text:
    George BRASCOM, Appellant, v. HILLSBOROUGH COUNTY SHERIFF’S OFFICE/COMMERCIAL RISK MANAGEMENT, INC., Appellees.
    No. 1D11-0302.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Bill McCabe, Longwood, and James E. Hack, St. Petersburg, for Appellant.
    L. Gray Sanders and Kristen H. Emerson of Barbas, Nunez, Sanders, Butler & Hovsepian, Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) abused her discretion in awarding certain prevailing party costs to the Employer/Carrier (E/C). Upon review of the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, which the JCC is obligated to consider pursuant to Florida Administrative Code Rule 60Q-6.124(3)(e) when “determining the reasonableness of an award of cost reimbursement,” we hold that the JCC did not abuse her discretion in awarding the costs at issue here. We write to explain why we conclude that the case relied upon by Claimant to challenge the JCC’s award of costs for the pre-deposition conference between counsel for the E/C and the E/C’s independent medical examiner is not controlling.

Specifically, Claimant argues that, based on the authority of Centex-Rooney Construction Co. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999), it is clear that the JCC erred in awarding the costs relating to this conference. In Centex-Rooney, the district court reversed the award of the cost for conferences with an expert prior to trial, based on case law and the Uniform Guidelines. Id. at 1261. The language in the Uniform Guidelines in effect at the time Centex-Rooney was decided, however, stated that “[c]harges made by expert witnesses for reports submitted to or conferences with attorney prior to trial .... should not be taxed.” See Reeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1349 n. 2 (Fla. 4th DCA 1983). The guidelines in effect now do not include such a prohibition. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 616 app. (Fla. 2005). Thus, it was within the JCC’s discretion to award such costs and we find no basis to determine that the JCC abused her discretion in so doing. Accordingly, the order is AFFIRMED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WILNER HARTLEY & METCALF, P.A. and Farah & Farah, P.A., Appellant, v. HOWARD & ASSOCIATES, Attorneys at Law, P.A., and Richard A. Daynard, Esq., Appellee.
    No. 1D10-6267.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Norwood S. Wilner, Stephanie J. Hart-ley, and Richard J. Lantinberg of Wilner Hartley & Metcalf, Jacksonville, for Appellants.
    Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee; and John P. Leonard, Scott S. Flynn of McElroy, Deutsch, Mul-vaney & Carpenter, LLP, Morristown, NJ, for Appellees.
   PER CURIAM.

Appellants seek review of a non-final order denying their motion to dismiss for improper venue. The motion was directed to the “Verified Substitute Amended Complaint,” which alleged a single cause of action for an accounting. The order denying the motion to dismiss also granted Appellees’ motion for leave to file a “Verified Third Amended Complaint,” which included additional venue allegations and also alleged additional causes of action based on the facts developed through the limited discovery allowed by the trial court on the Verified Substitute Amended Complaint. The motion to dismiss the Verified Substitute Amended Complaint was rendered moot by the trial court’s order allowing the filing of the Verified Third Amended Complaint. See Vanderberg v. Rios, 798 So.2d 806, 807 (Fla. 4th DCA 2001) (explaining that the filing of an amended complaint renders moot the legal sufficiency of the original complaint). The record does not include a transcript of the hearing on the motion to dismiss and the trial court’s order does not explain its rationale for denying the motion; however, because the trial court could have properly denied the motion to dismiss as moot, we affirm the order on appeal. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (explaining that the appellate court is required to affirm if there is any basis in the record that would support the trial court’s ruling). This decision should not be misconstrued as a determination that venue is proper in Leon County; that issue is for the trial court to determine in the first instance on a proper motion to dismiss the Verified Third Amended Complaint.

AFFIRMED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


author: THOMAS, J.

text:
    Federico Martin BRAVO, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5477.
    District Court of Appeal of Florida, First District.
    July 26, 2011.

      Shannon Padgett of Dale C. Carson Attorney, PA, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

In this direct criminal appeal, Federico Martin Bravo, II, challenges his judgment of conviction and sentence for aggravated assault with possession of a firearm, raising three grounds for reversal. We conclude that the trial court abused its discretion in denying Bravo’s motion in limine to exclude testimony regarding his refusal to consent to a police officer’s request to conduct a warrantless search of his home for a gun. This error was not harmless beyond a reasonable doubt, and we reverse under Point I. We do not reach Appellant’s other two points.

Facts

The police initially contacted Bravo in a phone interview three days after the incident giving rise to the charge, during which Bravo stated that the gun in question was a BB-gun. Bravo was not arrested on the charge of aggravated assault until almost a year later, at his home. Before trial, defense counsel filed a motion in limine requesting that the State be prohibited from making any direct or indirect reference at trial to Bravo’s statement to the arresting officer that his residence could not be searched without a warrant. Defense counsel informed the trial court that the arresting officer questioned Bravo as to whether he owned a handgun. Bravo responded that he did, but the gun was at his mother’s house. The officer asked if he could search Bravo’s residence, and Bravo responded that the officer would have to get a search warrant. Counsel asked that Bravo’s response be excluded at trial as irrelevant, arguing that Bravo would admit at trial to owning the handgun, and, furthermore, that allowing the State to introduce the statement would infringe on Bravo’s constitutional right to insist that law enforcement officers obtain a warrant before searching his residence. In response, the State argued that it intended to introduce Bravo’s statement as evidence of his consciousness of guilt: Bravo owned a handgun, the police were trying to find it, and Bravo was uncooperative in an attempt to hide the evidence. The trial court asked the prosecutor if he could distinguish Bravo’s statement from a comment on his right to remain silent. The prosecutor responded that Bravo did not remain silent after being given his Miranda warnings, but, in fact, had made a statement. The trial court denied the motion in limine.

Consequently, at trial, Officer Hurst testified that when he asked Bravo for his consent to search his house for the handgun, Bravo responded that he would need a search warrant to do so. Defense counsel renewed his objection to this line of questioning, basing the objection on the arguments made in the motion in limine. On cross-examination, Officer Hurst testified that he never did obtain a search warrant for the gun. No firearm was introduced into evidence.

In his closing argument, the prosecutor reminded the jurors that it was their job to determine the credibility of the witnesses. He then suggested that Bravo’s testimony was unworthy of belief, because he lied to police when he first told them that he only possessed a BB-gun on the night of the fight, and because he refused to allow the police to search his home. The prosecutor then added, “Well, if you were defending yourself, go ahead and give us the gun, nothing to hide. He refused, because [he] had something to hide. You can consider this as consciousness of guilt. What was going on in his mind, how he felt about his actions that day.” The jury returned a verdict of guilty as charged.

Analysis

On appeal, Bravo argues that the trial court erred in denying his motion in limine to exclude evidence of his refusal to consent to the search. He argues that the introduction of this testimony, combined with the prosecutor’s closing argument, amounted to an improper comment on Bravo’s right to be free from unreasonable searches and seizures, citing to Gomez v. State, 572 So.2d 952 (Fla. 5th DCA 1990), and Kearney v. State, 846 So.2d 618 (Fla. 4th DCA 2003) (applying the rationale of Gomez). The State concedes the point, but argues that any error must be deemed harmless under the dictates of State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (holding that comments on a defendant’s silence are subject to a harmless error analysis). We disagree with the State that the error can be deemed harmless.

In Gomez, the Fifth District Court of Appeal addressed the constitutional implications of a police officer’s testimony revealing that Gomez had declined to give the officer consent to search her vehicle for cocaine, holding that Gomez was entitled to a new trial because of the officer’s “comment on the exercise of Gomez’s Fourth Amendment right.” 572 So.2d at 952. The court explained its reasoning as follows:

Comment on a defendant’s denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant’s right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude. A defendant who has a constitutional right to refuse to consent to a search (as Gomez did here, because Bartholome did not have probable cause to search at that point) should be free to exercise that right with impunity. No comment on its exercise should be permitted to raise an inference of guilt, if the Fourth Amendment right against unreasonable search and seizure is to be given its full meaning.

Id. at 958 (footnotes omitted). In support of its ruling, the Fifth District cited to decisions from the Third and Ninth Circuit Courts of Appeal, the Alaska Supreme Court, and appellate courts in both Colorado and Michigan. Id.

Citing Gomez, the Fourth District Court of Appeal in Kearney held that the case before it “illustrates another thing the government cannot do, and that is comment on the defendant’s rights to remain silent and be free from unreasonable searches and seizures.” 846 So.2d at 620. After reaffirming that it had “repeatedly demonstrated a low tolerance for closing argument remarks that even remotely or abstractly comment on the defendant’s right to remain silent,” id., the Fourth District stated emphatically that “[c]losing argument remarks on a defendant’s right to be free from unreasonable searches and seizures are not regarded any more favorably. In fact, comments on the Fourth Amendment and Fifth Amendment are considered ‘constitutional error of the same magnitude.’ ” 846 So.2d at 620 (quoting Gomez, 572 So.2d at 952). We adopt the reasoning of our sister courts in Gomez and Kearney, and hold that the trial court abused its discretion in allowing the State’s use of testimony commenting on Bravo’s exercise of his Fourth Amendment right, as well as its subsequent emphasis on Bravo’s exercise of that right in closing argument.

Nevertheless, as recognized by the courts in both Gomez and Kearney, the impermissible testimony and closing remarks in this case are subject to the harmless error analysis as defined in State v. DiGuilio. See Kearney, 846 So.2d at 621; Gomez, 572 So.2d at 953. In neither Gomez nor Kearney could the courts say that the error was harmless. Nor can we say the error was harmless in the instant case. The harmless error test as described in DiGuilio provides that comments on a defendant’s right to remain silent or, now, on a defendant’s right to be free from unreasonable searches, “are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict.” DiGuilio, 491 So.2d at 1136. Thus, “the effect of the remarks on the jury must be considered.” Kearney, 846 So.2d at 621 (citing Goodwin v. State, 751 So.2d 537, 542 (Fla.1999)). In Goodwin, the supreme court emphasized that in applying the harmless error analysis, “the reviewing court must resist the temptation to make its own determination of whether a guilty verdict could be sustained by excluding the impermissible evidence and examining only the permissible evidence.” 751 So.2d at 542. Thus, according to Goodwin, “ ‘overwhelming evidence of guilt’ ’ does not negate harmful error, “ ‘for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.’ ” Id. (quoting State v. Lee, 531 So.2d 133, 137 (Fla.1988)).

In the present case, Bravo never contended that he did not own a gun or point the gun at Nicholas Hrycaj. Instead, he argued that he had acted out of fear and in self-defense when, after having been amongst a large group of strangers who watched as he was attacked and beaten, he ran to the car to escape. In doing so, he turned and saw that he was being pursued by two or three men. When he reached the car and discovered that it was locked, and then he saw Hrycaj standing next to him, Bravo testified that he panicked and pulled the gun from his pocket and warned Hrycaj to “get back.” In this context, Officer Hurst’s testimony that Bravo would not consent to a search of his home without a warrant nearly a year after the incident was irrelevant, except to imply that Bravo was guilty of “something.”

The State highlighted Appellant’s refusal to consent to a search by using this testimony to urge the jurors to question the credibility of Bravo’s theory of self-defense. As was true in Kearney, here the jury was presented with “an indictment” of Bravo’s credibility. 846 So.2d at 622. Yet Bravo was entitled to exercise his Fourth Amendment right and, to repeat the Fifth District’s admonition in Gomez, “[n]o comment on its exercise should be permitted to raise an inference of guilt.” 572 So.2d at 953.

Because it cannot be said beyond a reasonable doubt that the impermissible testimony and prosecutorial comments did not influence the jury, we hold the error in this case is not harmless. Accordingly, Bravo’s conviction for aggravated assault with possession of a firearm is reversed and the case remanded for a new trial.

REVERSED and REMANDED for a new trial.

WETHERELL and MARSTILLER, JJ., concur.


author: PER CURIAM. BENTON, C.J.,

text:
    T. Stevens FELGER, M.D. and North Florida Surgeons, P. A., Petitioners, v. Susan MOCK, an individual, Respondent.
    No. 1D10-3355.
    District Court of Appeal of Florida, First District.
    July 26, 2011.

      Kelly B. Mathis, Jill F. Bechtold, and Laurie M. Lee of Mathis & Murphy, P.A., Jacksonville, for Petitioners.
    Helen W. Spohrer of Spohrer & Dodd, P.L., Jacksonville and John S. Mills of the Mills Firm, P.A., Tallahassee, for Respondent.
   PER CURIAM.

T. Stevens Felger, M.D. and North Florida Surgeons, P.A. (Surgeons), defendants in a medical malpractice action brought by Susan Mock, petition for a writ of certiorari. Surgeons asks us to quash a trial court order that vacated an arbitration award, and remanded for another round of arbitration. We grant the writ, quash the trial court’s order, and remand for further proceedings.

When Ms. Mock sought medical treatment in July 2006, she signed a document entitled “North Florida Surgeons Financial Agreement” (Agreement). It provided that any negligence claim relating to her diagnosis, treatment, or care would be resolved by binding arbitration pursuant to the Florida Arbitration Code, Chapter 682, Florida Statutes. Later, Ms. Mock filed a complaint in circuit court alleging medical negligence. Surgeons responded with a motion to compel arbitration pursuant to the Agreement, which the trial court granted.

A three-member arbitration panel heard the merits of the claim and found in favor of Surgeons and against Ms. Mock. The arbitration award recited that “[a]ccording to the evidence presented, none of the witnesses could say with certainty how the injury occurred.” Ms. Mock asked the trial court to vacate the arbitration award and order a rehearing before another arbitration panel. Surgeons requested confirmation of the arbitration award.

The trial court granted Ms. Mock’s motion to vacate the arbitration award and ordered that the dispute be submitted to another arbitration panel for a second arbitration. See § 682.13(l)(c), Fla. Stat. (2009) (“Upon application of a party, the court shall vacate an award when ... [t]he arbitrators ... exceeded their powers.”); § 682.13(3), Fla. Stat. (2009) (“In vacating the award ..., the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration.”). The trial court ruled that the arbitration panel had “gone beyond the scope of its powers under the arbitration agreement” by modifying the burden of proof so that “it would be almost impossible to recover any damages.”

Surgeons has clearly shown that the order is a departure from the essential requirements of law. Section 682.13(1), Florida Statutes (2009), sets forth the only grounds upon which an arbitration award in a statutory arbitration proceeding may be vacated: (a) the award was procured by corruption, fraud or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; (c) the arbitrators exceeded their powers; (d) the arbitrators refused to postpone the hearing when sufficient cause was shown, refused to hear evidence material to the controversy, or conducted the hearing contrary to the provisions of section 682.06 (regarding notice and entitlement to present evidence); or (e) there was no agreement or provision for arbitration. In the absence of one of these five factors, neither the trial court nor this court has the authority to overturn the arbitration award. See § 682.13(1), Fla. Stat. (2009) (“But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”). See also Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989).

Ms. Mock relies on ground (c), arguing the arbitration panel exceeded its powers under the arbitration agreement by applying an incorrect burden of proof. Application of an incorrect standard, however, has consistently been rejected as a basis for vacating an award under section 682.13(l)(c). See City of Tallahassee v. Big Bend Police Benevolent Ass’n, 710 So.2d 214, 215 (Fla. 1st DCA 1998) (“Assuming, without deciding, that the application of the preponderance of evidence standard was required, the arbitrator’s use of the stricter standard is not a basis for vacating the arbitrator’s decision under section 682.13(1), Florida Statutes (1995).”). See also Schnurmacher, 542 So.2d at 1329 (rejecting argument that arbitrator exceeds his power under section 682.13(l)(c) if the arbitrator “departs from the accepted rule of law” and holding that, absent a showing that the arbitrator went beyond the authority granted by the parties or the operative documents and decided an issue not pertinent to the resolution of the issue submitted to arbitration, an “award cannot be vacated under section 682.13(l)(c)”); Commercial Interiors Corp. of Boca Raton v. Pinkerton & Laws, Inc., 19 So.3d 1062, 1064 (Fla. 5th DCA 2009) (“[I]t appears that the trial court simply disagreed with the arbitrator’s application of the law to the facts of this case. That, however, is not a sufficient basis to set aside this arbitration proceeding.”); Computer Task Grp., Inc. v. Palm Beach Cnty., 782 So.2d 942, 943 (Fla. 4th DCA 2001) (“[T]he arbitrator had the authority to award damages under the contract. Even if he made an error of law in awarding some of the damages, a point we do not decide, we do not review his errors of law, if any.”); Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1020 (Fla. 4th DCA 1999) (“An arbitration award may not be set aside for mere errors of judgment either as to the law or as to the facts. If the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment.” (citations omitted)).

There is no indication in this case, and the trial court did not find, that the arbitration panel went beyond the authority granted by the parties or the Agreement or decided issues that were not pertinent to the resolution of the issues submitted. “The fact that the relief granted is such that it could not or would not be granted by a court of law or equity is not a ground for vacating or modifying the award.” Prudential-Bache Sec., Inc. v. Shuman, 483 So.2d 888, 889 (Fla. 3d DCA 1986). Because the arbitration award in favor of North Florida Surgeons was within the arbitrators’ authority, the award operates as a final and conclusive judgment. See Charbonneau, 727 So.2d at 1020; Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994, 996 (Fla. 3d DCA 1998). The trial court therefore departed from the essential requirements of law when it vacated the arbitration award. See Fuller v. Truncale, 50 So.3d 25, 27 (Fla. 1st DCA 2010), review denied, 59 So.3d 110 (Fla.2011) (“To demonstrate a departure from the essential requirements of the law, the petitioner must show ‘the trial court made an error so serious that it amounts to a miscarriage of justice.’ ” (quoting State v. Smith, 951 So.2d 954, 958 (Fla. 1st DCA 2007))).

The dissent questions whether the trial court order is reviewable at this time. But circuit court involvement at this juncture of arbitration proceedings is not authorized, except under limited circumstances not applicable here. The effect of an order vacating an arbitration award and ordering a rehearing before another arbitration panel is the same as that of an order granting a motion for new trial, and review is warranted for the same reasons which underlie review by appeal of an order granting a motion for new trial. Moreover, the situation is capable of repetition while avoiding review — if a trial court again disagrees with the arbitrators’ award, it can again order a new arbitration proceeding before a new panel of arbitrators even if no statutory ground for vacating the award exists.

The petition for writ of certiorari is granted, and the order under review is quashed.

DAVIS and THOMAS, JJ., concur.

BENTON, C.J., Dissents With Opinion.

BENTON, C.J.,

dissenting.

An argument could be made that an order which vacates an arbitration award and remands for a rehearing before a new arbitration panel is an order that determines the entitlement of a party to arbitration. See Fla. R. App. P. 9.130(a)(3)(C)(iv) (authorizing review by appeal of non-final orders that determine “the entitlement of a party to arbitration”). But we have rejected this view, albeit laconically. See Nationwide Mut. Ins. Co. v. Safe Harbor Condo. Ass’n, Inc., 744 So.2d 563 (Fla. 1st DCA 1999) (citing Cent. Fla. Police Benevolent Ass’n, Inc. v. City of Orlando, 614 So.2d 1203, 1204 (Fla. 5th DCA 1993) (holding the “order of the trial court in this case vacating an arbitration award and ordering a rehearing before a new arbitrator is a non-final, nonappealable order”); and City of Fort Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So.2d 162, 162-63 (Fla. 4th DCA 1991) (holding “such an order is a non-appealable, interlocutory order, as only ‘[a]n order vacating an [arbitration] award without directing a rehearing’ is a final appealable order under Section 682.20(l)(e), Florida Statutes (1989)”)).

While the trial court unquestionably departed from the essential requirements of law, relief by certiorari also requires a showing of irreparable harm, based on error which cannot be remedied on appeal after entry of a final order. See AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). “The fact that a petitioner will incur litigation expenses is normally not enough to meet the irreparable harm test. We have repeatedly declined to grant certiorari review to orders that petitioners claim will cause irreparable harm due to payment of unnecessary litigation and defense expenses.” Id. For these reasons, I am unable to join the majority opinion.

        See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1329 (Fla. 1989) (noting that to "allow judicial review of the merits of an arbitration award for any reasons other than those” specifically enumerated in the Arbitration Code undermines the "integrity of the arbitration process as a means of alternative dispute resolution.”).


text:
    Edward M. MITCHELL, Appellant, v. BWARE, L.L.C., A Limited Liability Company, Edwin N. West, Jr. and Peter Boulware, Appellees.
    No. 1D10-5366.
    District Court of Appeal of Florida, First District.
    July 26, 2011.
    John S. Mills, Gregory J. Philo, and Andrew D. Manko of the Mills Firm, P.A., Tallahassee, for Appellant.
    Daniel E. Manausa of the Manausa Law Firm, P.A., Tallahassee, for Appellees.
   PER CURIAM.

This appeal is dismissed due to the lack of a justiciable issue.

HAWKES and ROBERTS, JJ., and WALKER, MARK E., Associate Judge, concur.


text:
    T.A., Mother of T.Y.T., C.A.T., et al., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-1786.
    District Court of Appeal of Florida, First District.
    July 26, 2011.
    T.A., pro se, Appellant.
    Ward L. Metzger, Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

DISMISSED. Interest of E.H., 609 So.2d 1289 (Fla.1992); In re B.H., 893 So.2d 639 (Fla. 2d DCA 2005); Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000). This dismissal is without prejudice to the appellant’s right to seek a belated appeal in the trial court.

LEWIS and WETHERELL, JJ., concur.

DAVIS, J., concurs in result only.


author: GROSS, J.

text:
    Willis Melvin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-66.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse appellant’s conviction because no record was created of an in camera hearing on a defendant’s motion to disclose a confidential informant, contrary to Florida Rule of Criminal Procedure 3.220(m).

The state charged Willis Brown with the sale or delivery of cocaine and the possession of cocaine. Brown’s arrest was facilitated by a confidential informant. According to the arrest affidavit, the Cl was present when an undercover officer purchased crack cocaine from Brown. Before trial, Brown moved for the disclosure of the confidential informant, alleging that he did not sell drugs to an undercover officer, so that the Cl’s testimony as to whether the sale occurred was material to the defense.

The trial court held an in camera hearing on Brown’s motion to disclose. Present were the prosecutor, the Cl, and the judge. After the in camera hearing, the trial court denied the motion, ruling that “[t]here was nothing about the Cl’s testimony that would be exculpatory or tend to favor the Defendant’s position on misiden-tification or give credence to any other defense the Defendant would have.” After a jury trial, Brown was convicted of both the sale and possession charges.

After he filed his notice of appeal, Brown sought to supplement the record with a transcript of the in camera hearing. However, the digital court recording manager for the circuit court could not locate an audio recording of any in camera hearing in this case.

This case is controlled by Florida Rule of Criminal Procedure 3.220(m), which sets forth requirements for in camera, ex parte hearings. Subsection (3) of the rule provides:

A record shall be made of proceedings authorized under this subdivision. If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding shall be sealed and preserved and be made available to the appellate court in the event of an appeal.

(Emphasis added.) Although that rule does not define what constitutes a “record,” Florida Rule of Appellate Procedure 9.200(a)(1) provides that “the record shall consist of the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal.”

This court read rules 9.200(a)(1) and 3.220(m)(3) together in Garcia v. State, 578 So.2d 325 (Fla. 4th DCA 1991). In Garda, a defendant charged with drug offenses moved before trial to disclose a confidential informant. Id. at 326. The trial court ordered an in camera hearing with the Cl, after which the court denied the defendant’s motion. Id.

In the first appeal from his convictions, we “remanded the case for the trial court to prepare an affidavit setting forth who was present, the findings that were made, and the trial court’s conclusions, at the in-camera hearing.” Id. In the affidavit the trial court filed, it stated “that only the trial judge, prosecutor and informant were present ... and list[ed] some of its recollections of the hearing.” Id.

With the case back in this court, we determined that the reconstruction was insufficient for appellate review because the defense, clerk, and court reporter were excluded from the hearing. Id. We read rules 3.220(m) and 9.200(a)(1) together as requiring the transcription of in camera hearings. See id. We concluded “that the trial court erred in not having a court reporter present to transcribe the record of the in-camera hearing, as required by rule 3.220(m),” because “[wjithout a transcription of the hearing, it is impossible to discern exactly what occurred.” Id.

Garcia also explained why a statement of the evidence or proceedings under Florida Rule of Appellate Procedure 9.200(b)(4) was unworkable. Rule 9.200(a)(3) places the burden of making an adequate appellate record on the appellant and subsection (b)(4) provides for the reconstruction of a record when there is no actual record. We held that “a stipulated statement or reconstruction pursuant to Rules 9.200(a)(3) and (b)(4) ... is not plausible under the circumstances of the case.” Id. “Those rules,” we wrote, “contemplate participation by both parties, which cannot be achieved here because the defense was excluded from the in-camera hearing.” Id.

Garcia concluded that the trial court’s affidavit was insufficient for purposes of the rules and appellate review, because it was a “unilateral recollection.” Id. It therefore reversed, citing Lucero v. State, 564 So.2d 158 (Fla. 3d DCA 1990), where the third district reversed and remanded a case for a new trial where an in camera hearing was not transcribed.

Trying to avoid the application of Garcia, the state points out that, unlike the situation in Garcia, there has been no attempt to reconstruct the record. However, in Garcia we relinquished jurisdiction because there was no indication of who attended the in camera hearing. Once it was determined that the defense was excluded from the hearing, we held that a Rule 9.200(b)(4) reconstruction was not possible because the rules of appellate procedure “contemplate participation by both parties.” Here, the defense did not attend or participate in the in camera hearing, so it would be fruitless to relinquish the case for reconstruction of the record.

Further, this case is distinguishable from cases where courts have required a defendant to show that the absence of a transcript resulted in prejudicial error. For example, in Jones v. State, the missing transcripts were of a voir dire. See 923 So.2d 486, 487-88 (Fla.2006). After an evidentiary hearing on the reconstruction of the record, the trial court determined that the record could not be reconstructed, because no one could testify with precision as to what happened, or as to any specific objections made by defense counsel. Id. at 488-90. The defendant’s claims of prejudice were based largely on his own testimony of possible Neil-Slappy objections made by defense counsel. Id. at 487. Ultimately, the Supreme Court held that the defendant’s “pure conjecture and his memory of possible [Neil-Slappy] objections made by his trial counsel, which is unsupported by any of the other evidence presented in the hearing,” was insufficient for the defendant to make the claim that the absence of a transcript of the voir dire somehow prejudiced him. Id. at 489-90. Accordingly, the defendant could not demonstrate that he was being deprived of meaningful appellate review.

The absence of a voir dire transcript differs from the missing record in this case because in Jones the defendant and his lawyer were present during the voir dire, so the defense had the ability to specify how the absence of a transcript harmed the appeal. Here, the defense was excluded from the in camera hearing, so it had no way of knowing what occurred. None of the other absence-of-transcript cases cited by the state involve in camera hearings from which the defense was excluded. See Armstrong v. State, 862 So.2d 705, 720-21 (Fla.2003) (voir dire and juror strike conferences); Darling v. State, 808 So.2d 145, 168 (Fla.2002) (“certain pretrial hearings”); Ferguson v. Singletary, 682 So.2d 53, 58 (Fla.1993) (“voir dire, most of the charge conference, and the end of a discussion of whether Ferguson would testify”).

Reversed and remanded for a new trial.

STEVENSON and TAYLOR, JJ„ concur.

      . State v. Neil, 457 So.2d 481 (Fla. 1984); State v. Slappy, 522 So.2d 18 (Fla.1988).


author: TAYLOR, J.

text:
    Onelson J. FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5123.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant Onelson J. Francois was tried by a jury and found guilty of burglary of a structure while armed -with a shotgun and attempted robbery with a firearm that he actually possessed and discharged. He raises two issues on appeal: (1) the trial court erred in denying his motion for judgment of acquittal because a witness’s testimony concerning the defendant’s admission was too vague, and (2) the trial court erred in summarily denying the jury’s request for a transcript of testimony without advising the jury that it could have the testimony read back. We reverse only as to the issue concerning testimony read back.

Neam Duffy, the manager of a check cashing store on Sunrise Boulevard in Bro-ward County, Florida, testified that on July 12, 2007, he had closed the store at 9 p.m. and was balancing the vault and counting cash in the “cage” behind an armored, locked door and bulletproof glass when he heard a loud noise. He saw a man jump through the front window and shoot at the door. Duffy heard breaking glass, two gun shots, and banging on the door. He hit the panic button and called 911. He saw a black male, about 5'9" and 190 pounds, holding a shotgun, but because it was dark he could not see his face. A surveillance video of the incident was introduced into evidence at trial.

Cornel Dorsey, who lived on the street next to the check cashing store, was outside with his family. He saw an unfamiliar truck parked in his yard and heard shots fired. Because it was July, he thought they were fireworks. About five minutes later, he saw a black male jump over his fence and hop in the truck. The truck was a white Chevrolet. Dorsey wrote down the tag number and observed that the plate was from either Ohio or Idaho. The tag number was traced to a truck that had formerly belonged to Nathan McKinney. McKinney had recently sold the truck to his co-worker, Michael Zoyes. The truck was used at their place of employment, where the defendant also worked.

McKinney testified that on July 12, 2007, he worked for McKinney Signs and drove a 1993 white Chevrolet pickup truck with Ohio tags. He sold the truck to Mike Zoyes, the sales manager of McKinney Signs. The truck was used for the business and anyone at work who needed to use it would drive it. McKinney identified State’s Exhibit 2, a picture of the truck Dorsey had described.

McKinney testified that the defendant rode with him a lot but he did not know whether the defendant would take the truck home. Zoyes, however, confirmed that both he and the defendant sometimes took the truck home at night. McKinney testified that some time after July 12, 2007, he and the defendant were riding together when the defendant told him about an incident with a shotgun. The defendant said that he had tried to break into a check cashing store on Sunrise Boulevard. McKinney testified as follows:

McKINNEY: On that date exactly we were just riding along nonchalantly. He talked about an incident at hand with a shotgun. He did not go into details. He was upset. My first question was, did you use my truck? He said no. I said okay.
STATE: What did he tell you? He mentioned a shotgun?
McKINNEY: He said getting in a front door with a 12 gauge. I said I don’t remember the details on that. It is over two years now.
STATE: Anything that would refresh your recollection?
McKINNEY: Refresh? Other than the statement at the time that my memory was fresh.
STATE: July 24, 2007, page 305. I want you to read that top portion. When you are done look up at me.
McKINNEY: Oh, yeah. He apparently used a spark plug to try to break the window and shot up with a 12 gauge. He was upset when he couldn’t get in and took off.
STATE: Did he tell you what kind of business?
McKINNEY: Not at that time. I think I asked him later. I think he said a check cashing store. I was curious what kind of door he couldn’t get in.
STATE: What did he tell you he did with the shotgun?
McKINNEY: He said he threw it into the bushes when he took off. I’m going by my statement at the time.

When asked if the defendant told him where the check cashing store was located, McKinney said he thought it was the one on Sunrise Boulevard. On cross-examination, McKinney explained that his conversation with the defendant was short. He said, “On the initial conversation, I think I pretty much dropped it once he said he did not use my truck. Once he said my truck was not involved, I had nothing to do with it.”

The defendant was interviewed by the police. He admitted that he drove the truck on the night of the burglary but denied committing the crimes. He said he spent the night at his girlfriend’s house. Police who responded to the scene found a shotgun — a JC Higgins Mile 20, 12 gauge Sears Roebuck shotgun — and a bookbag between the two fences. The gun was loaded. At the check cashing store, police found a shattered window, broken glass, fired shots, a gun cartridge, a spent shell casing, and a live round. The officers did not remember finding a spark plug at the scene. No DNA evidence or fingerprints linked the defendant to the crime scene. The defendant was arrested on the charges over a year later.

After the state rested, the defendant moved for a judgment of acquittal. The motion was denied. The defendant took the stand and denied being involved in the check cashing store burglary and attempted robbery. He said that he never made any admissions to Nathan McKinney.

During deliberations, the jury requested to see McKinney’s testimony:

COURT: Can we see the testimonial transcripts of Nathan McKinney? The answer is no. You cannot see the transcripts of Nathan McKinney.
Do you agree, State.
STATE: Cannot see them, but read it back.
COURT: Do you agree, Mr. Vargas?
DEFENSE: I agree.
COURT: The answer is no. Bring them in.
(Thereupon, Jury entered at 3:50 p.m.)
COURT: Let the record reflect that the jury is within the courtroom. Be seated.
Members of the Jury, you have asked the following: Can we see the testimony and transcripts of Nathan McKinney?
I am not able to grant your request. Please continue with your deliberations.

In his first point on appeal, the defendant argues that his alleged confession to Nathan McKinney was too vague to support his conviction. He points out that this was the only evidence in the case that connected him to the crimes.

“The trial court determines the admissibility of a confession with regard to whether it was given voluntarily. However, it normally is up to the trier of fact to determine the credibility of the confession, as well as the credit to be given to the witnesses who testify regarding the confession.” Williams v. State, 774 So.2d 931, 933 (Fla. 5th DCA 2001) (citing 24 Fla. Jur. 2d § 483).

In Williams, the defendant confessed to being involved in a robbery in Sumter County on June 8th. Id. Although he did not mention the specific location of the robbery, he identified three other people who participated in the robbery. Id. He also accurately described the manner in which the charged robbery took place. Id. An officer testified that no robberies were reported in Sumter County on June 8th, other than the Best Western robbery by three persons involved in Williams. Id.

The Fifth District Court of Appeal affirmed the denial of Williams’ motion for judgment of acquittal. It held that there was sufficient evidence, in addition to Williams’ confession, to support his conviction of robbery, even though his confession did not contain a location of the robbery. Id. at 934. The court concluded that “there was no view of the evidence in which the jury could have reasonably concluded [the defendant] was involved in a robbery different from the one in [that] case.” Id.

Similarly, here, the defendant’s confession to McKinney was sufficiently specific to the burglary of the check cashing store on Sunrise Boulevard that occurred on July 12, 2007. Although McKinney did not specify the date of the burglary, except to say that his conversation with the defendant occurred after July 12, 2007, the confession was corroborated by other evidence presented at trial, such as the manner in which the burglary was committed. The trial court thus did not err in denying the motion for judgment of acquittal.

The defendant next argues that the trial court erred in denying the jury’s request for a transcript of testimony without advising the jury it could have the testimony read back. For support, he cites our recent decision in Barrow v. State, 27 So.3d 211 (Fla. 4th DCA 2010). There, the jury requested to see all the transcripts of the witnesses; the judge indicated his response would be “there are no transcripts.” Id. at 215. When the state suggested that the judge inform the jury that they could request a read back of the testimony, the judge responded, “No, I don’t do read backs.” Id. Defense counsel also asked the court to inform the jury that they had the right to ask for a read back. Id. at 216. However, the judge denied this request as well and sent a note to the jury stating: “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id.

In Barrow, we reversed for a new trial after determining that “the trial judge abused his discretion by responding to the jury’s question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses’ testimony, ignoring the request of both the state and defense.” Id. at 213. We examined Florida Rule of Criminal Procedure 3.410, which concerns a jury’s request to have testimony read to them, and noted that “several Florida cases[] have found an abuse of judicial discretion when a trial court responds to a jury question about trial testimony or transcripts without letting the jurors know that they may ask for testimony to be read back to them.” Id. at 216-17. We followed these cases in Barrow, believing them to be “more in harmony with Florida’s view of a jury’s role in a criminal trial.” Id. at 218. We stated:

Florida law encourages a jury to make a considered, careful evaluation of detailed evidence. As the Supreme Court has written, the “jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.” Part of a trial judge’s role is to forthrightly make the jury aware of those tools available under the rules of criminal procedure that will assist the jury in arriving at its decision. The judge’s role is to facilitate careful deliberation. Deference should be accorded to a jury’s request to more closely examine the trial testimony.

Id. (internal citations omitted).

As in Barrow, the jury in this case requested to “see” the transcripts. The state agreed that the trial court should inform the jury it could not see them, but that the court should “read it back.” Defense counsel agreed with this, but the court simply told the jury, “I’m not able to grant your request. Please continue -with your deliberations.” Unlike the trial court in Barrow, the trial court here did not announce any policy of not doing read backs. Nonetheless, based on Barrow, the court’s failure to inform the jury that a “readback” of trial testimony could be available upon request was error. Further, as in Barrow, we do not find this error to be harmless. See Barrow, 27 So.3d at 219. The jury requested to see Nathan McKinney’s testimony. McKinney’s testimony concerning the defendant’s alleged confession was the crux of the state’s evidence against the defendant. Thus, it cannot be said beyond a reasonable doubt that the error was harmless.

Reversed and Remanded.

STEVENSON and GERBER, JJ., concur.

      . We disagree with the state’s position that this issue was not preserved. Defense counsel made this argument, among others, during his motion for judgment of acquittal, stating, "There was testimony of Mr. McKinney in reference to a conversation he had with [Defendant], But it was a vague statement about a robbery at a check cashing store that did not lead to identification based upon [Defendant].”

      . Florida Rule of Criminal Procedure 3.410 (2009) provides as follows:
      After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

      . Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992); Volk v. State, 754 So.2d 82 (Fla. 4th DCA 2000); Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001); Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993). We noted that the third district has reached a different result and certified conflict with Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009). The Florida Supreme Court accepted jurisdiction on May 28, 2010. See State v. Barrow, 49 So.3d 747 (Fla.2010).


author: WARNER, J.

text:
    Karen BALL, Michael Ball, Doug Coffey, Stacy Coffey, Danny Rosenblum, and Elyse Rosenblum, Appellants, v. D’LITES ENTERPRISES, INC., a Florida Profit Corporation, and Gerald S. Corsover, an individual, Appellees.
    No. 4D09-4859.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    John B. Agnetti of Hoffman, Larin & Agnetti, P.A., Miami, for appellant.

      David L. Ferguson of The Kopelowitz Ostrow Firm, Fort Lauderdale, and Jason T. Corsover of Law Office of Jason Cors-over, P.A., Plantation, for appellee.
   WARNER, J.

The appellants, who are licensees pursuant to a franchise agreement, appeal the dismissal of their claims for defamation. They alleged that the licensor made defamatory statements regarding them on the licensor’s website. The court found that the statements were made in connection with a pending lawsuit and protected by the litigation privilege. We hold that statements made on a party’s website are not protected by the litigation privilege. We reverse.

The plaintiffs (the Balls, the Coffeys and the Rosenblums) executed license agreements with the defendants, D’Lites Enterprises and Gerald Corsover, to sell frozen dietary ice cream products. According to the plaintiffs, they were induced to enter into these agreements by representations about the nutritional content, and low caloric values of the ice cream, and were told these “light” products could be sold to diabetics. D’Lites supplied the product for the ice cream, but the plaintiffs found that it was virtually impossible for them to meet the nutritional requirements promised to them using D’Lites goods. They requested that the defendants modify the formula but the defendants declined to do so. Without a product as promised, the plaintiffs sued the defendants for various causes of action over their agreement, including claims for breach of contract and fraud in the inducement.

After the plaintiffs filed suit against the defendants, the defendants placed warnings to the public on their website stating that plaintiffs had violated certain trademarks. A memorandum on the defendants’ website stated that the plaintiffs were selling products and labeling them as D’Lites when they actually were not. The defendants’ website stated that “you need to know the product they are passing off as D’Lites Emporium ice cream is in fact a hoax.” The plaintiffs filed a motion for injunctive relief seeking to compel the removal of the comments on the website. The trial court denied the injunctive relief.

The plaintiffs then filed an amended complaint alleging defamation by the defendants. The defendants moved to dismiss, claiming that the statements were protected by the litigation privilege which provides absolute immunity regarding any act in the course of a judicial proceeding, regardless of whether the act involved a defamatory statement or other tortious behavior, so long as the act had some relation to the proceeding, citing Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 689 So.2d 606 (Fla.1994). The court found that the statements on the website were directly related to the litigation and thus were absolutely immune. The court dismissed the defamation cause of action, prompting this appeal.

A ruling on a motion to dismiss for failure to state a cause of action is an issue of law, reviewed de novo. See Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005). Whether allegedly defamatory statements are covered under absolute privilege is a question of law to be decided by the court. See Resha v. Tucker, 670 So.2d 56, 59 (Fla. 1996); Cassell v. India, 964 So.2d 190, 193 (Fla. 4th DCA 2007).

Immunity for statements made during a judicial proceeding has a long legal history, as noted in Levin. There, the court reviewed the origins of the doctrine.

Traditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry. Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992). Consequently, the torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable. Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well. Fridovich; Cox v. Klein, 546 So.2d 120 (Fla. 1st DCA 1989); Wright.
This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. Fridovich. In determining that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Id.; Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977). Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided. Wright.

Levin, 639 So.2d at 607-08. The issue presented in this case is whether the statements by a party on its commercial website constituted a statement made in connection with judicial proceedings. We hold that it does not.

Recently, we confronted the scope of the Levin ruling in DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010), rev. granted 47 So.3d 1287 (Fla.2010). There, a defense attorney interviewing a witness made allegedly defamatory statements regarding the plaintiff. The interview was outside of a court proceeding. The majority held that the attorney was entitled to absolute immunity because he was acting as defense counsel in the underlying litigation when interviewing a witness in the dispute. While the majority and dissent split on the scope of the immunity, even the majority limited immunity to statements made in connection with the judicial process itself, such as interviewing witnesses, obtaining discovery, settlement negotiations, and the like.

We analogize the publication of statements on the internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media. Other courts have considered the issue of whether statements to a newspaper or other media are made in connection with a judicial proceeding. In Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Supreme Court held that a prosecutor was not entitled to absolute judicial immunity for making defamatory statements at a press conference regarding a criminal prosecution, because comments to the press do not have any functional tie to a judicial proceeding. A footnote further explained the limits of absolute immunity:

“[Absolute immunity] does not apply to or include any publication of defamatory matter before the commencement, or after the termination of the judicial proceeding (unless such publication is an act incidental to the proper initiation thereof, or giving legal effect thereto); nor does it apply to or include any publication of defamatory matter to any person other than those to whom, or in any place other than that in which, such publication is required or authorized by law to be made for the proper conduct of the judicial proceedings.” Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463, 489 (1909) (footnotes omitted). See, e.g., Viosca v. Landfried, 140 La. 610, 615, 73 So. 698, 700 (1916); Youmans v. Smith, 153 N.Y. 214, 220-223, 47 N.E. 265, 267-268 (1897). See also G. Bower, Law of Actionable Defamation 103, n. h, 104-105 (1908).

Buckley, 509 U.S. at 277 n. 8, 113 S.Ct. 2606 (emphasis supplied). The prosecutor was entitled only to qualified immunity.

In Pratt v. Nelson, 164 P.3d 366 (Utah 2007), the Utah Supreme Court similarly held that statements to newspapers regarding pending litigation were not subject to protection under the judicial proceeding privilege. The court agreed with similar statements of both the Arizona Supreme Court in Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984) and the Eighth Circuit in Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir.1979). The court also cited Prosser & Keeton on Torts § 114, 816-20 (5th ed. 1984) for the propositions that “[a]bsolute immunity has been confined to very few situations where there is an obvious policy in favor of permitting complete freedom of expression” such as a judicial proceeding and that, although a judicial proceeding “has not been defined very exactly,” it “is clear ... that statements given to the newspapers concerning the case are no part of a judicial proceeding, and are not absolutely privileged.” 164 P.3d at 379 n. 83. Pratt explained “that the press generally lack a connection to judicial proceedings sufficient to warrant an extension of the judicial privilege to statements made by parties to the press.” Id. at 380. It found that such statements did not further the purpose of judicial proceedings:

Statements made and distributed to the press concerning pending or ongoing litigation do little, if anything, to promote the truth finding process in a judicial proceeding. Further, statements made to the press do not generally encourage open and honest discussion between the parties and their counsel in order to resolve disputes; indeed, such statements often do just the opposite.

Id. at 381. See also Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (Pa.2004) (attorney’s transmittal of complaint to freelance reporter was an extrajudicial act that occurred outside of the regular course of the judicial proceedings and thus judicial privilege did not apply to provide attorney with absolute immunity in defamation action); Kennedy v. Zimmermann, 601 N.W.2d 61 (Iowa 1999) (counsel’s statements to reporter in course of interview were not protected by absolute privilege for statements made by attorneys in connection with judicial proceedings); contra Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24 (Tex.App.2004) (attorney who calls press conference prior to filing suit was protected by absolute immunity).

Our court has ruled contrary to the majority rule in one limited context. In Stewart v. Sun Sentinel Co., 695 So.2d 360 (Fla. 4th DCA 1997), we held that an attorney’s delivery of a copy of a notice of claim to a reporter, which notice was a required filing prior to instituting suit, was protected by absolute immunity. We cited to Ange v. State, 98 Fla. 538, 541, 123 So. 916, 917 (1929), for the proposition that the privilege extends to statements in judicial proceedings or those “necessarily preliminary thereto.” In Ange, however, the privileged statement was one made to the county judge in order to obtain a judicial warrant from the judge. Therefore, the statement was “necessarily preliminary” to the issuance of the warrant. The statement itself was part of the judicial process. In contrast, publication to a newspaper is not “necessary” to a judicial proceeding.

Also, in Ross v. Blank, 958 So.2d 437 (Fla. 4th DCA 2007), we held that a psychologist involved in a divorce proceeding was permitted absolute immunity for allegedly defamatory statements she made regarding the husband to the court appointed psychologist involved in the custody dispute and to the guardian ad litem. While these statements were not made during judicial proceedings, both recipients of the statements were participants in the judicial proceedings.

Nevertheless, at most Stewart finds the publication of the complaint or those documents which would be public records when filed in court would be covered by the judicial absolute immunity, because these documents are part of the judicial proceeding. And Ross extends the privilege to participants in the proceeding when the subject of the statements is relevant to the participant’s role in the proceeding.

In contrast, the website publication in this case was not made in connection with the judicial proceeding. It was not made in the proceedings itself, nor was it made to a participant connected to the proceeding such as a witness. Like statements to the newspapers or press conferences, these statements have no part in the judicial proceedings. Instead, they were made to the world at large through the website and accused the plaintiffs of fraud and perpetrating a hoax on the public. These statements were not “necessarily preliminary” to judicial proceedings, because unlike either Ange or Stewart the statements were not steps in the judicial process.

The judicial proceeding immunity should not be extended to such publications, because it does nothing to enhance policy behind the privilege which is to provide free and full disclosure of facts in a judicial proceeding. It is not communication directed to participants which must remain unhindered by fear of civil lawsuits. Instead, it most likely does just the opposite, and information relevant to lawsuits may be less likely to be shared for fear that it will be posted on the internet.

The website statements are not protect ed by absolute immunity given to statements made in judicial proceedings. Therefore, we reverse the partial final judgment and order the reinstatement of the plaintiffs’ defamation claim.

Appellants also raise the dismissal of another count in their complaint. However, other pending counts relate to the dismissed count. An order dismissing some counts of a complaint, but leaving others pending, is not appealable if the remaining counts require proof of the same facts necessary to establish the counts which were dismissed. See Pelle-grino By and Through Pellegrino v. Horwitz, 642 So.2d 124 (Fla. 4th DCA 1994). We therefore do not address the remaining issue raised by the appellants.

TAYLOR and DAMOORGIAN, JJ„ concur.

      . While most of these claims remain pending, we conclude that the defamation claim is separate and distinct, not arising from the same core facts involving the other claims. Therefore, we have jurisdiction to consider this claim pursuant to Florida Rule of Appellate Procedure 9.110(k).


author: MORRIS, Judge.

text:
    Robert Daniel CUBERO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2950.
    District Court of Appeal of Florida, Second District.
    July 27, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Robert Daniel Cubero appeals the revocation of his probation for possession of heroin, a third-degree felony, and possession of drug paraphernalia, a first-degree misdemeanor, and the resulting judgments and sentences. On appeal, Cubero contends that the trial court lacked jurisdiction to revoke his probation on the misdemeanor count because his twelve-month probation term on that count had expired in March 2010, two months before the relevant affidavit of violation was filed in May 2010. We agree.

On March 18, 2009, Cubero was placed on three years’ probation for the heroin count and on twelve months’ probation for the paraphernalia count. During the next twelve-month period, two affidavits of violation were filed and the trial court twice modified — but never extended — Cubero’s probation. The second modification order was entered on March 25, 2010, thus ending the tolling period invoked by the filing of the second affidavit of violation. See § 948.06(l)(d), Fla. Stat. (2009). This second modification order also ended Cube-ro’s twelve-month misdemeanor probation term. But in May 2010, a third affidavit of violation was filed, and the trial court revoked Cubero’s probation on both counts in June 2010. Cubero was sentenced to three years in prison on the felony count and to time-served on the misdemeanor count.

Because the twelve-month probation term on the misdemeanor count had expired before the third affidavit of violation was filed in May 2010, the trial court lacked jurisdiction to revoke Cubero’s probation on the misdemeanor count. See Gonzalez-Ramos v. State, 46 So.3d 67, 69 (Fla. 5th DCA 2010). Even though the trial court could have extended Cubero’s misdemeanor probation each of the two times it modified his probation, the trial court did not do so. And the tolling periods that occurred between the filing of each of the first two affidavits and the trial court’s rulings on each of those affidavits did not automatically operate to extend Cubero’s misdemeanor probation term past the originally imposed twelve-month term. See id. (rejecting State’s argument that “each and every violation period (the time between the issuance of the warrant and adjudication of the violation allegations) prior to the expiration date of the probation term should be applied to the end of the originally imposed term to automatically extend the term by the total of the violation periods when each violation resulted in a continuation of the original term of probation”).

Accordingly, we remand for the trial court to strike the portion of the revocation order revoking the probation on the misdemeanor count and to strike the misdemeanor count and sentence of time-served from the judgment and sentence. We affirm the revocation order and judgment and sentence as they relate to the felony count.

Affirmed in part; remanded in part.

DAVIS and VILLANTI, JJ„ Concur.

      . In modifying Cubero’s probation either time, the trial court could have extended his misdemeanor probation by the period of time his probation had been tolled, even though it would have exceeded the maximum sentence of twelve months for a first-degree misdemeanor. See § 948.06(2)(f), Fla. Stat. (2009).


author: KELLY, Judge.

text:
    M.R., Appellant, v. K.W., Appellee.
    No. 2D10-3493.
    District Court of Appeal of Florida, Second District.
    July 27, 2011.
    J. Andrew Crawford, St. Petersburg, for Appellant.
    K.W., pro se.
   KELLY, Judge.

K.W. filed a petition for protection against sexual violence under section 784.046, Florida Statutes (2009), alleging that M.R. had sexually battered and threatened her in New York over forty years ago. M.R. appeals from the permanent injunction entered against him. To enter a final judgment of injunction for sexual violence, the court must find that an act of sexual violence occurred. Ostrow v. Imler ex rel. D.I., 27 So.3d 237, 239 (Fla. 4th DCA 2010). The record here indicates that the trial court believed it was unnecessary for her to make a finding regarding whether the alleged act occurred; consequently, the court did not make the required finding. Accordingly, we reverse the final judgment of injunction.

Reversed.

CRENSHAW and MORRIS, JJ., Concur.


text:
    LEGACY PLACE APARTMENT HOMES, LLC., Appellant, v. PGA GATEWAY, LTD., a Florida limited partnership, Appellee.
    Nos. 4D10-990, 4D10-3053.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, for appellant.
    Julissa Rodriguez, Elliot H. Scherker and Elaine D. Walter of Greenberg Trau-rig, P.A., Miami, and Jason H. Okleshen and Gary M. Dunkel of Greenberg Trau-rig, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the final judgment in favor of appellee on its breach of contract claim. First, we find that the record does not support appellee’s claims of substantial compliance. Because time was “of the essence” in the post-closing agreement, ap-pellee’s failure to complete construction of RCA Boulevard by the deadline in the contract constituted a material breach. Sublime, Inc. v. Boardman’s Inc., 849 So.2d 470, 471 (Fla. 4th DCA 2003). The doctrine of substantial performance is generally unavailable where a party has materially breached the terms of the agreement. Nat’l Constructors, Inc. v. Ellenberg, 681 So.2d 791, 793 (Fla. 3d DCA 1996). A time is of the essence provision may nevertheless be waived. Horovitz v. Levine, 755 So.2d 687 (Fla. 4th DCA 1999). Because the trial court did not consider appellee’s waiver arguments, we remand for the trial court to make specific findings of fact and conclusions of law regarding whether appellant waived its right to demand compliance with the time provision. The trial court may rely on the record established at trial or may take additional evidence at its discretion.

We also reverse the trial court’s finding that appellant was not entitled to the Seacoast connection fee credit. We review de novo the trial court’s interpretation of the post-closing agreement. See Detroit Diesel Corp. v. Atl. Mut. Ins. Co., 18 So.3d 618, 620 (Fla. 4th DCA 2009). The agreement is unambiguous, and the plain language of the agreement states that the parties “shall share all impact fee credits for the Shared Cost Work.” See Lazzaro v. Miller & Solomon Gen. Contractors, Inc., 48 So.3d 974, 975 (Fla. 4th DCA 2010) (holding that unambiguous contract language “must be afforded its plain meaning”). A connection fee is generally considered to be a type of impact fee charged by utility companies for initiating new service. See, e.g., Save Our Septic Sys. Comm., Inc. v. Sarasota Cnty., 957 So.2d 671 (Fla. 2d DCA 2007); City of Zephyrhills v. Wood, 831 So.2d 223, 224 (Fla. 2d DCA 2002). Thus, we conclude that the connection fee credit received from the utility company was an “impact fee credit,” and appellant was entitled to a share of that credit. On remand, any judgment in favor of appellee must be reduced by $141,797.15, the amount of the credit to which appellant was entitled under the post-closing agreement.

Reversed and remanded.

WARNER, POLEN and LEVINE, JJ„ concur.


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    August URBANEK, Petitioner, v. Philip HOPKINS, individually and as Trustee, Gerald Urbanek and Commercial Management Corp., Respondents.
    No. 4D11-1574.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    David Howard Goldberg of David Howard Goldberg, P.L., Miami, and Michael J. Weber of Michael J. Weber, P.A., Miami, for petitioner.
    Gary L. Rudolf of Rudolf & Hoffman, P.A., Fort Lauderdale, for respondent Philip Hopkins; Jesse H. Diner of Atkinson Diner, Fort Lauderdale, for respondents Gerald Urbanek and Commercial Management Corp.
   PER CURIAM.

August Urbanek seeks review of an order appointing a special master to oversee disputed discovery. We grant the petition. Pursuant to Florida Rule of Civil Procedure 1.490(c) the trial court may not refer a matter to a magistrate, either general or special, without the consent of all of the parties. Washington Park Props., LLC v. Estrada, 996 So.2d 892 (Fla. 4th DCA 2008); Gielchinsky v. Vibo Corp., 5 So.3d 785 (Fla. 3d DCA 2009). We grant the petition and direct the trial court to vacate its order of referral to the special master.

Petition granted, order quashed.

POLEN, STEVENSON and HAZOURI, JJ., concur.


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    William RUDGE, IV, Appellant, v. The CITY OF STUART, Appellee.
    No. 4D10-3936.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      E. Christopher DeSantis, Stuart, for appellant.
    Robert L. Kilbride of Fox, Wackeen, Dungey Et AL, Stuart, for appellee.
   PER CURIAM.

William Rudge, IV appeals the trial court’s non-final Order Modifying and Restating Temporary Injunction dated August 24, 2010. The order arose from the City of Stuart’s attempts to gain entry and access to appellant’s property to abate a public nuisance and clean up the property after appellant failed to comply with the Code Enforcement Magistrate’s Order and subsequently refused to allow the City access to this property. We affirm.

On December 11, 2009, the circuit court entered an order granting the City an ex parte temporary injunction, which allowed the City to enter upon appellant’s property to abate a nuisance which existed due to code enforcement violations and prohibited appellant from preventing entry upon the property. Subsequently, the City returned to court for modification of the original temporary injunction due to additional and continuing problems with appellant’s compliance with the original Code Enforcement Magistrate’s Order Finding Violation dated April 9, 2009. In entering the original ex parte temporary injunction and subsequently modifying it, the trial court made the requisite findings: (1) that the City would likely succeed on the merits, and (2) that the public’s interest in the health, safety, and welfare of the community would be protected and served by entering injunctive relief.

Based on the facts presented in the Verified Motion for Injunctive Relief, the evidence submitted at evidentiary hearings held in conjunction with the City’s subsequent Motions to Modify the Temporary Injunction, and the findings made by the court to support the original temporary injunction and subsequent orders modifying the temporary injunction, and given developments that occurred during the pendency of this action, we find no abuse of discretion in the trial court’s entry of the Order Modifying Temporary Injunction dated August 25, 2010.

We reject appellant’s position that because the magistrate assessed a $100 per day fine for violations until he complied with the city ordinances, the City was not irreparably harmed. The City was not foreclosed from obtaining injunctive relief simply because monetary civil infraction fines for code enforcement violations were also available to the City. See Baylen St. Wharf Co. v. City of Pensacola, 39 So.2d 66, 68 (Fla.1949) (“The rule is well settled ... that where equity assumes jurisdiction to grant an injunction, to restrain waste or for other reasons, as an incident to such relief, it may award damages and may make other decrees essential to do complete justice between the parties.”). Here, the trial court made a specific finding that the City would be irreparably harmed if the injunction was not entered in both the original ex parte order granting temporary injunction and each subsequent order modifying the temporary order. Specifically, the court stated in its orders that “the CITY has no other legal remedy and it will be irreparably harmed if a temporary injunction is not entered allowing it immediate access to the Property to carry out and enforce its lawful police power to abate a public nuisance and clean up the Property owned by Rudge.”

The City had a clear legal right to enforce its nuisance abatement ordinance as well as to seek compliance with the Magistrate’s Order Finding Order Violation. See Keystone Creations, Inc. v. City of Delray Beach, 890 So.2d 1119, 1124 (Fla. 4th DCA 2004). Further, although the trial court made a finding of irreparable harm, such was unnecessary because “where the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed.” Id. (citing Metro. Dade Cnty. v. O’Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995)).

Affirmed.

STEVENSON, TAYLOR and GERBER, JJ., concur.

      . We note that appellant did not appeal the original Order Granting an Ex Parte Temporary Injunction dated December 11, 2009, or the Order Modifying Temporary Injunction dated March 5, 2010.


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    STATE of Louisiana v. Darryl GRIFFIN.
    No. 2011-KK-1227.
    Supreme Court of Louisiana.
    June 29, 2011.
   PER CURIAM.

11 Writ granted. In open court, a prosecutor stipulated that the gun charge and the attempted murder charge could not be tried together. Acting on that stipulation, the trial court ruled that the charges were severed. Although this case was transferred to a different division of the trial court and a different prosecutor was then assigned, the newly assigned prosecutor and the trial court were bound by the court’s prior ruling. See State v. Smith, 39,698, p. 13 (La.App. 2 Cir. 6/29/05), 907 So.2d 192, 199 (“A stipulation has the effect of binding all parties and the court. A trial court is bound to render judgment in accordance with the stipulations between the parties where the stipulations are not in derogation of the law. Such agreements are the law of the case.”), citing R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983). Therefore, based on the unique facts of this case, we find that the trial court erred when later ruling that the gun charge and the attempted murder charge could be tried together.

KNOLL, J., would deny.

CLARK, J., would deny.

      . Kimball, C.J., not participating in the decision.


text:
    In re Shalond Nichelle ESSIX.
    No. 2011-B-1277.
    Supreme Court of Louisiana.
    June 29, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, failed to refund an unearned fee, and failed to properly terminate the representation of two clients. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Shalond Nichelle Essix, Louisiana Bar Roll number 25665, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Edwin M. SHORTY, Jr.
    No. 2011-B-1278.
    Supreme Court of Louisiana.
    June 29, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|TThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent allowed a legal matter to prescribe and then improperly settled his malpractice liability without first advising the client in writing to seek independent counsel. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Edwin M. Shorty, Jr., Louisiana Bar Roll number 28421, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to the terms and conditions set forth in the Petition for Consent Discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.