author: PADOVANO, J.

text:
    The FLORIDA HOUSE OF REPRESENTATIVES, on behalf of Rick Kriseman, in his official capacity as a Member of the Florida House of Representatives; and David Flintom, in his official capacity as Staff of the Florida House of Representatives, Appellants, v. EXPEDIA, INC.; Orbitz, LLC; Internetwork Publishing Corp., d/b/a Lodging.com; Travelocity.com, LLP; Priceline.com, Inc.; Travelweb LLC, Hotwire, Inc.; Hotels.com, L.P.; Broward County, Florida; and Florida Department of Revenue, Appellees.
    No. 1D11-6545.
    District Court of Appeal of Florida, First District.
    March 29, 2012.

      George T. Levesque, General Counsel, and Teresa Ward, Deputy General Counsel, Florida House of Representatives, Tallahassee, for Appellants.
    David L. Horan and James P. Karen of Jones Day, Dallas, Texas; and Mark E. Holcomb of Madsen, Goldman & Holcomb, LLP, Tallahassee, for Appellee Expedia, Inc.
    Jon C. Moyle of Keefe, Anchors, Gordon and Moyle, P.A., Tallahassee; Andrew J. Meyers, Chief Appellate Counsel, Broward County, and James D. Rowlee, Assistant Broward County Attorney, Ft. Lauder-dale, for Appellee Broward County.
    Pamela Jo Bondi, Attorney General, Jonathan A. Glogan, Chief, Complex Litigation, and Scott Makar, Solicitor General, Office of the Attorney General, Tallahassee; Leah L. Marino, Deputy General Counsel, Tallahassee, for Amicus Curiae Attorney General, Pam Bondi and The Florida Senate.
    No appearance for Respondents Orbitz, LLC, Internetwork Publishing Corp., Tra-velocity.com LLP, PriceLine.com, Inc., Travelweb LLC, Hotwire, Inc., Hotels.com, L.P., and Florida Department of Revenue.
   PADOVANO, J.

The issue before the court is whether a member of the Florida House of Representatives and his aide are entitled to claim legislative privilege as a ground for refusing to testify in a civil case. A legislative privilege existed under the common law, and we conclude that it continues to apply in Florida by general legislation adopting the common law. We also conclude that a legislative privilege is implicit in the separation of powers provision of the Florida Constitution. Because the testimony to be given in this case is within the scope of the privilege, we hold that the subpoenas at issue must be quashed.

The controversy over the existence of a legislative privilege arose from two tax cases, both of which are pending in the circuit court for Leon County. In these cases, Expedia and other online travel companies filed complaints against Bro-ward County and Osceola County to challenge the assessment of tourist development taxes. The counties filed counterclaims alleging, among other things, that the travel companies had evaded their obligations to pay the taxes.

In the course of related tax litigation in Georgia, Expedia was ordered to produce certain internal documents, including written communications prepared by its law firm and its accountants. These documents were confidential but they were disclosed to opposing counsel in the Georgia litigation under a protective order. Subsequently, the lawyer for Broward County came into possession of the documents and sought to use them as evidence in the Florida cases. The trial court ruled that the documents were privileged and that they would not be admissible in evidence, in the absence of a showing that Expedia had waived the privilege.

Meanwhile, the Florida Legislature was considering a bill that would have afforded favorable tax treatment to hotel bookings made by Expedia and other online travel companies. Rick Kriseman, a member of the Florida House of Representatives, opposed the bill. The lawyer for Broward County provided Representative Kriseman with the Expedia documents that were to remain confidential under the terms of the Georgia protective order. Representative Kriseman then forwarded the documents to all of the members of the Florida House of Representatives and made them available, as well, to certain members of the press.

Following the dissemination of the documents, the lawyers for Expedia obtained subpoenas directing Representative Krise-man and his aide, David Flintom, to appear for depositions. They wanted to ask these two men how they obtained the documents. The Florida House of Representatives moved to quash the subpoenas on the ground that Representative Kriseman and his aide were protected by legislative immunity. Expedia argued that the testimony to be elicited was necessary to prove that it had not provided the documents independently of the lawyer for Broward County, and thereby to establish that it had not waived the privilege protecting the documents.

The trial court denied the motion to quash in part and held that the depositions could go forward on a limited basis. The court ruled that the lawyers for Expedia could ask Representative Kriseman and Mr. Flintom whether Expedia or any of its agents had independently provided the documents at issue. In that event, the lawyers could ask Representative Krise-man and Mr. Flintom what they had done with the documents once they received them. The court emphasized the narrow scope of the permissible inquiry and stated that no questions could be asked pertaining to the thoughts, opinions, or legislative activities of the witnesses.

The House of Representatives filed a petition for writ of prohibition in this court on behalf of Representative Krise-man and his aide, to prevent the trial court from going forward with the depositions. We treat the petition for writ of prohibition as an appeal from a final order. See Fla. R.App. P. 9.040(c) (stating that “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought”).

Prohibition does not lie if the party seeking relief has an adequate remedy by appeal. See Sparkman v. McClure, 498 So.2d 892 (Fla.1986); Bondurant v. Geeker, 499 So.2d 909 (Fla. 1st DCA 1986). The order compelling discovery in this case is final and therefore appealable because it adjudicates the legal rights of nonparties and because it otherwise meets the general test of finality. An order compelling a party to provide discovery is not ordinarily subject to immediate appellate review, because the issues can be addressed on appeal from the final judgment. However, the litigants seeking relief in this court are not parties to the action pending in the lower court and they will have no opportunity to appeal the final judgment. The litigation will continue between the travel companies and the counties, regardless of the outcome of this proceeding, but as to Representative Kriseman and his aide, the order is final.

Our conclusion that the order is appeal-able is directly supported by the precedent set in Calderbank v. Cazares, 435 So.2d 377 (Fla. 5th DCA 1983). There, the Fifth District Court of Appeal held that a pretrial order compelling a nonparty to provide discovery was reviewable by appeal as a final order and that it was not necessary to resort to the discretionary remedy of certiorari, as would be the case if the order had been entered against one of the parties. The court explained that the subpoena initiated a proceeding that was distinct from the underlying action between the parties. Thus, the court concluded that the order compelling discovery was a final order to the extent that it fully resolved the issue affecting the nonparty.

This court reached the same result in Transcall America, Inc. v. Butterworth, 604 So.2d 1253 (Fla. 1st DCA 1992), albeit for a slightly different reason. The discovery order at issue in that case arose from the issuance of an investigative subpoena and not in the course of litigation between other parties. We concluded that the proper remedy was an appeal but suggested that certiorari would be appropriate for an order entered in an ongoing proceeding. As we explained, “An order which compels compliance with a subpoena in an ongoing judicial proceeding, however, is a non-final order and a party seeking relief from such an order would have to petition for a writ of certiorari.” Id. at 1254 (emphasis added). This was a reference to a discovery order entered against a party to an ongoing proceeding. See, e.g., City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983); but see Corry v. Meggs, 498 So.2d 508 (Fla. 1st DCA 1986). Only then would it be proper to ask if the party seeking review by certiorari would have an adequate remedy by appealing the final judgment.

In the present case, there is no ongoing proceeding between the parties to the lawsuit and the individuals who have been ordered to provide discovery. As to these individuals, the order is final. See Smith v. State, 902 So.2d 179 (Fla. 3d DCA 2005) (holding that an order imposing sanctions against an attorney for one of the parties in a pending case is final and therefore immediately appealable by the attorney). Based on the holding in Calderbank and our own decision in Transcall, we conclude that the order denying the motion to quash is reviewable by appeal.

We begin our analysis on the merits of the appeal by observing that the Florida courts have not yet directly held that a member of the state legislature is entitled to claim a testimonial privilege. The subject was discussed in Girardeau v. State, 403 So.2d 513 (Fla. 1st DCA 1981) and City of Pompano Beach v. Swerdlow Lightspeed Management Co., LLC, 942 So.2d 455 (Fla. 4th DCA 2006), but in each of those cases the court stopped short of holding that a legislative privilege exists. In Girardeau, the court concluded that it was not necessary to recognize the existence of such a privilege, because it could not be asserted in any event to withhold information from a grand jury investigating a crime. And the court declined to reach the issue on the merits in Swerdlow, concluding that it had been presented prematurely.

Although the issue has not been squarely addressed in Florida, there is ample authority in American law for the proposition that a member of the legislative branch has a right to assert a legislative privilege. The testimonial privilege that protects a legislator from the command of a subpoena issued in a civil case is closely related to the immunity that protects a legislator from civil liability. These protections are based on the same policy considerations. As we shall explain, the privileges and immunities afforded to all government officials, including those who serve in the legislative branch, arise from the common law.

The principle of legislative immunity was so well established in English and American law that it was incorporated into the United States Constitution. In the leading case of Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court held that Article I, section 6 of the United States Constitution creates a form of legislative immunity. The applicable portion of this article, popularly known as the “Speech or Debate Clause,” provides in pertinent part that “in all Cases, except Treason, Felony and Breach of the Peace, [senators and representatives shall] be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The Tenney case dealt with immunity from suit, but the Supreme Court subsequently held in Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), that the Speech or Debate Clause also creates a testimonial privilege. In that case, a United States Senator was subpoenaed before a grand jury to give information relating to classified documents known as the Pentagon Papers. One of the matters under consideration by the grand jury was whether the senator had leaked the documents to a newspaper. The Court acknowledged the existence of the testimonial privilege but concluded that the senator was not entitled to rely on it under the facts of the case, because the subject matter of the inquiry — whether he had leaked the documents to the press— was not within the legitimate sphere of congressional activities and because the privilege cannot be used, in any event, as a shield against the commission of a crime.

The Florida Constitution does not include a version of the Speech or Debate Clause, but the decisions in Tenney and Gravel are significant to our analysis, nonetheless. These decisions illustrate that the Speech or Debate Clause is based on legislative privileges and immunities that are firmly rooted in the common law. As the Supreme Court explained in Ten-ney, “The privilege of legislators to be free from arrest or civil process for what they say or do in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.” Tenney, 341 U.S. at 372, 71 S.Ct. 783.

The Speech or Debate clause is limited by its terms to members of Congress, yet the court in Tenney applied the underlying common law principles to conclude that members of the California Legislature were immune from liability in a civil suit. Subsequently, the Court extended legislative immunity to local legislative officials, see Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), and to non-legislators legitimately engaged in a legislative function. See Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).

The principles that give rise to the need to immunize legislators are the same as those that justify immunity for members of other branches of government. Judges are immune from suit, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991), and judicial immunity, like legislative immunity, is based on principles developed in the common law. See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Our supreme court noted in Office of State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So.2d 1097, 1099 (Fla.1998), that the English courts had held that “absolute immunity was conferred upon judges acting within their lawful powers, even where the actions allegedly involved serious misconduct,” and that this principle “was directly imported into the law of the United States as the common-law basis for judicial immunity.”

This common law principle is most often used to immunize a judge from liability in civil litigation, but it has also been used to support the proposition that a judge cannot be compelled to testify about his or her thought process in making a decision in a case. See State v. Lewis, 656 So.2d 1248 (Fla.1994) (stating that a judge may not be examined as to his or her thought process in making a decision); Department of Highway Safety and Motor Vehicles v. Marks, 898 So.2d 1063 (Fla. 5th DCA 2005) (holding that a hearing officer acting in a judicial capacity was entitled to claim judicial immunity and could not be compelled to give testimony about his mental process in deciding a case).

We can draw the same analogy to the protections afforded to public officials in the executive branch of the government, as these protections are also based on the common law. In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the court held that the postmaster general was immune from civil suit. Drawing on principles of immunity developed in English cases at common law, the Court concluded that it is necessary to protect executive branch officials in order to ensure the proper functioning of the government. These common law principles evolved into the modern rules of law pertaining to absolute immunity, see Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), and good faith immunity. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Additionally, as with their counterparts in the judiciary and the legislature, public officials in the executive branch are entitled to a testimonial privilege. See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (recognizing the existence of executive privilege but holding that it is not absolute, in that it cannot be asserted to shield evidence of a crime); Cheney v. United States Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004); Dep’t of Health & Rehab. Servs. v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991) (holding that the head of a state administrative agency was protected by executive privilege and could not be forced to appear in court and answer questions about funding of the agency).

It is clear from these authorities that the privileges and immunities protecting all public officials, including members of the legislature, arise from the common law. The significance of this point is simply this: if legislative privileges and immunities existed under the common law, they continue to exist, apart from specific constitutional provisions like the Speech or Debate Clause, to the extent that a state continues to recognize the common law.

Section 2.01, Florida Statutes, provides in material part that “[t]he common law and statute laws of England which are of a general and not a local nature ... are declared to be of force in this state; provided, the said statutes and common law [are] not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.” It follows from this language that if legislative immunity existed under the common law of England, it continues to exist in Florida. Because we know of no law abrogating the common law on this point, we conclude that Florida legislators continue to enjoy legislative immunity under state law.

As an independent ground for our decision, we conclude that legislative privilege exists by virtue of the separation of powers provision of the Florida Constitution. This constitutional issue is closely related to the common law issues we have discussed. One purpose of common law legislative immunity was to protect the independence of the legislature. Another purpose was to “reinforce the separation of powers” between the branches of government. Fowler-Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 331 (3d Cir.2006).

Article II, section 3 of the Florida Constitution states, “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” The importance of this provision cannot be overstated. Our supreme court described the separation of powers as “the cornerstone of American democracy.” Bush v. Schiavo, 885 So.2d 321, 329 (Fla.2004). In the Schiavo case, the court also stated that Florida has traditionally applied a “strict separation of powers doctrine.” Id. at 329. Strict enforcement of the provision is necessary in part to ensure that one branch of the government does not encroach on powers vested exclusively in another.

We suggested in Girardeau that the separation of powers provision in Article II, section 3 would support a claim of legislative privilege. Girardeau, 403 So.2d at 516. This reasoning is legally sound, and we now adopt it as part of the basis for this decision. The power vested in the legislature under the Florida Constitution would be severely compromised if legislators were required to appear in court to explain why they voted a particular way or to describe their process of gathering information on a bill. Our state government could not maintain the proper “separation” required by Article II, section 3 if the judicial branch could compel an inquiry into these aspects of the legislative process.

Because the right to assert a legislative privilege arises from the state constitution as well as the common law, it is among those privileges that exist independently of the Florida Evidence Code. Section 90.501, Florida Statutes limits the testimonial privileges that are available to those that are listed in the Evidence Code. Legislative privilege is not listed in the Code but it falls within the exception for those privileges that “arise from the Constitution of the United States or of the State of Florida.” See § 90.501, Fla. Stat. Because it arises from the separation of powers provision in Article II, section 3, as we have explained, it continues to exist notwithstanding the fact that it is not among the testimonial privileges identified in the Code.

Although there is no judicial precedent in Florida for legislative immunity, there is no reason why we should not now recognize that it exists. Nor do we see any reason why this form of immunity, like the others, should not also include a privilege that can be asserted against the obligation that would otherwise exist to give compelled testimony in a civil case. In Gravel, the United States Supreme Court treated legislative testimonial privilege as a necessary incident of the legislative immunity it had previously recognized in Tenney, and we believe the same logic applies here. If legislators are immune from civil liability for actions taken in the course of their legislative duties, they are also entitled to refuse to testify about the performance duties.

This leads us to the question of whether the testimony to be elicited in the present case falls within the scope of the privilege. We conclude that it does. The documents that are the subject of the inquiry were acquired and distributed in the course of a debate within the House of Representatives on the merits of a pending bill. Gathering information pertaining to potential legislation and sharing it with colleagues is an essential part of the legislative process. Thus, it is clear that Representative Kriseman and his aide were performing a legitimate legislative function. See Kamplain v. Curry County Bd. of Comm’rs, 159 F.3d 1248, 1251 (10th Cir.1998) (stating that the courts apply a functional test in determining whether the privilege applies). Hence, the testimony Expedia wishes to elicit is protected.

Furthermore, we have little doubt that the privilege may be asserted by legislative staff members as well as the legislators themselves. The reason for affording a legislative privilege could be subverted entirely if an aide could be forced to disclose that which the senator or representative would be entitled to keep private. See Gravel, 408 U.S. at 628, 92 S.Ct. 2614 (holding that the privilege applied to both the senator and his aide). It follows that Mr. Flintom is entitled to assert the privilege just as it may be asserted by Representative Kriseman.

The legislative privilege we have recognized in this case is not absolute. On this point, we adhere to our decision in Girardeau that the privilege could not be used to withhold evidence of a crime. An absolute testimonial privilege is not available even to the President of the United States. See United States v. Nixon, supra The court will always have to make a preliminary inquiry to determine whether the information is within the scope of the privilege and whether the need for privacy is outweighed by a more important governmental interest.

No such interest has been demonstrated in the present case. Expedia claims that it needs to ask whether the documents were provided to Representative Kriseman by any of its own agents. This is a curious question, given the fact that the parties acknowledge that the documents were in fact provided by the lawyer for Broward County. Nevertheless, Expedia claims that it is necessary to prove that it did not provide the documents independently, so that it can refute a claim that it had waived the attorney-client privilege with respect to the documents. The problem with this claim is that the burden of proving a waiver is on the counties. Expedia is attempting to refute a fact that has not yet been proven and, as it appears from this record, may never be proven.

In summary, we hold that Representative Kriseman and Mr. Flintom are entitled to assert a legislative privilege. Because the questions to be asked of them regarding the documents they received and the actions they took in connection with a bill pending in the legislature are within the scope of the privilege, they cannot be compelled to testify. For these reasons, we reverse with instructions to quash the subpoenas.

Reversed.

WOLF and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Jason Hardy OAKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1080.
    District Court of Appeal of Florida, First District.
    April 2, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant, Jason Hardy Oakes, seeks reversal of his conviction for false imprisonment arguing the trial court should have granted his motion for judgment of acquittal because the State’s evidence did not show he confined the victim or otherwise restrained her from leaving her apartment after a domestic violence incident. We affirm.

At Appellant’s trial on charges of domestic battery by strangulation, false imprisonment, and battery, the victim testified that Appellant, who at the time was her boyfriend, visited her home on the date of the incident. During the visit, they argued on her porch, at which point Appellant threatened her, shoved her, and “lightly choked” her. They eventually went inside the house, where the argument continued. The victim warned Appellant she would call the police if he did not leave. Hearing this, Appellant punched her, knocking her to the floor. Appellant then pinned her to the ground by placing his knees on her shoulders, and repeatedly hit her in the head and choked her.

False imprisonment is defined as:

[F]orcibly, by threat, or secretly confining, abducting, imprisoning, or restrain ing another person without lawful authority and against her or his will.

§ 787.02(l)(a), Fla. Stat. (2008) (emphasis added). “The essence of false imprisonment is the act of depriving the victim of personal liberty or freedom of movement for any length of time.” Proko v. State, 566 So.2d 918, 920 (Fla. 5th DCA 1990) (emphasis added). The force used to restrain the victim need not be substantial; it must simply be sufficient to restrict the victim’s movement. See Conner v. State, 19 So.3d 1117, 1124 (Fla. 2d DCA 2009). For this reason, false imprisonment “may be completed by the simple momentary grasp of another person.” Id. at 1124-25 (finding false imprisonment when “the victim’s freedom of movement was restricted [ ] because she was pushed to the ground from behind and choked for a few seconds”); see also Proko, 566 So.2d at 920 (finding false imprisonment when the defendant grabbed the victim’s hand and a brief “tug of war” ensued as the victim tried to pull free); Jane v. State, 362 So.2d 1005, 1006 (Fla. 4th DCA 1978) (finding false imprisonment when the defendant held the victim briefly but tightly in a “bear hug”).

Here, the victim testified Appellant pinned her to the floor with his knees on her shoulders, then began to hit and choke her. Although Appellant may only have pinned the victim to the floor temporarily, the evidence sufficed for the jury to find Appellant forcibly restrained the victim. Therefore, the trial court correctly denied Appellant’s motion for judgment of acquittal.

AFFIRMED.

WOLF and PADOVANO, JJ., concur.


author: NORTHCUTT, Judge.

text:
    A.L.G., Appellant, v. J.F.D., Appellee.
    No. 2D10-3887.
    District Court of Appeal of Florida, Second District.
    April 4, 2012.

      Ama N. Appiah of Law Office of Ama N. Appiah, P.A., St. Petersburg, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   NORTHCUTT, Judge.

A.L.G. appeals the final judgment in a paternity action brought by the child’s father, J.F.D. We conclude that the trial court’s oral findings and the evidence did not support its decision on time-sharing. Accordingly, we reverse the time-sharing schedule established by the final judgment.

A.L.G. and J.F.D. are the unmarried parents of a son born in January 2008. J.F.D. is a longtime resident of St. Peters-burg. A.L.G. has made her career in the military and was stationed in Orlando when the child was born. A few months after the child’s birth, the mother learned that she would be transferred. Prior to the move, she gave the father written notice of her intent to relocate. He responded with an objection to the relocation and a petition to establish paternity, parental responsibility, time-sharing, and child support. In November 2008, the mother relocated to her new post in California.

After a hearing, which was not transcribed for our record, the circuit court entered a temporary order on time-sharing. The temporary order established a rotating parenting schedule in which the child was to spend six weeks with his mother in California followed by three weeks with his father in Florida. This schedule remained in effect until the final hearing in January 2010, when the child was two years old.

The parties were the only witnesses at the final hearing. Both of them expressed dissatisfaction with the temporary time-sharing schedule. The father testified that his three-week intervals were not long enough for him to establish a routine and that he would like the child to live primarily with him. In the alternative, he favored increasing his share of the rotation from three weeks to six. The mother complained that the child was clingy after visiting his father and that the three-week visits caused regressions in developmental activities such as potty training, eating with utensils, and learning letters and numbers. She proposed having the child live primarily with her during the school year and spend eight weeks with his father during the summer plus an additional week at spring break and another week in the fall or winter. Both parents observed that the frequent cross-country flights were hard on their son.

At the conclusion of the hearing, the trial court orally announced findings. The court recognized that both parties were good people who loved their son and that both agreed that the travelling was not in the boy’s best interests. The court found that the child lacked continuity and stability because of the schedule and that shuttling him between California and Florida was not in his best interests, regardless of whether it was a schedule of six weeks with one parent and three weeks with the other or six weeks with each. The court also found that it was in the child’s best interests to spend the primary amount of time with his mother. The court stated that she was more focused on things that the child needed at this stage in his life.

Surprisingly, however, the court proceeded to order a rotating schedule of six weeks with each parent, apparently because the parents had made the decision to live on opposite sides of the country and, the court said, “it works for you.” The court indicated that it considered the time-sharing schedule to be somewhat of a temporary arrangement because the mother was anticipating another reassignment in two years and the child would be reaching school age. The court explained that this schedule would mean less travel for the child, but the court did not expect it to offer more stability. Later, in its written final judgment the court observed that “[b]oth parties testified that the cross-country flights were not comfortable for the minor child and the cost was becoming burdensome.” Beyond a conclusory statement that it was in the child’s best interest to visit his parents on a six-week rotation, the judgment contained no other findings pertinent to the time-sharing schedule.

On appeal, the mother argues that the trial court abused its discretion in ordering the alternating six-week time-sharing schedule and that, although the final judgment stated that this was in the child’s best interest, the court found otherwise at the hearing. We recognize that broad discretion is given to a trial court in such decisions. See Burnett v. Burnett, 995 So.2d 519, 524 (Fla. 2d DCA 2008). This discretionary power is not without limitation, however, and an abuse of discretion is shown “when the judicial action is arbitrary, fanciful, or unreasonable.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (citation omitted). “The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result.” Id.

The legislature has determined that a trial court’s decision on time-sharing must be made with the best interests of the child as the primary consideration, and it has prescribed a number of factors that the court must consider in making its decision. See § 61.13(3)(a)-(t), Fla. Stat. (2010). The court’s decision must conform to the shared parental responsibility law in section 61.13 even if the parents are unmarried. See Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003) (addressing temporary order). Section 61.13(3) does not require a trial court to make specific findings of fact supporting a custody decision in its final judgment. Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc). But “the record or the final judgment must reflect that the custody determination was made in the best interests of the child.” Decker, 848 So.2d at 503.

We have reviewed the record and considered the evidence in light of the statutory factors bearing on time-sharing decisions. There was ample evidentiary support for the trial court’s findings that the parties’ son lacked continuity and stability because of the temporary rotating time-sharing schedule, that transporting him across the country was not in his best interests regardless of whether the rotation was every six weeks or alternating six weeks and three, and that it was in his best interests to spend most of his time with his mother. In light of this, ordering six-week rotating time-sharing — while acknowledging that the new schedule would not bring stability to the child’s life — was illogical and unjustified. As such, it was an abuse of discretion. We reverse it and remand for the court to revisit the time-sharing schedule.

This case made it to our docket in the fall of 2011. At the final hearing, the mother testified that she anticipated being reassigned in November 2011, hopefully to the East Coast. On remand, the court may take additional testimony to ensure that its time-sharing decision will be supported by evidence of the parties’ current state of affairs. Cf. Austin v. Austin, 12 So.3d 314, 318 (Fla. 2d DCA 2009) (noting that additional evidence was warranted on remand due, in part, to original testimony of future events that may or may not have occurred); Burnett, 995 So.2d at 525 (allowing for an evidentiary hearing on remand “[bjeeause significant time has elapsed since this judgment was entered and the current ... positions of the parties are uncertain”).

On the issue of child support, both parties agreed that the trial court could make guideline calculations based on the parties’ financial affidavits. We find no error in the child support award, but on remand the court should revisit it to factor in changes in the parties’ circumstances or the time-sharing schedule.

Affirmed in part; reversed in part; remanded.

WHATLEY and WALLACE, JJ., Concur.


author: STEVENSON, J.

text:
    Charles Eugene HEBRON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1866.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Rehearing Denied May 11, 2012.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich and Phil M. Glenn, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant appeals his convictions for kidnapping, three counts of sexual battery, burglary of a conveyance and burglary of an occupied conveyance. Key evidence admitted at trial in support of the state’s case was obtained from the defendant’s apartment which was searched after the defendant gave his consent during an interrogation. Because the defendant asked a clear question about his Miranda rights during this interrogation, and was given an incomplete and evasive answer by the interrogating officers, questioning should have stopped prior to the defendant giving his consent to search. We reverse his convictions because of the admission of this evidence at trial.

Prior to questioning the defendant, the officers read the defendant his Miranda rights and the defendant waived those rights. As the officers questioned the defendant about his involvement in multiple crimes including a police shooting and a gas station robbery, the defendant expressed concern about possible sentences that he could receive. The following exchange then occurred:

Defendant: Can someone tell me what my options are? I don’t know the law ... I need to know what I can do....
Detective: Here’s the problem, you’re taking care of the thing with the officer ... but if you don’t take care of all of these things....
Defendant: ... [WJhat am I looking at?
Detective: ... I can’t tell you.
Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me ... ?
Detective: No, let me ask you this. We don’t have any lawyers who work here. Let me ask you this. Was it drug related?

Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in the instant case. The defendant raised this issue before the trial court by way of a motion to suppress, arguing that his consent was obtained in violation of his right to counsel. Constitutional issues that rely on mixed questions of law and fact are reviewed de novo. See Rozzo v. State, 75 So.3d 409, 412-13 (Fla. 4th DCA 2011).

“Once a suspect has validly waived his or her Miranda rights, officers are not required to stop an interrogation unless the suspect unequivocally invokes those rights.” Bailey v. State, 31 So.3d 809, 812 (Fla. 3rd DCA 2009), review denied, 36 So.3d 83 (Fla.2010). An officer may continue questioning if ““a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” ” Green v. State, 69 So.3d 351, 353 (Fla. 2d DCA 2011) (quoting Collins v. State, 4 So.3d 1249, 1250-51 (Fla. 4th DCA 2009) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994))). However, “if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer.” State v. Glatzmayer, 789 So.2d 297, 303 (Fla.2001) (quoting Almeida v. State, 737 So.2d 520, 525 (Fla.1999)).

In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and asked “can we get a lawyer here?” The detective merely asserted that there were no lawyers on the staff and failed to provide a “simple and straightforward answer” to the question posed. The officer was required to properly answer the defendant’s question regarding his Miranda rights before resuming the interrogation. See Almeida, 737 So.2d at 525. The failure to stop the interrogation to answer the defendant’s question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant’s apartment should have been suppressed. See Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). Because the physical evidence uncovered in the apartment was so important to the prosecution’s case, we cannot find that “there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Lastly, we find no error in the trial court’s admission of expert testimony regarding duct-tape-tear analysis from state’s witness Bruce Ayala. Accordingly, because of the improper admission of evidence which should have been suppressed, we reverse and remand for a new trial.

Reversed.

WARNER and CONNER, JJ., concur.

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


author: WARNER, J.

text:
    Asley ESPUTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-422.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Andrew David Stine, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   En Banc

WARNER, J.

In this appeal from his conviction of aggravated battery and battery, appellant/defendant claims that the prosecutor made an improper comment on defendant’s right to remain silent. When the defendant objected at trial, the court sustained the defense objection and gave a curative instruction to the jury, but the court denied a motion for mistrial. Although this court has in the past occasionally applied a harmless error standard of review to similar claims, we recognize that the abuse of discretion standard of review for the denial of a motion for mistrial remains the proper standard to apply to this circumstance, as enunciated by our supreme court. Based upon the proper standard of review, we affirm appellant’s conviction. We consider this case en banc to recede from those decisions which relied on the harmless error standard to review the denial of motions for mistrial.

The state charged the defendant with aggravated battery on a pregnant woman (L.F.) with a deadly weapon and one count of aggravated battery against S.S., a minor, with a deadly weapon, arising out of a fight. The defendant and L.F. were involved in a relationship. S.S. is the sister of the defendant, but had become very close to L.F. Although the couple broke off the relationship, after a later sexual encounter, L.F. became pregnant with defendant’s child.

One day after a doctor’s appointment, L.F. came by defendant’s parent’s house to see S.S. and share with her information on the pregnancy. Defendant came in and appeared uninterested in the due date of his child. Instead, he appeared “as though he was preparing to ... beat [her] up.” He asked where her cell phone was, and when L.F. couldn’t produce it, he began to beat up both L.F. and his sister, S.S. The fight was fairly intense, with pots and pans being thrown and even a vacuum cleaner being used as a weapon. Defendant also had a gun and hit both of the women with it. The fight went on for quite a while. Defendant eventually left, and the women called for help.

The state’s case focused primarily on the testimony of L.F. S.S. did not testify. Defendant testified in his own defense that at the time of the incident he was involved with a woman named Regina, whom he had arranged to meet at his parent’s home that day. When he arrived at the apartment, S.S., Regina, and L.F. were all arguing and “had seemed like they just got out of a fight.” He observed pots and the vacuum on the ground. He left with Regina, who had scratches and bumps. During cross-examination, the prosecutor questioned defendant on his version of what occurred and the involvement of Regina. He then asked, “And, isn’t it true, that you never told the police?” Defense counsel immediately objected and moved for a mistrial, based on the “comment on his right to remain silent.” The court sustained the objection, but denied the motion for mistrial. Defense counsel requested the court to instruct the jury to disregard the question. The court agreed and instructed the jury:

Members of the jury, you should disregard the last question, draw no inferences from it. If you wrote anything down in your notes about it, just cross it out.

Following the presentation of evidence and argument, the jury found defendant guilty of aggravated battery on a pregnant woman as charged and guilty of battery on S.S., a lesser included offense. Defendant was sentenced to seven years in prison on the felony aggravated battery and six months on the misdemeanor battery. He appeals the convictions.

On appeal, defendant contends that the court erred in denying the motion for mistrial. In this “he said/she said” trial, he claims that the prosecutor’s comment was not harmless beyond a reasonable doubt. This, however, is not the standard to be applied to the denial of a motion for mistrial. Instead, our supreme court has directed that the appellate court review a denial of a motion for mistrial by an abuse of discretion standard, even where the issue is a comment on silence.

Most recently, in Bright v. State, — So.3d -, 2012 WL 224067 (Fla.2012), the supreme court reviewed a claim that a prosecutor improperly commented on the defendant’s silence in closing argument. Defense counsel did not object contemporaneously with the comment, but objected and moved for a mistrial at the close of the argument. Although the court held that the issue had not been properly preserved, it addressed the standard of review. First, it explained the necessity of an objection:

“The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of the judicial system. A contemporaneous objection places the trial judge on notice that an error may have been committed and thus, provides the opportunity to correct the error at an early stage of the proceedings.”

Id. at - (quoting Nixon v. State, 572 So.2d 1336, 1340-41 (Fla.1990)).

While the objection was untimely in Bright, the court still considered the merits in ruling on the motion for mistrial, but under an abuse of discretion standard:

Even if defense counsel had objected contemporaneously, the trial court never ruled upon that objection. Under such circumstances, we have explained that the standard of review on direct appeal is whether the trial court abused its discretion in denying the motion for mistrial, not the harmless error standard which applies when an objection is overruled. See Poole v. State, 997 So.2d 382, 391 n. 3 (Fla.2008); Dessaure v. State, 891 So.2d 455, 465 n. 5 (Fla.2004). Accordingly, this issue is analyzed under an abuse of discretion standard.
A trial court should grant a motion for mistrial only when “the error upon which it rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to ensure that the defendant receives a fair trial.” Dessaure, 891 So.2d at 464-65.

Id. This is consistent with prior pronouncements of the court on the standard of review that “‘[t]he use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where ‘the trial court recognized the error, sustained the objection and gave a curative instruction.’ Gore, 784 So.2d at 428. Instead, the correct appellate standard of review is abuse of discretion.’ ” Rivera v. State, 859 So.2d 495, 512 (Fla.2003) (quoting Smithers v. State, 826 So.2d 916, 930 (Fla.2002)).

We applied the abuse of discretion standard of review in Durrant v. State, 839 So.2d 821 (Fla. 4th DCA 2003), to a comment on a defendant’s failure to testify. Of the proper standard of review, we said:

[W]hen defense counsel objected to the comment, the court sustained the objection and gave a curative instruction to the jury to disregard the comment. The court then denied defense counsel’s subsequent motion for mistrial. Our standard for review of the denial of the motion for mistrial is whether the trial court abused its discretion. See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999) (citations and footnote omitted). Thus, we must “determine whether the single improper remark, to which the trial court sustained an objection and gave a curative instruction, was so prejudicial as to deny defendant a fair trial.” Id. at 547 (citation omitted).

Id. at 824.

This court, however, has not been consistent in its application of the standard, and in some cases we have applied a harmless error analysis. In Jones v. State, 777 So.2d 1127 (Fla. 4th DCA 2001), we applied the harmless error standard to the denial of a motion for mistrial, even though the defendant had objected to the comment on silence, and the trial court sustained the objection, gave a curative instruction, but denied the motion for mistrial.

Jones relied on Anderson v. State, 711 So.2d 230, 232 (Fla. 4th DCA 1998), for the use of the harmless error standard. In Anderson, a witness made a comment on the defendant’s silence, and counsel moved for a mistrial. The opinion does not mention whether the defense also objected and was sustained, nor whether the court gave a curative instruction. The opinion merely states that the motion for mistrial was denied. Nevertheless, we held that denial of the motion for mistrial must be measured by the harmless error standard. Jones and Anderson were followed by Myles v. State, 967 So.2d 450 (Fla. 4th DCA 2007), which also applied a harmless error standard to review the denial of a motion for mistrial, as did Munroe v. State, 983 So.2d 637 (Fla. 4th DCA 2008). These cases all conflict with the standard of review as set forth by the supreme court. To the extent that they apply a harmless error standard of review to the denial of a motion for mistrial involving a comment on silence, we recede from their pronouncements.

In this case, applying the abuse of discretion standard, we affirm. It is not clear that the question asked of the defendant about whether he told the police about Regina, which question was not answered, was an impermissible comment on silence, as it depended upon whether it was made pre-arrest. See State v. Hoggins, 718 So.2d 761, 770 (Fla.1998). For the purpose of this opinion, we will assume, without deciding, that the unanswered question was a comment on silence. We cannot conclude, however, that this one question vitiated the entire trial and prevented justice from being done.

The trial court acted correctly in sustaining the objection and giving a strong curative instruction. Defense counsel did not object to the instruction given or request any further instruction. Moreover, although only L.F. and the defendant testified to the incident itself, officers who appeared shortly after the fight ended testified that L.F. was still terrified and refused to leave the side of the officer, afraid that the defendant might be around. This behavior was inconsistent with the defendant’s assertion that L.F. and his sister jumped his new girlfriend Regina. In analyzing the issue again upon a motion for new trial, the trial court stated:

It was a single question in the context of the entire case. Considering the fact that it was actually the — the objection was sustained and immediately followed up with a — a curative instruction, as I recall. It was a strong curative instruction that, I believe the jurors were told to disregard the question and not to draw any inferences from it.
I find that even if it were error, it would not be the kind of harmful error that would require a new trial, in the context of all of the circumstances of the case.

The trial court, who was present and observing the witnesses and could judge the effect of this comment on the entire trial far better that we can, found that it did not require the grant of a new trial. We find no abuse of discretion.

Affirmed.

MAY, C.J., POLEN, STEVENSON, GROSS, TAYLOR, HAZOURI, DAMOORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ., concur.

      . While some inadvertent comments on silence may permit a trial court to rule instantaneously on a motion for mistrial because of the insignificance of the remark, the standard in granting the motion is whether the error is so prejudicial to vitiate the entire trial. In some circumstances the trial court might be well-advised to reserve ruling on a timely motion for mistrial until the end of the trial when the court can review all of the circumstances to make the determination.


author: TAYLOR, J.

text:
    Derek MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4077.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Rehearing Denied May 11, 2012.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Derek Martin appeals his conviction for first-degree felony murder. He argues that the trial court reversibly erred in denying his motion for mistrial after previously redacted portions of his taped police interrogation were erroneously played to the jury. These portions of the interrogation had been redacted because they im-permissibly suggested that his co-defendants, and other unnamed witnesses, had implicated Martin in the murder. We reverse.

Factual Background

Martin’s sister, Roxanne, testified at trial that she, Martin, co-defendant Sasha Bowen, and co-defendant Jose Gordon were together at Gordon’s house on the night of June 4, 2008. Roxanne said that the three men discussed going to buy a pound of marijuana from someone Gordon knew. She admitted that she had previously told the police that they discussed “doing a jack for a pound of weed,” but said her original statement was false — the result of intoxication and police intimidation. Roxanne also denied previously telling the police that the three men were armed with Martin’s gun (a .38 revolver) when they left to get the marijuana. The three men departed in Martin’s black pickup truck.

Arthur Tobin, Sr., the victim’s father, woke to the sound of gunshots around midnight. He rushed outside and ran down the stairs of his front porch. His son, Artie Tobin, was lying motionless on his back at the foot of the stairs. When Arthur rolled his son over, he saw blood trickling from his son’s mouth. He shook his son’s body and screamed his name. The young man remained still; he was dead.

Several neighbors, who were also awakened by the gunshots, gave their recollection of the night’s events. One neighbor saw a truck, which she described as a “dark S10 Ford Ranger,” at the end of the victim’s driveway. The truck sped away after a man dressed in dark clothing jumped into the truck’s bed. DNA collected from blood found at the end of the driveway matched Bowen’s DNA.

Another neighbor saw Gordon lingering at the edge of the driveway just after the shooting. The neighbor confronted Gordon. Gordon said he had been in the neighborhood to buy some marijuana from the victim, and that he was standing outside the victim’s home when someone walked up to the victim, put a gun to his head, and pulled the trigger. The neighbor, aware that Gordon did not live in the neighborhood, refused to let him leave the scene until the police arrived. Once the police arrived on the scene, Gordon was taken into custody on an outstanding warrant for violation of probation.

Gordon’s cell phone was recovered at the scene. The phone had received several missed calls from Bowen’s phone. All of the calls had been placed after the victim was shot. Detectives traced phone calls and text messages from Gordon’s phone to the victim. The messages revealed that Gordon had agreed to buy marijuana from the victim shortly before he was shot.

Martin and Bowen went to Bowen’s home after the shooting. Witnesses saw Martin’s black truck parked in Bowen’s driveway. Both men were distraught. A friend of the two men, present at Bowen’s home, testified that Bowen was wearing a dark shirt, military fatigues, and bleeding from a cut above his eye. She also testified that, upon walking through the door, Bowen stated, “I shot the kid. I shot him twice. I killed him.” Martin told him to be quiet. They borrowed a cell phone and attempted to contact Gordon, whom they had left at the scene. Martin and Bowen then left in Bowen’s jeep and began searching for Gordon. Unable to find him, they separated.

Bowen, still distraught, sought refuge with a friend. She testified that, while she tended to his eye, he told her that he, Martin, and Gordon had gone to rob someone in western Hollywood and it had gone bad. He confessed that he had shot the victim and fled with Martin; Gordon was left behind.

Martin also sought the aid of a friend. At trial, this friend testified that he was at home when Martin arrived with cash and a revolver. Martin told his friend that he had gotten himself into trouble. He asked his friend to get rid of the gun for him. The friend agreed. The Hollywood Police Department ultimately recovered the gun while conducting an unrelated investigation. At trial, the state’s forensic expert testified that the bullets that killed the victim could have been fired by the gun, a .38 revolver. However, while the grooves and markings on the bullets that killed the victim were consistent with the grooves and markings fired by the gun recovered by police, the bullets were too damaged in the shooting to be definitively linked to the weapon. Additionally, the bullets could have been fired by any .38 caliber weapon or .357 Magnum.

Martin drove to his mother’s home in Hallandale close to five o’clock in the morning on June 5. He needed a place to sleep, and his mother gave him her bed. After a few days in Hallandale, his mother informed him that a warrant had been issued for his arrest in connection with the murder of Artie Tobin. He decided to turn himself in.

Another one of Martin’s friends testified that, before turning himself in, Martin attempted to call her boyfriend. The boyfriend was not home, so she answered his phone for him. Martin asked her to tell the police that he had been with her on the night of the murder. At trial, she reluctantly admitted that Martin asked her to lie.

After entering the police station, Martin was detained, placed in an interrogation room, and given his Miranda warnings. He waived his rights and agreed to speak with the detectives. Martin stated that he had loaned his truck to Gordon one or two nights earlier. He acknowledged being with the co-defendants (and others) at Gordon’s house earlier on the night of the murder, but said he walked to a friend’s house and did not recover his truck until later when he saw it in Gordon’s backyard with the keys in the ignition. Martin said that, sometime after he recovered his truck, Gordon told him that the truck had been stolen while Gordon was using it, and that someone had gotten shot. Martin stated that he drank too much that night and did not remember much about what happened. He denied having a gun and explained that he went to Palm Beach County because he was nervous. He said he had met the victim only once or twice.

During questioning, a detective told Martin that he knew Martin was at the scene when the victim was shot, and he implied that Gordon and Bowen, as well as other witnesses, had implicated him in the murder. The detective stated:

Let me tell you something. I had two people sit where you sat, and both of them tell me you were there. Okay? I have other independent people tell me you were there. So I know you were there. If you want to play this game where you don’t know what happened, then go ahead and start from the beginning.

Before trial, the parties agreed that this statement would be redacted from the taped interrogation. However, when the tape was played for the jury, this statement was inadvertently left in. Defense counsel moved for a mistrial. The court denied the motion and instructed the jury as follows: “[wjhat the detectives say on the recording is not evidence and you are not to consider it as such.” The state did not mention the erroneously admitted statement during closing argument. The jury found Martin guilty of murder in the first degree. He was sentenced to life in prison without the possibility of parole.

Analysis

A trial court’s ruling on a motion for mistrial will not be reversed absent an abuse of discretion. Tai A. Pham v. State, 70 So.3d 485, 493 (Fla.2011). “A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” Id. (quoting England v. State, 940 So.2d 389, 401-402 (Fla.2006)) (internal citation omitted).

The state acknowledges that it was error for the redacted statements to be played before the jury. See, e.g., Postell v. State, 398 So.2d 851, 855 (Fla. 3d DCA 1981) (footnotes omitted) (“We hold that where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness had furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.”). However, the state argues that the admission of the statements was not so prejudicial as to vitiate the entire trial. We disagree.

The admission of an out of court statement that the defendant engaged in the criminal activity for which he is being tried is inherently prejudicial. State v. Baird, 572 So.2d 904, 908 (Fla.1990); see also Conley v. State, 620 So.2d 180, 182-83 (Fla.1993) (holding that dispatcher’s statement that “a man [was] chasing a female down the street ... the man supposedly had some type of gun or rifle,” as related by the investigating officer, was inherently prejudicial and harmful error); Wilding v. State, 674 So.2d 114, 119 (Fla.1996) (“Placing information before the jury that a non-testifying witness gave police reliable information implicating the defendant in the very crime charged clearly could affect the verdict.”), receded from on other grounds by Devoney v. State, 717 So.2d 501 (Fla.1998); Keen v. State, 775 So.2d 263, 273 (Fla.2000) (“[I]t is impermissible for the State to have the benefit of statements from mystery witnesses or sources without the defendant having the right of confrontation and cross-examination.”); Banks v. State, 790 So.2d 1094, 1099 (Fla.2001) (holding that detective’s interpretation of non-testifying witness’s statements that the defendant was “cool” and “straight up,” combined with hearsay statements that the defendant expressed concern that the undercover officer was a snitch constituted harmful error); Tosta v. State, 786 So.2d 21, 24 (Fla. 4th DCA 2001) (holding that it was harmful error for officer to relay radio statement that the defendant was behind the wheel of a stolen vehicle, and that the trial court abused its discretion when it denied the motion for a mistrial); K.V. v. State, 832 So.2d 264, 266 (Fla. 4th DCA 2002) (holding that it was harmful error for victim to relate statements of unidentified friends that the defendant was going to target his home for a burglary).

In Keen, the Florida Supreme Court equated the inherently harmful effect the admission of collateral crime evidence has on a jury’s verdict to the inherently prejudicial effect the admission of hearsay evidence implicating the defendant has on a trial. 775 So.2d at 275 (citing Czubak v. State, 570 So.2d 925, 928 (Fla.1990)). “The nature of the inadmissible materials here consisting of very harmful hearsay evidence indicating that the defendant was guilty of the crime charged is far more egregious and harmful than the admission of material directed to an unrelated collateral wrong ... we conclude that the standard applied in Czubak should be applied here under these particular circumstances.” Id.

In this case, portions of the police interrogation played for the jury implied that the co-defendants had made statements to the police that Martin was involved in the murder for which he was on trial. This material was inherently prejudicial and deprived Martin of a fair trial. The state’s case against Martin was largely circumstantial. No witnesses saw Martin at the scene of the crime — only a dark truck, resembling Martin’s vehicle, was seen leaving the victim’s home. Additionally, no forensic evidence directly linked Martin to the crime. The state’s case was significantly buttressed by the erroneously admitted material from Martin’s statement. The statement gave the jury an abundance of witnesses who claimed to have seen Martin at the scene of the crime when the victim was murdered. First, the detective stated that “two people,” presumably co-defendants Bowen and Gordon, had been interrogated by police officers, and both had implicated Martin. Second, the detective stated that he corroborated the statements of the “two people” by speaking to “other independent people.” Finally, after speaking with these other sources, the detective “knew” that Martin had been at the scene of the crime when the victim was murdered. Furthermore, the defense was surprised by the admission of the statement since the state had previously agreed to redact it. See Gonzalez v. State, 777 So.2d 1068, 1069-70 (Fla. 3d DCA 2001) (holding that the surprise admission of improper testimony constituted a “trial by ambush” and was “inherently prejudicial”).

We have repeatedly held that the testimony of unnamed witnesses implicating the defendant in a crime is both improper and harmful. See, e.g., Hurst v. State, 842 So.2d 1041, 1043-44 (Fla. 4th DCA 2003) (holding that the state failed to show that officer’s testimony was harmless when officer recounted confidential informant’s description and identification of the defendant); see also Saintilus v. State, 869 So.2d 1280, 1282 (Fla. 4th DCA 2004) (holding that the state failed to show that admission of informant’s testimony was harmless when “the only purpose of this testimony was to admit these hearsay statements to link defendant to the crimes,” and there was conflicting testimony regarding the perpetrator’s identity). The Florida Supreme Court’s language in Keen is clear: “[hearsay statements relating accusatory information] simply should not [be] permitted, and when the motion for mistrial [is] made after such evidence [comes] before the jury, a mistrial should [be] granted.” 775 So.2d at 275-76.

Because we conclude that the trial court should have granted Martin’s motion for mistrial, we reverse and remand for a new trial. We find, however, no error in the trial court’s denial of Martin’s motion to suppress those parts of his interrogation made after his statement that he may need a lawyer. See Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); see also State v. Owen, 696 So.2d 715, 719 (Fla.1997) (holding that interrogating officers are not required to clarify an “equivocal or ambiguous request to terminate an interrogation after [a defendant has] validly waived his or her Miranda rights”). Nor do we find any error in the manner in which the trial court conducted a Nelson hearing.

Reversed and Remanded for a new trial.

GERBER and LEVINE, JJ., concur.

      . The defendant and co-defendants were tried separately. Neither of the co-defendants testified at the defendant’s trial.

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

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: MAY, C.J. GERBER, J.,

text:
    Oladotun ORUKOTAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1223.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Samuel R. Halpern, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

A foiled robbery and the defendant’s convictions for robbery and kidnapping are the subject of this appeal. The defendant has raised numerous issues. We find only one issue of merit and reverse his conviction and sentence for kidnapping.

The victim and defendant knew each other for approximately a year due to pri- or drug transactions between the two. On the afternoon of the incident, the victim arranged for his sister to pick him up at his apartment. During a brief phone call, she told him to expect her in about five minutes.

When the victim answered a knock at the door, he heard a gunshot and realized that he had been shot in his left foot. The bullet actually traveled through the door before it struck the victim. Immediately thereafter, the co-defendant entered the victim’s apartment brandishing a chrome revolver.

The co-defendant ordered the victim to get on the floor and tasered him. The defendant followed the co-defendant into the apartment with a firearm, wearing a black bandanna over his face. The co-defendant ordered the victim to put his hands behind his back. The victim was tied up with a dog leash and a pillow case was placed over his head. He was told to give them cash and drugs. The victim gave them about one thousand dollars from his pocket and approximately one-half of a pound of marijuana.

Suddenly, there was another rap at the door. The victim told the intruders that it was his sister. The sister and her friend knocked on the door, but did not get a response for about five or ten minutes. The defendant and co-defendant untied the victim and told him to answer the door.

When he opened the door, the co-defendant forced the sister and her friend into the apartment. The sister and her friend were ordered to dump out their purses and to give them everything. They were forced into the bathroom, during which time the defendant was armed and took the friend’s cell phone, money, and driver’s license.

Inside the bathroom, the co-defendant ordered the sister’s friend to tighten the restraints on the victim, and to remain in the bathroom. He then told the victim to be quiet or he might shoot him again. Neither the sister nor her friend was bound. It appears the bathroom door remained unlocked.

The victim’s sister testified that the co-defendant rummaged through the apartment while the defendant held them in the bathroom at gunpoint. The sister estimated the entire event lasted approximately fifteen to thirty minutes before law enforcement arrived. The sister’s friend estimated they were left unattended for about two to four minutes. The defendant and co-defendant returned to the bathroom and told them the police had arrived. The victim was untied and the pillow case taken off of his head. They were instructed to act as though they were all “hanging out” and “partying together.”

Law enforcement saw what looked like a bullet hole in the metal plate on the lower part of the front door. They yelled to open the door and knocked repeatedly— without any response — for somewhere between twenty and forty-five minutes. While pounding on the door, a detective saw someone part the blinds and peek out.

Ultimately, the victim opened the door. He was secured by an officer outside on the landing where the victim explained that he had just been robbed. The victim took off his left shoe and sock, revealing a bullet wound.

The remaining officers detained the others. Law enforcement searched the co-defendant, finding cash and a driver’s license belonging to the sister’s friend. The police noted a large amount of drugs and paraphernalia around the apartment.

Law enforcement secured a search warrant for the apartment. During the search, they found a backpack that contained the victim’s laptop, X-Box, a stun gun, and about 150 grams of marijuana. They found a dog leash in a bathroom. They also found two firearms in the victim’s closet, which were identified as the guns used during the commission of the crimes. The victim’s sister testified that the robbers put the guns in her brother’s closet before law enforcement entered the apartment.

Both the defendant and co-defendant were tried together. The jury convicted the defendant of armed burglary, armed kidnapping of the victim, and three counts of armed robbery. The jury specifically found the defendant actually possessed a firearm during the commission of the armed kidnapping of the victim and the armed robbery of the sister’s friend, but did not possess a firearm on the other three counts.

The court sentenced the defendant to eighteen years in prison with a ten-year minimum mandatory term on the robbery and kidnapping charges based on his possession of a firearm. The defendant filed a Renewed and Amended Motion for Judgment of Acquittal, and Motions for Judgment Notwithstanding the Verdict, an Arrest of Judgment, and for New Trial, all of which were denied. The defendant now appeals his convictions and sentences.

The defendant argues there was insufficient evidence to prove the confinement was not merely incidental to the underlying predicate offense of robbery, and that this error is fundamental. The State responds that it introduced sufficient evidence to prove the defendants kidnapped the victim to facilitate their robbery.

We have de novo review of the trial court’s order denying the motion for judgment of acquittal. Johnston v. State, 863 So.2d 271, 283 (Fla.2003).

Florida statutory law defines the crime of kidnapping.

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.
(2) A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life....

§ 787.01(l)(a) & (2), Fla. Stat. (2007).

Our supreme court has approved a three-part test for determining when confinement during the commission of another crime constitutes the separate offense of kidnapping.

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison v. State, 426 So.2d 963, 965 (Fla.1983) (alteration in original) (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)); see also Fla. Std. Jury Instr. (Crim.) 9.1.

Our decision is guided by Lewis v. State, 50 So.3d 86 (Fla. 4th DCA 2010). There, we encountered a similar fact pattern. An armed robber entered a check cashing store and robbed the manager at gunpoint. During the robbery, the defendant took the manager to the bathroom and placed her in handcuffs. Id. at 87. When the police arrived, the defendant could uncuff only one of the manager’s hands and so he sent a second hostage outside with instructions to tell the police everything was fine. Id. The hostage told the police about the robbery; the defendant fled — leaving the manager with only one hand cuffed. Id.

We reversed the kidnapping conviction, finding the crime of kidnapping cannot be established “where the victim’s confinement ceases when the accompanying crime ends.” Id. at 88. In doing so, we relied on Berry v. State, 668 So.2d 967 (Fla.1996).

In Berry, the defendants entered an apartment, tied one of the victim’s hands “behind his back with a hanger” and tied “his feet ... together with a telephone cord. [The victim] then was made to kneel down with his chest over a dining room chair.” Id. at 968. Another victim was forced to take the defendants from room to room to reveal the location of valuables. Id. When the robbery had been completed, the defendants tied the second victim’s hands behind his back and to his legs, leaving him face down on the floor. Id. The defendants left without freeing the victims.

There, our supreme court refused to add any additional prong to the Faison test even though it admitted that the variety of factual scenarios made the test hard to apply. Id. at 970. Nevertheless, the court seemed to indicate that whether the victim remains confined after the completion of the underlying crime can suggest whether the first and third prongs of the Faison test have been satisfied.

Applying the first prong of the Faison test to the facts of the instant case, we do not believe that the confinement was slight, inconsequential, and merely incidental to the other crime. We construe this prong to mean that there can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it. For example, if [the defendants] had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand. In both hypothetical any confinement accompanying the robbery would cease naturally with the robbery. By contrast, in this case the robbers left the scene of the robbery without untying the victims, thereby leaving them both in a precarious and vulnerable state for a period beyond the robbery. Like the situation where the victim of a forcible felony is barricaded or locked in a room or closet, the confinement continued even after the robbery had ceased. This is not the sort of confinement that is incidental to robbery.

Id. at 969 (emphasis added). The court found the first prong of the Faison test satisfied because the defendants had left the victims bound after completing the robbery.

Subsequent to Berry, we reversed another kidnapping conviction and sentence. Russell v. State, 874 So.2d 1256 (Fla. 4th DCA 2004). We found the defendants’ actions of dragging the victim approximately six feet and back into a convenience store during a robbery failed to establish the first prong of Faison, and “was the sort of confinement likely to naturally accompany the underlying crime.” Id. at 1258-59. We based our decision on the fact that the victim was not restrained or confined after the completion of the underlying robbery.

Applying the first prong of Faison here, while the defendants bound the victim, put a pillowcase over his head, and placed him in the bathroom, the defendants released the victim twice before the robbery had been completed. Under Berry’s analysis, the first prong of Faison is not satisfied. We concede the second prong of Faison is satisfied because the defendant’s actions were not inherent in the commission of the robbery. And, again because the defendants untied the victim before the completion of the robbery, the act neither had any significance independent of the robbery nor substantially lessened the risk of detection. In fact, it was the defendants’ untying of the victim that led to their detection. In short, the confinement did not “continue[ ] ... after the robbery had ceased.” Berry, 668 So.2d at 969. As a result, the third prong of Faison is also unsatisfied. Reviewing the Faison prongs in light of Berry leads us to but one conclusion: the actions taken in this case were insufficient to establish the independent crime of kidnapping.

The dissent claims, however, that Lewis and our majority opinion add more prongs to the Faison test. We respectfully disagree. The Lewis panel did not impose any additional test than that imposed by Faison. We do not do so either. Following Justice Lewis’ suggestion, we have applied the Faison test to the facts presented to us and with the guidance of Berry. Quite clearly, the majority and dissent read Berry differently. We see Berry as shedding light on the application of the Faison test. We further disagree with the dissent’s suggestion that the Lewis panel would have reached a different conclusion had it articulated what it inherently did— applied Faison.

The dissent focuses on whether the confinement “naturally” ceased. It suggests that interruption by law enforcement is not a natural cessation. We suggest the operable word is “cease,” whether it is natural or not. While we concede the second prong of Faison is met, all three prongs must be satisfied before a defendant’s conviction for kidnapping can be sustained. Under the facts of this case we disagree that the first and third prongs have been satisfied.

The dissent’s suggestion that Lewis was wrongly decided also runs afoul of stare decisis. Old Plantation Corp. v. Maule Indus., Inc., 68 So.2d 180, 183 (Fla.1953). We are bound by that decision unless we sit en banc to recede from it.

To take the dissent’s position to its logical conclusion, every robbery (or other similar crime) that entails the restraint or confinement of a victim during its commission would result in a kidnapping charge unless the cessation of confinement or restraint was “natural.” Were this so, our supreme court would find no need for Fai-son’s three-prong test. See Walker v. State, 604 So.2d 475, 477 (Fla.1992) (citing Faison, 426 So.2d at 965-66) (“Because a literal construction of the kidnapping statute would convert almost every forcible felony into kidnapping, this Court has adopted a three-prong test to determine whether movement or confinement during the commission of another felony is sufficient to justify an additional conviction for kidnapping.”). Here, the confinement ended prior to the completion of the robbery. Whether that cessation was natural is of no import.

In sum, because the confinement ceased prior to completion of the robbery, the evidence does not support an independent kidnapping conviction. We reverse the kidnapping conviction and remand the case to the trial court to vacate that conviction and sentence.

Reversed and Remanded.

DAMOORGIAN, J., concurs.

GERBER, J., dissents with opinion.

GERBER, J.,

dissenting.

I respectfully dissent. Competent, substantial evidence exists to satisfy our supreme court’s three-prong test for determining when a confinement, alleged to have been done to facilitate the commission of another crime, amounts to a kidnapping. We should affirm the kidnapping conviction in this case, and should recede en banc from certain rules which this court issued in Lewis v. State, 50 So.3d 86 (Fla. 4th DCA 2010).

In Faison v. State, 426 So.2d 963 (Fla.1983), our supreme court held:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Id. at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

The supreme court applied Faison’s three-prong test to a robbery situation in Berry v. State, 668 So.2d 967 (Fla.1996). There, the defendant and others entered a man’s apartment and robbed him and his friend at gunpoint. The robbers tied up the friend’s hands and feet and made him kneel over a chair. Meanwhile, the robbers forced the man who lived in the apartment to walk from room to room to show them where valuable items were located. After the robbers finished removing items from the apartment, one of them tied up that man’s hands and legs, leaving him face down on the floor. The robbers then left the apartment without untying the men. One of the men freed himself and, after leaving the apartment to call the police, returned and untied the other man.

The defendant was convicted of armed robbery and kidnapping. This court affirmed the kidnapping conviction. The supreme court approved our decision after applying the three-prong test. Important here is the supreme court’s detailed reasoning:

Applying the first prong of the Faison test to the facts of the instant case, we do not believe that the confinement was slight, inconsequential, and merely incidental to the other crime. We construe this prong to mean that there can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it. For example, if [the robbers] had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand. In both hypothetical, any confinement accompanying the robbery would cease naturally with the robbery. By contrast, in this case the robbers left the scene of the robbery without untying the victims, thereby leaving them both in a precarious and vulnerable state for a period beyond the robbery. Like the situation where the victim of a forcible felony is barricaded or locked in a room or closet, the confinement continued even after the robbery had ceased. This is not the sort of confinement that is incidental to robbery.
The binding of the victims also satisfies the second prong of Faison. We conclude that the confinement was not of a sort inherent in a robbery because it was not necessary to tie up the victims in order to commit the robbery. Indeed, [the defendant] would have been convicted of robbery even in the absence of evidence that the victims had been tied up.
With respect to the third prong of Faison, it is clear that the binding of the victims was a confinement with independent significance from the underlying felony in that it substantially reduced the risk of detection. We cannot see why [the robbers] left the apartment with the victims still bound, if not for the purpose of making a clean getaway. The fact that [one victim] freed himself shortly after the robbers left does not negate this finding as to his confinement. As we stated in Ferguson v. State, 533 So.2d 763, 764 (Fla.1988),
the determination of whether the confinement makes the other crime substantially easier of commission or substantially lessens the risk of detection does not depend upon the accomplishment of its purpose. The question is whether the initial confinement was intended to further either of these objectives.

668 So.2d at 969-70 (emphasis added).

Berry’s prong-by-prong analysis applies equally here. Applying Faison’s first prong to the instant case, the confinement accompanying the robbery here was not slight, inconsequential, and merely incidental to the robbery. That is because the confinement did not cease “naturally” with the robbery. Id. at 969. Rather, the confinement ceased “unnaturally” because the victim’s sister and her friend, and then the police, interrupted the robbers, causing them to untie the victim and take the pillow case off his head.

The binding of the victim and the covering of his head also satisfies Faison’s second prong. The confinement was not of a sort inherent in a robbery because it was not necessary to tie up the victim and put a pillow case over his head to commit the robbery. Indeed, the defendant would have been convicted of robbery even in the absence of this evidence.

Regarding Faison’s third prong, it is clear that the binding of the victim and the covering of his head was a confinement with independent significance from the robbery in that it made the robbery substantially easier of commission and substantially lessened the risk of detection. The fact that the victim’s sister and her friend, and then the police, interrupted the robbers, causing them to untie the victim and take the pillow case off his head, does not negate this finding as to the robbers’ intent for the initial confinement. As the court stated in Berry: ‘“The question is whether the initial confinement was intended to [make the other crime substantially easier of commission or substantially lessens the risk of detection].’ ” 668 So.2d at 970 (quoting Ferguson, 533 So.2d at 764) (emphasis added). “[T]he success of the confinement is not an integral part of the test.” Berry, 668 So.2d at 970 (emphasis added).

The majority in this case attempts to characterize Berry as “seem[ing] to indicate that whether the victim remains confined after the completion of the underlying crime can suggest whether the first and third prongs of the Faison test have been satisfied.” Respectfully, I see no such indication in Berry. In fact, Berry’s discussion of the third prong appears to have held to the contrary: “The question is whether the initial confinement was intended to [make the other crime substantially easier of commission or substantially lessens the risk of detection].” Id. at 970 (quoting Ferguson, 533 So.2d at 764) (emphasis added). “[T]he success of the confinement is not an integral part of the test.” Berry, 668 So.2d at 970 (emphasis added).

The majority also states that its decision is guided by this court’s recent decision in Lewis, which presents a closer factual situation to this case than does Berry. However, I conclude that, regardless of the factual similarity, this court incorrectly decided Lewis by not conducting a prong-by-prong analysis as the supreme court did in Berry.

In Lewis, the defendant entered a check cashing store and told the manager that he was robbing the store. The defendant pulled a gun, took the manager to a bathroom, handcuffed her, and threatened to shoot her. The defendant went to lock the front door, and while he stepped away, the manager hit a silent panic button. As the defendant attempted to gain access to the safe, another woman came to the store. The defendant opened the door for her, relocked the door, told the woman that it was a hold-up, and ordered her to lie on the floor next to the manager. The police arrived shortly thereafter and telephoned the store. The defendant wanted the manager to tell the police that the situation was normal, but he could remove only one handcuff from her. So he told the second woman to go to the police and tell them everything was fine. The woman ran out of the store and told police that the defendant was inside with a gun and had the manager in handcuffs. Officers surrounded the building. The defendant ran into the bathroom and escaped by climbing through the ceiling. When the manager heard a crash from the bathroom, she ran out of the store. The police later found the defendant hiding in a neighboring building. He was convicted of several charges, including attempted robbery with a firearm and armed kidnapping with a firearm.

This court reversed the defendant’s kidnapping conviction. In doing so, this court quoted Faison’s three-prong test, but did not conduct a prong-by-prong analysis. Instead, this court reviewed various cases and issued two rules of law separate from the three-prong test. The first rule is: “The act of moving a victim from one room to another during the case is insufficient to establish a kidnapping separate and distinct from the robbery.” Lewis, 50 So.3d at 88 (citing Wilcher v. State, 647 So.2d 1013 (Fla. 4th DCA 1994), and Walker v. State, 604 So.2d 475 (Fla.1992)). The second rule is: “[A] kidnapping charge cannot stand where the victim’s confinement ceases when the accompanying crime ends.” Lewis, 50 So.3d at 88 (citing Russell v. State, 874 So.2d 1256 (Fla. 4th DCA 2004), and Berry). This court then reversed the defendant’s kidnapping conviction based on the following reasoning:

In the present case, the appellant ordered [the manager] into a different room of the store, the bathroom, so that the appellant could lock the front door. Shortly thereafter, the appellant ordered [the manager] to lie on the floor by the safe. The appellant eventually also unlocked one of the handcuffs on [the manager] so that neither victim was bound or barricaded when the appellant fled the store. [The manager’s] confinement “ceased naturally” with the end of the robbery, as she was free to exit the store when the appellant climbed through the bathroom ceiling.
In conclusion, the evidence as it related to the kidnapping did not satisfy the “test enunciated in Faison and the trial court erred in denying the motion for judgment of acquittal on the kidnapping charge.” Russell, 874 So.2d at 1259.

Lewis, 50 So.3d at 88.

Respectfully, if this court had conducted a prong-by-prong analysis in Lewis, then the result in Lewis may have been different. Applying Faison’s first prong to Lewis, the confinement accompanying the robbery there was not slight, inconsequential, and merely incidental to the robbery. That is because the confinement did not cease “naturally” with the robbery. Berry, 668 So.2d at 969. Rather, the confinement ceased “unnaturally” because the police interrupted the robber, causing him to partially unlock the handcuffs on the manager before he fled.

The handcuffing of the manager in Lewis also satisfies Faison’s second prong. The confinement was not of a sort inherent in a robbery because it was not necessary to handcuff the manager to commit the robbery. Indeed, the defendant would have been convicted of attempted robbery even in the absence of this evidence.

Regarding Faison’s third prong, it is clear that the handcuffing of the manager in Lewis was a confinement with independent significance from the robbery in that it made the robbery substantially easier of commission. The fact that the police interrupted the robber, causing him to partially unlock the handcuffs, does not negate this finding as to the robber’s intent for the initial confinement. As the court stated in Berry: “ ‘The question is whether the initial confinement was intended to [make the other crime substantially easier of commission or substantially lessens the risk of detection].’” 668 So.2d at 970 (quoting Ferguson, 533 So.2d at 764) (emphasis added). “[T]he success of the confinement is not an integral part of the test.” Berry, 668 So.2d at 970 (emphasis added).

As this court did in Lewis, the majority in this case appears to have added another new rule separate from Faison’s three-prong test. Whereas the second rule issued in Lewis is that “a kidnapping charge cannot stand where the victim’s confinement ceases when the accompanying crime ends,” 50 So.3d at 88 (emphasis added), the majority in this case now appears to also hold that a kidnapping charge cannot stand where the victim’s confinement ceases before the accompanying crime ends. See majority op. at 547 (“[B]ecause the confinement ceased prior to completion of the robbery, the evidence does not support an independent kidnapping conviction.”) (emphasis added). I see no authority in the supreme court’s precedent for the majority’s new rule or the two rules which this court issued in Lewis.

The majority in this case also seeks to avoid the supreme court’s plain language in Berry that Faison’s first prong, when applied to a robbery, may be determined based on whether the confinement accompanying the robbery would “cease naturally ” with the robbery. Berry, 668 So.2d at 969 (emphasis added). According to the majority, “the operable word is ‘cease,’ whether it is natural or not,” and “[wjhether that cessation was natural is of no import.” Majority op. at 546 and 547. Again, I see no authority in the supreme court’s precedent suggesting that its use of the word “naturally” is of no import. We are bound to give effect to the word “naturally” rather than discarding its plain meaning. Applying the plain meaning here, the confinement did not cease “naturally” with the robbery. Rather, the confinement ceased “unnaturally” because the victim’s sister and her friend, and then the police, interrupted the robbers, causing them to untie the victim and take the pillow case off his head.

In sum, Faison’s three-prong test still controls and should be applied with a prong-by-prong analysis as the supreme court did in Berry. Having applied the three-prong test with a prong-by-prong analysis here, I conclude that competent, substantial evidence exists to find that the robbers’ confinement of the victim here amounted to a kidnapping. We should affirm the defendant’s kidnapping conviction, and we should recede en banc from Lewis to the extent Lewis issued two rules which are separate from Faison’s three-prong test.

      . The defendant also argued the following points: (1) defense counsel was ineffective for failing to move for a mistrial based on a discovery violation; (2) because the jury found the defendant did not possess a firearm for counts 1, 3, and 4, the court erred in enhancing the penalty for these counts; (3) enhancement on all counts must be reversed because the jury found the defendant did not possess a firearm during the commission of the burglary; (4) resentencing is mandated on all counts if any of the convictions are vacated; (5) the court failed to instruct the jury that a burglary conviction could not stand if the defendant was invited into the apartment; and (6) the court improperly limited the defendant's cross-examination of witnesses.

      . It is, then, an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice steady, and not liable to waver with every new judge’s opinion, as also because, the law in that case being solemnly declared, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter according to his private sentiments; he being sworn to determine, not according to his own private judgment (m), but according to the known laws of the land — not delegated to pronounce a new law, but to maintain the old («) — jus dicere et non jus dare (o).

        Maule, 68 So.2d at 183 (quoting Herbert Broom, A Selection of Legal Maxims, Classified and Illustrated, 118 (Herbert F. Manisty & Herbert Chitty eds., 7th ed. 1900)).

      . The trial court may, but is not required to, consider the sentences imposed on the other charges in light of this decision.