author: PER CURIAM. MAIN, Judge,

text:
    Kevin COOK v. STATE of Alabama.
    CR-08-1507.
    Court of Criminal Appeals of Alabama.
    April 30, 2010.
    Rehearing Denied June 18, 2010.
    Certiorari Denied Dec. 10, 2010 Alabama Supreme Court 1091329.
    Shelly Lynn Barnhart, Lincoln, for appellant.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Kevin Cook, was convicted of first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975, and was sentenced pursuant to the Habitual Felony Offender Act to life imprisonment. This appeal followed.

The State’s evidence tended to show the following: On February 26, 2008, at approximately 9:00 p.m., an individual the victim, S.W., later identified as Cook, came through the front door of her residence, jumped on her as she was sitting on a sofa near the door, and attempted to rip off the T-shirt she was wearing. When Cook was unsuccessful in ripping the T-shirt off he pulled out a knife and tried to cut the shirt off. S.W. testified that while Cook was holding her down he kept repeating that he wanted to “f— her” and “e— her.” (R. 188-89.) During the struggle, Cook hit S.W. in the head with a lamp and she struck him with a eandleholder. S.W.’s dog also grabbed Cook’s pants leg and S.W. began throwing things at Cook. Cook then left through the front door. As he was leaving he said, “ ‘I’ll be back after you, you white b-’” and “‘I’m not through with you yet.’ ” (R. 191.) S.W. sustained injures to her head and cuts as a result of the attack.

Cook did not testify at trial. The defense called Dr. Barry Collins, a physician who treated Cook while he was incarcerated at the Talladega County jail. Dr. Collins testified that he was called to the jail on April 3, 2009, to examine Cook because Cook was on suicide watch. He stated that Cook had a history of schizophrenia with bipolar tendencies and that he had been treated for those disorders. Dr. Collins prescribed Thorazine, an antipsychotic; Depakote, a mood stabilizer; Cogentin, for the side effects of the Thorazine; and Prozac for depression because Cook had taken those medications in the past. He stated that if Cook was not taking his medications, he would not know the difference between right or wrong. However, on cross-examination, Dr. Collins testified that, at the time that he evaluated Cook in the jail after the instant offense, he believed that Cook understood right from wrong. When asked if he had any knowledge concerning Cook’s mental state at the time of the offense, Dr. Collins testified:

“Given his prior history and that schizophrenia has less than a 13 percent remission rate, I would assume that he would still be schizophrenic based— when I saw him that day that he still displayed flights of ideas being he was schizophrenic on that day, that he had the same mental illness that he’s been diagnosed with over the last several years.”

(R. 270.) When asked about Cook’s actions during the burglary, Dr. Collins said that Cook may have been experiencing a manic episode.

On appeal, Cook raises one issue. He argues that the circuit court erred in denying his pretrial motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. The State asserts that the trial court did not abuse its discretion in denying Cook’s request for a mental evaluation.

Section 15-16-21, Ala.Code 1975, provides, in pertinent part:

“If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity....”

Rule 11.2(a)(2), Ala. R.Crim. P., provides:

“Mental Condition at Time of Offense. If the defendant has timely raised a defense of ‘not guilty by reason of mental disease or defect’ either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15, the court on its own motion may order, or the defendant, the defendant’s attorney, or the district attorney may move for an examination into the defendant’s mental condition at the time of the offense.”

The United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), first recognized that an indigent defendant may be entitled to the assistance of a mental-health expert. The Court stated:

“FNfhen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.”

(Emphasis added.) Alabama courts have consistently followed the Ake v. Oklahoma holding:

“[A]n indigent defendant is constitutionally entitled to a psychological expert provided at the State’s expense where the defendant demonstrates to the trial court that his or her sanity at the time of the offense could be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 86, 105 S.Ct. 1087, 1097-98, 84 L.Ed.2d 53 (1985). Where an evaluation by a psychologist or psychiatrist is constitutionally required, such an expert may be appointed under Rule 11.3(a), Ala. R.Crim. P.; Isom v. State, 488 So.2d 12, 13 (Ala.Cr.App.1986).”

Russell v. State, 715 So.2d 866, 869 (Ala.Crim.App.1997). See also Glass v. State, 14 So.3d 188 (Ala.Crim.App.2008); Morris v. State, 956 So.2d 431 (Ala.Crim.App.2005); Burgess v. State, 962 So.2d 272 (Ala.Crim.App.2005); White v. State, 900 So.2d 1249 (Ala.Crim.App.2004); Nicks v. State, 783 So.2d 895 (Ala.Crim.App.1999); May v. State, 710 So.2d 1362 (Ala.Crim.App.1997); Jones v. State, 680 So.2d 964 (Ala.Crim.App.1996); Dubose v. State, 662 So.2d 1156 (Ala.Crim.App.1993); Ford v. State, 630 So.2d 111 (Ala.Crim.App.1991); McGahee v. State, 554 So.2d 454 (Ala.Crim.App.1989).

“Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the ‘fact of sanity’ there must come to his attention factual data, or allegations of factual data, tending to show ‘reasonable ground to doubt [the accused’s] sanity.’ ”

Brinks v. State of Alabama, 465 F.2d 446, 450 (5th Cir.1972), quoted in part in Glass v. State, 14 So.3d at 191-92 (emphasis added).

At arraignment, Cook entered a plea of not guilty by reason of mental disease or defect, and he requested that he he permitted to undergo a mental evaluation. The circuit court conducted a hearing on the motion. During the hearing, Cook’s counsel introduced medical records from the Alabama Department of Corrections. The prison records showed that Cook had received psychotropic medications while incarcerated on a previous offense and that he had a history of “depressed feelings” and “paranoid ideas,” as well as “diagnosis [of] schizophrenia, bipolar.” (R. 7-8.) The records also showed that Cook was “intellectual functioning borderline!,] memory, borderline.” (R. 9.) Trial counsel also stated that Cook had a “history of [taking] psychotropic medication and previous psychiatric hospitalizations.” (R. 9.) Counsel stated:

“I don’t know if he really understands the — I guess, the gravity of the charges that are against him, but also his mental state at the time that this was committed. I believe that he was on medication up until the time he was released from St. Clair. And once he was out, he was not on any medication.”

(R. 10.) Counsel also informed the court that Cook’s cousin had told her that he picked Cook up when he was released from St. Clair Correctional Facility, shortly before the burglary, and that he believed that Cook was not taking his medications at that time.

At the conclusion of the hearing, the circuit court informed the parties that it would review the records counsel had introduced at the hearing. Thereafter, the circuit court entered the following order denying the motion for a mental evaluation:

“This matter coming on before the Court on the 26th day of January 2009 based on [Cook’s] Motion for Court ordered Mental Examination; the presence of the District Attorney; the presence of counsel for the Defendant; counsel for [Cook] introducing Defendant’s Exhibit # 1 containing medical records from the Alabama Department of Corrections and a prior Forensic Evaluation Report dated the 25th of February, 1998; statements made in open court; the Court having taken judicial knowledge of its file; and upon consideration thereof, the Court finds as follows:
“1. [Cook] previously had before the Circuit Court of Talladega County, Alabama Case No. CC-1997-079 for Burglary in the First Degree, and Case No. CC-1997-080 for Attempted Burglary in the Second Degree. These cases were before then Presiding Circuit Judge Jerry Fielding. Judge Fielding ordered a mental evaluation of [Cook] and subsequently received a report that clearly indicated that [Cook] was able to assist his counsel in the defense of these cases and was not suffering from a severe mental disease or defect.
“2. Subsequent to the disposition of the aforesaid two cases before Judge Fielding, [Cook] had a case before the undersigned Circuit Judge and no request was made for a mental evaluation. Subsequent to that case, [Cook] had two felony cases before Judge Fielding and no request was made for a mental examination. Subsequent to those two cases, [Cook] had a felony case before Judge William E. Hollings-worth, III and no request was made for a mental examination.
“8. The Court has reviewed the medical records from the Alabama Department of Corrections that were introduced as Defendant’s Exhibit # 1. The Court’s review included the prior Forensic Evaluation Report of [Cook]. This Court finds that there are no reasonable grounds for a mental examination of [Cook] and the Motion is due to be denied.”

(C. 14-15.) Subsequently, Cook filed a motion for funds for an expert psychologist or psychiatrist and a motion to continue. (C. 17-22.) The case action summary sheet does not indicate that the circuit court formally ruled on those motions; however, it appears that the circuit court believed that it had denied the motions.

Before Cook would be entitled to a mental evaluation to inquire into his competency at the time of the offense, he was required to show reasonable grounds to doubt his competency. See Ake v. Oklahoma, 470 U.S. at 83. This standard was met in this case. The record shows that Cook pleaded not guilty by reason of mental disease or defect, that Cook’s prison medical records reflected that he had a history of schizophrenia, that he had been treated and was taking medications for that condition while he was incarcerated, and that shortly before the burglary he was released from prison and may not have been taking his medication. “Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the ‘fact of sanity' there must come to his attention factual data, or allegations of factual data, tending to show ‘reasonable ground to doubt [the accused’s] sanity.’ ” Brinks, 465 F.2d at 450.

The circuit court had sufficient facts before it from which to conclude that there were reasonable grounds to doubt Cook’s mental competency at the time of the offense. Indeed, the record shows that Cook’s mental health was a significant factor at his trial. The circuit court abused its discretion in denying Cook’s motion for a mental evaluation. “[T]he evidence presented to the trial court warranted further inquiry into [the defendant’s] mental competence.” Ex parte Gordon, 556 So.2d 363, 365 (Ala.1988). Cook is entitled to a new trial. See Ake v. Oklahoma, 470 U.S. at 87.

Accordingly, Cook’s conviction is hereby reversed and this case is remanded to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur; MAIN, J., dissents, with opinion.

MAIN, Judge,

dissenting.

I respectfully dissent from the per cu-riam opinion reversing Cook’s conviction for first-degree burglary and remanding the case.

Cook was charged by indictment with first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975. Cook argues that the circuit court erred in denying his pretrial motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. The per curiam opinion has set out the applicable law, and my analysis is in accordance with those legal principles.

In my opinion, Cook did not meet his burden of showing a reasonable ground to doubt his competency at the time that he committed the burglary of S.W.’s residence. His motion for a mental evaluation was supported by medical records from the Alabama Department of Corrections indicating that he had previously received psychiatric treatment for depression, paranoia, and schizophrenia while he was incarcerated as the result of other convictions. However, as for Cook’s competency at the time he committed the burglary, Cook’s counsel stated that, although she believed Cook could assist with his defense, she believed that Cook did not understand the seriousness of the offense. She also informed the court that Cook’s cousin believed that Cook was not taking his medications after his release from St. Clair Correctional Facility. Although Cook’s cousin was present during the hearing on the motion, he did not testify. Instead, Cook’s counsel informed the court that the cousin’s testimony would simply be that he had picked Cook up on his release from St. Clair Correctional Facility and that he believed that Cook was not taking his medications at that time. At the conclusion of the hearing, the circuit court indicated that it would review the records and enter an order, stating as follows:

“THE COURT: Thank you very much. What I’m going to do is I’m going to take it under advisement and peruse these records and determine what’s in them. And that’s what prompted me to inquire before because of the fact that I know that it’s sort of puzzling that he was ordered to Taylor Hardin [Secure Medical Facility] back in the ‘90s, got a report, after the report came in, he pled guilty to two felonies. And then he’s been not only before Judge Fielding subsequent to that, he’s been before Judge Hollingsworth and he’s been before me, and there’s been no indication of any mental disease or defect and three separate judges have found him to be competent and proceeded to take his pleas and sentence him in those particular cases. And I can tell you, if I had felt like in 2001 that he had a severe mental disease or defect and couldn’t assist his lawyer when he was before me, it would give me cause and I’m sure it would have done the same thing in front of Judge Hollingsworth and Judge Fielding. And that’s why I was interested in seeing whether or not any motions had been filed in those particular cases. And you did a great job getting his records from the Department of Corrections. But I’ve got to look at them and look back at the report.”

(R. 12-13.) Thereafter, as set out in the per curiam opinion, the circuit court fashioned a detailed written order setting out its reasons for denying the request for a court-ordered mental evaluation. (C. 14-15.)

I do not believe that the trial court abused its discretion in denying Cook’s request for a mental examination because Cook failed to present evidence at the hearing on the motion generating reasonable grounds to doubt his mental competency at the time of the offense. Further, I do not believe that the sole witness the defense called at trial provided sufficient reasonable grounds as to Cook’s mental competency at the time of the offense. Dr. Barry Collins, who evaluated Cook on April 3, 2009, after the offense but before trial, indicated that Cook understood right from wrong when he examined him on that one occasion at the jail. He stated that he had no opinion concerning Cook’s mental condition in February 2008, at the time the offense was committed, because he treated Cook only that one time while he was in jail on a suicide watch. During the evaluation, Cook denied having suicidal thoughts and admitted that he cut himself because he wanted to be moved because the cell he was in was too crowded. He stated that Cook may have been in a manic episode when he committed the burglary given Cook’s prior diagnosis of schizophrenia with bipolar tendencies. Dr. Collins prescribed antipsychotic medication for Cook in April 2009. However, Dr. Collins indicated that Cook made a decision to cut himself to be removed from his crowded cell before he was medicated, which he stated was a goal-oriented decision on Cook’s part.

I believe the circuit court is in a better position than an appellate court to rule on a request for a mental evaluation by virtue of its ability to hear and see the evidence and to observe the defendant. In this case, the only testimony presented at the hearing was Cook’s attorney’s assertion that Cook did not understand the gravity of the charges against him and that he expected Cook’s cousin to testify that he believed that Cook was not taking his medications on the date he was released from prison, which was approximately one month before the burglary occurred.

“[C]ounsel’s assertion regarding [a defendants lack of understanding of the proceedings, being unsupported by any evidence, was not sufficient to raise a bona fide doubt as to [the defendants competency. See, e.g., Nelson v. State, 511 So.2d 225, 238 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987) (‘In the absence of any evidence, the mere allegations by counsel that the accused is incompetent to stand trial or was insane at the time of the commission of the offense do not establish reasonable grounds to doubt a defendant’s sanity which would warrant an inquiry into his competency.’). See also Frazier v. State, 758 So.2d 577, 587 (Ala.Crim.App.), aff'd, 758 So.2d 611 (Ala.1999), and Cliff v. State, 518 So.2d 786, 791 (Ala.Crim.App.1987).”

Harrison v. State, 905 So.2d 858, 862 (Ala.Crim.App.2005). No evidence was presented that Cook exhibited psychotic behavior immediately before the commission of the offense. See Russell v. State, 715 So.2d 866 (Ala.Crim.App.1997) (reversing decision and remanding case where defendant exhibited psychotic behavior after being released from prison and evidence indicated that he received treatment for such behavior after being released). Dr. Collins, who evaluated Cook after the offense and who testified for the defense at trial, indicated that Cook made a goal-oriented decision and was not taking medication for schizophrenia when he made the decision to cut himself.

Therefore, in my opinion, Cook failed to meet his burden of persuasion on this matter. Accordingly, I would hold that the circuit court did not abuse its discretion in denying Cook’s motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. Thus, I would affirm.

      . S.W. testified that she thought that she had shut and locked the front door. However, she said that it was hard to shut the door because the house was being remodeled and the door had been replaced and repainted.

      . We note that, although Cook raised the issue of his competency to stand trial below, he appears to have abandoned that issue on appeal because he claims error only in the trial court's failure to order a mental evaluation to determine his competency at the time of the commission of the offense.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    CMI, INC., a Kentucky corporation, Petitioner, v. Janet LANDRUM and State of Florida, Respondents.
    No. 2D09-5502.
    District Court of Appeal of Florida, Second District.
    June 18, 2010.
    Rehearing Denied July 23, 2010.
    Edward G. Guedes and John J. Quick of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for Petitioner.
    Robert N. Harrison of Robert N. Harrison, P.A., Venice, for Respondent Janet Landrum.
    No appearance for Respondent State of Florida.
   MORRIS, Judge.

Janet Landrum is charged with felony driving under the influence. In her attempt to suppress the results of a breath test, she sought the computer source codes of the breathalyzer equipment by serving a subpoena duces tecum on the registered Florida agent of CMI, Inc., the Kentucky-based manufacturer of the equipment. In this certiorari proceeding, we must decide if the circuit court departed from the essential requirements of the law in failing to quash the subpoena that was not issued in accordance with sections 942.01-.06, Florida Statutes (2009), the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings (the Uniform Law). We answer this question in the negative because the Uniform Law is not applicable to the facts of this case.

In the criminal proceeding below, Land-rum filed a motion to suppress the results of her breath test conducted on the Intoxi-lyzer 8000. Landrum argued that the results should be suppressed because the specific version of the Intoxilyzer 8000 used in her case was not the version approved for use by law enforcement in Florida and that the source codes of both versions are necessary to prove that fact. Landrum served a subpoena duces tecum on CMI’s registered agent in Florida, seeking the production of the source codes at a hearing on Landrum’s motion to suppress.

CMI appeared in the circuit court for the limited purpose of challenging the subpoena by a motion to quash. CMI argued that the source codes are highly valuable, proprietary trade secrets, “which CMI has taken extensive measures to protect from disclosure.” CMI sought to have the subpoena quashed on the basis that CMI is an out-of-state witness and the subpoena did not comply with the Uniform Law, which is the exclusive mechanism for compelling out-of-state witnesses to testify in Florida.

After hearing argument on the issue, the circuit court denied CMI’s motion to quash the subpoena, concluding that CMI was subject to the court’s subpoena power because CMI is a corporation with a registered agent in Florida and doing business in Florida. The circuit court held that it was bound by the holding in General Motors Corp. v. State, 357 So.2d 1045 (Fla. 3d DCA 1978). CMI filed a petition for writ of certiorari in this court seeking review of the circuit court’s order, and the circuit court stayed the matter pending this proceeding.

We must determine whether the circuit court’s order departs from the essential requirements of the law resulting in a material injury to CMI that is irreparable on appeal. See Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007). A departure from the essential requirements of law requires a violation of a clearly established principle of law resulting in a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). “ ‘[Cjlearly established law’ can arise from controlling case law that deals with the same issue of law.” Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 586 (Fla. 2d DCA 2008) (quoting Kaklamanos, 843 So.2d at 890).

The Uniform Law allows for the testimony of material, out-of-state witnesses who would otherwise be beyond the subpoena power of the forum court, and it establishes uniformity in the procedure by which the out-of-state witnesses are compelled to participate in criminal proceedings. See §§ 942.01-.06; New York v. O’Neill, 359 U.S. 1, 9, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The Uniform Law has been adopted by all fifty states, see Dillingham v. Commonwealth, 995 S.W.2d 377, 382 (Ky.1999), and it has been interpreted in Florida to include requests for testimony accompanied by a request for production of documents, see State v. Bastos, 985 So.2d 37, 40 (Fla. 3d DCA 2008); see also Delit v. State, 583 So.2d 1083, 1085-86 (Fla. 4th DCA 1991).

In the instant case, Landrum sought only the production of documents. The subpoena deuces tecum did not seek testimony from any witnesses, out of state or otherwise. The request was directed to CMI’s registered agent in Florida. Although CMI maintains that it has no offices, employees, or documents in Florida, CMI does not contest that it has a registered agent in Florida and that it does business in Florida by selling its Intoxilyzer 8000 to law enforcement agencies.

The only Florida decision materially on point is General Motors Corp., 357 So.2d 1045. That case holds that the Uniform Law does not apply to subpoenas duces tecum seeking only the production of documents from the registered agents of nonparty, out-of-state corporations engaged in business in Florida: “ ‘Since the instant subpoena duces tecum requested] only the production of documents and since it [was] directed to a foreign corporation authorized to do, registered to do[,] and doing business in Florida, the Uniform Law [was] inapplicable.’ ” Id. at 1047 (quoting with approval the circuit court order on review in that case); see also Bastos, 985 So.2d at 39 (quoting with approval this language from General Motors Corp.). The subpoena duces tecum issued to CMI requested only the production of documents, and the circuit court found (and it is undisputed) that CMI is a foreign corporation authorized to do, registered to do, and doing business in Florida. The circuit court properly followed the principles set forth in General Motors Corp. in concluding that the Uniform Law is inapplicable to these facts. Therefore, the circuit court did not depart from the essential requirements of the law by violating a clearly established principle of law.

Accordingly, we deny CMI’s petition for writ of certiorari.

DAVIS and KELLY, JJ., Concur.


author: CASANUEVA, Chief Judge.

text:
    Robert J. POLLOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-1027.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.
    Rehearing Denied June 17, 2011.

      Robert J. Pollock, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Chief Judge.

Following a jury trial, Robert J. Pollock was convicted of second-degree murder by discharging a firearm resulting in the victim’s death. In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Mr. Pollock contends that appellate counsel was ineffective for failing to argue that the trial court fundamentally erred by giving the then standard instruction for manslaughter by act. We agree and reverse Mr. Pollock’s second-degree murder conviction, vacate the sentence, and remand for a new trial.

The offense of second-degree murder is only one step removed from the necessarily-lesser included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010). Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256; § 782.07(1), Fla. Stat. (2005). In the present case, the trial court instructed the jury on manslaughter by act and manslaughter by culpable negligence. This court affirmed Mr. Pollock’s judgment and sentence in Pollock v. State, 22 So.3d 83 (Fla. 2d DCA 2009) (table decision). Almost two months prior to the filing of the initial brief in Pollock, the First District in Montgomery v. State, — So.3d - (Fla. 1st DCA 2009), 2009 WL 350624, approved, 39 So.3d 252 (Fla.2010), reversed Mr. Montgomery’s conviction for second-degree murder and remanded for a new trial, holding that the standard jury instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and was therefore fundamentally erroneous. No case had previously so held.

As this court stated in Del Valle v. State, 52 So.3d 16, 18 (Fla. 2d DCA):

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show counsel’s deficient performance and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985)).

The facts in Del Valle indicate that the First District’s decision in Montgomery issued over three months prior to the filing of Mr. Del Valle’s initial brief in the direct appeal. Id. at 17. This court concluded that Mr. Del Valle’s appellate counsel’s performance was deficient when he failed to argue that the manslaughter by act instruction was fundamentally erroneous based on the decision of the First District in Montgomery. Id. at 18. Because Montgomery issued almost two months prior to the filing of the initial brief in the direct appeal in the present case, we similarly conclude that Mr. Pollock’s appellate counsel’s performance was deficient.

In Del Valle, we noted the supreme court granted review of the First District’s Montgomery decision prior to the filing of the initial brief in Mr. Del Valle’s direct appeal. Id. The supreme court, in Montgomery, 39 So.3d at 257-59, held that where Mr. Montgomery was convicted of second-degree murder, the trial court’s giving of the then standard jury instruction on manslaughter by act, a necessarily lesser — included offense of second-degree murder, constituted fundamental error. The Del Valle court therefore concluded that Mr. Del Valle was prejudiced by his appellate counsel’s deficient performance because had counsel argued that the manslaughter by act instruction was fundamentally erroneous, this court would have been compelled to certify conflict with the First District’s decision in Montgomery, and he would have ultimately been afforded relief as part of the direct appeal process. 52 So.3d at 18-19.

In Del Valle, we noted that we must apply the law existing at the time of the appeal to determine whether appellate counsel’s performance was deficient but that we must apply the current law to determine whether the petitioner is entitled to relief. Id. at 18. In the present case, having determined that the performance of Mr. Pollock’s appellate counsel was deficient, we must now apply the law as it currently stands to determine his entitlement to relief. Here, unlike in Del Valle, the trial court instructed the jury on manslaughter by culpable negligence as well as manslaughter by act.

Subsequent to the supreme court’s decision in Montgomery, this court issued Barros-Dias v. State, 41 So.3d 370, 372 (Fla. 2d DCA 2010), in which we held that the manslaughter by act instruction was not fundamentally erroneous where the jury was also instructed on manslaughter by culpable negligence because the jury was not directed by the erroneous manslaughter by act instruction to find Mr. Barros-Dias guilty of the greater offense of second-degree murder. This court in Haygood v. State, 54 So.3d 1035, 1037 (Fla. 2d DCA 2011), followed the precedent established in Barros-Dias and affirmed Mr. Haygood’s second-degree murder conviction because the trial court gave the jury both the erroneous manslaughter by act instruction and the culpable negligence manslaughter instruction. However, the Haygood court noted that “[ajrguably, the evidence presented at trial is inconsistent with a theory of manslaughter by culpable negligence.” Id. at 271. Because of this, the court certified a question regarding whether the error in the manslaughter by act instruction is fundamental when the jury is also instructed on a culpable negligence theory of manslaughter even though the evidence does not support that theory. Id.

In the present case, the victim, Nicki Hendrix, was the former girlfriend of Mr. Pollock. At the time of her disappearance, she was dating Dorsie France and was living with Mr. Pollock and Mr. France in Mr. France’s house. Her body was subsequently found buried under a newly poured concrete slab in the backyard of Mr. France’s house. Ms. Hendrix died from a gunshot wound to the head. She had no other injuries. A spent bullet was found under the bathtub in the bathroom of Mr. France’s house. Subsequent testing revealed the spent bullet and the bullet recovered from the victim were fired from the same gun. There was testimony from the State’s witnesses that Mr. France was aware that the victim was cheating on him and stealing his money and drugs. The strongest evidence that it was Mr. Pollock who killed the victim was the testimony of Tamila Cagle. Ms. Cagle stated that Mr. Pollock told her that he and Ms. Hendrix were arguing about money and her treatment of Mr. France when Mr. Pollock hit Ms. Hendrix with a glove and then shot her. This occurred in or just outside of the bathroom. Ms. Cagle testified that she had been in a relationship with Mr. France prior to his dating Ms. Hendrix. Following Ms. Hendrix’s disappearance, she resumed her relationship with Mr. France. Ms. Cagle testified that at that time she was engaging in sexual relations with both Mr. France and Mr. Pollock.

Larry Hummel, a State’s witness testified that after Ms. Hendrix’s disappearance, Ms. Cagle and Mr. Pollock got into an argument that escalated into a physical altercation and Ms. Cagle pulled a knife on Mr. Pollock. Mr. Hummel testified to incriminating statements made by Mr. Pollock in regard to Ms. Hendrix. He also indicated that he had been angry at Mr. Pollock’s boldness in inviting his wife on a trip to Las Vegas.

At the jury charge conference, the prosecutor requested that the jury be instructed on manslaughter by culpable negligence as a lesser-included offense of second-degree murder. Mr. Pollock objected to the giving of the instruction, contending that the evidence did not support a theory of manslaughter by culpable negligence. In arguing for the instruction, the prosecutor noted that the lead detective had testified that based on the damage to the tiles in the bathroom, the bullet under the tub looked like it had ricocheted, and the prosecutor indicated that she did not want the jury to be concerned about which of the two bullets had ricocheted. The trial court agreed to give both the manslaughter by act and the manslaughter by culpable negligence instructions. In closing argument, the prosecutor contended that Mr. Pollock had deliberately shot Ms. Hendrix in the head. She stated: “It was one bullet that missed and one that didn’t.”

We conclude that the evidence did not support a culpable negligence theory of manslaughter. The State presented evidence that Mr. Pollock intentionally fired at the victim following an argument. Ordinarily, pursuant to our opinion in Hay-good, we would deny Mr. Pollock relief and certify the same question that we certified in Haygood. However, Mr. Pollock properly objected to the trial court’s instructing the jury on manslaughter by culpable negligence on the basis that the evidence did not support it. Thus, the error in the giving of that instruction was preserved for purposes of appeal. We therefore hold that under these circumstances, the error in the manslaughter by act instruction constituted fundamental error regardless of the fact that the jury was also instructed on manslaughter by culpable negligence. Because a new appeal would be redundant in this instance, we reverse Mr. Pollock’s second-degree murder conviction, vacate the sentence, and remand for a new trial. See Del Valle, 52 So.3d at 19.

Petition granted.

ALTENBERND and KELLY, JJ., Concur.

      . The supreme court has amended the manslaughter by act instruction on an interim basis. See In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853 (Fla.2010).

      . The initial brief in the direct appeal in the present case was filed prior to the supreme court’s granting review of Montgomery. However, the opinion granting review issued prior to the filing of the answer brief.


author: PER CURIAM.

text:
    Paul M. CENTENO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3405.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied July 27, 2011.
    Maibe M. Casalins, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: CORTINAS, J.

text:
    Charles YOST, Petitioner, v. Doris FIALLOS, on behalf of minor child, Genesis TARAZONA, Respondent.
    No. 3D11-659.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 15, 2011.
    Adams, Adams & Baca and Carolina A. Cespedes, Miami, for petitioner.

      Schwartz, Zweben and K. Brian Roller, Hollywood, for respondent.
    Before GERSTEN and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Charles Yost (“Petitioner”) petitions this Court for a writ of certiorari quashing the trial court’s order granting Doris Fiallos’ (“Respondent”) motion for rehearing and vacating an order enforcing settlement. Because the trial court lacked jurisdiction when it granted Respondent’s motion and vacated the order enforcing settlement, we grant the petition and quash the trial court’s order.

After a one-vehicle accident involving Respondent and an automobile owned by Debys Fiallos (“Fiallos”) and driven by Petitioner, Respondent sent Fiallos’ insurer, Progressive Insurance Company (“Progressive”), a demand letter, listing Petitioner as the insured, for the tender of $100,000 and an executed general release for the complete and full settlement of the underlying case. Progressive then received a demand letter listing Fiallos as the insured, requesting the tender of $10,000 and an executed general release, and within the twenty-day time limit provided therein, issued a check for $10,000. However, no executed general release was supplied.

Thereafter, on July 30, 2010, Petitioner filed a motion to enforce settlement, seeking an order from the trial court for final settlement of the case and an executed general release based on Progressive’s acceptance of the offer as set forth in the demand letter. On December 7, 2010, the trial court granted Petitioner’s motion to enforce settlement (the “December 7 Order”).

On December 29, 2010, Respondent filed a motion for rehearing or reconsideration with the trial court for review of the December 7 Order (the “Motion”). Subsequently, on January 6, 2011, Respondent filed a notice of appeal with this Court, seeking review of the December 7 Order.

On January 31, 2011, Petitioner filed a response in opposition to Respondent’s Motion, arguing the trial court lacked jurisdiction to rule on the Motion or to vacate or reverse the order enforcing settlement. Petitioner reasoned that in addition to the Motion being untimely filed, the Motion was abandoned once Respondent filed a notice of appeal with this Court. In response, Respondent claimed that the trial court’s December 7 Order was a non-final order and was not reflective of the finality of underlying action, e.g., enforcing settlement. Ultimately, on February 10, 2011, the trial court granted Respondent’s Motion and entered an order vacating the December 7 Order (the “February 10 Order”). This petition followed.

We review a petition for writ of certiorari for two prerequisites. State Farm Fla. Ins. Co. v. Puig, 62 So.3d 23 (Fla. 3d DCA 2011). “First, that the order caused irreparable harm which cannot be remedied on appeal following final judgment; and second, that the order departed from the essential requirements of the law.” Id. 62 So.3d at 25 (quoting Fuller v. Truncale, 50 So.3d 25, 27 (Fla. 1st DCA 2010)).

The parties agree that rule 9.020(h)(3) of the Florida Rules of Appellate Procedure is applicable here. Rule 9.020(h)(3) states:

(h) Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.... [I]f a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion ... for rehearing, ...
(3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.

Fla. R. App. P. 9.020(h)(3). Respondent concedes that the filing of the January 6, 2011 notice of appeal effectively abandoned the Motion and divested the trial court of jurisdiction to rehear, reconsider, or vacate the December 7 Order. Therefore, we hold that the trial court lacked jurisdiction when it rendered the February 10 Order, and accordingly, departed from the essential requirements of law. Farr v. Farr, 840 So.2d 1166, 1166 (Fla. 2d DCA 2003) (“The motion for rehearing was abandoned by the filing of the notice of appeal” and thus, the trial court lacked jurisdiction to enter an order on the motion for rehearing.) (citation omitted); Palm Beach Cnty. v. Boca Dev. Assocs., Ltd., 485 So.2d 449, 453 (Fla. 4th DCA 1986) (“[W]e reverse the trial court’s order, which vacated a prior final judgment, because the trial court was without authority to alter, let alone vacate, the original judgment.”).

Given the foregoing, allowing the February 10 Order to stand would materially harm Petitioner’s rights and interests to enforcing settlement with Progressive, leaving no adequate remedy on appeal. The Florida Rules of Appellate Procedure, specifically rule 9.130(4), states that “[n]on-final orders entered after final order on motions that suspend rendition are not reviewable.” Fla. R. App. P. 9.130(4). Accordingly, we grant the writ of certiora-ri, and quash the February 10 Order.

Petition granted; order granting the motion for rehearing and vacating the order enforcing settlement quashed.

      . Respondent's motion was filed by Doris Fi-allos, on behalf of a minor child, Genesis Tarazona.

      . Fiallos and Respondent are both named defendants in the underlying case.

      . Respondent has since voluntarily dismissed its January 6, 2011 notice of appeal.


author: MARSTILLER, J.

text:
    Honorable Jeff ATWATER, President of the Senate, State of Florida, and The Honorable Larry Cretul, Speaker of the House, State of Florida, Appellants/Cross Appellees, v. CITY OF WESTON, Florida, et al., Honorable Charlie Crist, Governor of the State of Florida, Honorable Kurt S. Browning, Secretary of State, State of Florida, Appellees/Cross Appellants.
    No. 1D10-5094.
    District Court of Appeal of Florida, First District.
    May 2, 2011.
    Rehearing Denied June 28, 2011.

      Pamela Jo Bondi, Attorney General, and Jonathan A. Glogau, Special Counsel, Tallahassee, for Appellants/Cross Appellees.
    Edward G. Guedes and John J. Quick of Weiss, Serota, Helfman, Pastoría, Cole & Boniske, P.L., Coral Gables, Jamie A. Cole and Susan L. Trevarthen of Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.L., Fort Lauderdale, for Appellees/Cross Appellants.
    Christine Davis Graves and Andrew D. Manko of Carlton Fields, P.A., Tallahassee, Amicus Curiae for Florida League of Cities, Inc.
   MARSTILLER, J.

On July 9, 2009, several Florida cities and counties filed suit in the circuit court in Leon County seeking a declaratory judgment invalidating chapter 2009-96, Laws of Florida (formerly Senate Bill 360), “[ajn act relating to growth management,” for violating the single subject and unfunded mandate provisions of the Florida Constitution. Named as defendants were Governor Charlie Crist, President of the Senate Jeff Atwater, Speaker of the House of Representatives Larry Cretul, and Secretary of State Kurt Browning. All four defendants moved to dismiss contending they were not proper parties to the action because none is designated to enforce Florida’s growth management laws. The trial court denied the motion to dismiss and, on August 27, 2010, entered summary judgment declaring the law unconstitutional as an unfunded mandate and ordering the Secretary of State to expunge the law from the official records of the State.

Defendants Atwater and Cretul appeal the summary judgment, and the local governments cross appeal. Appellants assert the trial court erred by not dismissing them from the suit as improper parties. They also contend the record does not support the court’s finding of a statewide fiscal impact sufficient to constitute an unfunded mandate, but that even if the court’s finding is correct, it should not have invalidated the law in its entirety. Appellees/Cross-Appellants argue the trial court incorrectly deemed their single-subject challenge moot. We conclude the lower court should have dismissed Appellants from the lawsuit, and that this issue is dispositive.

The proper defendant in a lawsuit challenging a statute’s constitutionality is the state official designated to enforce the statute. See ACLU v. The Florida Bar, 999 F.2d 1486, 1490-91 (11th Cir.1993) (citing Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Harris v. Bush, 106 F.Supp.2d 1272, 1276 (N.D.Fla.2000); Walker v. President of the Senate, 658 So.2d 1200, 1200 (Fla. 5th DCA 1995)). Individual legislators are not proper parties to such a suit. See Walker (affirming order dismissing Senate President and House Speaker from declaratory action challenging certain operations of the Department of Corrections). Neither is the Governor. See, e.g., Women’s Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir.2003) (Governor’s general executive powers and authority to sign legislative bills into law do not subject that official to court’s jurisdiction in suit challenging constitutionality of state statute).

That is not to say these officials are improper parties in all declaratory actions challenging the constitutionality of legislative or executive acts. For example, in Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla.1996), the supreme court concluded that the Senate President, House Speaker and Governor were proper parties to declaratory action alleging the State’s failure to adequately fund the public education system as constitutionally required. Relying on its earlier opinion in Florida Department of Education v. Glasser, 622 So.2d 944, 948 (Fla.1993), the court reasoned that except for the Governor, “all of the named appellees have either taken a present, adverse, and antagonistic position to that espoused by appellants or would be necessary parties to an action to determine the State’s responsibility under the controlling constitutional provision,” and that “the Governor, both in his position as chief executive and as chairperson of the Board of Education, is an appropriate party because of the nature of the action.” Chiles, at 402-3. See also Brown v. Butterworth, 831 So.2d 683, 689-90 (Fla. 4th DCA 2002) (Senate President was proper party in declaratory action challenging constitutionality of Legislature’s congressional redistricting scheme for that official had a cognizable interest in defending the scheme against claims of discriminatory effect).

But the declaratory action at issue here does not involve a broad constitutional duty of the State implicating specific responsibilities of the defendants. Nor does the lawsuit involve any issue in which the defendants have an actual, cognizable interest. Rather, the lawsuit simply challenges the constitutionality of a piece of legislation governing growth management. As such, the Senate President, the Speaker of the House of Representatives and the Governor clearly are not proper parties to the action. The fourth defendant, the Secretary of State, also is not a proper party to the lawsuit for that official does not enforce Florida’s growth management laws. Rather, the Secretary of Community Affairs appears to be the responsible official, as the Department of Community Affairs is the state land planning agency. See § 163.3164(20), Fla. Stat. See also §§ 163.3184(6), 380.032, Fla. Stat. (state land planning agency authorized to review all local proposed comprehensive plan amendments and developments of regional impact for compliance with statutory requirements).

In sum, Appellants are correct that the trial court should have granted the motion to dismiss all the defendants from the declaratory action because they are not proper parties. Appellees/Cross-Appel-lants argue that because neither the Governor nor the Secretary of State filed a notice of appeal, we must nonetheless uphold the summary judgment. They assert we can neither reverse the judgment entirely nor consider the substantive issues Appellants raise. Appellants counter that because none of the defendants was a proper party to the declaratory action, the trial court lacked subject matter jurisdiction over the entire matter, and the failure of the Governor and Secretary of State to appeal the summary judgment cannot give the court jurisdiction it otherwise did not have. We agree with Appellants.

Fundamentally, the trial court’s decision not to dismiss the Senate President, Speaker of the House, Governor and Secretary of State from the declaratory action was a determination by the court that it had subject matter jurisdiction to decide whether chapter 2009-96 is constitutional. “Even though the legislature has expressed its intent that the declaratory judgment act [chapter 86, Florida Statutes] should be broadly construed, there still must exist some justiciable controversy between adverse parties that needs to be resolved for a court to exercise its jurisdiction. Otherwise, any opinion on a statute’s validity would be advisory only and improperly considered in a declaratory action.” Martinez v. Scanlan, 582 So.2d 1167, 1170-71 (Fla.1991) (emphasis added). Inasmuch as none of the four named defendants was a proper party to the declaratory action below, there was no controversy between adverse parties before the court, and thus no subject matter jurisdiction. Just as a court cannot obtain subject matter jurisdiction by agreement or acquiescence of the parties, see Florida Export Tobacco Co. v. Dep’t of Revenue, 510 So.2d 936, 943 (Fla. 1st DCA 1987), the trial court in this case does not obtain jurisdiction it never had simply because two of the four defendants who should have been dismissed from the action have elected not to appeal. Cf. Martin Mem. Med. Ctr., Inc. v. Tenet Healthsystems Hosp., Inc., 875 So.2d 797, 799-801 (Fla. 1st DCA 2004) (court would not dismiss appeal from declaratory judgment finding statute unconstitutional where state agency and Attorney General did not appeal judgment but were proper parties to declaratory action and participated at trial level). We therefore REVERSE the corrected final summary judgment invalidating chapter 2009-096, Laws of Florida, and REMAND to the trial court to dismiss Appellees/Cross-Appellants’ complaint for declaratory and injunctive relief.

VAN NORTWICK and THOMAS, JJ., Concur.

      . Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: "Be It Enacted by the Legislature of the State of Florida:”.
      Art. Ill, § 6, Fla. Const.
      No county or municipality shall be bound by any general law requiring such county or municipality to spend funds or to take an action requiring the expenditure of funds unless the legislature has determined that such law fulfills an important state interest and unless: funds have been appropriated that have been estimated at the time of enactment to be sufficient to fund such expenditure; the legislature authorizes or has authorized a county or municipality to enact a funding source not available for such county or municipality on February 1, 1989, that can be used to generate the amount of funds estimated to be sufficient to fund such expenditure by a simple majority vote of the governing body of such county or municipality; the law requiring such expenditure is approved by two-thirds of the membership in each house of the legislature; the expenditure is required to comply with a law that applies to all persons similarly situated, including the state and local governments; or the law is either required to comply with a federal requirement or required for eligibility for a federal entitlement, which federal requirement specifically contemplates actions by counties or municipalities for compliance.
      Art. VII, § 18(a), Fla. Const.

      . Citing State v. Johnson, 616 So.2d 1 (Fla.1993), among other authorities, the trial court ruled the single-subject challenge became moot when the Legislature reenacted chapter 2009-96 and adopted it as part of the 2010 Florida Statutes.


author:
PER CURIAM.
      LAWSON, J.,

text:
    SOUTHEAST UNLOADING, LLC, et al., Appellant, v. Louis LUCAS, Appellee.
    No. 5D09-2291.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Rehearing Denied July 7, 2011.
    Nicholas A. Shannin, of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, and Kevin E. Jakab, of Howell & O’Neal, Jacksonville, and John R. McDonough, of McDonough & Serano, Orlando, for Appellants, Southeast Unloading, LLC and Georgia Casualty & Surety Company.
    Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, and David A. Paul and Paul C. Perkins, Jr., of Paul & Perkins, P.A., Orlando, for Appellee.
    Harold R. Mardenborough, Jr. and Ellen C. Pappas, of Carr Allison, Tallahassee, for Amicus Curiae, Florida Defense Lawyers Association.
    Philip M. Burlington and Nichole J. Se-gal, of Burlington & Rockenbach, P.A., West Palm Beach, for Amicus Curiae, Florida Justice Association.
   PER CURIAM.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.

LAWSON, J., dissents with opinion.

LAWSON, J.,

dissenting.

Southeast Unloading, LLC, appeals a final judgment in favor of Louis Lucas. On appeal, Southeast contends that the trial court reversibly erred in failing to apply Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977), which should have prohibited Lucas from pursuing a cause of action for negligent training against Southeast. This is because Southeast admitted liability for the actions of its employee, a forklift operator whose negligence (inattention) while backing up a forklift was alleged to be the direct and proximate cause of Lucas’ injuries. Under Clooney, once an employer has admitted respondeat superior liability for an employee’s negligence, it is generally improper to allow a plaintiff to proceed against the employer on other theories of imputed liability. See, e.g., Muzzio v. Auto-Owners Ins. Co., 799 So.2d 272 (Fla. 2d DCA 2001); Clooney, 352 So.2d at 1220. Appellee urges that we conflict with Clooney, arguing that its holding should not survive in a comparative fault system. While Clooney represents the majority view on this issue, Ap-pellee’s argument for abandoning Clooney has support in some jurisdictions. See, e.g., Marquis v. State Farm, 265 Kan. 317, 961 P.2d 1213 (1998); Lim v. Interstate Steel Div., Inc., 435 N.W.2d 830 (Minn.App.1989); Respondeat Superior as an Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, 109 Mich. L. Rev. 657 (Feb. 2011).

The majority, however, does not reach this issue in a written opinion. This is apparently because, in the majority’s view, either (1) any error in allowing the jury to consider the additional cause of action was harmless in this case; or (2) consideration of the issue is barred by application of the “two issue rule.” See, e.g., Whitman v. Castlewood Int’l Corp., 383 So.2d 618, 619 (Fla.1980). I disagree.

Admittedly, Lucas did not present a great deal of evidence in support of his negligent training theory (in fact, Southeast also argues on appeal that the evidence was insufficient to the point that the trial court should have directed a verdict on that count). So, I understand the majority’s apparent conclusion that any error in failing to follow Clooney was harmless in this case. However, the evidence did suggest that the Southeast forklift operator who struck Lucas had been tested shortly before the accident as part of Southeast’s training program and was probably not sufficiently attentive while backing up the forklift during the test— the same act of negligence alleged as the cause of Lucas’ injuries. “Ordinarily, if there has been error in the admission of evidence, the burden is on the beneficiary of the error to establish that the error was harmless.” Flores v. Allstate Ins. Co., 819 So.2d 740, 751 (Fla.2002) (citing Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla.2001)). Although perhaps a close call, I am not convinced that admission of this evidence, if erroneous, was harmless.

With respect to the two-issue rule, I also understand the argument for application of the rule in this case. The rule provides:

[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.

Whitman, 383 So.2d at 619. At trial, Southeast agreed to a general verdict form. So, the jury was never asked to differentiate between Southeast’s alleged negligence and that of its employee. Yet, if the jury had given any weight to the negligent training evidence, it probably would have reflected this in a separate finding of negligence against Southeast, had it been given that opportunity. So, use of a general verdict form does hamper our ability to gauge the effect of admission of the negligent training evidence in this case.

But, that is not the full test for use of the two issue rule. The test also requires that there be no error with respect to one of the two theories or causes of action presented to the jury. Id. That is not true here. To the contrary, if the jury believed that the forklift operator was inattentive while backing up his forklift during the training exercise, this almost certainly would have had a prejudicial effect on its consideration of the cause of action against the employee. In other words, the jury would have considered the otherwise irrelevant and prejudicial evidence of the employee’s prior negligent act by making an impermissible inference that the employee was negligent on the occasion in question. Because the error, if any, in admitting this evidence would likely have affected both verdicts, had separate interrogatories been used, I do not view this as a two-issue rule case. However, since I am in the minority on this point, I believe it important to at least alert practitioners who find themselves at trial in a similar case that use of a general verdict form might preclude appellate review on this important issue.

      . Although other issues were raised on appeal, I agree with the majority's determination that no other issue would merit relief or discussion.

      . Nineteen jurisdictions, including California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Kentucky, Maryland, Mississippi, Missouri, New Jersey, New Mexico, New York, Tennessee, Washington D.C., and Wyoming have adopted the majority rule. See Richard A. Mincer, The Viability of Direct Negligence Claims against Motor Carriers in the Face of an Admission of Respondeat Superior, 10 Wyo. L. Rev. 229, 235 & n. 20 (2010).

      .It was uncontroverted that after the testing, Southeast returned this employee to his job with no instruction or training on safe or proper backing techniques.


author: ROTHENBERG, J.

text:
    Michele G. HARDIN, Petitioner, v. MONROE COUNTY, Florida, and Monroe County Code Enforcement Board, Respondents.
    No. 3D10-1320.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Rehearing Denied July 7, 2011.

      Michele G. Hardin, in proper person.
    Monroe County Attorney’s Office, Robert B. Shillinger, Key West, Chief Assistant County Attorney, and Christine Limbert-Barrows, Key West, Assistant County Attorney, for respondents.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

On September 3, 1999, Michele G. Hardin (“Hardin”) appealed the following three orders entered by Monroe County Code Enforcement Special Master J. Jefferson Overby (“Special Master”) on August 16, 1999: (1) Order Denying Motion for Rehearing; (2) Order Denying Motion for Stay of Fines; and (3) Order Imposing Penalty/Lien. More than ten years later, On March 19, 2010, the Appellate Division of the Monroe Circuit Court (“Circuit Court”) issued its opinion. The Circuit Court “denied” Hardin’s claim as to the Order Denying Motion for Rehearing, finding that the Motion for Rehearing was not timely filed, and “affirmed” the Order Denying Motion for Stay of Fines and Order Imposing Penalty/Lien, finding that the Circuit Court lacked jurisdiction to review these orders because they were “grounded in the original order of April 16, 1999, which was not properly appealed. ...” Hardin now petitions this Court for second-tier certiorari review, seeking to quash the Circuit Court’s March 19, 2010 opinion. We grant the petition, quash portions of the Circuit Court’s opinion, and remand for further proceedings consistent with this opinion.

Background information is necessary to explain why this code enforcement action took more than ten years to work its way through the system, during which time a daily fine of $20 continued to accumulate. In 1988, Hardin purchased her home (“Property”) from a builder who assured her that the Property, including its lower level enclosure, was fully permitted. Ten years later, in July 1998, the Monroe County Code Enforcement Department (“Department”) issued a Notice of Violation, asserting code violations, including that a habitable space was built below base flood elevation. In late February 1999, an administrative hearing was conducted before the Special Master. At the hearing, a Monroe County Code Enforcement Officer (“Officer”) testified that in June 1998, a woman, who signed an affidavit averring that she was an occupant, opened the door using a key and allowed him to enter the Property. Thereafter, based on the Officer’s investigation, the Department issued a Notice of Violation in July 1998. During the hearing, Hardin’s counsel objected to the Officer’s testimony and the introduction of the photographs and report, arguing that the woman who contacted the Department and provided the officer with access to the Property, did not live on the Property or have the authority to allow the Officer to enter the Property. At the end of the hearing, the Special Master stated that he was ruling in favor of Monroe County, finding that Hardin was maintaining “what is commonly known as a downstairs livable unit, which is contrary to the FEMA Code and Monroe County Code.” The Special Master also stated that if the Property is not in compliance by April 15, 1999, a daily fine of $20 would begin to run.

On April 16, 1999, the Special Master entered a written violation order, finding code violations, and stating that a daily fine of $20 may be imposed if the violations were not corrected by April 15,1999 (“Violation Order”). The Violation Order also notified Hardin that she had the right to appeal the order to the Circuit Court within thirty days.

As the Circuit Court correctly noted in its opinion, Hardin did not timely appeal the Violation Order which was entered on April 16, 1999. See § 162.11, Fla. Stat. (1999) (“Appeals. — An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.”); City of Plantation v. Vermut, 583 So.2d 393, 394 (Fla. 4th DCA 1991) (“The result and effect of the order of the Broward circuit court was to set aside the March 29, 1988 final order of violation and noncompliance of the Plantation Code Enforcement Board, as well as the May 3, 1988 supplemental order/claim of lien. Because no appeal had been taken from the March 29, 1988 final order, we find that the circuit court lacked jurisdiction to set aside the March 29, 1988 final order. Proceedings on remand should be limited to a review of the May 3, 1988 order and the May 2, 1988 hearing upon which it is based.”); City of Fort Lauderdale v. Bamman, 519 So.2d 37, 38 (Fla. 4th DCA 1987) (“Bamman did not timely appeal the final order of the Code Enforcement Board. That order was entered October 22, 1985, and became final thirty days later. The notice of appeal to the circuit court was timely filed vis-a-vis the supplemental order of the Code Enforcement Board dated February 25, 1986, but that does not bring up for review the Board’s final order of October 22, 1985, which had by then in all respects become final.”); see also Kirby v. City of Archer, 790 So.2d 1214 (Fla. 1st DCA 2001). Therefore, as the Violation Order was not timely appealed, the Circuit Court did not and does not have jurisdiction to review the Violation Order.

On June 28,1999, Hardin, who was without counsel, filed a Motion for Rehearing, requesting a rehearing of the Violation Order. Hardin also filed a motion requesting a stay of the daily fine. On August 16, 1999, the Special Master entered the three orders appealed to the Circuit Court — “Order Denying Motion for Rehearing”; “Order Denying Motion for Stay of Fines”; and “Order Imposing Penalty/Lien.” Thereafter, on September 3, 1999, Hardin filed a Notice of Appeal, and subsequently filed her initial brief and a supplemental brief raising numerous issues.

Five years after Hardin filed her Notice of Appeal, on September 27, 2004, an order was entered dismissing her appeal based on a finding that it was untimely filed. Hardin filed a “Motion for Rehearing of Order Granting Motion to Dismiss Appeal,” and on November 5, 2004, Judge Richard G. Payne entered an order setting aside and vacating the dismissal order, and finding that Hardin’s appeal was timely filed. Monroe County then filed its answer brief on May 1, 2007, and Hardin filed her reply brief in October 2007.

More than ten years after Hardin filed her appeal, five years after Judge Payne issued his order finding Hardin’s appeal was timely filed, and almost three years after Monroe County filed its answer brief, another judge of the Circuit Court, Judge David J. Audlin, Jr., issued an opinion on March 19, 2010, finding that the Motion for Rehearing was untimely as it was filed more than thirty days after the Special Master entered the April 16, 1999 Violation Order; the Motion for Rehearing did not toll the time period for appealing the Special Master’s Violation order dated April 16, 1999; and the Circuit Court lacked jurisdiction to review the Order Denying Motion for Stay of Fines and the Order Imposing Penalty/Liens because these orders were grounded in the April 16, 1999 order, “which was not properly appealed.” Nothing but the passage of time facilitated this outcome. This petition for second-tier certiorari review followed.

On second-tier certiorari review, the district court’s “ ‘inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,’ or, as otherwise stated, departed from the essential requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). Further,

[t]he departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error. Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.

Custer Med. Ctr., 62 So.3d at 1092 (citations omitted).

Here, we conclude that the Circuit Court, sitting in its appellate capacity, did not depart from the essential requirements of law by concluding that Hardin did not file her Motion for Rehearing on a timely basis as it was filed more than thirty days after the Special Master entered the April 16, 1999 Violation Order. Thus, we do not quash the portion of the Circuit Court’s opinion pertaining to the Order Denying Motion for Rehearing.

However, as to the Order Denying Motion for Stay and Order Imposing Penalty/Lien, we conclude otherwise. Despite an earlier finding by a judge of the Circuit Court that Hardin’s appeal was timely filed, a subsequent judge of the Circuit Court entered an opinion six years later finding that the Circuit Court lacked jurisdiction because Hardin’s appeal was untimely filed. Additionally, despite finding that the court lacked jurisdiction to hear Hardin’s appeal, the Circuit Court inexplicably “affirmed” the Order Denying Motion for Stay of Fines and Order Imposing Penalty/Lien. We conclude that these rulings by the Circuit Court are a departure from the essential requirements of law resulting in a miscarriage of justice.

We begin with the Circuit Court’s order finding Hardin’s appeal untimely. The Special Master entered these two orders on August 16, 1999, and Hardin filed her Notice of Appeal on September 3, 1999. Thus, there is no doubt that Hardin timely appealed these two orders. Although Hardin clearly failed to timely appeal the Violation Order entered on April 16, 1999, her failure to do so does not bar her from appealing the subsequently entered enforcement orders. See City of Plantation v. Vermut, 583 So.2d 393, 394 (Fla. 4th DCA 1991) (finding that although the violation order issued by the code enforcement board was not timely filed, the circuit court had jurisdiction to review the supplemental order/claim of lien, and remanding with instructions to limit review to supplemental order/claim of lien).

The Circuit Court also departed from the essential requirements of law when it affirmed the orders under review after it concluded that it lacked jurisdiction over the appeal See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003) (holding that Florida courts should dismiss an appellate proceeding if it was not initiated within the applicable time period).

Accordingly, we grant the petition for writ of certiorari, quash the portion of the Circuit Court’s opinion relating to the Order Denying Motion for Stay of Fines and Order Imposing Penalty/Lien. Further, in light of the unique circumstances of this case, including the tortured history of this case, and the ten years the appellate case unnecessarily lingered in the Circuit Court, we grant the Motion for Stay of Fines nunc pro tunc to August 16, 1999, and we remand with instructions for the Circuit Court, upon review, to properly review Hardin’s appeal of the Order Imposing Penalty/Lien.

Petition granted; opinion quashed in part; remanded with directions.

      . At a daily rate of $20, the fines now exceed $85,000.

      . The record reflects that the written order was entered after the initial compliance date. However, the compliance date was later extended to May 20, 1999, which was also tardily memorialized in a written order dated August 16, 1999.

      . The thirty-day time period expired on May 17, 1999.


text:
    Anthony Duane CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-567.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Rehearing Denied July 7, 2011.
    James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges his conviction based on an alleged speedy trial violation. He argues that his conviction was based on charges that arose from the same criminal episode as charges for which the speedy trial period had expired. We conclude that, although the charges all were related to illicit drugs, each involved distinct acts and distinct crimes. Therefore, they did not arise from the same criminal episode for speedy trial purposes. See State v. Banks, 50 So.3d 730 (Fla. 5th DCA 2010) (defendant’s charges for dealing in stolen property and possession of firearm with altered serial number, though related to charge of burglary involving theft of firearms, not part of same criminal episode); Clevenger v. State, 967 So.2d 1039, 1041 (Fla. 5th DCA 2007) (“Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.”); State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003) (“[W]hen different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts.”).

AFFIRMED.

TORPY, LAWSON and COHEN, JJ., concur.


text:
    Joshua E. BOUIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-16.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Rehearing Denied July 5, 2011.
    Joshua Bouie, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joshua E. Bouie, Appellant, seeks review of the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We affirm in part and reverse in part.

Of the four claims Appellant raised, only one has merit. Among his several convictions, Appellant was convicted of attempted burglary of a conveyance with an assault while carrying a weapon. The trial court correctly concluded there was nothing improper about reclassifying his conviction from a second-degree felony to a first-degree felony based on carrying a weapon because it was not an essential element of the charge of burglary of a conveyance with an assault. However, Appellant was sentenced to twenty-eight years’ incarceration, followed by ten years’ probation. This exceeded the thirty-year statutory maximum for a first-degree felony offense and constitutes an illegal sentence. If the trial court wished to impose a split sentence, the combined number of years of incarceration and probation could not exceed the thirty-year statutory maximum. See Davis v. State, 35 So.3d 1041 (Fla. 2d DCA 2010); Gerow v. State, 516 So.2d 326, 326 (Fla. 2d DCA 1987). Accordingly, we reverse and remand for re-sentencing on count II and otherwise affirm.

AFFIRMED IN PART; REVERSED IN PART; REMANDED for resentenc-ing.

PALMER, EVANDER and COHEN, JJ., concur.


author: LAGOA, J.

text:
    CITY OF NORTH MIAMI BEACH, Appellant, v. Juan D. BERRIO, Appellee.
    No. 3D10-2135.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.

      Darcee S. Siegel, City Attorney, and Maria J. Santovenia, Assistant City Attorney, for appellant.
    Berrio & Berrio and Juan D. Berrio, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   LAGOA, J.

The City of North Miami Beach (the “City”) appeals from a final order awarding Juan D. Berrio his attorney’s fees pursuant to section 57.105, Florida Statutes (2009). Because the motion for attorney’s fees should have been denied for noncompliance with the twenty-one day “safe harbor” provision of subsection 57.105(4), Florida Statutes, we reverse.

On March 25, 2009, Officer Hernandez of the City of North Miami Beach conducted a traffic stop of Michael Hurtado (“claimant”) for dark window tints. Hernandez searched the vehicle, a 2005 Infiniti Q 56 SUV, and discovered marijuana within a closed zip-lock bag inside a plastic grocery bag. Hernandez arrested the claimant and charged him with possessing a third degree felony amount of marijuana pursuant to section 893.13, Florida Statutes. The vehicle was impounded.

After receiving a notice of seizure of personal property, the claimant retained attorney Berrio. On April 9, 2009, the City filed a verified complaint for final order of forfeiture pursuant to sections 932.701 and 932.704, Florida Statutes (2007). Subsequently, on August 11, 2009, the trial court entered an order granting the claimant’s motion for summary judgment and ordered the immediate return of the vehicle to the claimant.

The City did not return the vehicle, and on September 11, 2009, the claimant filed a motion for damages, attorney’s fees, and costs pursuant to subsection 932.704(10) and section 57.105. Approximately one week after receiving the motion, the City returned the vehicle.

After a hearing, the trial court concluded that fees under section 57.105 were appropriate, and subsequently entered an order awarding fees to Berrio in the amount of $13,500, and to an expert witness in the amount of $l,215. The City appeals.

Section 57.105 provides, in relevant part:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

On appeal, the City argues that the trial court erred in granting the motion for attorney’s fees and costs because the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So.2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So.2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So.2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant’s motion for summary judgment. See O’Daniel, 916 So.2d at 41 (holding that motion for attorney’s fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial).

Based on the authority of Davidson v. Ramirez, 970 So.2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant’s motion for attorney’s fees and costs. In that case, this Court reversed an award of attorney’s fees where the party filing the motion for fees failed to comply with the notice provision set forth in subsection 57.105(4), but the trial court awarded fees on its own initiative under subsection 57.105(1). This Court found that “[i]n essence the court adopted the defendant’s motion as the court’s own motion and awarded attorney’s fees” and reversed, concluding that:

[T]his procedure is contrary to the intent of the statute. The legislative intent is to require the twenty-one-day notice whenever a subsection 57.105(5) motion is filed by a party. It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court’s own. Since this was a party-filed motion, the subsection 57.105(4) notice period had to be observed.

970 So.2d at 856.

Berrio argues that this case can be distinguished from Davidson because the trial court did not merely adopt the motion for fees, but rather, awarded fees pursuant to its own initiative as provided in subsection 57.105(1). See § 57.105(1), Fla. Stat. (2010) (providing that “[u]pon the court’s initiative” the court shall award a reasonable attorney’s fee to the prevailing party when the losing party “knew or should have known that the claim or defense ... was not supported by the material facts necessary to establish the claim or defense”); see, e.g., Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010) (distinguishing Davidson and affirming award of attorney’s fees where record showed that trial court did not simply adopt motion for fees). We find this argument unsupported by the record as the award was clearly in response to the claimant’s motion for fees and the subsequent hearing on that motion.

Because this case is on all fours with Davidson, we are compelled to reverse the order on appeal awarding Berrio his attorney’s fees and costs. Accordingly, we reverse with directions to the trial court to vacate the order awarding attorney’s fees and costs.

Reversed and remanded with directions.

      . The trial court denied the motion for fees under section 932.704, and Berrio did not appeal that denial.

      . Davidson states that the defendant moved for fees under subsection 57.105(5), Florida Statutes (2005). That subsection provides that in administrative proceedings, an administrative law judge shall award reasonable attorney’s fees “upon the same basis as provided in subsections (l)-(4)."