author: SILBERMAN, Chief Judge. ALTENBERND, Judge,

text:
    James L. WIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3545.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.
    Rehearing Denied Sept. 27, 2011.

      N. Adam Tebrugge of Tebrugge Legal, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

While James L. Wiggs was stopped for a traffic infraction, a drug-detection dog alerted on his vehicle. Deputies searched the vehicle and found cocaine inside. Wiggs entered a plea to the charge of possession of cocaine with intent to sell or deliver while reserving the right to appeal the denial of his dispositive motion to suppress. We reverse because the dog’s alert on Wiggs’ vehicle did not provide probable cause to search.

Just before midnight on August 14, 2007, a Sarasota County deputy stopped Wiggs’ vehicle for running a red light on U.S. 301. The deputy detained Wiggs in order to prepare a warning citation. During the detention, a drug-detection dog named Zuul alerted to Wiggs’ vehicle. A search of the vehicle revealed the cocaine that forms the basis for the charge in this case.

Wiggs filed a motion to suppress the cocaine in which he argued that Zuul’s alert did not provide probable cause to search his vehicle. Wiggs challenged Zuul’s reliability and cited evidence of numerous “false alerts” by the dog in the field. At the hearing on Wiggs’ motion to suppress, the State presented testimony and documents regarding Zuul’s training and field record.

The primary witness called by the State was Zuul’s handler, Deputy Indico. Deputy Indico testified that Zuul was acquired from a German Shepherd breeder in Hungary; the dog was selected based on his aggressiveness and motivation. Deputy Indico began training Zuul in February 2007. Deputy Indico and Zuul completed an eighty-hour narcotics training course offered by the Sarasota Sheriffs Office as well as a 400-hour patrol course. In addition, Deputy Indico and Zuul were certified by the Florida Department of Law Enforcement (FDLE) and National Police Canine Association (NPCA). Deputy Indi-co and Zuul’s training and certification process was completed on April 27, 2007.

Zuul lives with Deputy Indico in order to build a bond between them. The dog was trained to detect different scents of narcotics by placing the drug on top of a bean bag so the bag absorbed the scent. Then the bean bag was introduced to the dog in the form of a hide-and-seek game in which the dog used his nose to locate the bean bag. Eventually, the dog was introduced to the actual narcotic. Zuul was trained to detect marijuana, cocaine, methamphetamine, and heroin.

Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul’s body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriffs trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.

To obtain NPCA certification Deputy Indico and Zuul had to meet specific NPCA training standards, which were admitted in evidence, and achieve 75 percent accuracy. The pair had to find narcotics in two out of four vehicles and from two out of three rooms within a building. The FDLE certification was for apprehension, tracking, and building searches but did not include any narcotics detection training.

After graduation Zuul and Deputy Indi-co continued to train on a weekly basis. They have been certified every year by the requirements set forth from the NPCA training standards. Deputy Indico kept monthly training and scent detection logs which the State introduced in evidence. The logs covered Zuul’s initial training in February 2007 as well as his weekly training up until Wiggs’ stop on August 14, 2007.

Deputy Indico also kept a monthly report of Zuul’s field activity from April 2007 until August 2007, which the State introduced in evidence. On the positive vehicle alerts that did not result in a drug find, or unverified alerts, Deputy Indico documented any history the vehicle or its passengers had with drugs. Deputy Indico acknowledged that Zuul had not been trained to refrain from alerting to residual odors. Thus, it was important for Deputy Indico to document the history of the driver and vehicle on unverified alerts. Deputy Indico explained that he obtained the histories by interviewing the driver or passengers. If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert. Deputy Indico did not document the details of the alleged drug histories.

Deputy Indico began using Zuul to search for narcotics during vehicle stops on May 14, 2007. During the first stop Zuul alerted and a marijuana pipe was discovered. The next day, May 15, Zuul alerted on another vehicle, but nothing was found. Deputy Indico documented that the passenger admitted using cocaine at some time before the stop. On May 17, 2007, Zuul alerted to a vehicle, but no narcotics were found. The deputy documented that the vehicle had a “narcotics history.” Similarly, Zuul alerted on May 18, 2007, and nothing was found, but the driver admitted to smoking marijuana. On June 2 and 9 Zuul sniffed vehicles for drugs but did not alert.

On June 17, 2007, Zuul alerted at the driver’s door of another vehicle but no drug that Zuul was trained to detect was found. This time Deputy Indico documented that the passengers admitted to smoking marijuana. On June 29 Zuul alerted on the driver’s side door of a vehicle but there was no find. According to Deputy Indico, the vehicle and owner had a narcotics history.

On July 2, 2007, Zuul sniffed a vehicle for drugs but did not alert. On July 8 and July 9 Zuul alerted on vehicles, and narcotics were discovered. But on July 24, 25, and 30 Zuul alerted on vehicles in which no drugs were found. Similarly, on August 14 Zuul alerted on two different vehicles, but no drugs were discovered. In four of the five preceding instances, Deputy Indico documented that either an occupant of the vehicle had smoked marijuana or the vehicle had some type of narcotics history. In the fifth instance, Deputy Indico testified that he smelled the odor of burnt marijuana. Finally, on August 15, 2007, Zuul alerted to Wiggs’ vehicle and drugs were found inside.

In summary, Deputy Indico and Zuul had been summoned to seventeen vehicle stops between May and August of 2007. Ten of these encounters resulted in Zuul alerting on the vehicle with no discovery of drugs. Four post-alert vehicle searches, including Wiggs’, resulted in the discovery of drugs. And three encounters ended with no alert.

The specific question before this court is whether Zuul’s alert to the exterior of Wiggs’ vehicle provided probable cause to support a warrantless search of the vehicle’s interior. The framework for analyzing this issue has recently been set forth by the Florida Supreme Court in Harris v. State, 71 So.3d 756 (Fla.2011). In Harris, a drug-detection dog alerted to the driver’s door handle of the defendant’s vehicle during a traffic stop. Id. at 759-60. A search of the vehicle revealed over 200 pseu-doephedrine pills, eight boxes of matches, and muriatic acid; these items are commonly used to create methamphetamine. The State charged the defendant with possession of pseudoephedrine with the intent to use it to manufacture methamphetamine. The defendant entered a plea to the charge while reserving the right to appeal the denial of his dispositive motion to suppress. Id. at 762. The First District affirmed, and the supreme court accepted discretionary review of the case based on express conflict between the districts.

The question before the court “concern[ed] the evidence that the State must introduce to establish that probable cause existed for the warrantless search of a vehicle based on a drug-detection dog’s alert to the vehicle.” Id. In addressing this question, the court resolved a conflict among the district courts. The First, Fourth, and Fifth Districts had held that the State could establish a prima facie case of probable cause by providing evidence of the drug-detection dog’s proper training and certification. Id. at 762 (citing Harris v. State, 989 So.2d 1214, 1215 (Fla. 1st DCA 2008); State v. Laveroni, 910 So.2d 333, 336 (Fla. 4th DCA 2005); State v. Coleman, 911 So.2d 259, 261 (Fla. 5th DCA 2005)). The prima facie case of probable cause could be rebutted by the defendant’s presentation of evidence of the dog’s unreliability. Id. at 763. However, the Second District had held that the fact of a dog’s training and certification, in itself, was not sufficient to establish probable cause. Id. (citing Gibson v. State, 968 So.2d 631, 631 (Fla. 2d DCA 2007); Matheson v. State, 870 So.2d 8, 14 (Fla. 2d DCA 2003)).

The supreme court agreed with the Second District’s conclusion. Id. The court explained that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” Id. at 767. The court reasoned that the certification and training of drug-detection dogs was not subject to a uniform statewide or nationwide standard. Id. at 767-68. Additionally, the fact of the dog’s training and certification did not account for the possibility of false alerts, handler error, and alerts to residual odors. Finally, allowing the fact that a dog has been trained and certified to provide a prima facie case of probable cause would improperly place on the defendant the burden of production of evidence solely within the control of law enforcement. Id.

Thus, the supreme court adopted a “totality of the circumstances approach” that places the burden of producing evidence to establish the dog’s reliability on the State. Id. at 771.

The State’s presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog’s performance in the field, including the dog’s successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog’s ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog’s reliability.

Id. The court placed special emphasis on the dog’s field records, explaining that a dog’s alert to residual odor, though different from a false alert, may not indicate that drugs are actually present at the time. Id. at 769. The court rejected the State’s argument that field records are meaningless because dogs do not distinguish between the odor of drugs that are present and residual odors. Instead, the court determined that evidence explaining unverified alerts would allow the trial court “to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.” Id.

In applying the totality of the circumstances test to the facts of that case, the supreme court held that the trial court erred in determining that the State established probable cause based on the dog’s alert. Id. at 770. The court noted that, while the dog had a “ ‘really good’ ” success rate during training, the State had not established whether the dog had any false alerts. Id. Additionally, the court noted the absence of evidence regarding the details of the dog’s training, such as whether the handler knew the location of the drugs and whether a variety of environments and distractions were used during training. The State also failed to present evidence setting forth the criteria for the dog’s certifications.

Moreover, the State failed to present any quantification of the dog’s success in the field because it did not introduce the dog’s field performance records. Id. at n. 12. Without such evidence, the State could not explain the significance of the dog’s unverified field alerts. Id. Similarly, the State failed to present evidence regarding the dog’s ability to detect residual odors and how the dog’s alert to a residual odor on the door handle provided a fair probability that drugs would be found inside the defendant’s vehicle.

The court concluded that, because the State failed to establish a reliable alert, it failed to establish probable cause. Id. at 774-75. Therefore, the trial court erred in denying the defendant’s motion to suppress. Id. at 775. The supreme court thus reversed and remanded for further proceedings.

The totality of the circumstances analysis leads to the same conclusion in this case. Here, the State presented evidence of Deputy Indico and Zuul’s national training and certification which included the NPCA training standards that .were met. The State established that Zuul had to be at least 75 percent accurate in his certification training and never alerted on any blank vehicles during training. Through Deputy Indico, the State provided details regarding Zuul’s police training, including discussion of the various environments and distractions.

The State also produced Zuul’s field performance records. However, the dog’s field performance records were problematic. Zuul had conducted seventeen vehicle sniffs in the field and alerted fourteen times. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul’s alerts uncovered narcotics, Zuul’s field accuracy rate is four out of fourteen, or approximately 29 percent. This accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert.

The State asserts that Zuul’s field accuracy rate is actually 100 percent because Deputy Indico had documented some type of narcotics history associated with each vehicle on which Zuul alerted but in which no drugs were found. While Deputy Indi-co’s explanation of these unverified alerts is relevant to the issue of whether an alert is a false alert or an alert to a residual odor, Harris, 71 So.3d at 769-70, the explanations were not specific enough to establish the existence of residual odors on which Zuul should have alerted.

In five of the unverified alerts, the deputy merely testified that the vehicle had a “drug history.” However, the deputy did not explain what this history entailed or why it ensured that drugs had once been present in those vehicles. In four of the unverified alerts, Deputy Indico testified that someone in each vehicle had used narcotics recently. However, there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect. The absence of this information leaves us unable to evaluate the significance of these unverified alerts. The evidence simply does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs’ vehicle. Thus, we are not inclined to consider these nine unverified alerts in Zuul’s field accuracy rate.

For the last unverified alert, the deputy testified that he actually smelled the odor of burnt marijuana in the vehicle. Adding this alert to Zuul’s positive alert calculation makes Zuul’s accuracy rate five out of fourteen, or approximately 36 percent. We also do not find this rate sufficient to establish reliability.

Another omission that is problematic in this case is the State’s failure to set forth the details of Zuul’s alert on Wiggs’ vehicle. No evidence was presented about the nature of the alert, the search of Wiggs’ vehicle, or the location of cocaine therein. Thus, it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself. The State has failed to make a connection between Zuul’s alert and the discovery of the drugs in this case.

Under the totality of these circumstances, the trial court erred in determining that the State established probable cause based on Zuul’s alert on Wiggs’ vehicle. We acknowledge that the State presented sufficient evidence regarding Deputy Indico and Zuul’s training and certification and the meaning of the training and certification. However, we are unconvinced of the sufficiency of the State’s evidence of Zuul’s field performance records as it relates to his alerts on residual odors. And the State’s lack of evidence regarding Zuul’s alert made it impossible for the trial court to complete a totality of the circumstances analysis of the reliability of Zuul’s alert as a basis for probable cause to search Wiggs’ vehicle. The evidence did not establish probable cause to believe that contraband actually would be found in the vehicle after Zuul’s alert. Accordingly, the trial court erred in denying Wiggs’ motion to suppress, and we reverse.

Reversed.

LaROSE, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

I agree that the suppression of the 21.4 grams of powered cocaine found in the console of Mr. Wiggs’ car is required under the holding in Harris v. State, 71 So.3d 756 (Fla.2011). I write only to make several observations.

First, Zuul’s alert was just one circumstance that generated suspicion. When a Sarasota County deputy stopped Mr. Wiggs for running a red light at midnight, the officer observed that he seemed unusually nervous. Mr. Wiggs was sweating excessively and clapping his hands in a nervous manner. When asked about drugs in the car, Mr. Wiggs volunteered that he had recently been released from prison in Texas for trafficking in marijuana and that he was still on probation for that drug-related offense. By the time Zuul arrived at the scene, the first officer had already obtained this information.

It is unclear to me how or whether a trial court can aggregate the suspicion created by such additional information with that created by an alert by a dog like Zuul. Even with Zuul’s less than perfect record, I am inclined to believe that the alert combined with this additional information should have been enough to permit this search, but it appears that Harris will not allow the trial court to even consider the alert by Zuul in this context.

Second, in fairness to Zuul, his strength is also his weakness. It seems obvious that Zuul is alerting on residual drugs that do not lead to the discovery of arrestable quantities of drugs. It is not that Zuul is alerting when there are no drugs to smell; he is alerting to molecules of drugs left behind in vehicles where drugs have been used or transported. Thus, in Hams, the court is requiring that law enforcement train dogs to distinguish between the odor of minute quantities of drugs and larger quantities of drugs. If that cannot be done for a particular drug, it seems we will need to abandon dogs as a method of obtaining probable cause for that drug.

Finally, while the logic of Harris and this court’s earlier decision in Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), cannot be denied, I am troubled by the sense that we are using the exclusionary rule to suppress evidence that is found not by dogs that have failed to meet a minimum standard, but by dogs that were not trained to the level of best practice. I agree that we should attempt to achieve a level of best practice in all aspects of law enforcement, but I am troubled by the use of the exclusionary rule to achieve best practices. Although it might be a best practice, we do not, or at least to this time have not, required deputies to keep proficiency logs on the number of false alerts that they make when deciding to search suspects for possession of drugs or when deciding to arrest drivers for DUI.

Because law enforcement is required to maintain logs and comply with strict protocols to assure the proper calibration of breathalyzers, there is a temptation to require comparable logs and protocols for drug dogs. But dogs and breathalyzers perform significantly different functions. The result of a breathalyzer is often the critical evidence admitted at trial to prove beyond reasonable doubt that a driver is guilty of DUI. The dog is merely providing roadside information to help an officer decide whether there is probable cause to perform a search. Even if Zuul helps locate an arrestable quantity of illegal drugs only 36 percent of the time, I am not entirely convinced that evidence seized, based in part on his alert, must be suppressed. The notion that the exclusionary rule will be applied if a dog does not achieve a success rate of any particular percent, whether 25 percent or 75 percent, is establishing a bright line that I am not currently convinced to be constitutionally necessary.

Finally, many different law enforcement agencies in Florida employ dogs to perform many specific sniffs. I am concerned about the uncertainty that will now exist surrounding the need to obtain high levels of accuracy from these dogs. The dog in this case was sniffing for cocaine along the highway. If he were sniffing for explosives at the entrance to an international airport, I would surely hope that a 36 percent accuracy rate would support a search.

      . The police did find methadone during the search of the vehicle.

      . While the vehicle stop occurred shortly before midnight on August 14, 2007, Deputy Indico and Zuul conducted the sniff on August 15, 2007.

      . Actually, Mr. Wiggs' record on his score-sheet reflects eleven prior felonies, including five prior drug-related offenses, which apparently were committed primarily in Florida.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Janice M. RISCH, Appellant, v. BANK OF AMERICA, National Association, as Successor by Merger to Lasalle Bank, N.A. as Trustee For Zuni 2006-OA1, Appellee.
    No. 2D10-4882.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.
    Rehearing Denied Aug. 18, 2011.

      Bradley S. Donnelly of Treiser Collins, Naples, for Appellant.
    Jeffrey T. Kuntz and Thomas H. Loffre-do of Gray Robinson, P.A., Fort Lauder-dale, for Appellee.
   BLACK, Judge.

Janice M. Risch appeals the trial court’s denial of her emergency motion for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. The record shows that the trial court conducted a hearing on Ms. Risch’s motion; however, there was no evidence presented. Since Ms. Risch’s motion asserted allegations of misrepresentation, which might give rise to relief pursuant to rule 1.540(b)(3), and since she attached an affidavit and records which could support her claim, we reverse and remand for an evidentiary hearing. See S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (“[Wjhere the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”); see also Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984) (“The credibility of appellant’s allegations should only be determined by the trial court after an evidentiary hearing thereon.”).

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., Concur.


author: VILLANTI, Judge.

text:
    FL-CARROLLWOOD CARE, LLC, a/k/a FL-Carrollwood Care, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Senior Health Management, LLC; Rick L. Knight a/k/a Richard Leon Knight; and Carla H. Russo a/k/a Carla Hughes Russo (as to Carrollwood Care Center), Appellants, v. Patricia Ann GORDON, as Personal Representative of the Estate of Robert Dixon Gordon, Sr., Deceased, Appellee.
    No. 2D10-5751.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.
    Rehearing Denied Sept. 28, 2011.

      George M. Vinci and Amy L. Christian-sen of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus and A. Lance Reins of Wilkes & McHugh, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

FL-Carrollwood Care Center, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Senior Health Management, LLC; Rick L. Knight; and Carla H. Russo (collectively “Carrollwood Care”) challenge the trial court’s denial of their motion to compel arbitration. We reverse the trial court’s order and remand the case for arbitration.

This is the second time this case is before this court. The underlying lawsuit stems from Robert Dixon Gordon’s stay at a Carrollwood Care facility for short-term rehabilitation following amputation of a toe. Mr. Gordon entered the facility on October 31, 2007. On November 1, 2007, he signed admissions-related paperwork which included an arbitration agreement. Mr. Gordon’s Estate subsequently sued Carrollwood Care alleging negligence and violations of chapter 400, Florida Statutes. Carrollwood Care moved to compel arbitration pursuant to the agreement signed by Mr. Gordon. The Estate responded that no valid arbitration agreement existed because Mr. Gordon lacked the necessary mental capacity to enter into a contract when he signed the agreement. Alternatively, the Estate argued that even if Mr. Gordon had the mental capacity to enter into a valid contract, the arbitration provision was unconscionable and, therefore, unenforceable.

In response to the Estate’s claims, Car-rollwood Care requested an evidentiary hearing to address the issue of Mr. Gordon’s mental capacity. The trial court denied the request for an evidentiary hearing, but nonetheless was persuaded by the Estate’s incompetence argument, and entered an order denying arbitration on that sole basis. Having ruled on the Estate’s first argument, the trial court did not address the unconscionability argument. On appeal, after concluding that an eviden-tiary hearing was necessary to determine whether Mr. Gordon had the requisite mental capacity to enter into the arbitration agreement, this court reversed the trial court’s order and remanded the case for further proceedings. See FL-Carrollwood Care Ctr., LLC v. Estate of Gordon ex rel. Gordon, 34 So.3d 804, 806 (Fla. 2d DCA 2010). Importantly, our prior opinion did not address the Estate’s uncon-scionability argument, which had not specifically been ruled upon below.

At an evidentiary hearing after remand, the Estate made the same two arguments it had made previously. After considering the evidence, the trial court concluded that the Estate had not shown that Mr. Gordon lacked mental capacity at the time he signed the arbitration agreement. Nevertheless, relying on Woebse v. Health Care & Retirement Corp. of America, 977 So.2d 630 (Fla. 2d DCA 2008), the court concluded that the arbitration agreement was unconscionable and denied arbitration. This appeal followed.

Initially, we reject Carollwood Care’s argument that the trial court exceeded this court’s mandate when it considered the Estate’s unconscionability argument on remand. Carrollwood Care argues that this court’s mandate limited the trial court to deciding only whether Mr. Gordon had mental capacity when he signed the arbitration agreement. We agree with the Estate’s response that the trial court properly considered the uncon-scionability argument because that alternative argument was presented to the trial court but never decided before the first appeal.

Although a trial court lacks authority to deviate from the terms of the appellate court’s instructions on remand, White Sands, Inc. v. Sea Club V. Condo. Ass’n, 591 So.2d 286, 287 (Fla. 2d DCA 1991), in this case the trial court’s first order had not ruled on the Estate’s unconscionability argument. Therefore, absent some unequivocal direction to the contrary in the mandate, on remand the trial court still had authority to consider and decide that issue. See Two M Dev. Corp. v. Mikos, 578 So.2d 829, 830-31 (Fla. 2d DCA 1991) (explaining that trial court did not consider a particular issue in the original proceeding when its ruling on a different issue rendered the second issue moot; thus, the appellate court did not consider the issue in the first appeal and the trial court could consider it on remand); see also Harbour Club Condo. No. Three, Inc. v. Sander, 380 So.2d 449, 450 (Fla. 2d DCA 1979) (holding that mandate did not preclude the trial court from considering unconscionability argument on remand because that issue had not been decided by the trial court nor considered by this court in the first appeal). However, even though the trial court had authority to consider the uncon-scionability argument on remand, we must nevertheless reverse its conclusion on the merits because the arbitration agreement was not shown to be unconscionable.

On appeal, we accept the trial court’s factual findings if they are supported by competent, substantial evidence, but we review de novo the court’s construction of the arbitration provision and the application of the law to the facts. Woebse, 977 So.2d at 632. To succeed in an uncon-scionability argument, the Estate had to show both procedural and substantive un-conscionability. Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006). However, this court assesses procedural and substantive unconscionability independently. Id. at 257.

Procedural unconscionability relates to the manner in which the contract was made and involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. Id. at 256. A court can also find a contract unconscionable if important terms are hidden in fine print or if the contract reflects an absence of meaningful choice on the part of the consumer. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2d DCA 2004). On the other hand, substantive unconscion-ability considers whether the contract terms themselves are so outrageously unfair as to shock the judicial conscience. Bland, 927 So.2d at 256. “A substantively unconscionable contract is one that ‘no man in his senses and not under delusion would make on the one hand, and ... no honest and fair man would accept on the other.’ ” Id. (quoting Belcher v. Kier, 558 So.2d 1039, 1044 Fla. 2d DCA 1990)). In this case, we must conclude that the arbitration agreement was not substantively unconscionable.

Here, the Estate argues that limitations on punitive damages, noneconomic damages, and discovery render the arbitration agreement substantively unconscionable. We disagree. First, we note that the arbitration agreement in this case does not place any limitations on an award of punitive damages. The agreement is silent as to punitive damages but provides that the arbitration award shall be consistent with Florida law “except as otherwise stated in this Agreement.” Nevertheless, the Estate initially argues that the agreement bars punitive damages because in Complete Interiors, Inc. v. Behan, 558 So.2d 48, 51 (Fla. 5th DCA 1990), the Fifth District held that an arbitrator cannot award punitive damages when the parties’ agreement does not expressly provide for such an award.

This court has explained that Behan does not apply when the substantive law at issue allows an award of punitive damages. See, e.g., Reeves v. Ace Cash Express, Inc., 937 So.2d 1136, 1138 (Fla. 2d DCA 2006); Morton v. Polivchak, 931 So.2d 935, 940 (Fla. 2d DCA 2006) (“Polivchak’s contention that punitive damages may not be awarded in an arbitration proceeding unless expressly authorized by the arbitration agreement ... is lacking in merit.... The rule the court stated in Behan ... was applied in a context where punitive damages ordinarily are not available.”). Here, the arbitration agreement does not expressly prohibit an award of punitive damages, the agreement requires the arbitrator to follow Florida law, and the substantive law of Florida allows punitive damages. See §§ 400.023(1), .0237, .0238; 768.72, Fla. Stat. (2007); Reeves, 937 So.2d at 1138 (noting that agreement required the arbitrator to follow Florida law). Therefore, there is no limitation on punitive damages that could make the arbitration agreement substantively unconscionable on that basis.

The Estate’s and the trial court’s reliance on Woebse is therefore misplaced because the arbitration agreement in that case expressly barred a punitive damages award. 977 So.2d at 635. The same is true of the Estate’s reliance on Romano ex rel. Romano v. Manor Care, Inc., 861 So.2d 59, 61-63 (Fla. 4th DCA 2003).

Other cases relied upon by the Estate are likewise inapplicable because they found a limitation on punitive damages void as contrary to public policy. See, e.g., SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242, 1242 (Fla. 5th DCA 2006); Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333, 334 (Fla. 4th DCA 2005); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 298-99 (Fla. 4th DCA 2005). The Estate in this case argued that the agreement was unconscionable, not that the agreement was contrary to public policy. See Bland, 927 So.2d at 257 (explaining that finding a contractual provision contrary to public policy is an issue distinct from the unconscionability argument); Blankfeld, 902 So.2d at 299 (same).

Since the arbitration agreement here did not have a limitation on punitive damages, the next question is whether the agreement’s limitation on discovery and the agreement’s $250,000 cap on noneco-nomic damages, alone, support a finding of substantive unconscionability. We conclude they do not. The Estate has not cited to, and this court has been unable to locate, any cases where a limitation on discovery and a $250,000 cap on noneco-nomic damages alone-without a limitation on punitive damages-support a finding of substantive unconscionability. And this court has held that when an arbitration agreement requires an award to be consistent with Florida law, the arbitrator can decide in the first instance whether the agreement’s remedial limitations are enforceable. See, e.g., Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711, 713 (Fla. 2d DCA 2009); Bland, 927 So.2d at 258 (“Nothing in the Agreement limits the arbitrator’s authority to enforce, or refuse to enforce, the remedial limitations.”).

We also conclude that the agreement’s severability clause would nevertheless save the arbitration agreement in this case, even if the $250,000 cap on noneco-nomic damages and the limitations on discovery were unenforceable. The sever-ability clause provides:

If any sentence, word, phrase, paragraph or portion of this Agreement should at any time be held invalid, unlawful, unconstitutional, or unenforceable for any reason, that holding will not affect in any way the meaning of the other sentences, words, phrases, paragraphs or portions of this Agreement, and all remaining portions shall remain in full force and effect as if the portion that was held invalid was not originally a part of the Agreement. In other words, even if a portion of the Agreement is determined to be invalid for some reason, the parties to this Agreement still want to arbitrate any issues that may arise out of the resident’s stay at the Facility.

In Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 265-66 (Fla. 4th DCA 2006), the trial court held that an arbitration agreement’s bar on punitive damages, $250,000 cap on noneconomic damages, limitation on depositions, and waiver of the right to appeal were substantively unconscionable. Yet, the trial court severed all of the offending provisions and enforced the rest of the agreement and the district court affirmed. Id. at 270. Contractual provisions are severable where the invalid provisions do not go to the essence of the parties’ contract and where there remain valid legal obligations even after severing the invalid provisions. Id. “Severance is appropriate where the void provision can be severed without affecting the intent of the. parties to arbitrate.” Id.; see also Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So.2d 574, 579 (Fla. 1st DCA 2007) (affirming order striking punitive and compensatory damages limitation but enforcing the rest of the arbitration agreement). See generally Lacey, 918 So.2d at 335 (noting that an arbitration agreement which contains a sever-ability clause can be enforced, so long as the offensive portion of the agreement does not go the essence of the parties’ contract); Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So.2d 1095, 1098 (Fla. 2d DCA 2002) (holding that offending sentence in an arbitration clause could be severed without affecting the intent of the parties). In this case, the arbitrator could sever the allegedly offensive provisions, if deemed appropriate, while enforcing the rest of the parties’ five-page arbitration agreement and still honoring the parties’ intent to arbitrate.

Based on the foregoing, we conclude that the trial court erred in finding the arbitration agreement unconscionable, and we remand the ease for arbitration.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.

      . The Estate had argued below that if the trial court decided the issue of Mr. Gordon’s mental capacity to enter into a valid contract in favor of the Estate, it would not need to reach the unconscionability argument.

      . The Estate has not appealed that finding.

      . While other cases address procedural un-conscionability first, we address substantive unconscionability first because that prong most easily disposes of the appeal. Therefore, we decline to address the procedural uncon-scionability argument as unnecessary to our decision.

      . For example, the agreement limits depositions to those of experts and treating physicians.

      .In fact, in its supplemental memorandum filed below, the Estate conceded that this court’s opinion in Reeves rendered Behan inapplicable because the underlying statute in this case authorized punitive damages. Yet, inexplicably, the argument was revived on appeal.

        . This court has also held that the arbitrator should decide in the first instance whether limitations on liability are void as against public policy. See Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711, 713 (Fla. 2d DCA 2009); Bland, 927 So.2d at 258.

      . In fact, the party who would be negatively impacted by the severance of any allegedly offensive provision is the nursing home, which wants to enforce the arbitration agreement even if the challenged provisions were severed.


author: PER CURIAM.

text:
    Alonzo P. NEWSOME, Appellant, v. The GEO GROUP, INC., G. Gintoli, Timothy Budz, Florida Civil Commitment Center and Paul M. Pye, Appellees.
    No. 4D09-5157.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.

      Alonzo P. Newsome, Arcadia, Pro Se.
    Gwendolyn P. Adkins and Scott J. Sea-gle of Coppins Monroe Adkins & Dincman, P.A., Tallahassee, for appellees.
   PER CURIAM.

Alonzo P. Newsome, a detainee at the Florida Civil Commitment Center (“FCCC”) pursuant to the Jimmy Ryce Act, appeals the trial court’s order granting a motion for judgment on the pleadings in favor of the defendants, The GEO Group, Inc., Timothy Budz, and Paul M. Pye. The judgment on the pleadings was entered in Newsome’s negligence action against the defendants for FCCC’s new policy replacing double-blade razors with single use, single blade razors.

This case arose after FCCC’s facility administrator, Timothy Budz, issued a memorandum to the center’s residents announcing the center’s new policy switching from double-razor blades to single-razor blades. The memorandum explained that, beginning January 10, 2008, it was instituting the new “Razor Harm Reduction Program” for the following reasons: (1) because many residents at the center were “at high risk for self-harm incidents including cutting themselves with a sharp object,” (2) there were incidents where residents removed razors from the shaver “to be used as a weapon, creating a security risk for those who live and work at FCCC,” and (3) there were a large number of razors that had been sold and bartered between the residents.

Newsome, a detainee housed in the FCCC, complained that the facility’s replacement of double-blade razor blades with single-razor blades caused harm and serious injuries to Newsome and the rest of the resident population. Specifically, in grievances Newsome filed in March 2008, he complained that the new single-blade razors were causing “extreme bumping, scarring, bleeding, cutting, [and] skin irritation on [his] face and scalp.” The facility’s administrator and business manager denied Newsome’s grievance, dismissing his concerns that the razor blades were dangerous.

Although the FCCC administrators determined that the single-blade razors were safe for their intended purpose, about a month later, in April 2008, they informed the residents that they would reinstate their former policy allowing the use of double-blade razors. Nevertheless, in October 2008, Newsome filed a negligence action against FCCC, the administrators, and The Geo Group, Inc., a privately managed company that was under contract with the State of Florida to manage the housing and treatment of detainees at the center. In his amended complaint, he alleged the following: (1) negligence of Mr. Budz in failing to take immediate action in maintaining a safe environment, (2) negligence of Mr. Pye in failing to take immediate action, and (3) negligence of The GEO Group, Inc. on the theory of vicarious liability/respondent superior through the negligence of its employees, Mr. Budz and Mr. Pye.

Defendants filed an answer and several affirmative defenses, stating that “[a]t all times relevant to this Complaint, all Defendants acted in good faith and are therefore shielded from civil liability under Section 394.923, Florida Statutes.” Defendants also filed a motion for an order staying Newsome’s discovery, along with a motion for judgment on the pleadings based on the defendants’ immunity under section 394.923, Florida Statutes. In response, Newsome asserted that the defendants were not entitled to immunity under the. statute because they acted in bad faith and because Newsome was not a committed resident of the FCCC.

Following a telephonic hearing, the court orally granted the defendants’ motion for judgment on the pleadings. New-some appealed.

“An appellate court considers a trial court’s granting of a judgment on the pleadings by a de novo standard of review.” Lutz v. Protective Life Ins. Co. 951 So.2d 884, 887 (Fla. 4th DCA 2007). “A judgment on the pleadings should be granted only when the party is clearly entitled to a judgment, as a matter of law, based solely on the pleadings.” Tres-AAA-Exxon v. City First Mortg., Inc., 870 So.2d 905, 907 (Fla. 4th DCA 2004). “The court must accept as true all well-pleaded allegations of the non-moving party.” Thompson v. Napotnik, 923 So.2d 537, 539 (Fla. 5th DCA 2006) (quoting Yunkers v. Yunkers, 515 So.2d 419, 420 (Fla. 3d DCA 1987)). Thus, in our review, we must take as true all of the material allegations in plaintiffs complaint and disregard all of the denials in the defendants’ answer. See Lutz, 951 So.2d at 887.

Section 394.923 provides statutory immunity from liability to those involved in the care and treatment of sexually violent predators. Specifically, section 394.923 provides the following:

The agency with jurisdiction and its officers and employees; the department and its officers and employees; members of the multidisciplinary team; the state attorney and the state attorney’s employees; the Department of Legal Affairs and its officers and employees; and those involved in the evaluation, care, and treatment of sexually violent persons committed under this part are immune from any civil liability for good faith conduct under this part.

Newsome argues, inter alia, that the trial court erred in granting defendants’ motion for judgment on the pleadings based upon their defense that they were entitled to statutory immunity because of them good faith actions and decisions regarding the care and treatment of FCCC residents. We agree. Whether defendants’ action in instituting the “Razor Harm Reduction Program” constitutes good faith conduct such that defendants are immune from civil liability under the statute cannot properly be determined by way of a motion for judgment on the pleadings. Accordingly, we reverse for further proceedings.

Reversed and Remanded.

WARNER, TAYLOR and CONNER, JJ., concur.

      . The FCCC is a state-owned facility that is operated for the specific purpose of housing and providing treatment to persons detained and committed as sexually violent predators. Plaintiff is a detainee pursuant to the Involuntary Civil Commitment of Sexually Violent Predators’ Treatment and Care Act (f/k/a the "Jimmy Ryce Act”), section 394.910, Florida Statutes. As a detainee under the Act, Plaintiff is in the custody of the Florida Department of Children and Families (DCF) and housed in the FCCC.

      . As we noted in Tres-AAA-Exxon, "this opinion is directed solely to the judgment on the pleadings and should not be construed as prejudging any subsequent motion for summary judgment or motion for directed verdict.” 870 So.2d at 908.


author: GROSS, J.

text:
    Charles DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5106.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 31, 2011.

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

Charles Dixon appeals his convictions for armed burglary of a dwelling, burglary of a dwelling, grand theft with a firearm, and grand theft; all charges arise from two incidents at his parents’ house. Dixon was arrested for an unrelated theft at a Home Depot. The resulting interrogation covered both that theft and the home burglaries. Dixon confessed to the Home Depot theft and, eventually, to the home burglaries. In a motion to suppress, Dixon argued that he unequivocally invoked the right to remain silent as to the home burglaries, and that the police did not honor his right. We hold that Dixon properly invoked his right to remain silent on the home burglaries; the detectives did not scrupulously honor that invocation. The trial court’s refusal to suppress the resulting confession, and its subsequent admission into evidence at trial, was harmful error.

Facts

Dixon was arrested after a burglary at a Home Depot. He was questioned by Detective Lawrence, the lead detective in the Home Depot investigation, and Detective Roque, the lead detective in the home burglaries investigation. At the time of his arrest, Dixon was a suspect in the burglaries at his parents’ home.

At the beginning of the interrogation, the detectives introduced themselves and asked Dixon, “Charlie, where are you staying at these days? Where you sleeping? When’s the last time your mom and dad talked to you? When’s the last time you saw them, today?” Dixon replied, “Today, yesterday.” After the detectives asked if Dixon was sure, Dixon said, “... I would appreciate if we not talk about what my mom and dad.” One of the detectives relayed that his parents were concerned about him. Dixon responded, “I already at this point don’t wanna hear what they have to say, be honest with you.”

The detectives then read Dixon his Miranda rights, which he waived. They first talked to Dixon about the Home Depot burglary. Following the conversation on the Home Depot incident, the detectives moved on to question Dixon about the burglaries of his parents’ home, informing him that they had talked to his brother and his mother. They asked, “What did you do with the stuff you took out of the house?” Dixon initially responded, “I didn’t do nothing with it.”

The detectives followed up: “You didn’t do anything with it?” Dixon answered, “I did, that conversation, that dead [sic] about that house. I tried to explain to my brother and everybody else, that’s dead on. I don’t want to talk about that.” The detectives then asked, “Hang on a second, what did you try [to] explain to your brother?” Dixon replied:

I tried to explain to my brother when I called him and told him, I called, two people called me at the house and he won’t even call my mother. They were in South Carolina, I said, call mama, coming out the back window. He act like he didn’t even wanna, he ain’t have nothing to say from that point on there, I don’t want to talk about that, period, whatever happened, happened.

The detectives asked further questions about the burglaries, and then asked, ‘You love your mama, don’t you?” Dixon answered, “I don’t know who I love no more because this conversation here about this house thing is through, I don’t wanna talk about that, period.” The detectives queried, “Why is it through?” Dixon replied, “Because why should I talk to ya’ll about it when, when it first occurred, when I talked to my brother about it and he was gonna do something about it.”

The detectives told Dixon that he should not be angry with them, and he said that he was not, but he seemed upset, saying:

Nobody did nothing about it. They point the finger at me so you wanna point the finger at me. I’m gonna tell you the truth, I, I don’t want anything to do with this here what you talking about what did I do. You see, what did I do with the stuff that I took out the house? So therefore you saying that I broke into the house, somewhere I broke into the house and I broke in the house, I don’t want to go through that.

The detectives’ next question was, “So why did you break into your mom’s house, dude? I mean, you need money, right? Wfiiy did you do it?” Dixon replied, “I’m not gonna answer that.” When the detectives asked Dixon why, he said, “Because I don’t know.” “Because it’s your mom’s house?” the detectives asked. Dixon answered, “I don’t want to talk about that.”

The detectives continued to question Dixon about the burglaries. They asked, “So you would never take anything from your parents, is that what you’re saying?” Dixon said, ‘Yeah, I ain’t talking about that there.” The detectives said, “Listen, this is your family.” Dixon said, ‘Yeah, I ran, we through talking about that.” The detectives persisted in their interrogation about the burglary, eventually resulting in this exchange:

A. I’m gonna say this here, look at this here, I’m gonna say this right here, I ain’t trying to disrespectful to neither one of ya’ll, I’m a man just like ya’ll a man. Now enough is enough, you know what I’m saying, enough is enough. Now, I don’t want to talk about that house no more. Now whatever ya’ll need to do to find out who did this, because you asking me the same question that he’s asking me.
Q. I’m not talking about the house.
A: Because it’s irrelevant, you know what I’m saying? Let’s not talk about the house.

Dixon’s story was that he had witnessed one of the burglaries from across the street, so the detectives focused on why Dixon was there at the time. The detectives acknowledged that they understood that Dixon did not want to talk about the house: “So hear me out, since you don’t want to talk about the house I’ll talk about the house, so you just hear me out, I’m not gonna ask you any questions.” The detectives later went over Dixon’s story and told him they did not believe it. Dixon said, “I don’t want to talk about it no more.” The detectives responded, “Of course.” Dixon continued, “I don’t want to talk about it no more, you know what I’m saying? I feel like — .” The detectives interrupted and the interrogation continued.

Dixon eventually confessed to the burglaries. He said that he had someone else go into the house and told them where to go once inside it. Dixon admitted to taking his parents’ wedding bands, a shotgun, lawnmowers, an air compressor, a TV, a DVD player, and a stereo; he indicated he had sold them, but could recover the items if he paid the buyers around $300.

Arguing for suppression of his statements about the house, Dixon contended that his declarations that he did not want to talk further about the house and his family constituted unequivocal invocations of his right to remain silent on the burglaries of his parents’ house; he argued that he could partially or selectively invoke the right to remain silent about certain subjects, citing Shriner v. State, 386 So.2d 525 (Fla.1980). Because the detectives did not thereafter cease questioning him on the subject of those burglaries, Dixon argued his subsequent confession should be suppressed.

The trial court denied Dixon’s motion. The court first determined that Dixon’s initial waiver of his Miranda rights was free, voluntary, and intelligent. It determined that the later, purported invocations were not unequivocal invocations of the right to remain silent, but were mere deflections from questions on a certain subject, presumably the burglaries. The court disagreed with Dixon’s reliance on Shriner, opining that “[a] partial or selective invocation of the right to remain silent is not an unequivocal invocation of one’s right to silence.” The court wrote, “The right to remain silent is just that — a right to remain silent, not a right to remain partially silent.” (Emphasis in original.)

Standard of Review

A trial court’s ruling on a motion to suppress is presumed correct, and on appeal, the evidence from the suppression hearing must be interpreted in a manner most favorable to sustaining the court’s ruling. See State v. Allen, 994 So.2d 1192, 1194 (Fla. 5th DCA 2008). The ruling is a mixed question of fact and law. Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). “[Mjixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Con- nor v. State, 803 So.2d 598, 605 (Fla.2001) (citing, inter alia, United States v. Bajakajian, 524 U.S. 321, 337 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)).

Analysis

“Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Ross v. State, 45 So.3d 403, 412 (Fla.2010) (citing U.S. Const, amend. V; art. I, § 9, Fla. Const), cert. denied, — U.S. -, 131 S.Ct. 925, 178 L.Ed.2d 803 (2011). To give effect to the Fifth Amendment right against self-incrimination, an accused person has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 467-69, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (footnote omitted) (quoting Miranda).

To invoke this right during an interrogation, i.e., after an initial waiver of the Miranda rights, the accused must do so unequivocally and unambiguously. See Berghuis v. Thompkins, — U.S. -, -, 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098 (2010); State v. Owen (Owen II), 696 So.2d 715, 717-18 (Fla.1997). If the accused’s attempt to invoke the right is equivocal or ambiguous, police do not have to cease questioning or even clarify the accused’s statement. See Thompkins, 130 S.Ct. at 2259-60.; cf. Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (“[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (emphasis in original) (citations omitted)).

This case is controlled by Pierre v. State, 22 So.3d 759 (Fla. 4th DCA 2009). There, when confronted with the accusations against him, the defendant said, “Did what, what are you talking, I didn’t take nothing. You tripping, man, I didn’t say nothing. I was nowhere near them guys. I wasn’t with nobody, I was with my cousin waiting on my baby momma, that’s where I was, 33rd and Kentucky. I’m not saying anymore.” Id. at 766 (emphasis in opinion). The defendant and the detective sat silent for nearly a minute before another detective entered the interrogation room and insinuated that the defendant had been identified as one of the perpetrators. Id. at 766-67. In the middle of the ensuing exchange, during which the defendant confessed his involvement, the defendant said, “I’m not talking anymore.” Id. at 767. The interrogation then ended. Id.

Examining the totality of the circumstances, we held that the defendant’s first statement was an unequivocal invocation of the right to remain silent. Id. at 767-68. We articulated this legal framework:

Generally, “if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop.” Cuervo [v. State], 967 So.2d [155,] 161 [(Fla.2007) ] (quoting Traylor v. State, 596 So.2d 957, 966 (Fla.1992)). The phrase “in any manner” simply means that there are no magic words that a suspect must use to invoke his rights. State v. Owen [Owen II], 696 So.2d 715, 719 (Fla.1997). “[0]nce a defendant waives his or her right to remain silent, subsequent equivocal requests to terminate an interrogation do not automatically require police to cut off all questioning.” Cuervo, 967 So.2d at 161. “A suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” Owen [II], 696 So.2d at 718. “[A] determination of the issues of both the voluntariness of a confession and a knowing and intelligent waiver of Miranda rights requires an examination of the totality of the circumstances.” Lukehart v. State, 776 So.2d 906, 917 (Fla.2000).

Id. at 767.

Pierre explained that the defendant’s statement and the subsequent near minute of silence, during which the detective in the room also was quiet and discontinued questioning, meant that the detective, “as a reasonable police officer, ... understood Pierre’s statement to be a demand that questioning cease.” Id. at 768-69. Because the detectives also did not scrupulously honor the defendant’s invocation, this court reversed the trial court’s denial of his motion to suppress. Id. at 769-72.

The circumstances of this case demonstrate that the defendant unequivocally invoked his right to remain silent on the issue of the home burglaries. In response to questions about the burglaries, Dixon said: “I don’t want to talk about that”; “[T]his conversation here about this house thing is through, I don’t wanna talk about that, period”; “I don’t want anything to do with this here what you talking about what did I do.... I don’t want to go through that”; “Yeah, I ain’t talking about that there”; “Now enough is enough, you know what I’m saying, enough is enough. Now, I don’t want to talk about that house no more”; “Let’s not talk about the house”; and “I don’t want to talk about it no more”. Unlike Owen v. State (Owen I), 560 So.2d 207 (Fla.1990), upon which the state relies, this case lacks the repeated, defendant-initiated interrogations, as well as statements that could be construed as refusals to answer only a few specific questions. Unlike the defendant in Owen, Dixon’s declarations referred to questioning about the “house thing” in general, and cannot be construed as responses directed only to the specific subject matter of the question. Further, the things to which Dixon was responding were not insignificant questions, but questions about why he broke into his parents’ house and how he disposed of what was taken, an appeal to his love for his mother, and the detectives’ recitation of Dixon’s story followed by their expression of disbelief.

As it was with the defendant in Pierre, it is clear from the context that Dixon was demanding that questioning on the home burglaries cease. Indeed, one of the detectives belied his understanding that Dixon did not want to talk about the home burglaries when he said: “So hear me out, since you don’t want to talk about the house I’ll talk about the house, so you just hear me out, I’m not gonna ask you any questions.” More than the silence of the police officer in Pierre, this statement demonstrates an understanding that Dixon wanted questioning about the home burglaries to cease. Because the detectives in this case did not cease questioning Dixon, they did not scrupulously honor his invocation of the right to remain silent. Cf. Mosley, 423 U.S. at 105-06, 96 S.Ct. 321 (holding that the police scrupulously honored a defendant’s right to cut off questioning when they “immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of [Miranda] warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation”).

Since Dixon unequivocally expressed his desire to stop questioning on the home burglaries, but not the Home Depot theft, the next question is whether Florida law allowed Dixon to invoke that right on only that subject; the trial court determined he could not.

We disagree with the trial court and conclude that Shriner v. State, 386 So.2d 525 (Fla.1980), allows a defendant to assert a right to remain silent regarding certain matters, but not others. There, the defendant was arrested for a murder committed at a Majik Market in Gainesville. See id. at 527-28. Shortly after the murder, a gunman robbed an 8 Days Inn in Gaines-ville. Id. at 528. Evidence at the motel, including ballistic evidence, connected the defendant to the robbery; additionally, the motel clerk identified the defendant in a photo lineup. See id.

After his arrest, the defendant waived his Miranda rights, making “a number of inconsistent accounts of his knowledge of the murder and confessed only to the 8 Days Inn robbery.” Id. Late in the interrogation, the defendant “made some equivocal ] statements evincing an apparent desire to terminate questioning about the 8 Days Inn robbery.” Id. Specifically, in response to an interrogator-prosecutor’s question “You mean you don’t want to answer any more questions?” about the 8 Days Inn robbery, the defendant answered, “Yes.” Id. at 530, 86 S.Ct. 1602. As the prosecutor testified at the suppression hearing, he understood the defendant to mean “Don’t bother asking me any more questions about that.” Id. The prosecutor then asked him questions wholly unrelated to the 8 Days Inn robbery before the defendant eventually confessed to the Majik Market murder. Id. at 528, 530, 86 S.Ct. 1602.

Confronting the Supreme Court was the issue of “whether, although otherwise voluntary, [the defendant’s] confession must be suppressed because of his claim that the police persisted in questioning him after he indicated an unwillingness to answer questions on a particular subject.” Id. at 528-29, 86 S.Ct. 1602. After quoting extensively from Mosley, the court noted that the defendant “indicated a desire to stop talking about the 8 Days Inn robbery.” Id. at 529. It continued:

We are satisfied that, based on [the prosecutor] Mr.. Nilon’s testimony and the absence of rebuttal evidence to the contrary, the trial judge correctly concluded that appellant wanted to terminate questioning only insofar as it related to the 8 Days Inn robbery. We are similarly satisfied that Mr. Nilon respected appellant’s partial exercise of his Miranda privilege and restricted further questioning to other areas. Given this posture, the police did not run afoul of Miranda and Mosley by continuing the interrogation:

When a person in custody has responded to proper police interrogation by voicing a general willingness to talk, subject only to a limited desire for silence, and his wishes not to discuss a particular subject-matter area are respected, nothing rooted in law or constitutional policy makes it improper to question him as to any unlimited subjects.
United States v. Vasquez, 476 F.2d 730, 732-33 (5th Cir.1973); accord, Smith v. United, States, 505 F.2d 824 (6th Cir.1974); United States v. Matthews, 417 F.Supp. 813 (E.D.Pa.), aff'd., 547 F.2d 1165 (3d Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1148, 51 L.Ed.2d 565 (1977).

Id. at 532 (footnote omitted). Hence, appellant’s confession was properly admitted at trial.

Shriner implicitly recognized that a defendant can invoke the right to remain silent on specific subjects. Basic Fifth Amendment policy supports this principle. A contrary rule would allow police to persist in their questioning of defendants who do not wish to discuss certain crimes, and to do so in the coercive environment of a custodial interrogation. Such an outcome would encourage police to hold wide-ranging interrogations of such defendants, thereby subjecting them to a self-incrimination from which they could not escape. This is the precise evil the right to silence — rooted in the Fifth Amendment right against compelled self-inerimination — is designed to avoid. See Mosley, 423 U.S. at 104, 96 S.Ct. 321 (“The requirement that law enforcement authorities must respect a person’s exercise of that option [to remain silent] counteracts the coercive pressures of the custodial setting.”).

One of the reasons that the trial court did not follow Shriner was because it concluded that the decision was outdated in light of certain developments in Fifth Amendment law. However, nothing in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), and Owen II, 696 So.2d 715, undermines Shriner. Davis and Owen II dealt with the constitutional effect of equivocal or ambiguous invocations of Miranda rights, not whether a defendant could invoke rights only as to certain topics. Under these cases, and in light of Shriner, if an accused clearly expresses his desire not to be questioned about a specific subject, questioning may continue, so long as it does not cover the subject matter about which the right to remain silent was asserted.

Under Shriner, Dixon could invoke his right to remain silent on the home burglaries, and he did so. The trial court’s error in denying Dixon’s motion to suppress was harmful. Like other errors, the erroneous admission of a confession obtained in violation of Miranda is subject to harmless error analysis. See Ross, 45 So.3d at 434. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

Here, the heart of the state’s case was Dixon’s confession to both burglaries and thefts. The state could not prove that Dixon committed the first burglary and theft without the confession. And the confession was the strongest evidence connecting Dixon to the second burglary. There is a reasonable possibility that the confession contributed to the convictions. We reverse the convictions and suppress that portion of the interrogation beginning with the exchange set forth in footnote 2.

Reversed and remanded for a new trial.

STEVENSON, J., and STREITFELD, JEFFREY E., Associate Judge, concur.

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

      . To some extent, Dixon's assertion of his right was equivocal; that doubt ended with the exchange when the detectives asked "You love your mama, don’t you?,” and Dixon responded, "I don’t know who I love no more because this conversation here about this house thing is through, I don’t wanna talk about that, period.”

      . Decided in 1980, Shriner predates the United States Supreme Court cases in which “equivocal” became a term of art for Fifth Amendment cases. See Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (suggesting that a defendant must "clearly assertf] his right to counsel”); Smith v. Illinois, 469 U.S. 91, 95-96 & n. 3, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (noting that "an accused's asserted request for counsel may be ambiguous or equivocal,” but not resolving the conflicts developed among lower courts “for determining the consequences of such ambiguities” (citations omitted)); Connecticut v. Barrett, 479 U.S. 523, 529-30, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (noting that "[(Interpretation is only required where the defendant’s words ... are ambiguous,” but holding that the defendant “made clear his intentions” that he wanted counsel); Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that police do not need to stop questioning "if a suspect makes a reference to an attorney that is ambiguous or equivocal”).
      Arguably, the Florida Supreme Court did not conclude that the Shriner defendant’s statements were equivocal in the Fifth Amendment sense.

      . To the extent the trial court believed the statement on ineffective, partial invocations in Owen II, 696 So.2d at 718 n.5, bore on the Shriner issue before it, we note that the Supreme Court has declared that
      this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply our express holding in the former decision until such time as this Court recedes from the express holding.

        Puryear v. State, 810 So.2d 901, 905 (Fla.2002).


author: ALTENBERND, Judge.

text:
    Edward S. DESMOND, Appellant, v. ACCOUNTS RECEIVABLE MANAGEMENT, INC., Appellee.
    No. 2D09-5919.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    Rehearing Denied Oct. 7, 2011.

      Charles M. Schropp of Schropp Law Firm, P.A., Tampa; and William Peerce Howard of Morgan & Morgan, P.A., Tampa, for Appellant.
    Dale T. Golden of Golden & Scaz, PLLC, Tampa; and Traci H. Rollins of Squire, Sanders <& Dempsey, LLP, West Palm Beach, for Appellee.
   ALTENBERND, Judge.

Edward S. Desmond appeals a final summary judgment entered in his action against Accounts Receivable Management, Inc. (ARM), for alleged violations of section 559.72, Florida Statutes (2006), which regulates consumer debt collection practices. We affirm the order granting summary judgment in ARM’s favor with regard to all of Mr. Desmond’s claims but one.

In 2006, HSBC Card Services, Inc., allegedly had a customer with an outstanding credit card balance. Reportedly, that customer’s name was Edward A. Desmond, Jr. Somehow, HSBC confused Edward S. Desmond, who does not have an HSBC account, with Edward A. Desmond, Jr., the cardholder in default. As a result, the company mistakenly made a large number of debt collection telephone calls to Edward S. Desmond. HSBC also referred the account to ARM, which also began making debt collection calls to the wrong Mr. Desmond. ARM claims that it was unaware of the numerous calls made by HSBC.

Over a three-month period, ARM made a minimum of eighteen calls to Mr. Desmond, leaving a recorded message on his answering machine each time. The messages varied in content, but they would always inform Mr. Desmond that the call was in regard to an important matter and that he should return the call. Each message provided a return telephone number.

Each time that Mr. Desmond called the return number, a prerecorded message allegedly informed him that he must provide his credit card number to proceed further. Because this was a case of mistaken identity, Mr. Desmond had no credit card number to provide. Mr. Desmond claims that neither the phone messages nor the electronic phone system into which he dialed gave him information about how he might contact ARM to explain that its representatives were calling the wrong person. Mr. Desmond is a senior citizen with some health issues, and this matter upset him greatly. He finally retained an attorney who managed to convince both HSBC and ARM to stop the calls. The attorney then filed this action against both corporations alleging various violations. HSBC settled the claims against it shortly after ARM received the final summary judgment that Mr. Desmond challenges in this appeal.

The Florida Consumer Collection Practices Act regulates debt collection in Florida. See §§ 559.55-.78. Section 559.72 prohibits specifically enumerated, inappropriate debt collection practices. Subsection 559.72(7) provides that a person collecting a debt shall not

[wjillfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family[.j

The trial court determined that a jury question existed under this statute as it related to the hundreds of telephone calls made by HSBC, but concluded that the conduct of ARM was not actionable. We agree that the conduct of HSBC as described in our limited record appears to be far more egregious than the conduct of ARM. At least in this record, there is nothing that would make ARM responsible for the conduct of HSBC. We also agree that the tenor of ARM’s telephone messages was not harassing and that their frequency did not rise to the magnitude necessary to violate this statute in the absence of additional factors. Compare Story v. J.M. Fields, Inc., 348 So.2d 675, 677 (Fla. 1st DCA 1977) (holding that 100 debt collection calls made over a five-month period was sufficient to present a jury question), with Schauer v. Morse Operations, Inc., 5 So.3d 2, 5 (Fla. 4th DCA 2009) (holding as a matter of law that seven debt collection calls over a six-month period were neither frequent nor so harassing as to violate section 559.72(7)).

We disagree with the trial court on one narrow issue. Under the Act, “unless the context otherwise indicates,” a “debt- or” means not only an actual debtor, but also “any natural person ... allegedly obligated to pay any debt.” § 559.55(2). Because the context of subsection 559.72(7) does not indicate otherwise, an alleged debtor is protected by the Act from the prohibited practices set forth in this subsection. ARM is a large corporation extensively engaged in the business of collecting debts. Any such business would reasonably understand that mistaken identities occur in the collection process. If ARM was knowingly employing methods that did not permit such an alleged debtor to return any of the eighteen telephone calls to explain that the calls were being made in error, we believe that a jury could conclude that ARM “willfully engage[d] in other conduct which can reasonably be expected to abuse or harass” such an alleged debtor. § 559.72(7). At this point, summary judgment is inappropriate on this issue.

Affirmed in part, reversed in part, and remanded.

KELLY and CRENSHAW, JJ„ Concur.


text:
    Michael LeBLANC, Appellant, v. CITY OF WEST PALM BEACH and Johns Eastern Company, Appellees.
    No. 1D10-6321.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Rehearing Denied Oct. 26, 2011.

      Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Appellant.
    Micheál A. Edwards of Peterson Bernard, West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant, a firefighter, challenges an order of the Judge of Compensation Claims (JCC) that finds that his Employer and its workers’ compensation carrier (the E/C) introduced sufficient evidence to establish a non-occupational cause of his cardiac arrhythmia. Claimant argues that testimony establishing that the cause of Claimant’s condition was unknown was insufficient to demonstrate that the condition, in fact, had a non-industrial cause. We agree and reverse.

Here, there is no dispute that Claimant established the legal conditions for the operation of the presumption found in section 112.18(1), rendering his cardiac arrhythmia work-related and, thus, compensable under the Workers’ Compensation Law — unless sufficiently rebutted by the introduction of evidence establishing a non-industrial cause. See Punsky v. Clay County Sheriffs Office, 18 So.3d 577, 583 (Fla. 1st DCA 2009). The medical evidence accepted as credible by the JCC established that the sufficient cause of Claimant’s condition was unknown; Claimant could have developed the condition notwithstanding his occupation; and, “mechanistically,” the condition is caused by an electrical defect in the cells of the heart. From this, the JCC concluded that the E/C sufficiently established a non-occupational cause of Claimant’s condition.

By finding that Claimant’s condition, which, by definition, is an electrical defect of the heart, was caused by a defect of the heart — the cause of which is unknown — the JCC devalued and eviscerated the legal presumption of com-pensability afforded by section 112.18(1). A determination of the physiological cause of a disease or medical diagnosis — although perhaps helpful under some circumstances in determining the sufficient, or legal, cause of a medical condition — does not, without more, establish the legal cause of the condition, but rather, evades the issue altogether. Moreover, here, the medical testimony that the JCC accepted as credible established that the sufficient cause of Claimant’s condition was unknown, based on the evidence presented, — an empty set that precludes a contrary postulate. See generally Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009) (stating, to rebut 112.18 presumption, E/C required to affirmatively demonstrate non-work-related cause, not prove that there is no known cause). Accordingly, we REVERSE the denial of benefits and attorney’s fees and costs, and REMAND the case for the entry of an order awarding same.

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

       For instance, cancer is by definition, malignant neoplasm, see Stedman’s Medical Dictionary 236 (25th ed. 1990); however, testimony establishing that a particular cancer was caused by destructive cells, would do little to explain the cause of the disease as the term is used in a legal sense.


text:
    Cynthia Lee BIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0496.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2011.
    Rehearing Denied Oct. 26, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009).

BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.


text:
    Esli JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2945.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Nov. 10, 2011.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelfrard v. State, 34 So.3d 221 (Fla. 4th DCA 2010).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Ronald G. SHINGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4317.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Rehearing Denied Oct. 26, 2011.
    Ronald G. Shingler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(A) (as amended effective July 1, 2011).

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    JUPITER MEDICAL CENTER, INC., Appellant, v. VISITING NURSE ASSOCIATION OF FLORIDA, INC., Appellee.
    No. 4D10-1803.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Nov. 10, 2011.

      Michael G. Austin and Matthew D. Gro-sack of McDermott Will & Emery LLP, Miami, for appellant.
    David B. Earle of Ross Earle & Bonan, P.A., Stuart, for appellee.
   THORNTON, JOHN W., JR., Associate Judge.

Appellant brought the action below to vacate an arbitral award on the ground that it was based on an illegal contract. Appellee filed both a motion to dismiss and a motion to enforce the award. The trial court did not address the issue of the contract’s legality, dismissed Appellant’s action and entered an order enforcing the arbitral award. Because a Florida court cannot enforce an illegal contract, we reverse and remand for the trial court to consider the legality of the contract.

Appellee Visiting Nurse Association of Florida, Inc. (“VNA”), a home health care agency, bought community hospital Appellant Jupiter Medical Center, Inc. (“JMC’O’s home health care agency business. VNA paid $639,000 to JMC based upon an agreed appraisal. VNA purchased the business pursuant to a Home Health Care Agreement, which contained a broad arbitration provision.

VNA believed that JMC was not performing its contract obligations and filed an arbitration claim for breach of contract with the American Arbitration Association. The arbitration panel found that JMC breached the contract and awarded VNA $1,251,213 in damages.

JMC filed with the arbitrators a motion to re-open, arguing that the contract, as construed by the arbitrators, violated state and federal laws prohibiting medical care providers from accepting payment in return for home care patient referrals. JMC’s motion to re-open the arbitration was denied. JMC then filed a petition with the United States District Court for the Southern District of Florida seeking to vacate the award. The court dismissed the petition for lack of subject matter jurisdiction. JMC then filed the motion to vacate with the Palm Beach County Circuit Court. In response, VNA filed a motion to dismiss and a motion to enforce the arbitration award.

The trial court refused to reach the question of whether the contract was legal. The court denied JMC’s motion to vacate and entered final judgment on the arbitration award in favor of VNA. JMC appeals.

The sole issue before this court is whether the trial court erred in not considering the contract’s legality before ordering enforcement of the arbitral award. JMC argues that Florida courts should not enforce an arbitrator’s award based on an illegal contract and therefore the trial court erred in refusing to consider the issue. We agree.

The standard of review in this case, based on the trial court’s decision not to consider the question of the contract’s legality, is a decision of law which is reviewed de novo. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla.2010).

Illegality is a compelling reason not to enforce a contract. See Title & Trust Co. of Fla. v. Parker, 468 So.2d 520, 524 (Fla. 1st DCA 1985) (holding that where a “contract contains a clause that is illegal, a court ought not to enforce the illegal term, as a contract cannot give validity to an otherwise illegal act”).

Florida cases indicate a broad refusal to aid the enforcement of illegal contracts.

The principle that courts will not enforce illegal contracts is well established.... [T]here can be no legal remedy for that which is itself illegal. Indeed, there rests upon the courts the affirmative duty of refusing to sustain that which by the valid laws of the state, statutory or organic, has been declared repugnant to public policy. To do otherwise would be for the law to aid in its own undoing.

Gonzalez v. Trujillo, 179 So.2d 896, 897-98 (Fla. 3d DCA 1965) (citations omitted); see also Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001) (where a contract is void as violative of Florida law, it “confers no enforceable rights on appellants based upon it”); Schaal v. Race, 135 So.2d 252, 256 (Fla. 2d DCA 1961) (“ ‘[W]hen a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right founded upon the contract or agreement can be enforced in a court of justice.’ ” (quoting Local No. 234, etc. v. Henley & Beckwith, Inc., 66 So.2d 818, 821 (Fla.1953))).

VNA attempts to distinguish this case because the parties had gone through arbitration. VNA contends that section 682.13(1), Florida Statutes (2009) provides a list of five circumstances under which a court will vacate an arbitral award. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989). The list does not include illegality. VNA argues that the trial court therefore lacked the authority to vacate the award.

While it is clear that section 682.13(1) does not include illegality, the issue as to whether a court will enforce an arbitral award on a contract that is allegedly illegal should be treated no differently. The ar-bitral award was based on the breach of a contract. If the contract is found to be illegal, a prior arbitration will not prevent the trial court from vacating the award. See Party Yards, Inc. v. Templeton, 751 So.2d 121, 123 (Fla. 5th DCA 2000) (“A claim that a contract is illegal and, as in this case, criminal in nature, is not a matter which can be determined by an arbitrator. An arbitrator cannot order a party to perform an illegal act.”) (citing Hill v. Norfolk & W.Ry. Co., 814 F.2d 1192, 1195 (7th Cir.1987)); I.U.B.A.C. Local Union No. 31 v. Anastasi Bros. Corp., 600 F.Supp. 92, 94, 95 (S.D.Fla.1984) (“[A] court may not enforce a contract that is illegal or contrary to public policy.... [T]he legality of the contract clause at issue here must be determined before the arbitration award can be enforced.”).

VNA also argues that JMC waived the defense of illegality. Miami Elees. Ctr., Inc. v. Saporta, 597 So.2d 903, 904 (Fla. 3d DCA 1992) (“The defendants did not plead illegality as an affirmative defense, and the issue was not tried below by consent; accordingly, the defendants have waived this defense.”). We disagree. The issue was initially raised with the arbitration panel, though not until after the award was entered. It was raised in federal court, but not decided, because of the dismissal for lack of jurisdiction. And it was raised and argued, though not decided, in the trial court below. JMC did not waive the defense.

When the issue of a contract’s legality is raised, the trial court must make that determination prior to deciding whether to enforce an arbitral award based thereon. Consequently, we reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

CIKLIN and LEVINE, JJ„ concur.