a gun could put someone’s eye out, and the BB gun was a dangerous weapon. While the officer did not test the gun, he testified that J.T. had told him that he had fired the gun in the past. It belonged to J.T.’s brother, and J.T. mistakenly brought it to school but admitted he had shown it to friends there. The BB gun, pellets and C02 cartridge were admitted into evidence.

After the state presented its case, J.T. moved for a judgment of dismissal, arguing that the state had failed to prove that the BB gun was a dangerous weapon, because the state did not prove that the gun was operable. The state objected, claiming that the issue was one of fact for the trier of fact, and that it had produced sufficient evidence to withstand a motion for judgment of dismissal. The judge first found that a BB gun was a weapon and then ruled that there was no proof that the weapon was inoperable. It determined, however, that the state did not have to prove the issue of operability, because of the zero tolerance policy for guns at school. The court denied the judgment of dismissal, withheld adjudication of J.T., and ordered him to perform community service. He appeals.

We apply a de novo standard of review for a motion for judgment of dismissal in a juvenile case. See J.P. v. State, 855 So.2d 1262, 1264 (Fla. 4th DCA 2003). The motion tests the legal sufficiency of the state’s evidence. Because the state’s evidence was legally sufficient, we affirm.

Section 790.115(2) prohibits the possession of a firearm “or other weapon as defined in s. 790.001(13)” on school property. A BB gun is not a firearm, see Wilson v. State, 901 So.2d 885, 886 (Fla. 4th DCA 2005), and thus that provision of the statute does not apply. The relevant portion of section 790.001(13) defines “weapon” as “other deadly weapon except a firearm.... ” A deadly weapon is one which can inflict death or great bodily injury. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997).

This case in controlled by Dale in which the supreme court held that it is a question of fact as to whether a BB gun is a deadly weapon, i.e., whether it is capable of producing death or great bodily injury. The finding of the jury, or trier of fact, will be upheld where there is competent substantial evidence to support the determination. In Dale, the court pointed to the evidence which supported the jury’s conviction for armed robbery, where the defendant possessed a BB gun during the robbery.

In the present case, the jury had a sufficient basis for concluding that Dale’s weapon was deadly. Of key importance is the fact that the jury had an opportunity to view the weapon firsthand. Further, Officer Stone testified concerning the circumstances under which the gun was found and the condition it was in when found, and Investigator Corder showed the jury in detail how the gun operated. The fact that the gun was recovered without BBs, pellets, or gas cartridge is not dispositive.

Id. at 1047 (emphasis supplied). Dale cites to Bentley v. State, 501 So.2d 600, 602 (Fla.1987) for the proposition: “Whether the gun in [the defendant’s] possession was loaded or whether [the defendant] had available ammunition is irrelevant.”

Applying Dale in Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004), we reversed a conviction for robbery with a deadly weapon because the BB gun used in the robbery was not in evidence for the jury to examine, as it had been inadvertently destroyed by the state. No one testified as to its operation, and the defendant testified that it “couldn’t hurt a fly.”

In contrast, in this case the BB gun was admitted into evidence. The investigating officer described the gun and explained to the court how it worked. He testified that a shot from the gun could put someone’s eye out. In T.H. v. State, 859 So.2d 549 (Fla. 4th DCA 2003), we held that evidence that the gun could damage an eye was sufficient to prove that the BB gun was a weapon for purposes of section 790.115(2). Moreover, J.T. himself admitted to the officer that he had fired the gun. Therefore, this too supported a finding that the BB gun was capable of producing great bodily harm.

We distinguish our recent case of J.M.P. v. State, 43 So.3d 189 (Fla. 4th DCA 2010). There, the juvenile was also charged with a violation of section 790.115(2) by bringing a BB gun to school. The opinion does not mention that the BB gun was placed in evidence. The court held that the state’s evidence was insufficient to show that the gun was a deadly weapon because the state did not provide any explanation of how to operate the gun or the type of injury it would inflict. In this case, the officer testified both as to how the gun operates and the injury it could inflict.

To summarize, we hold that in a prosecution for possession of a BB gun on school premises in violation of Florida Statute 790.115(2), where the state introduces the BB gun into evidence and offers testimony regarding its operation and the extent of harm which can be caused by a BB gun, the state has presented legally sufficient evidence to avoid a judgment of dismissal. It is then a question for the trier of fact to determine by competent substantial evidence as to whether the BB gun constitutes a deadly weapon and thus violates the statute.

Our holding should be limited to those cases where the BB gun is admitted into evidence. We do not comment on whether other evidence could show that the BB gun used in a crime is a deadly weapon even when it is not available as evidence.

Because the state presented legally sufficient evidence to survive a judgment of dismissal, we affirm the trial court’s ruling.

Affirmed.

POLEN and LEVINE, JJ., concur.

      . Although the J.M.P. opinion also references the fact that the gun was not loaded, that could not be a dispositive fact because of the language in Dale which declares that the fact that a BB gun is found without pellets or gas cartridges is not dispositive of the deadliness of the gun.


text:
    John O’KEEFE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1414.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

After the conclusion of closing argument in appellant’s trial for organized fraud, the trial court changed the instruction on the elements of the crime, from an instruction requiring the jury to find that the appellant and his co-defendant engaged in a scheme to defraud, to an instruction requiring that the jury find that the appellant and/or his co-defendant engaged in a scheme to defraud. Because appellant had relied on the prior instruction in his argument to the jury, we conclude that the error requires reversal.

Appellant and his co-defendant were charged by amended information with committing organized fraud, in violation of section 817.034(4)(a)l., Florida Statutes (2001). The state alleged that, during a three-year period, the appellant obtained over $50,000 from various victims, making the offense a first-degree felony.

The evidence at trial showed that appellant owned and operated an investment company called Merit First. Appellant and his co-defendant, Scott Smith, each sold investment opportunities to friends and acquaintances. The state called thirteen witnesses who each gave substantial sums of money to appellant or Smith for investment purposes. Smith attracted investors, mostly from his church, to appellant’s firm. Some investors dealt solely with appellant; some dealt solely with Smith; and some dealt with both appellant and Smith. The investors were usually given promissory notes, which were to be repaid within sixty-ninety days, and told that their funds would be used to finance shell corporations that would be sold to start-up companies seeking to go public. However, the investors were never repaid.

A state investigator testified that he had reviewed appellant’s books and records and could find no investor money going into any investments at all, but he did find substantial amounts flowing to appellant and his family and to Smith. Smith testified that before he joined appellant, he checked out his references, which seemed accurate. He began selling investments for appellant who would continually tell Smith that he was on the brink of a sale of a shell corporation which would bring the return to investors. After about eighteen months, Smith stopped believing him. Smith claimed that he repaid some investment funds to one investor.

At the charge conference, the parties agreed to instruct the jury that to prove the elements of organized fraud, the state must prove: (1) that appellant and Smith engaged in a scheme to defraud, and (2) that appellant and Smith obtained property through the scheme to defraud. Appellant’s defense lawyer relied upon this instruction in closing argument, arguing to the jury as follows:

[DEFENSE:] And the one thing that [the prosecutor] said is you have to believe that John Martin O’Keefe, Sr. and Peter Scott Smith engaged in it together not or. It’s and. And that’s very, very critical because they both had to be in on it together....
Now, you’ll be told by the State and you’ll be told by the judge that you have to try them separately on their own facts. But the law is very clear. It’s Mr. O’Keefe and Mr. Smith engaged in a scheme to defraud. That has to be proven beyond and to the exclusion of every reasonable doubt.

Part of appellant’s counsel’s closing argument pointed to the fact that most of the investor witnesses invested through Mr. Smith without contacting appellant. Smith’s closing argument focused on his lack of knowing participation in a scheme to defraud, that he was simply the “mate” on the boat of which appellant was the “captain.” In the end of rebuttal, the prosecutor asked the jury to determine whether the two defendants were “in this together.”

After the closing arguments, the trial court questioned whether the jury instructions agreed on at the charge conference were correct. In particular, the court questioned whether the conjunction “and” should be placed between the names of the defendants in the instructions on the elements of the crime. The prosecutor noted that the jury needed to make a determination as to each defendant separately, suggesting that the instruction “probably should be and/or.” Counsel for co-defendant Smith also asked that the instruction be changed to “and/or” and explained that such an instruction would be “more appropriate.” However, appellant’s defense counsel repeatedly objected to the change in the instruction, noting that in closing argument he relied on the instructions that were presented in the charge conference. The court also believed that appellant’s closing argument was contrary to standard jury instruction 3.12B.

Ultimately, over appellant’s objection, the trial court changed the jury instruction from the “and” conjunction to the “and/or” conjunction, instructing the jury as follows:

To prove the crime of organized fraud, the State must prove the following two elements beyond a reasonable doubt:
1. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH engaged in a scheme to defraud.
2. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH obtained property through the scheme to defraud.

Before the trial court instructed the jury, defense counsel asked for a curative instruction to notify the jury of the change in the wording of the instruction, explaining that he did not want the jury left with the impression that he “had no idea what he was talking about.” In particular, appellant’s counsel explained: “I think you would say that all lawyers agreed based on 3.12B we amended it to and/or. I think they have to be put on notice if you’re going to overrule my objection, I think, there has to be an explanation. Otherwise, this is a detriment of Mr. O’Keefe’s defense in closing argument.” The trial court denied appellant’s request for a curative instruction and instructed the jury with the changed instruction. The jury found both defendants guilty as charged. Appellant was sentenced to five years in prison and ordered to pay restitution to his victims. He appeals.

On appeal, appellant argues that changing the jury instruction after closing argument was reversible error. He contends that the error was particularly egregious where the court denied his request for a curative instruction, which left the jury with the impression that defense counsel was either trying to mislead it or was ignorant of the law. We agree that this error requires reversal.

“Closing arguments are the last and best opportunity trial counsel have to directly address the jury on what they should or should not decide within the parameters of the proper instructions the jury is about to receive from the trial judge.” King v. State, 642 So.2d 649, 650 (Fla. 2d DCA 1994), disapproved of on other grounds, Welsh v. State, 850 So.2d 467 (Fla.2003). In accordance with this principle, several cases have found reversible error where the trial court, after closing arguments, instructed the jury differently than what was determined at the charge conference. See Kirkland-El v. State, 883 So.2d 383 (Fla. 4th DCA 2004) (holding that the defendant was deprived of a fair trial on a charge of aggravated battery where the trial judge decided to omit a “duty to retreat” instruction at the charge conference, but then in the middle of closing arguments, the judge changed his mind and decided that the instruction would in fact be given to the jury); Knuth v. State, 679 So.2d 22 (Fla. 2d DCA 1996) (holding that a change in jury instructions after closing argument amounted to reversible error where the defendant lost the opportunity to address the proper DUI manslaughter instruction during closing); King, 642 So.2d at 650 (holding that the defendant was deprived of the right to a fair trial where, after closing arguments, the trial judge reversed himself and decided to give an instruction on a lesser-included offense requested by the defense; although the instruction was ultimately given, this did not cure the error because defense counsel was forced to present the closing argument without being able to argue the lesser-included offense).

In Kirkland-El, we articulated the magnitude of the damage that can be done to the presentation of a defendant’s case where the jury instructions are changed following closing argument:

Relying on the trial court’s rulings at the charge conference, counsel argued that Kirkland-El had no duty to retreat in his own home. Then, after the trial court reversed its position, the state was able to argue consistently with what the jury would hear from the jury instructions. Thus, the jury would have to conclude that defense counsel was either trying to purposely mislead it or was ignorant of the law. Because the instruction was central to the defense of the case on a hotly contested issue, Kirkland-El was prejudiced by the actions of the trial court.

883 So.2d at 385 (emphasis added). Similarly, in Knuth, the Second District explained that although the trial court “ultimately gave an appropriate instruction, the failure to give the instruction before the defendants had their final say generated prejudice that can only be remedied by retrial.” 679 So.2d at 23.

The error which occurred in this case constitutes a per se reversible error. Recently, in Johnson v. State, 2010 WL 3909859 (Fla. Oct.7, 2010), our supreme court explained the per se reversible error rule:

Like the harmless error test, the per se reversible error rule is concerned with the right to a fair trial. [State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).] “The test of whether a given type of error can be properly categorized as per se reversible is the harmless error test itself.” Id. “If application of the test to the type of error involved will always result in a finding that the error is harmful, then it is proper to categorize the error as per se reversible.” Id.
This Court has also applied the per se reversible error rule to those cases where the appellate court is unable to conduct a harmless error analysis because it would have to engage in pure speculation in order to attempt to determine the potential effect of the error on the jury.

Errors which the Johnson court categorized as per se reversible error include: (1) a trial court responding to a jury question outside of the presence of defense counsel, Ivory v. State, 351 So.2d 26, 28 (Fla.1977); (2) a bailiffs unsupervised conversations with the jury, State v. Merricks, 831 So.2d 156, 161 (Fla.2002); and (3) substitution of a juror after deliberations begin, Williams v. State, 792 So.2d 1207, 1210 (Fla.2001). In Johnson, the court held that a court’s preemptive instruction that it would not allow read back of testimony prior to any request constituted per se reversible error.

We find that the error in this case of changing the substance of the elements of the charged crime after closing argument is the type of error which must be treated as per se reversible, because we would be engaging in speculation to determine the effect that such a change had on the jurors. As noted in Kirkland-El, the jurors might completely disregard the defense’s case and argument on the ground that defense counsel was trying to mislead them or was simply ignorant of the law.

The court could have cured the error in this case by accepting appellant’s request for a curative instruction. Unfortunately, the court refused to give such an instruction.

For these reasons, we reverse and remand for a new trial.

POLEN and LEVINE, JJ., concur.

      . We do not decide, because it was not raised, whether using "and/or” would be correct in this case.

      . That instruction provides as follows: “The defendants have been tried together; however, you must consider each defendant and the evidence applicable to him separately. You may find one, any or both guilty or not guilty. However, your verdict as to one defendant must not affect your verdict as to the other(s).”


author: PER CURIAM. SALTER, J.

text:
    Gregory JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1752.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., GERSTEN and SALTER, JJ.
   PER CURIAM.

Gregory Johnson (“the defendant”) appeals his conviction and sentence for manslaughter. We reverse.

The State charged and tried the defendant with premeditated murder for the shooting death of Jose Martinez (“the victim”). The defendant and his then girlfriend, Sandra Vega (“Vega”), contracted with the victim to build them a house. Subsequently, Vega ended her relationship with the defendant and began one with the victim.

On the night of the shooting, the victim and Vega were at the home of Vega’s cousin where Vega was staying. Apparently, the victim decided that it was time to resolve the differences, both professional and personal, with the defendant. Accordingly, he called the defendant to come over, and, after the defendant refused the invitation, sent an employee to bring the defendant.

The two men started talking, and the conversation soon became heated. During an ensuing physical struggle, a gun went off. Both men were shot, the victim fatally. The defendant claimed that the victim was the initial aggressor, when he hit the defendant in the head with something hidden in some papers. At trial, the defendant claimed self defense. The jury convicted defendant of second degree murder, but this Court subsequently reversed and remanded for a new trial.

For the second trial, defense counsel was unable to locate Vega, and sought to introduce her sworn testimony from the first trial. The defendant argued that Vega’s testimony was relevant to his claim of self defense. At the first trial, Vega identified the gun used in the shooting as one she kept at her cousin’s house. Vega also testified that she had shown the gun to the victim prior to the shooting. On the other hand, the victim’s employee testified that he saw the defendant take something out of the car prior to his arrival. Thus, the question of who brought the gun to the scene was disputed.

The trial court denied the defendant’s request to introduce Vega’s prior testimony. The trial court’s exact reason for excluding the evidence is somewhat puzzling. Initially, the trial court stated that defense counsel made insufficient efforts to locate and subpoena Vega for trial. The defense, however, provided the trial court with law stating that proof of unavailability is not necessary to introduce prior sworn testimony. Thereafter, the trial court decided to use a 90.403 analysis to keep the evidence out. In any event, the trial court excluded Vega’s testimony.

Interestingly, during deliberations, the jury asked why Vega had not testified. Ultimately, the jury found the defendant guilty of manslaughter, and the trial court sentenced the defendant to 30 years in prison.

On appeal, the defendant asserts that the trial court abused its discretion in ex-eluding Vega’s prior testimony. The State contends that the trial court properly excluded the evidence under a 90.403 analysis because the testimony would have only confused and mislead the jury. We agree with the defendant.

Generally, a trial court has discretion in the admission of evidence. Ray v. State, 755 So.2d 604, 610 (Fla.2000). However, an abuse of discretion occurs when the judicial action is arbitrary, fanciful, or unreasonable or where no reasonable man would take the view the trial court adopted. Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)).

Moreover, all relevant evidence is admissible unless excluded by law. § 90.402, Fla. Stat. (2008). Section 90.803(22), Florida Statutes (2008), allows introduction of former testimony, notwithstanding a witness’ availability, as long as the witness was subject to direct, cross, and redirect examination. Conversely, evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2008).

Here, Vega’s testimony was relevant to an issue in dispute, to-wit, whether the defendant acted in self defense. To determine if the defendant acted in self defense, the jury was entitled to hear everything that occurred prior to the shooting, including who brought the gun. The jury could reasonably infer that the person who brought the gun was likely the initial aggressor. Without Vega’s testimony, the jury only had the testimony of the victim’s employee, which suggested that the defendant brought the gun. Thus, Vega’s testimony that she had the gun and showed it to the victim prior to the shooting was clearly important.

The State argues that Vega’s testimony would only have confused the jury because she also testified that she saw the defendant with the gun at the time of the shooting. The fact that at some point the defendant had the gun in his hand does not conclusively disprove the defendant’s claim that he was not the initial aggressor. Thus, Vega’s testimony was highly relevant. § 90.402.

Typically, juries are presented with different versions of events, and must be trusted to consider and weigh all the evidence and ascertain credibility. Here, the trial court abused its discretion when it excluded Vega’s prior testimony simply because it contradicted other evidence. Therefore, a new trial is warranted.

Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SALTER, J.

(concurring).

I concur that Ms. Vega’s prior trial testimony was relevant, admissible, and erroneously excluded. The State did not actually raise and argue an objection based on 90.403. When the defense announced (at the close of the prosecution case) its change of position and intention to introduce the prior testimony, both sides initially thought that a showing of current unavailability of the declarant was required. The trial court studied this and informed the attorneys that the pertinent case law and Professor Ehrhardt’s Florida Evidence, 2007 edition, pages 966-67, stated a showing of unavailability was not required for prior sworn testimony sought to be admitted by the defense if (as here) the opposing party was afforded a full opportunity to cross-examine the declarant. The trial court then observed that the Ehrhardt commentary on 90.803(22) in-eluded a comment that, “all evidence is always subject to a 90.403 analysis.”

The State expressed concerns that it had insufficient time to subpoena Ms. Vega (because it would want to cross-examine her on certain points in person), that the State would need additional rebuttal witnesses, and that reading the transcript of Ms. Vega’s prior trial testimony might take two days. Ultimately, the prejudice found by the trial court for purposes of 90.403 was “gamesmanship” in demanding speedy trial followed by the failure to find and subpoena Ms. Vega for in-court testimony, followed by the decision to offer her prior trial testimony. The trial court also stated that both sides had called Ms. Vega’s testimony “totally incredible” and that “the testimony would only confuse the jury.”

A review of Ms. Vega’s prior trial testimony does not reveal the kinds of prejudice or unfairness to be weighed under section 90.403. Late notice or “gamesmanship” regarding the use of the testimony in the defense case is a different issue governed by other rules and decisions. The burden is on the party objecting to the admissibility of the evidence on the basis of 90.403 “to demonstrate that the probative value is ‘substantially outweighed’ by one of the countervailing factors.” Ehrhardt, § 403.1 at 184 (footnote and citation omitted). The State made no such showing.

As to probative value, in this case, the State told the trial court, regarding Ms. Vega, “... this is a significant witness who is more — I mean we are talking about a major witness, a major witness.... ” The State had a full and fair opportunity to cross-examine Ms. Vega during the first trial — which addressed the same charges and facts — and there is thus no reasonable basis for excluding the prior testimony.

For these additional reasons, I concur in the reversal and remand for a new trial.