author: ALTENBERND, Judge.

text:
    Eric BAZEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2254.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 17, 2012.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Eric Bazemore appeals his judgments and sentences arising from his involvement in a murder and an attempted murder. We reverse his judgment for attempted second-degree murder and remand that offense for a new trial. We affirm his judgments for accessory after the fact to first-degree murder and accessory after the fact to shooting into a vehicle. Because the reversal might affect Mr. Baze-more’s sentences on the two judgments that we affirm, we reverse all of the sentences.

In September 2009, Mr. Bazemore drove his employer, William Privett, to the home of Eric Brewer. Shirley Sexton, Mr. Pri-vett’s former girlfriend, was a friend of Mr. Brewer’s wife and was living temporarily at the Brewers’ home. Mr. Baze-more pulled into the driveway behind a car occupied by Mr. Brewer and Ms. Sexton. Mr. Privett got out of the car, pulled out a handgun, and fired multiple shots at the two victims. Mr. Brewer died, and Ms. Sexton survived. After the shooting, Mr. Bazemore drove Mr. Privett from the scene.

Mr. Privett contacted a lawyer shortly after this shooting and arranged to turn himself in to law enforcement. The investigation then led to Mr. Bazemore. He too had contacted a lawyer who initially told him to “lay low.” Thereafter, he was interviewed by a detective. After several interviews, Mr. Bazemore finally provided a location that allowed law enforcement to find the discarded murder weapon in a ditch alongside a road.

This case was presented to a grand jury, and the grand jury returned an indictment against both men. It charged Mr. Baze-more in count I as a principal in the first-degree murder of Mr. Brewer and in count IV as an accessory after the fact to that same murder. It further charged him in count II as a principal in the attempted first-degree murder of Ms. Sexton and in count V as an accessory after the fact to that same attempted first-degree murder. Finally, in count VI, it charged him as an accessory after the fact to shooting into a vehicle.

The alternative offenses described in the indictment are based in part on Mr. Baze-more’s theory of defense. The primary issue at trial was whether Mr. Bazemore had enough knowledge and involvement in these events to be a principal to the offenses of murder and attempted murder. The defense theory was that Mr. Baze-more had no idea that Mr. Privett planned to shoot his victims and that Mr. Bazemore fled the scene with Mr. Privett because he was afraid of Mr. Privett.

The State established a prima facie case of all five counts against Mr. Bazemore. Before the case was submitted to the jury, Mr. Bazemore asked for an instruction explaining to the jury that the theory of principal to a murder or attempted murder was mutually exclusive of the theory of accessory after the fact to these offenses. The trial court refused to give this instruction.

The jury found Mr. Bazemore not guilty in count I for the first-degree murder of Mr. Brewer, but found him guilty in count IV as an accessory after the fact to this first-degree murder. It also found him guilty in count VI as an accessory after the fact to the shooting into the vehicle. We affirm the judgments based on the two guilty verdicts.

In count II, the jury found Mr. Baze-more guilty of the lesser-included offense of attempted second-degree murder of Ms. Sexton. It also found him guilty in count V as an accessory after the fact to the same attempted second-degree murder. Thereafter, the trial court decided to sentence Mr. Bazemore only on the greater offense in count II. It declined to enter judgment or sentence on the related accessory charge in count V, describing that offense as “dismissed.”

Mr. Bazemore has raised six issues and we will address three of them. First, the trial judge gave an instruction on attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State, — So.3d —, 2011 WL 3518029 (Fla. 2d DCA 2011), appeal dismissed, State v. Houston, 73 So.3d 760 (Fla.2011). Because the jury convicted Mr. Bazemore of attempted second-degree murder, this erroneous instruction on the next lesser offense requires that the conviction on this count be reversed and this count be remanded to the trial court for a new trial. We certify that our holding here, as in Houston, conflicts with the Fourth District’s holding in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), cert. granted, 64 So.3d 1262 (Fla.2011).

Even if the attempted manslaughter instruction were not erroneous, we would still be required to reverse this conviction and remand for a new trial as to the attempted murder of Ms. Sexton. It is well established that a defendant cannot be convicted both as a principal to an offense and as an accessory after the fact for the same offense. Staten v. State, 519 So.2d 622, 623 (Fla.1988); Bowen v. State, 791 So.2d 44, 50 (Fla. 2d DCA 2001). Even though there is no standard instruction for this circumstance, Mr. Bazemore was entitled to an instruction explaining that the jury could convict him of only one of these offenses.

There may be occasions when the trial court could select the greater offense for sentencing and omit sentencing on the lesser offense as occurred here. But in this case, the jury found Mr. Bazemore not guilty as a principal in the murder of Mr. Brewer. Notably, the verdict form did not identify the victims by name when describing each count. In examining this verdict, we cannot declare beyond a reasonable doubt that the jury’s inconsistent verdict is harmless and that the jury would have selected the greater offense over the lesser offense if forced to choose. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Finally, during the trial, the court allowed the prosecutor to admit portions of Mr. Bazemore’s statement to the detective when he was interviewed. Over objection, the court allowed the State to include portions of the interview in which Mr. Baze-more explained that he had contacted an attorney and had been advised to “lay low.” The trial court was apparently persuaded by the State’s argument that these statements were evidence of consciousness of guilt.

The Fourth District has held that the state cannot argue that a defendant’s request for a lawyer prior to arrest is evidence of consciousness of guilt. Dendy v. State, 896 So.2d 800, 804 (Fla. 4th DCA 2005). Given all of the reasons to avoid the presentation of attorney-client discussions to the jury and in light of the questionable probative value of this “evidence,” the State primarily argues that this error was harmless beyond a reasonable doubt. As to the judgments that we affirm, we agree with that assessment. As to the judgment that we are reversing, we need not reach this issue. However, if we were not reversing the attempted second-degree murder judgment on other grounds, it would be a very close question as to whether this error required reversal. Suffice it to say that this evidence should not be reintroduced at any subsequent trial in this case.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and VTLLANTI, JJ., Concur.

      . Count III dealt exclusively with Mr. Privett.

      . See also Brown v. State, 74 So.3d 539 (Fla. 2d DCA 2011); Brooks v. State, 75 So.3d 756 (Fla. 2d DCA 2011); Mueller v. State, - So.3d -, 2011 WL 4104912 (Fla. 2d DCA 2011); but see Banek v. State, 75 So.3d 762 (Fla. 2d DCA 2011).

      . We have considered whether the errors requiring the reversal of the conviction for the attempted second-degree murder of Ms. Sexton could be cured by convicting Mr. Baze-more on the jury verdict for accessory after the fact to this offense. Given that this count was "dismissed,” we are unconvinced that we could require this remedy. We leave this issue for the parties to consider on remand.


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Mercedes R. SAEWITZ, et al., Appellants/Cross-Appellees, v. Lynn SAEWITZ, etc., Appellee/Cross-Appellant.
    Nos. 3D10-1570, 3D10-1872.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.

      Broad and Cassel and Beverly A. Pohl and Tara R. Epstein, Fort Lauderdale, and Gary E. Lehman, for appellants/cross-appellees.
    Hall, Lamb and Hall, and Andrew C. Hall, Matthew P. Leto, and G. Raemy Charest, Miami, for appellee/cross-appel-lant.

      Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal by Mercedes R. Saew-itz and Brooke A. Saewitz, daughters of Max Saewitz, deceased, from a directed verdict and final judgment of dismissal at the close of the daughters’ case-in-chief in a lawsuit filed by them against their stepmother, Lynn Saewitz, for conversion and tortious interference with an expected inheritance. The trial judge dismissed the case for failure of the daughters to meet and satisfy the damage element of their prima facie case. We affirm the decision of the trial court.

The daughters’ initial brief on this appeal persuasively chronicles the record evidence presented to the jury of manipulative activity taken by their stepmother during their father’s dying days and preceding months to contravene their father’s wishes with respect to the disposition of his estate. It is apodictic, however, that a plaintiffs initial proof of a prima facie case of both conversion and tortious interference in her case-in-chief requires more than proof of liability. Prima facie proof of damages is required as well. See Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323, 1333 (M.D.Fla.2008), rev’d on other grounds, 586 F.3d 849 (11th Cir.2009) (“Damages are an element of a conversion claim, and without damages there can be no cause of action.”); Whalen v. Prosser, 719 So.2d 2, 5 (Fla. 2d DCA 1998) (“The elements of this evolving tort [intentional interference with an expectancy of inheritance] include ... damages.”).

The substance of the evidence the daughters presented to the jury on the element of damages is found in the testimony of three witnesses: Jack Rosenberg, the decedent’s accountant; Ron Goldstein, a friend of the decedent; and Lynn Saew-itz. Rosenberg provided general testimony that the value of the assets involved in the litigation was “over a million dollars” or “in the millions [of dollars].” Goldstein similarly testified the value of the allegedly misappropriated assets at “seven figures.” Although denying any wrongdoing, Lynn Saewitz similarly indicated the value of the assets in question was in the “millions of dollars.” However, none of the testimony was tied to a legally relevant time period. See R & B Holding Co. v. Christopher Adver. Group, Inc., 994 So.2d 329, 331 (Fla. 3d DCA 2008) (holding the measure of damages for conversion is the fair market value of the interests at the time of the conversion); Restatement (Second) of Torts § 774B (1979) (“[R]eeovery [can be] only for an inheritance or gift that the other would have received but for the tor-tious interference of the actor.”). This omission alone deprives this testimony of any probative value.

Additionally, this testimony is insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by the daughters. “Under the reasonable certainty rule, ... recovery is denied where the fact of damages and the extent of damages cannot be established with a reasonable degree of certainty.” Nebula Glass Int’l, Inc. v. Reichhold, Inc., 454 F.3d 1203, 1212 (11th Cir.2006) (quoting Miller v. Allstate Ins. Co., 573 So.2d 24, 27-28 (Fla. 3d DCA 1990)). The amount of damages claimed need not be proven with exactitude, but it must not be based upon speculation or guesswork. See Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989); see also R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60, 69-70 (Fla. 3d DCA 1985) (“The standard for the degree of certainty requires that the mind of a prudent impartial person be satisfied with the damages.”). The proof adduced must be sufficiently definite for a reviewing court to perform its review obligation. See W.R. Grace & Co.-Conn. v. Pyke, 661 So.2d 1301, 1302 (Fla. 3d DCA 1995) (“[T]he proof [of damages] must stand appellate scrutiny as to its sufficiency.”). In the case before us, the proof adduced by the daughters in their case-in-chief fails to meet this fundamental requirement. See Smith, 538 So.2d at 129 (finding testimony that $15,000 would be a “fair assessment” or “good gauge” of expense of restoration of leased premises recoverable against lessee insufficient to satisfy “reasonable certainty” test for damage award against lessee); see also Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667, 673 (Fla. 3d DCA 2011) (finding the plaintiffs assumptions and extrapolation for over ninety percent of its claimed damages pushed its proof of damages into the realm of conjecture and speculation).

The daughters argued below, and renew their argument before us, that they were prevented from proving their damages in this case by the failure of counsel for the stepmother to engage in discovery in good faith. The daughters specifically point to the fact, revealed during the testimony of Jack Rosenberg, that defense counsel failed to inquire of him or his accounting firm for documents relating to the value of the decedent’s assets in response to a request for production that indisputably included them. As trustee of the Max P. Saewitz Revocable Trust, Lynn Saewitz had the legal obligation to make such an inquiry. See Fla. R. Civ. P. 1.350 (“[A]ny party may request any other party (1) to produce ... any documents ... that are in the possession, custody, or control of the party to whom the request is directed.”) (emphasis added); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984) (defining control under Rule 34(a) of the Federal Rules as “not only ... possession, but ... the legal right to obtain the documents requested upon demand.”). The testimony of Jack Rosenberg indicated his firm had responsive documentation. During the course of the argument on the motion for directed verdict, counsel for the daughters placed substantial reliance on this lapse by defense counsel to ask the trial court to either re-open the case to allow more evidence on the element of damages, or, alternatively, grant a new trial as a sanction against Lynn Saewitz and her counsel for abuse of discovery. The trial court denied relief.

The trial court did not abuse its discretion in so doing. In the first place, counsel for the daughters acquiesced in the production made by defense counsel by not first pursuing any legal remedies permitted by the rules, including a motion to compel the records. A sanction remedy for failure to allow discovery is legally unavailable to a party until the opposing party is first subject to and violates an order to provide such discovery. See Chmura v. Sam Rodgers Props., Inc., 2 So.3d 984, 987 (Fla. 2d DCA 2008) (“Where a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate.”) (quoting Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004)). Counsel for the daughters counter they did not know defense counsel failed to perform its duty or that such documents existed and were in the control of Lynn Saewitz; thus, they did not move to compel. But neither is there any evidence in the record that counsel for the daughters made any effort to confirm compliance. Notably, counsel for the daughters neither subpoenaed the records of the decedent’s accounting firm before trial, nor sought to take the deposition of the accounting firm or any of its employees. In short, whatever lapse — legal or ethical — may be laid at the feet of defense counsel, it is true as well that counsel for the daughters was never affirmatively misled by the defense. Cf. Austin v. Liquid Distribs., Inc., 928 So.2d 521, 522 (Fla. 3d DCA 2006) (upholding dismissal of personal injury case in finding the plaintiff committed fraud on the court by deliberately misleading and deceiving the defendants).

Finally, the precise identification of each asset at issue was known to counsel for the daughters well before trial. If a prima facie case of the value of these assets could have been proven through the records or testimony of the decedent’s accountants, it follows the assets also could have been valued by experts retained by the daughters. Unless knowingly waived or excused by the daughters themselves, counsel’s obligation to the daughters in this case included an independent obligation to be prepared to present a prima facie case on the value of the daughters’ damage claim at trial. The actions of defense counsel, even if a violation of a legal or ethical obligation existed, were not the “but for” cause of the daughters’ failure to present a prima facie case to the jury.

Affirmed.

      . We also affirm without discussion the trial court’s denial of Lynn Saewitz’s Motion for Entitlement to Attorneys’ Fees and Costs Pursuant to Proposal for Settlement. See Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 650 (Fla.2010) (reaffirming longstanding precedent that "an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties’ decisions.”).

      . The request for production broadly sought: “All documents, files, e-mails, receipts statements, correspondence, memoranda, notes, reports or other written and/or electronically transmitted material that refer relate or pertain to: (1) each and every asset ... that ... Max P. Saewitz, whether individually or jointly, owned at the time of his death; ... (3) the value of the assets owned by ... Max P. Saewitz, whether individually or jointly at the time of his death; ... (11) that certain general partnership known as B-Mar Associates, a Florida general partnership; ... [and] (12) any company and/or limited liability company in which ... Max P. Saewitz held an interest, either individually or jointly from January 2005 to present.”

      . When construing Florida Rules of Civil Procedure, Florida courts may look to federal case law construing similar or identical Federal Rules of Civil Procedure, such as this case where Florida Rule of Civil Procedure 1.350(a) is similar to Federal Rule of Civil Procedure 34(a). See Ferrigno v. Yoder, 495 So.2d 886, 887-88 (Fla. 2d DCA 1986).

      . The daughters also sought leave to amend their complaint to conform to the evidence and to add a purely equitable claim for undue influence and constructive trust. The trial court properly denied both motions. See Palm v. Taylor, 929 So.2d 566, 568 (Fla. 2d DCA 2006) ("Amending a complaint during trial to assert a new cause of action generally should not be permitted over objection ... [and] the policy in favor of allowing liberal amendments of pleadings ... diminishes as the case progresses to trial.”).


author: PALMER, J.

text:
    Sharon Booth MIDDLETON, Appellant/Cross-Appellee, v. James W. MIDDLETON, Appellee/Cross-Appellant.
    No. 5D10-236.
    District Court of Appeal of Florida, Fifth District.
    Jan. 6, 2012.
    Rehearing and Rehearing En Banc Denied Feb. 20, 2012.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Alan C. Jensen, Jacksonville Beach, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross-Appel-lant.
   PALMER, J.

In this dissolution of marriage proceeding, Sharon Middleton (wife) appeals the trial court’s final dissolution order, and James Middleton (husband) cross-appeals. We find merit in one issue raised in the husband’s cross-appeal and, accordingly, affirm in part and reverse in part.

The husband maintains that the trial court applied the wrong standard in deciding whether to impute income to the wife. We agree.

In Durand v. Durand, 16 So.3d 982, 985 (Fla. 4th DCA 2009), the Fourth District explained that the “spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available.” In determining the amount of income to impute, “the court must consider the spouse’s recent work history, his or her occupational qualifications, and the prevailing earnings in the community for that class of available jobs.” Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004).

Here, the evidence of record demonstrated that the wife is 50 years old, the parties’ two children are grown, the wife worked as a nurse at the beginning of the parties’ marriage but left the field to raise the children, her nursing license is still current, and she has a master’s degree in “research and writing curriculum.” Both parties’ vocational experts agreed that the perfect job for the wife would be as a health educator, earning a full-time salary of about $40,000.00 per year or a part-time salary of $18.00 per hour. However, the wife’s expert, John Roberts, testified that it would be difficult for the wife to find work as a health educator making full-time wages or $18.00 per hour. He did state that he could find her “a lot of jobs” making $9.00 per hour. The husband’s expert, Claire Hibbard, identified current open job positions with several companies and opined that the wife would be employable within the labor market in a variety of entry-level nursing positions, earning a salary ranging from $37,440.00 to $45,000.00, annually. Hibbard stated that, when speaking to prospective employers, she outlined the wife’s last date of work, her education, her work history, and her physical restrictions.

On the issue of imputation of income, the trial court wrote in the final dissolution judgment:

The Wife, in her early 50’s, can be employed as a utilization case review manager and can earn $37,440 per year to start. She has no disability rating; she does not want to go back to work.
She does not intend to work and it’s not clear to the Court if a utilization review case review manager position is even available for her to take at this time. Clearly, she does not want to work again outside the home despite her advanced degrees. For this reason, the Court cannot input [sic] this income, at this time.

In the supplemental dissolution judgment, the court further wrote:

In regard to imputation of income, it is uncertain if the employer’s [sic] listed by Claire Hibbard would even hire the Wife at her age. If Hibbard could place the Wife in a job, the Court would impute. The Court was only presented general job listings, not any evidence these employers would hire the Wife. The Final Judgment presumes she must work again but cannot impute a specific amount since she has not “turned down” any specific employment.

The trial court erred, as a matter of law, in concluding that it could not impute income to the wife because the husband’s expert could not “place the wife in a job” and there was no evidence that the wife had “turned down” specific employment. Instead, the trial court should have considered the wife’s work history, her occupational qualifications, and the prevailing earnings in the community for that class of available jobs. Accordingly, this matter is remanded for reconsideration of the issue of imputing income to the wife based on the evidence presented during trial, and, if necessary, a recalculation of the permanent alimony award. See Zarycki-Weig v. Weig, 25 So.3d 573 (Fla. 4th DCA 2009) (holding that trial court’s imputation of income to wife was adequately supported by evidence that wife had earned the same amount before voluntarily quitting, and that, despite medical complaints, husband had observed wife partaking of physically demanding activities around yard and house, and wife admitted to working outside home at various times during marriage); Riley v. Riley, 14 So.3d 1284 (Fla. 2d DCA 2009) (holding that trial court was required to impute at least a part-time income of minimum wage to wife; although wife had stayed home to raise parties’ children during most of marriage, children were grown, wife had worked part-time during marriage, and wife testified that she could do part-time work).

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, J, and BLACKWELL, A.L., Associate Judge, concur.


author: PER CURIAM.

text:
    Yovanny D. HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4113.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    Rehearing Denied Feb. 16, 2012.
    Yovanny D. Hernandez, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    Daniel MALDONADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4393.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    Rehearing Denied Feb. 17, 2012.
    Daniel Maldonado, Carrabelle, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Dennis William PERRY, Appellant, v. ECOLAB INC. and BROADSPIRE, Appellees.
    No. 1D11-3591.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.
    Rehearing Denied Feb. 21, 2012.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Jeffrey E. Appel of the Appel Law Group, Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying his claims for penalties and interest on the late payment of compensation benefits. We agree the JCC erred, and reverse the order denying the claimed benefits.

Here, the JCC conflated the determination of when benefits payable pursuant to an award are due with the determination of when an order is final. Even though, pursuant to section 440.25(5)(a), Florida Statutes (2002), an order is not final until thirty days after it has been mailed to the parties, unless a timely appeal is filed, section 440.20(7), Florida Statutes (2002), controls the payment of penalties and requires that a 20% penalty be paid if the compensation is not paid within seven days after it becomes due. This court has long held that benefits are due on the date the order is entered. See Rutherford v. Seven-Up Bottling Co., 83 So.2d 269, 270 (Fla.1955) (“Section 440.25(4), supra, specifying when the award becomes final has to do only with the matter of review of the order and does not determine when the award becomes due. And we perceive no reason why the award does not become due upon the date it is entered.”).

In this case, the order was mailed to the parties, and the award therein became due, on November 5, 2010. Thus, the Carrier’s payment of penalties and interest on November 24, 2010, and of past due permanent total disability benefits on November 26, 2010, was untimely, and penalties and interest are due Claimant because of that untimely payment. Because the JCC erred in denying the claims for penalties and interest, he likewise erred in denying the claims for costs and attorney’s fees.

Accordingly, this matter is REVERSED and REMANDED for entry of an order awarding the claimed benefits.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    J.T.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3725.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, J.T.R., a minor born in 1994, appeals a final disposition order wherein the trial court withheld adjudication and imposed probation for the offense of video voyeurism as proscribed in section 810.145(2)(a), Florida Statutes. Appellant contends that the trial court erred in denying his motion for judgment of dismissal filed pursuant to Florida Rule of Juvenile Procedure 8.110(k) because the State failed to establish that he secretly recorded the victim. See § 810.145(2)(a), Fla. Stat. (2010) (providing in part that a person is guilty of video voyeurism if he or she “[f]or his or her own amusement ... or for the purpose of degrading or abusing another person, intentionally uses or installs an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy”).

We reject Appellant’s argument. The victim, Appellant’s classmate, who was sitting on a toilet in a bathroom stall at school, testified that Appellant had been standing at the stall door for five seconds before he looked up and saw Appellant’s hand holding a cell phone over the stall door. Appellant admitted to videotaping the victim, and two other students testified to seeing the video. The testimony of one of those students indicated that the victim looked up at the camera after the recording began. Viewing the evidence and all reasonable inferences in the light most favorable to the State, as we must, we AFFIRM.

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


author: MAY, C.J.

text:
    DCI MRI, INC., Appellant, v. GEICO INDEMNITY COMPANY and Geico Casualty Company, Appellees.
    Nos. 4D10-1458, 4D10-1459.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied March 12, 2012.

      Harley N. Kane of Kane & Kane, P.A., Boca Raton, and John Beranek of Ausley & McMullen, Tallahassee, for appellant.
    Frank A. Zacherl, Douglas G. Brehm and Maria N. Vernace of Shutts & Bowen, LLP, Miami, for appellees.
    Jose Pagan of Allen, Kopet & Associates, PLLC, Tallahassee, for Amicus Curiae American Independent Insurance Co. Maria Elena Abate and Elana H. Gloetz-ner of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for Ami-cus Curiae Florida Property and Casualty Association. Betsy E. Gallagher and Michael C. Clarke of Kubicki Draper, P.A., Tampa, for Amicus Curiae Progressive Express Insurance Company, and Progressive American Insurance Company. Edward K. Cottrell and John P. Marino of Fowler White Boggs, P.A., Jacksonville, and Hala Sandridge of Fowler White Boggs, P.A., Tampa, for Amicus Curiae Nationwide Mutual Fire Insurance Company, Nationwide General Insurance Company, Nationwide Assurance Company, Allied Property & Casualty Insurance Company, Depositors Insurance Company, Victoria Select Insurance Company and Victoria Fire & Casualty Insurance Company.
   MAY, C.J.

In these consolidated appeals, a medical provider, the assignee of two independent insureds, appeals a final summary judgment concerning the application of the 2008 PIP statute to two policies that were in existence at the time of the statute’s enactment. The county court granted summary judgment for the insurer, finding that the 2008 PIP statute allowed the insurer to pay less than 80% of the fee charged. The court then certified the following question:

Whether the fee schedules included in the legislature’s January 1, 2008 reenactment/revision to the Florida no-fault law apply to policies which were in force on January 1, 2008, and which contained no-fault endorsements issued prior to the insured’s date of accident.

This court accepted discretionary review, pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A). We answer the question in the negative. We therefore reverse and remand the case to the county court.

The healthcare provider filed two separate lawsuits against the insurer for unpaid PIP benefits. In both cases, the insureds had assigned their PIP benefits to the healthcare provider. Each insured had an insurance policy in effect prior to the enactment of the 2008 PIP statute, section 627.736, Florida Statutes (2008). Each insured sustained injuries after the statute was enacted.

Each policy stated that the Insurance Company “will pay, in accordance with the Florida Motor Vehicle No-Fault Law, as amended ... 80% of medical expenses.” The insurer reimbursed the medical expenses in an amount equal to 200% of the Medicare fee schedule in accordance with the formula set forth in section 627.736(5)(a)2.f, Florida Statutes (2008).

Both parties moved for summary judgment. The insurer argued that the 2008 PIP statute enabled it to use the Medicare fee schedule to calculate the reimbursement owed to the healthcare provider. The provider argued that it was entitled to receive payment in accordance with the terms of the policy. The county court entered summary judgment for the insurer, concluding that, because the insurance policy incorporated the 2008 No-Fault Law, the insurer could reimburse the provider pursuant to the fee schedule in section 627.736(5)(a)2.f. The county court then certified the question to us.

The answer to the certified question is dictated by our recent opinion in Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011). In Kingsway, we held “when the insurance policy provides greater coverage than the amount required by statute, the terms of the policy will control.” Id. at 68. As in Kingsway, the policy here provided that it would pay 80% of reasonable medical expenses. The fact that the 2008 statute would allow the insurer to opt for another lesser amount does not permit the insurer to do so when the policy specifically provides for payment of 80% of reasonable expenses incurred. Simply indicating that the insurer would pay in accordance with the law “as amended,” is insufficient to place the insured on notice of its intent to pay less than 80% of reasonable expenses incurred as stated in the policy.

Further, as noted recently by the Third District Court of Appeal: “A policy indicating that an insurer may distribute reimbursements according to one method without clarifying alternative methods or identifying the factors to be considered in selecting among methods is ambiguous. Ambiguities in insurance contracts are resolved in favor of the insured.” Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55, 58 (Fla. 3d DCA 2011) (citing State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla.2011)).

For these reasons, we reverse and remand the case to the county court.

Reversed and Remanded.

HAZOURI and DAMOORGIAN, JJ., concur.

      . The providers also argued that applying the 2008 statute to a policy issued in 2007 constituted an unconstitutional retroactive application of the statute. Because that argument appears to have been abandoned at oral argument, we do not address the issue.


author: COHEN, J.

text:
    Swtone BARREAU, Appellant/Cross-Appellee, v. PEACHTREE CASUALTY INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 5D10-3637.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Rehearing Denied Feb. 16, 2012.
    Coretta Anthony-Smith of Anthony-Smith Law, P.A., Orlando, and Kimberly P. Simoes of The Simoes Law Group, P.A., DeLand, for Appellant/Cross-Appellee.
    William J. McFarlane, III, of McFarlane & Dolan, Coral Springs, for Appel-lee/Cross-Appellant.
   COHEN, J.

This is an appeal and cross-appeal of a final judgment awarding attorney’s fees in the amount of $1,430, in connection with a claim made under an automobile insurance policy. We affirm the issue raised on cross-appeal, but reverse on the issue raised in the direct appeal.

On December 22, 2008, Swtone Barreau was involved in an automobile accident in which he sustained bodily injuries and his car sustained property damage. Barreau was insured by Peachtree Casualty Insurance Company (“Peachtree”) under an automobile policy. Peachtree initially contended that Barreau was not insured with respect to the accident because he failed to pay the policy premiums. Barreau obtained counsel and filed a complaint against Peachtree that referenced only bodily injuries. Prior to being served with the lawsuit, Peachtree sent Barreau a notice informing him that the policy had been reinstated retroactive to the accident because it had determined the premiums had been paid. The following day, Peachtree was served with process. After reinstatement, Barreau filed an amended complaint in which he alleged for the first time that Peachtree refused to repair his vehicle. Barreau’s second amended complaint, filed without objection, added a claim against Peachtree for breach of contract due to its failure to repair his vehicle.

Peachtree failed to make payment under its policy until September 14, 2009, nearly nine months after the accident. On that date, Peachtree finally paid Barreau the sum of $2,057 for the damage to his vehicle. Thereafter, Barreau filed a motion to tax fees and costs pursuant to section 627.428(1), Florida Statutes (2009), which requires an award of fees to an insured upon the “rendition of a judgment or decree” against an insurer and in favor of a named insured. The motion argued that Peachtree’s payment of Barreau’s property damage claim was the equivalent of a “confession of judgment,” entitling him to attorney’s fees. In response, Peachtree argued that Barreau had not been “forced” to file suit to obtain coverage and therefore fees could not be awarded. See, e.g., Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1081 (Fla. 4th DCA 2009); State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007).

The only evidence before the court at the fee hearing was an affidavit submitted by Peachtree, in which its adjuster averred that although Barreau’s claim was initially denied for nonpayment of his premiums, his policy was reinstated on February 19, 2009, and coverage for the after-filed property damage/collision claim had never been denied or disputed. Peachtree did not attempt to explain why it had delayed payment to Barreau for more than six months after his filing of an amended complaint. In its final order, the trial court awarded Barreau fees incurred through March 11, 2009, which is the date on which his counsel apparently was informed that coverage had been reinstated, and the equivalent of one hour of attorney time for establishing entitlement to those fees. However, the trial court refused to award Barreau fees through the date on which payment was made for his property damage claim, ostensibly finding that Barreau had not been forced to file suit to obtain coverage for his property damage claim.

In this appeal, Barreau seeks statutory attorney’s fees through the date of the final judgment, as well as fees for establishing his right to fees. Peachtree seeks to obtain reversal of the fees previously awarded through March 11, 2009, claiming that the lawsuit had no effect on its decision to provide coverage for Barreau’s accident and property damage claim.

The undercurrent running through this claim is that this was a “staged” accident the insurance company had a right to investigate. While this is a significant problem throughout Florida and no one questions the insurance industry’s right to investigate fraudulent claims, Peach-tree’s intuition is insufficient to supply a basis for the delay in payment of Bar-reau’s property damage claim.

The record is devoid of any factual basis for the belief that Barreau and the occupants of his vehicle staged the accident. Peachtree’s suspicions are inadequate to justify the failure to perform under the terms of the policy and compensate Bar-reau for his loss within a reasonable time. A delay of nine months from the date of the accident until the tender of payment is not reasonable under the facts and circumstances presented. Peachtree’s belated recognition of coverage does not effectuate repair of the vehicle and is little solace to the policy holder who is without transportation. Barreau was forced to secure counsel to both respond to the initial denial of coverage and to subsequently litigate over the delay in payment. The trial court erred in not awarding attorney’s fees for the reasonable and necessary hours spent in pursuing those claims. His counsel may also recover reasonable fees incurred in establishing entitlement to fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832-33 (Fla.1993).

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

PALMER and MONACO, JJ., concur.

      . There was no evidence Peachtree communicated the results of their initial appraisal with Barreau or invoked the appraisal clause under the policy.


author: GROSS, J.

text:
    Nicholas ARSALI, Appellant, v. CHASE HOME FINANCE, LLC, Amy B. Wilson, and Christopher D. Manning, Appellees.
    No. 4D11-2348.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Rehearing Denied Feb. 27, 2012.

      Nicholas Arsali, Ocean Ridge, pro se.
    Marshall J. Osofsky of Law Office of Paul A. Krasker, P.A., West Palm Beach, for appellees, Amy B. Wilson and Christopher D. Manning.
   GROSS, J.

We sua sponte consider this case en banc to reconsider a line of our cases that appears to conflict with precedent from the Florida Supreme Court concerning the grounds that must be shown in order to have a foreclosure sale of real property set aside.

On September 8, 2010, the circuit court issued a final judgment of mortgage foreclosure in favor of Chase Home Finance, LLC, and against Amy Wilson, Christopher Manning, and other defendants. The judgment set a public sale of the property for May 9, 2011. The sale took place as scheduled. Iron National Trust, LLC, submitted the winning bid of $125,300.

A few days later, the defendants moved to vacate the foreclosure sale and certificate of sale. As grounds, the defendants alleged that, in mid-April 2011, Chase offered the defendants the opportunity to reinstate the loan, provided they paid a certain amount. The defendants agreed to the bank’s terms and, on May 3, sent a cashier’s check for the amount to Chase’s attorney, who received the check on May 4. Under the terms of the settlement, Chase should have cancelled the sale and arranged to have the lawsuit dismissed, but Chase’s attorney failed to do so. To their motion, the defendants attached documents substantiating their claims, including the offer-of-reinstatement letter, the cashier’s check, and confirmation of delivery of the check to Chase’s attorney. The inadequacy of the sale price was not asserted as a ground to set aside the sale.

Iron National Trust assigned its interest as purchaser of the property to appellant Nicholas Arsali, who moved to intervene in the lawsuit on May 19. On May 20, the defendants noticed their motion to vacate for a hearing on May 26. The court granted Arsali’s motion to intervene on May 24.

On May 26, the circuit court granted the defendants’ motion to vacate the foreclosure sale and certificate of sale, vacated the final judgment, and dismissed the case. There is no transcript of the hearing on the motion. Both Chase and the defendants agreed to the entry of this order. Arsali moved for rehearing, which the circuit court denied.

Arsali’s main contention is that the circuit court did not hold an evidentiary hearing, so that it could not have determined that the sale price was grossly inadequate; a grossly inadequate sale price is one of the two requirements for vacating a foreclosure sale set forth in Blue Star Investments, Inc. v. Johnson, 801 So.2d 218 (Fla. 4th DCA 2001).

There, relying on Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), we wrote, “[T]o vacate a foreclosure sale, the trial court must find ‘(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.’ ” Id. at 219 (quoting Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000) (in turn quoting Mody v. Cal. Fed. Bank, 747 So.2d 1016, 1017-18 (Fla. 3d DCA 1999))). The trial court in Blue Star had vacated a foreclosure sale because the parties “had agreed to extend the date for the foreclosure sale, but no one took any steps to effectuate the extension.” Id. We reversed because the bid price was around 70% of the property’s appraised value, so it failed to satisfy the first requirement of the two-part test. Id. at 219-20.

To the extent that it suggests that the two-part test applies to every attempt to set aside a foreclosure sale, the Blue Star declaration of black letter law is contrary to a statement of law made by the Florida Supreme Court. In Moran-Alleen Co. v. Brown, a case involving a suit to vacate and set aside a judicial sale of real estate, the Supreme Court wrote:

On the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.

98 Fla. 208, 123 So. 561, 561 (Fla.1929) (emphasis supplied) (citations omitted). The italicized language indicates that “surprise, accident, or mistake imposed on [a] complainant” and “irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, even where there is not a grossly inadequate sale price. The Supreme Court later cited the above-quoted portion of Brown with approval, characterizing it as being “eloquently stated.” Ohio Realty Inv. Corp. v. S. Bank of W. Palm Beach, 300 So.2d 679, 681 (Fla.1974). Because Ohio Realty was decided after Arlt, it cannot be said that the Supreme Court abandoned Brown’s statement of the law in Arlt. Also, the Supreme Court does not intentionally overrule itself sub silentio. See Puryear v. State, 810 So.2d 901, 905-06 (Fla.2002).

In Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002), the second district noted the apparent conflict between Brown, and Arlt regarding the different articulations of the requirements to set aside a foreclosure sale. It resolved the situation by concluding that Brown should be applied when grounds other than an inadequate bid price are the basis for attacking the sale and Arlt utilized when the adequacy of the bid price is at issue. See id. at 1257-59; see also Esque Real Estate Holdings, Inc. v. C.H. Consulting, Ltd., 940 So.2d 1185, 1187 n. 2 (Fla. 4th DCA 2006) (noting Ingorvaia in dicta and distinguishing it as a case involving a “defect or irregularity connected with the sale” where “due process concerns made the sale irregular”); Action Realty & Invs., Inc. v. Grandison, 930 So.2d 674, 677 (Fla. 4th DCA 2006) (a ease where the foreclosure sale price was not “grossly inadequate,” which characterized Ingorvaia as a case where a defect in the sale created “due process concerns [that] made the sale irregular”); U-M Publ’g, Inc. v. Home News Publ’g Co., 279 So.2d 379, 381-82 (Fla. 3d DCA 1973) (citing Brown and setting aside a foreclosure sale for defects in procedure without a discussion of an inadequate sale price). This reading of the case law is consistent with the wide discretion a court has to set aside a sale as an exercise of equity. See Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611 (Fla. 4th DCA 2008) (“[A]n equity judge considering whether to set aside a foreclosure sale ‘has a large discretion which will only be interfered with by the appellate court in a clear case of injustice.’ ” (citation omitted)). We agree with the second district’s approach to reconciling Brown and Arlt.

We recede from Blue Star to the extent it indicates that inadequacy of price must always be part of the legal equation in a motion to set aside a foreclosure sale.

Here there was no dispute that the bank and the defendants had settled the case and that their agreement provided that the foreclosure sale should have been cancelled. Under Brown, the circuit court did not abuse its discretion in setting aside the sale. Based on these facts, only if a grossly inadequate sale price was necessary to obtain this relief would Arsali have been entitled to the evidentiary hearing he sought. Because Brawn provides that surprise, accident, or mistake are independent grounds sufficient to set aside a foreclosure sale, it was not necessary for the trial court to hold a hearing to take evidence on the adequacy of the foreclosure sale price.

We agree with the second district that Brown can be read to conflict with Arlt, in that Brown states “that gross inadequacy of price alone is a sufficient ground to set aside a foreclosure sale whereas Arlt requires that other grounds must also be proven.” Ingorvaia, 816 So.2d at 1258. Given that foreclosure cases have mushroomed on civil dockets in Florida, clarification of the grounds for setting aside a foreclosure sale is a matter of great public importance. Therefore, as did the second district in Ingorvaia, we certify the following question:

DOES THE TEST SET FORTH IN ARLT V. BUCHANAN, 190 So.2d 575, 577 (FIa.1966), FOR VACATING A FORECLOSURE SALE APPLY WHEN ADEQUACY OF THE BID PRICE IS NOT AT ISSUE?
Affirmed; question certified.

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

HAZOURI, J., recused.

      . The motion was properly noticed for a hearing on May 20. Arsali's later intervention was "in subordination to, and in recognition of, the propriety of the main proceeding.” Fla. R. Civ. P. 1.230. As the Supreme Court has observed:
      The law is settled that an intervener is bound by the record made at the time he intervenes and must take the suit as he finds it. He cannot contest the plaintiff's claim against the defendant, but is limited to an assertion of his right to the res. He cannot challenge sufficiency of the pleadings or the propriety of the procedure, nor can he move to dismiss or delay the cause without permission of the chancellor.

        Krouse v. Palmer, 131 Fla. 444, 179 So. 762, 763 (1938).

      . In Arlt, the Supreme Court wrote:
      The general rule is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.
      190 So.2d at 577 (citations omitted).

      . We note that the three cases upon which Brown relied for this statement of the law are all cases that involved an inadequate sale price combined with other defects in the sale. See Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (Fla.1916); Fla. Fertilizer Mfg. Co. v. Hodge, 64 Fla. 275, 60 So. 127 (Fla.1912); Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (Fla.1905). For example, in Florida Fertilizer, the property sold for $110, when it was "reasonably worth $800 to $1000.” 60 So. at 128. The Supreme Court affirmed an order setting aside the sale for a "grossly inadequate price” where the mortgagor was a "man with little education and no knowledge of legal proceedings,” who saw an attorney who apparently misadvised about the foreclosure proceedings, had remained "in full, open, and complete possession” of the property, and had no notice of the sale. Id. at 127-28.

      . We similarly recede from that statement of the law in Arsali v. Deutsche Bank National Trust Co., 82 So.3d 833, 2011 WL 1261283 (Fla. 4th DCA 2011) (quoting Blue Star); Es

        que Real Estate Holdings, 940 So.2d at 1186 (quoting Blue Star); Grandison, 930 So.2d at 676-77 (quoting Blue Star); Bush v. Atl. Mortg. & Inv. Corp., 785 So.2d 611, 612 (Fla. 4th DCA 2001) (citing Cueto), Cueto, 791 So.2d at 1126-27 (quoting Mody).

      . The standard of review on appeal of a trial court's ruling on a motion to set aside a foreclosure sale is whether the trial court grossly abused its discretion. E.g., Arsali v. Deutsche Bank Nat’l Trust Co., 82 So.3d 833, 2011 WL 1261283 (Fla. 4th DCA 2011); Ingorvaia v. Horton, 816 So.2d 1256, 1259 (Fla. 2d DCA 2002).


text:
    Tyrone DILL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1162.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Tyrone Dill, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   COHEN, J.

Petitioner, Tyrone Dill, has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. Charged with attempted first-degree murder with a firearm, Dill was convicted of the lesser-included offense of attempted second-degree murder with a firearm and one count of aggravated assault with a firearm. Dill’s petition concerns only the attempted second-degree murder with a firearm count.

In his petition, Dill alleges that appellate counsel rendered ineffective assistance when appellate counsel failed to seek supplemental briefing as a result of the First District Court of Appeal’s decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which held that the standard manslaughter by act jury instruction, Florida Standard Jury Instruction (Criminal) 7.7, improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. Dill contends that appellate counsel should have filed a supplemental brief based on Montgomery, raising the issue of whether the attempted voluntary manslaughter jury instruction given in his trial was fundamental error.

In Montgomery, 70 So.3d 603, the First District held that the standard manslaughter by act jury instruction improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. The First District’s decision in Montgomery was not directly on point in regard to Dill’s case. The decision concerned Standard Jury Instruction in Criminal Cases 7.7 pertaining to manslaughter, whereas Dill’s case involved Standard Jury Instruction in Criminal Cases 6.6, pertaining to attempted voluntary manslaughter. However, in Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), the First District applied its reasoning in Montgome'i~y to the standard attempted voluntary manslaughter instruction.

We find appellate counsel should have raised the issue before this Court’s decision in petitioner’s direct appeal was final, even though Montgomery was alleged to be in conflict with a prior opinion issued by this Court. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus, and the criteria for analyzing such claims parallel the Strickland standard for ineffective trial counsel. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Accordingly, to grant habeas relief based on ineffective assistance of appellate counsel, this Court must determine:

[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); accord Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, the petitioner “has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069.

Although appellate counsel is not required to anticipate changes in the law, see Walton v. State, 847 So.2d 438, 445 (Fla.2003) and Gervasoni v. State, 766 So.2d 478, 479-80 (Fla. 5th DCA 2000), “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006); see also Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district where appeal heard was unfavorable); Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (determining appellant’s counsel’s failure to request supplemental briefing on favorable appellate decision from other district constituted ineffective assistance of counsel); McCann v. Moore, 763 So.2d 556 (Fla. 4th DCA 2000) (granting belated appeal because counsel had ample time to call favorable case from another district to court’s attention, but failed to do so); Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from other district in effect at time of pending appeal).

Montgomery was decided before the initial brief in Dill’s direct appeal was filed, and the Florida Supreme Court accepted jurisdiction on May 7, 2009. Lamb was decided on October 14, 2009, while Dill’s direct appeal was pending in this Court. Dill’s conviction was affirmed and the mandate issued on December 30, 2009. The First District’s decision in Montgomery was approved in April 2010, to the extent it held that the use of the standard jury instruction on manslaughter, which required that the State prove the defendant’s intent to kill the victim, constituted fundamental error. State v. Montgomery, 39 So.3d 252, 254 (Fla.2010). Subsequent to the Florida Supreme Court’s issuance of its opinion in Montgomery, this Court concluded that the holding is equally applicable to the jury instruction for the offense of attempted manslaughter by act. Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011) (standard jury instruction utilized for attempted manslaughter was fundamental error, as it required proof of intent to kill).

In Dill’s case, based upon the First District’s holdings in Montgomery and Lamb, and this Court’s subsequent decision in Burton, it was fundamental error to include the phrase “intended to cause the death” in the attempted voluntary manslaughter instruction in Dill’s trial. With regard to appellate counsel’s duty to raise the Montgomery issue, the First District has held that, in eases pending when it decided Montgomery, appellate counsel was ineffective for failing to ask for supplemental briefing on the jury instruction issue. See Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). This Court has found ineffective assistance of appellate counsel where appellate counsel failed to raise the Florida Supreme Court’s April 2010, Montgomery decision while the petitioner’s direct appeal was pending. Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011). Likewise, this Court has found ineffective assistance of appellate counsel because of the failure to raise the First District’s Montgomery holding. Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011) (acknowledging controlling precedent in this district had approved the instruction).

We note that this Court’s decisions in Lopez, Hodges and Burton are in direct conflict with the Fourth District’s decision in Williams v. State, 40 So.3d 72, 75-76 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011), wherein the Fourth District concluded that the standard jury instruction on attempted manslaughter does not possess the same fatal flaw as the standard jury instruction on manslaughter because “you cannot attempt to commit an unintentional act.” In doing so, the Fourth District certified conflict with the First District’s decision in Lamb and certified the following questions of great public importance: (1) Does the standard jury instruction on attempted manslaughter constitute fundamental error, and (2) Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla.2010). Williams, 40 So.3d at 76.

For the reasons stated, we grant the petition for writ of habeas corpus and remand for a new trial. We once again certify conflict with Williams.

PETITION GRANTED.

MONACO and EVANDER, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: WALLACE, Judge.

text:
    Karen Plevyak HAY, a/k/a Karen L. Hay, and Robert Ronald Hay, Appellants, v. STATE of Florida, Appellee.
    Nos. 2D10-1596, 2D10-1678.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

These consolidated cases involving a husband and a wife are controlled by this court’s recent decision in Mullis v. State, 79 So.3d 747 (Fla. 2d DCA 2011). In case number 2D10-1596, Karen Plevyak Hay, a/k/a Karen L. Hay, appeals her judgment and sentences for one count of drug trafficking, § 893.135(l)(e)(l)(c), Fla. Stat. (2008), and six counts of obtaining a controlled substance by withholding information, § 893.13(7)(a)(8), Fla. Stat. (2007 & 2008), following her guilty plea. In case number 2D10-1678, Robert Ronald Hay appeals his judgment and sentences for one count of drug trafficking, § 893.135(l)(c)(l)(c), Fla. Stat. (2008), and twenty-three counts of obtaining a controlled substance by withholding information, § 893.13(7)(a)(8), Fla. Stat. (2006, 2007, & 2008), following his guilty plea. On appeal, both Mr. and Mrs. Hay challenge the denial of their motions to suppress statements made by their doctors and the doctors’ employees (the doctors’ statements) to law enforcement during the investigation that led to the Hays’ arrest. Based on this court’s recent decision in Mullís, we reverse the circuit court’s order to the extent that it denied suppression of the doctors’ statements, and we remand for further proceedings.

As in Mullis, the charges against the Hays stemmed from a doctor-shopping investigation conducted by Detective Douglas Fowler, a narcotics investigator for the City of Temple Terrace. The facts of these cases, the circuit court’s ruling, and the arguments advanced at the trial and appellate levels are substantially similar to those in Mullís. The doctors’ statements to Detective Fowler may be grouped into four categories: (1) statements confirming that either Mr. or Mrs. Hay was a patient, (2) statements that the doctors had prescribed controlled substances to either Mr. or Mrs. Hay, (3) statements that neither Mr. nor Mrs. Hay had disclosed the receipt of a prescription for a controlled substance from another provider within the preceding thirty days, and (4) statements that the doctors would not have prescribed a controlled substance to either Mr. or Mrs. Hay if the doctors had known that he or she had received a prescription for a controlled substance within the preceding thirty days.

Here, as in Mullís, the Hays entered their guilty pleas with the understanding that they were reserving the right to appeal the denial of them motions to suppress. The circuit court ruled that its orders denying the Hays’ motions were dispositive. In addition, the circuit court informed both of the Hays that if the orders denying their motions were reversed on appeal, the charges against them would be dismissed on remand. We conclude that the merits of the circuit court’s orders are properly before us on appeal. See Fla. R.App. P. 9.140(b)(2)(A)(i).

As we did in Mullis, we affirm the orders on the Hays’ motions to suppress to the extent that the orders deny the suppression of the pharmacy records. Noting the absence of any evidence in the record that Detective Fowler attempted to provide either Mr. or Mrs. Hay with notice or to obtain a court-issued subpoena before contacting the Hays’ doctors, we reverse the orders to the extent that the orders deny the suppression of the doctors’ statements, and we remand for the circuit court to enter orders suppressing those statements. We note that because our decision reverses in part the circuit court’s rulings on the Hays’ motions to suppress, the Hays may be entitled to withdraw their pleas on remand. See England v. State, 46 So.3d 127, 130 (Fla. 2d DCA 2010) (holding that where “[i]t is unknown whether [the defendant] would have pleaded guilty if his motion to suppress the statements had been granted,” he should be given the option of withdrawing his plea on remand).

Our disposition of these cases is without prejudice to the Hays’ rights to raise any issues arising from Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), in the trial court.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.

      . We consolidated these cases on our own motion for the purpose of issuing this opinion.

      . Mrs. Hay also pleaded guilty to one count of failure to redeliver a leased vehicle, a violation of section 812.155(3), Florida Statutes (2009), and was sentenced to time served for this offense. Mrs. Hay’s motion to suppress did not address the failure to redeliver charge, and we affirm her judgment and sentence for that offense.

      .In the circuit court, the Hays also moved to suppress their pharmacy records that were obtained by law enforcement under section 893.07(4). However, as the Hays note in their appellate briefs, this court has previously upheld this law enforcement tactic. See State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), review denied, 52 So.3d 662 (Fla.2011). For this reason, the Hays do not challenge the denial of their motions to suppress their pharmacy records.

      . As in Mullís, our holding does not extend to the statements confirming the identity of the Hays as patients. The issue of the confidentiality of such statements is not properly before us for resolution in these appeals.


text:
    Garnett MELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0058.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2012.

      Garnett Melton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Larry M. BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0006.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2012.
    Larry M. Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Michael Anthony ARGUELLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2432.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, CLARK, and ROWE, JJ., concur.