author: PER CURIAM. COHEN, J.,

text:
    GIVE KIDS THE WORLD, INC., Appellant, v. Stacy SANISLO and Eric Sanislo, Appellees.
    No. 5D11-748.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.

      Wm. Jere Tolton, III, of. Ogden & Sullivan, P.A., Tampa, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Orlando, for Appellant.
    Michael J. Damaso, II, of Wooten, Kim-brough and Normand, P.A., Orlando, and Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.
   PER CURIAM.

Give Kids the World, Inc. (“GKTW”), the defendant below, appeals a final judgment entered against it in a negligence action. GKTW argues that the lower court erred by denying its pretrial motion for summary judgment on its affirmative defense of release. We agree and reverse.

GKTW is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village, the Give Kids the World Village (“the Village”). Stacy and Eric Sanislo (“the Sanislos”) are the parents of a young girl with a serious illness. In November 2004, the Sanislos executed a liability release to GKTW in connection with a “wish request” that benefitted their daughter. The release, in pertinent part, provided:

By my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.
I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.

The wish request was approved and, upon their arrival at the Village from the state of Washington, the Sanislos executed another liability release with identical language.

During the course of her stay at the Village, Stacy Sanislo was injured when she, along with her husband, posed for a picture on a pneumatic wheelchair lift that was attached to the back of a horse-drawn wagon. The lift collapsed because the weight limit had been exceeded, injuring Ms. Sanislo. The Sanislos brought suit against GKTW, alleging that Ms. Sanislo’s injuries were caused by GKTW’s negligence. In its answer, GKTW asserted the affirmative defense of release. Subsequently, GKTW filed a motion for summary judgment, arguing that the signed liability releases precluded a finding of liability. The Sanislos filed a motion for partial summary judgment on the issue of release as well. The trial court denied GKTW’s motion, but granted that of the Sanislos. Following a jury verdict, judgment was entered in the Sanislos’ favor.

On appeal, GKTW correctly asserts that it was entitled to summary judgment based on the release. Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006)). The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So.2d 1171, 1173 (Fla. 5th DCA 2001). This Court has expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.” Cain, 932 So.2d at 578. In Cain, this Court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiffs negligence action filed against a defendant track owner in connection with motocross bike riding. Id. at 579; see also Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So.2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action). A release need not list each possible manner in which the releasor could be injured in order to be effective. Cf. DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So.2d 1134, 1136 (Fla. 5th DCA 1993).

The instant release contains two separate provisions releasing GKTW from liability. One provision releases GKTW from “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us ... whieh may occur while staying at the Give Kids the World Village.” This language is markedly similar to the language in the release signed by the plaintiff in Cain, which encompassed the release of a negligence action. 932 So.2d at 577. A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish.... ” This language is broad enough to encompass negligence claims arising from the injuries suffered by Ms. Sanislo due to the collapse of the wheelchair lift.

The Sanislos argue that the release is not clear and unambiguous because it applies to liability arising “in connection with the preparation, execution and fulfillment of said wish.” They suggest the nature and scope of the wish is not clear or defined and thus renders the release unenforceable. However, the wish, which was requested by the Sanislos, clearly encompassed events at the Village related- to their stay and attendance at Orlando area theme parks. The Sanislos’ interpretation is not likely the interpretation that an “ordinary and knowledgeable person” would give to the clause. See Raveson, 793 So.2d at 1173. The language used clearly and unambiguously releases GKTW from liability for the physical injuries Ms. Sanislo sustained during her stay at the Village, and whs sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away. The ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.

In addition to assessing the clarity of the language used in releases, this Court must consider the parties’ relative bargaining power in determining the enforceability of a release. Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973). Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. Id. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context. For instance, in Banfield v. Louis, 589 So.2d 441, 443-44 (Fla. 4th DCA 1991), the court upheld the enforcement of a release executed by a participant in a triathlon and the trial court’s ruling that a disparity in bargaining power was “not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to.” The Banfield court emphasized that the application of Ivey Plants was limited to circumstances in which a release was executed on behalf of a public utility or a company serving some public function. Id. at 444-45. Consistent with this analysis, Florida courts have refused to find an inequality of bargaining power in recreational settings. Id.; DeBoer, 622 So.2d at 1136. Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So.2d at 438. This Court explained that the case did not present “a situation where public policy mandates the protection of -consumers who are offered a contract in a ‘take it or leave it’ form.” Id. at 439.

GKTW argues that the bargaining power of the parties cannot be viewed as unequal, because the Sanislos voluntarily participated in the GKTW program. The Sanislos, for their part, argue that the parties are of unequal bargaining power because they were offered a contract in a “take it or leave it” form, and GKTW gave them no choice but to sign the release in order to have their daughter’s wish fulfilled. Unfortunately for the Sanislos, however, the instant case is more akin to Banfield and DeBoer than it is to Ivey Plants. The Sanislos’ desire to fulfill their ill daughter’s wish is certainly understandable, but the parents’ desire to fulfill the wish and take advantage of the GKTW program does not equate to unequal bargaining power. The Sanislos were not consumers as contemplated in Hardage Enterprises. They were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

REVERSED.

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

COHEN, J., concurs and concurs specially with opinion.

COHEN, J.,

concurring specially.

If I were writing on a clean slate, I would affirm the trial court’s denial of GKTWs summary judgment. I am bound, however, to follow this Court’s prior decisions that do not require an express reference to negligence in a release in order to render the release effective to such actions. This District stands alone on this position. See Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981); Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3rd DCA 1980).

The better view is to require an explicit provision to that effect. Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.

      . Fulfillment of a child’s wish is accomplished in conjunction with the Make-A-Wish Foundation, a separate entity from GKTW.

      . The parties stipulated that if the trial court granted one of the motions for summary judgment, then the other should be denied.


source: Caselaw Access Project

author: SMITH, III, C.M., Associate Judge. BERGER, J.,

license: Public Domain

text:
    SPENCER ESTATES OF FLORIDA, LLC, Appellant, v. Edward HAVILL, as Property, etc., et al., Appellee.
    No. 5D12-315.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2012.
    Jerry A. Blair, of Jerri A. Blair, P.A., Tavares, for Appellant.

      B. Jordan Stuart, of Wood & Stuart, P.A., Bunnell, for Appellee.
   SMITH, III, C.M., Associate Judge.

Spencer Estates of Florida, LLC (“Spencer”) appeals from a lower court order that denied its motion for contempt and to enforce final judgment. The basis for the trial court’s denial was a lack of jurisdiction. For the reasons stated below, we affirm.

In litigation regarding the agricultural classification of Spencer’s property for the 2008 tax year, the trial court found that the property had received an agricultural classification from a court of competent jurisdiction as a result of litigation regarding the 2006 and 2007 tax years. The trial court further found that the property continued to be eligible to receive the agricultural classification until the use of the property changed. The trial court then required Appellee, Edward Havill, Lake County Property Appraiser (“Havill”) to “reclassify that portion of lots 3 and 4 which was classified in 2008 as ‘Vacant Lakefront’ property and classify it as agricultural so that Spencer’s entire property was classified agricultural. In 2009 and 2010, Havill again only granted the agricultural classification to a portion of the same property and denied the agricultural classification as a whole. As a result, Spencer filed a motion for contempt and to enforce the final judgment in the 2008 case. In his motion, he admitted that Havill refunded the overpaid property taxes for 2008 as ordered. The motion sought the agricultural classification for the entire property and a refund for 2009 and 2010. After conducting a hearing where arguments were heard, the trial court denied the motion finding:

The Final Judgment sought to be enforced relates to the agricultural classification for the subject property for the tax year 2008. The ruling in the Final Judgment has been complied with by [Havill]. In the subject Motion, Plaintiff seeks relief for the tax years 2009 and 2010. Each year stands on its own for ad valorem purposes. Simpson v.Merrill, 234 So.2d 350 (Fla.1970); Keith Investments v.James, 220 So.2d 695 (Fla. 4th DCA 1969). This Court lacks jurisdiction to grant relief sought.

We agree that Spencer sought an improper remedy under the 2008 case for the 2009 and 2010 agricultural classification. Havill complied with the final judgment in the 2008 case. If there was no change in the use of Spencer’s property subsequent to the trial court’s judgment in the 2008 case, the proper remedy is to seek fees and costs pursuant to section 57.105, Florida Statute, in the new litigation challenging the 2009 and 2010 classifications.

The trial court’s judgment finding no jurisdiction is affirmed.

AFFIRMED.

EVANDER, J., concurs.

BERGER, J., concurs and concurs specially, with opinion.

BERGER, J.,

concurring and concurring specially.

I wholly concur with the majority opinion that the proper remedy in this case is to seek fees and costs pursuant to section 57.105, Florida Statutes, in the new litigation challenging the 2009 and 2010 classifications. I write separately to remind Ha-vill that, in 2008, a court of competent jurisdiction declared Spencer’s land agricultural. Thus, the portion of Spencer’s land subject to the court’s classification was entitled to continue to receive that classification in subsequent years pursuant to section 193.461(3)(e), Florida Statutes, unless a specified change occurred. The changes warranting reclassification are outlined in section 193.461(4), Florida Statutes, which provides:

(4)(a) The property appraiser shall reclassify the following lands as nonagri-cultural:
1. Land diverted from an agricultural to a nonagricultural use.
2. Land no longer being utilized for agricultural purposes.
3. Land that has been zoned to a non-agricultural use at the request of the owner subsequent to the enactment of this law.
(b) The board of county commissioners may also reclassify lands classified as agricultural to nonagricultural when there is contiguous urban or metropolitan development and the board of county commissioners finds that the continued use of such lands for agricultural purposes will act as a deterrent to the timely and orderly expansion of the community.
(c) Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.

While Havill is entitled each year to make a new assessment concerning whether the purpose of the land has changed, he cannot do so arbitrarily. Continuing to reclassify the property year after year without proper authority is a perfect example of government run amuck, which places an unnecessary burden and expense on the property owner to re-litigate the same issue in order to obtain a refund of overpaid property taxes.


author: LaROSE, Judge.

text:
    Anthony HARTLEY, a/k/a Anthony Dortch, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2280.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.

      Howard L. Dimmig, II, Public Defender, and Margaret H. White-Small, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Anthony Hartley appeals his conviction and thirty-year prison sentence after a trial for burglary of a conveyance with a battery. See § 810.02, Fla. Stat. (2008). Because the trial court did not clearly articulate the legal standard it applied in denying Mr. Hartley’s motion for new trial, we reverse and remand for further proceedings.

Sharkara Moore testified that she was sitting in her car in an apartment complex parking lot waiting for a friend. The windows were open. A man whom she knew only as “Nuke Man” approached. She had known him for almost a year; they were currently on bad terms and were not speaking to each other. He reached into the car, grabbed the keys from the ignition, and threw them into a field. He then punched Ms. Moore twice through the open window. She tried to fight back but ended up on the ground outside the car where Nuke Man continued to kick her and hit her.

Jorvousia Palmer saw the altercation. She helped Ms. Moore find her car keys, called 911, and drove her home. On the way home, Ms. Moore had a seizure. Ms. Moore was taken to the hospital, where she spoke to Detective Michelle Rand. She there identified a photograph of Mr. Hartley as Nuke Man. The State rested. Defense counsel unsuccessfully moved for a judgment of acquittal.

Mr. Hartley testified that he was known as “Nuke Man.” He denied reaching into Ms. Moore’s car or hitting and kicking her. He lived in the apartment complex with his mother and sister-in-law. He claimed to be living with Ms. Moore. He had dated her for about a year and still had feelings for her, but conceded that they were on bad terms. He testified that he was sitting with his sister-in-law in a car parked in her yard in the apartment complex listening to music. He saw an unknown man hitting Ms. Moore with his fist. She fell down. He saw a girl come up and help Ms. Moore. He left the scene because he was on probation and was not supposed to be in an area where drugs were sold.

On rebuttal, Ms. Moore testified that, just before the altercation, Mr. Hartley lived with her and another man, “Red.” Red asked Mr. Hartley to leave when he found out that Mr. Hartley and Ms. Moore had developed a romantic relationship. Defense counsel renewed the motion for a judgment of acquittal. The trial court denied the motion. A jury found Mr. Hart-ley guilty.

Before sentencing, defense counsel again renewed the motion for a judgment of acquittal and moved for a new trial, arguing that Ms. Moore’s credibility was so questionable that it could not be relied upon and that the verdict was contrary to the weight of the evidence. The trial court denied both motions, stating for both, “I believe that the matter in question was for the jury’s consideration and I’m satisfied that the motion should be denied” and “I still believe it’s a matter for the jury’s consideration. I will deny the motion.” It made no other findings. Mr. Hartley argues that the trial court erred in denying both motions.

To determine whether a judgment of acquittal is appropriate, the trial court uses the “sufficiency of the evidence” standard, which tests whether the evidence is legally adequate to permit a verdict. Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002)(citing Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001); State v. Hart, 632 So.2d 134, 135 (Fla. 4th DCA 1994)). Ms. Moore’s testimony was sufficient to support the denial of the motion for a judgment of acquittal. Accordingly, we affirm the denial of that motion.

The standard for evaluating a motion for new trial is the “weight of the evidence,” which tests “whether a greater amount of credible evidence supports one side of an issue or the other”; the trial court grants a new trial “where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.” Id. (citing Hart, 632 So.2d at 135; Moore, 800 So.2d at 749). Generally, we review a trial court’s ruling on a new trial motion for abuse of discretion. Id. at 1044-45. However, whether the trial court applied the correct legal standard is subject to de novo review. Id. at 1045.

We are unable to determine whether the trial court applied the correct standard in denying the new trial motion. In its oral pronouncement, the trial court used words indicating that it applied a sufficiency-of-the-evidenee standard. See id.; Collett v. State, 28 So.3d 224, 225 (Fla. 2d DCA 2010); Moore, 800 So.2d at 750. The State concedes that the record is unclear as to which standard the trial court used. Accordingly, we reverse the judgment and remand with directions to the trial court to reconsider the motion based on the manifest weight of the evidence standard. See Geibel, 817 So.2d at 1045 (reversing judgment where we were unable to determine whether trial court applied correct standard in denying motion for new trial).

Reversed and remanded.

VILLANTI and BLACK, JJ., Concur.


author: PER CURIAM. LAWSON, J.,

text:
    William A. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1083.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

William A. Evans challenges his involuntary civil commitment under the Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.932, Florida Statutes (2006), commonly known as the “Jimmy Ryce Act” (hereinafter referred to as the “Ryce Act” or the “Act”). He argues that Larimore v. State, 2 So.3d 101 (Fla.2008), requires reversal of his judgment of commitment because he was not in “lawful custody” when the civil commitment process was initiated against him. Because the facts of this case are analytically indistinguishable from In re Commitment of Phillips, 69 So.3d 951 (Fla. 2d DCA 2010), approved, 74 So.3d 1084 (Fla.2011), we agree that a reversal is required. Because the Florida Supreme Court has not yet issued a full opinion in Phillips addressing the certified question in that case, we also certify the following similar question to the Court as one of great public importance:

DOES THE- STATE HAVE JURISDICTION TO INITIATE CIVIL COMMITMENT PROCEEDINGS UNDER THE INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT AGAINST AN INMATE WHO IS ENTITLED TO IMMEDIATE RELEASE BASED ON A CORRECTED AWARD OF TIME SERVED?

REVERSED; QUESTION CERTIFIED.

PALMER and COHEN, JJ., concur.

LAWSON, J., concurs and concurs specially with opinion.

LAWSON, J.,

concurs and concurring specially.

I agree with the majority that a reversal is required in this case, but write to elaborate on why we were prepared to conflict with Phillips, in hopes of aiding the Florida Supreme Court when it addresses the certified question in that case and, possibly, the similar question in this case.

Facts

Evans has a long history of sexual offense charges, beginning with a 1984 exhibition charge filed in California. Although Evans admits that offense, • the state dropped the charge after Evans skipped bail' and left California for the East coast. A similar 1989 offense was nolle prossed in Brevard County, Florida, but Evans was convicted of an exhibition offense relating to an incident in Maryland in which he exposed his genitals to an adult female in a mall parking lot. Evans admits exposing himself to multiple women, whom he did not know, over a multi-year period starting in the early 1980’s.

In 1996, Evans pled guilty to two charges in Virginia, based upon obscene phone calls that he made to a 10-year-old girl during which he solicited sex from the minor.' Evans was close to 40 years old at that time. Although Evans pled to these charges, he denies that the offenses occurred.

In 2003, in Citrus County, Florida, Evans was charged with lewd and lascivious molestation for sexually assaulting a 7-year-old girl. He was 44-years-old at the time. Although he denied the charge, and it was later dropped, he made incriminating statements while masturbating in the police interrogation room after being taken into custody for the offense (apparently, he did not know that he was under surveillance at the time, although he was' “so engrossed in his thoughts and actions that it appeared he had no concern that someone could walk back in the room and catch him in the act of touching himself.”)

He made more incriminating statements when law enforcement later placed Evans’ girlfriend in the interview room with him. Apparently unaware he was under surveillance, Evans stated he did not believe law enforcement had any evidence against him and would not put the child on the stand to testify against him. He planned to deny everything and advised his girlfriend to do the same. He then admitted to her that he had removed the child’s clothes and panties and touched her “in the wrong place.” He wanted to have sexual intercourse with the child, would do whatever he wanted sexually with a child, and “does not care.” Evans then demanded that his girlfriend perform oral sex on him in the interrogation room while continuing to talk about the child. He also stated that he had masturbated in the woods while watching children at the bus stop.

Evans was also charged with failing to register as a sex offender in 2003, and was convicted of this charge and sentenced to a short term in prison, followed by probation. After his release from incarceration, Evans violated his probation and was sentenced to 24 months in the Department of Corrections on January 4, 2006. The sentencing order stated that the sentence was “with credit time served,” but did not specify the amount of that credit. At the time of his sentencing, Evans did not seek to clarify the amount of credit being awarded.

Eight months later, on August 24, 2006, Evans filed a motion to clarify or correct the amount of credit to which he was entitled. The motion averred that Evans had spent from January 28, to November 21, 2003 in the Citrus County jail on the charge and had spent from November 21, 2003 to October 20, 2004 in the Department of Corrections (“DOC”) thereafter. The motion further explained that although DOC had given him credit for 327 days’ time against the 24-month sentence, he should have been credited with 644 days’ time served on the date of his sentencing. According to the motion, the State stipulated that the 644-day calculation was correct. Accepting the 644-day figure as correct, this means that Evans would have had approximately two months and 24 days left to serve on his new 24-month sentence as of the date of sentencing on January 4, 2006.

On August .28, 2006, the trial court granted Evans’ motion, awarding credit for 644 days’ time served against the 24-month sentence. After receipt of the trial court’s order, on September 5, 2006, the State initiated Ryee Act proceedings against Evans, relying on section 394.9135, Florida Statutes. That statute provides:

(1) If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.
(2)Within 72 hours after transfer, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, that person shall be immediately released. If the multidisciplinary team determines that the person meets the definition of a sexually violent predator, the team shall provide the state attorney, as designated by s. 394.913, with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends after 5 p.m. on a working day or on a weekend or holiday, within the next working day thereafter.
(3) Within 48 hours after receipt of the written assessment and recommendation from the. multidisciplinary team, the state attorney, as designated in s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the state attorney, the person shall be immediately released, except that, if the 48-hour period ends after 5 p.m. on a working day or on a weekend or holiday, the petition may be filed on the next working day without resulting in the person’s release. If a petition is filed pursuant to this section and the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.
(4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.

The State complied with the timeline and procedure set forth in this portion of the Jimmy Ryce Act, which the parties refer to as the “recapture provision.”

Evans challenged the commitment proceedings by filing a motion to dismiss, raising the same legal argument now raised on appeal. Ultimately, after the trial judge denied Evans’ motion to dismiss, Evans admitted his prior convictions for sexually violent offenses; admitted that he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined; and, admitted that he otherwise met the criteria for civil commitment under the Ryce Act. Evans admitted all allegations of the petition after being assured by the State that he would still be able to challenge the denial of his motion to dismiss on appeal. This occurred shortly before the scheduled trial, , after Evans’ own expert witnesses reported that they were unable to dispute the State’s allegation that Evans met the criteria for commitment. These witnesses had been prepared to testify on behalf of Evans, until some additional information about him came to light. Evans announced that he was waiving trial and admitting the State’s allegations only because he had determined it to be in his best interest to do so, but still maintained that he disagreed with the allegations. This appeal followed.

Analysis

I preface this analysis by noting that the court in Larimore, was simply “interpreting] the Involuntary Civil Commitment of Sexually Violent Predators Act,” Larimore, 2 So.3d at 103, and seeking to “give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Id. at 106 (citation omitted). It is, of course, beyond “well-settled” that courts should look no further than the plain language of an unambiguous statute to construe that statute,, and that “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So.2d 408, 410 (Fla.2004). Here, the State followed the plain language of this unambiguous statute to the letter. Ideally, this simple observation would end the inquiry. But, I now turn to Larimore.

The Larimore court began its analysis by observing that the Ryce Act “is predicated on the underlying premise that the individual is in custody when the initial steps are taken in the commitment process[.]”. Id. at 109. This is certainly an accurate observation. From this observation, the court reasoned that the legislature intended that the commitment process could never be initiated after an inmate was released from custody. Id. at 111. Although not beyond debate (as should be obvious from the dissent in Larimore ), this is certainly a reasonable reading of the Act.

From this starting point (finding an “in custody” requirement for initiating Ryce Act proceedings), the court further reasoned that the legislature also intended that the inmate be in “lawful custody” as a precondition to initiation of Ryce Act proceedings. Id. at 110-11. Key to this determination was the court’s focus on due process considerations. See id. at 116 (“In accordance with our precedent, we must read the provisions of the Act consistent with basic tenets of fairness and due process.”) (citation omitted). This is obviously a justifiable concern. Otherwise, for example, the State could literally kidnap and confine an individual with no legal justification to meet the “in custody” requirement found by the court in Larimore.

Were I writing on a clean slate, my preference would be to interpret the statute in accordance with its plain language (for, it plainly does not require that an individual be in lawful custody as a precondition to the commencement of Ryce Act proceedings), and to address the due process concern by recognizing that anyone for whom application of the Act as it is written would violate due process could raise an as-applied constitutional challenge as a defense to application of the Act. Cf. People v. Wakefield, 81 Cal.App.4th 893, 97 Cal.Rptr.2d 221 (2000); People v. Hedge, 72 Cal.App.4th 1466, 86 Cal.Rptr.2d 52, 61 (1999) (holding that the “unambiguous language” of the Sexually Violent Predators Act “contains no requirement [that] a defendant’s custody be ‘lawful’ at the time such petition is filed, only that the person alleged to be a [sexually violent predator] be in [actual] ‘custody under the jurisdiction of the [DOC].’ ”). As it stands, though, we are bound by the holding in Larimore that the Act only allows the state to initiate a Ryce Act proceeding against an individual who is in “lawful custody” when the proceeding is started.

Finally, the Larimore court was very careful to define unlawful custody narrowly, based upon the facts before it. As the court explained:

In this case Larimore’s entire resentenc-ing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason. That issue is not before us.

Id. at 117 n. 8. Addressing a question left unanswered by the Larimore court, I would hold that the state can use the recapture provision (section 349.9135, Florida Statutes) to lawfully begin commitment proceedings against an inmate who is entitled to immediate release upon processing of an order awarding additional credit for time served. I reach this conclusion for a number of reasons.

First, this is the only interpretation of the Act consistent with its plain language. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“ ‘[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’”) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). It was also explained in Holly that:

[C]ourts of this state are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications .... [because to] do so would be an abrogation of legislative power.”

Id. (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)).

Second, this is the only interpretation of the Act that gives meaning and effect to the recapture provision. As explained by Judge Cope in Washington v. State, 866 So.2d 725 (Fla. 3d DCA 2004):

Section 394.9135 establishes the procedure where the anticipated release of an inmate becomes immediate for any reason. Id. § 394.9135(1). The classic ex ample of such a release would be in a situation in which the defendant has been resentenced to a shorter sentence, or has been granted additional credit for time served.

Id. at 727 (Cope, J., specially concurring) (emphasis added). As argued by the State, Evans’ argument that a person’s custody can be retroactively rendered unlawful by a judicially mandated change in the person’s release date would render section 394.9135 meaningless in virtually all cases where a court ruling results in the “immediate release” of the inmate. This, in turn, would render section 394.9135 meaningless in most of the cases for which the statute appears to have been enacted. As recognized in Larimore, one of the more ‘“basic rule[s] of statutory construction ... [is] that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’ ” Larimore, 2 So.3d at 114 (quoting State v. Goode, 830 So.2d 817, 824 (Fla.2002)).

Third, I believe that labeling Evans’ confinement as “unlawful” (for purposes of the Ryce Act) based upon an earlier theoretical release date on these facts ignores the legal concept of waiver. Clearly, a criminal defendant can lawfully spend more time incarcerated than he or she otherwise could have spent incarcerated by waiving credit for time served. See, e.g., Johnson v. State, 60 So.3d 1045 (Fla.2011). In the jail credit context, that waiver must be knowing and voluntary to be permanent. Id. But, a legal right can also be waived by simply failing to act. See, e.g., State v. Nelson, 26 So.3d 570, 576 (Fla.2010) (noting that “[a]s with other rights that constitute a personal privilege, a defendant may waive his or her right to a speedy trial” and finding waiver where defendant failed to file a notice of expiration of speedy trial after earlier moving for a continuance); also cf. Oxendine v. State, 852 So.2d 286, 287 (Fla. 5th DCA 2003) (finding that issue sought to raised by criminal defendant “was waived” by entering a plea and then failing to file a “timely 3.850 motion alleging involuntary plea or based upon ineffective assistance of counsel.”).

In this ease, had Evans never filed a motion asserting entitlement to additional jail credit — and simply finished his sentence through the release date originally calculated by the Department of Corrections — one should conclude that he waived any additional credit by serving out the entirety of the sentence and never asserting the claim. That, in my view, would constitute a valid legal waiver, and therefore would not render his incarceration illegal beyond the theoretical “could have been” release date (that would have applied had he timely asserted the claim for additional credit). That same analysis should apply to a delayed assertion of the right as well. In other words, Evans waived the issue (as he had a right to do) until he asserted the claim. But his waiver beyond the theoretical “could have been” release date should not render his incarceration beyond that date unlawful— because it was based upon Evans’ own waiver of the credit.

Fourth, interpreting the recapture period as applying to Evans on these facts avoids the unreasonable result of allowing a sexually violent predator (from whom society needs protection) from “gaming the system” in a manner that deprives the state of its ability to initiate Ryce Act proceedings. As explained by Judge Al-tenbernd in Phillips:

Because a motion under rule 3.800(a) can be filed at any time and because, rightly or wrongly, we essentially permit de novo review of jail and prison credit under this rule, a defendant’s attorney is well advised to assure there is an unpre-served error in jail or prison credit when a client may be subject to civil detention. Once the error is rendered in the sentence, the defendant need only wait until the final portion of his sentence to file a motion under rule 3.800(a) to guarantee that the error will be corrected at a point that will divest the Department of Children and Family Services from jurisdiction. I see no reason why this outcome should be required as a matter of law.

Id. at 958 (Altenbernd, J., concurring in part and dissenting in part). But for the Ryce Act consequences in this case, it would have been in Evans’ interest to have the amount of jail credit clarified at the time of sentencing. Had he done so, of course, the State most likely would have initiated Ryce Act proceedings against Evans immediately, avoiding any issue regarding whether he was “legally detained” at the time.

A final and related reason for interpreting the recapture provision as applying to Evans is that this is the only interpretation consistent with the primary purpose of the Act itself. See Reeves v. State, 957 So.2d 625, 629 (Fla.2007) (“ ‘[Statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose.’ ”) (quoting Lewis v. Mosley, 204 So.2d 197, 201 (Fla.1967)). The well-recognized purpose of the Ryce Act is to “protect society from sexually violent predators.” Parole Comm’n v. Smith, 896 So.2d 966, 968 (Fla. 2d DCA), rev. denied, 911 So.2d 793 (Fla.2005); see also Anderson v. State, 93 So.3d 1201, 1210 (Fla. 1st DCA 2012 (Padovano, J., concurring) (“The purpose of the Jimmy Ryce Act is to isolate and treat persons who are presently dangerous.” (emphasis in original); State v. Ducharme, 881 So.2d 70, 74 (Fla. 5th DCA 2004) (‘“[t]he purpose of the Act is to protect society from repeat acts of predatory sexual violence’ ”) (quoting Sirmons v. Regier, 846 So.2d 1151, 1153 (Fla. 2d DCA 2003); State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000) (“The main purpose of the Act is to prevent ‘sexually violent predators’ from being released from incarceration directly into the general population.”) (citations omitted); § 394.910, Fla. Stat. (2006) (stating that the Act is aimed at “a small but extremely dangerous number of sexually violent predators”) (emphasis added).

Construing the Act as allowing an extremely dangerous sexually violent predator to avoid the recapture provision of the Act and secure his release into society by delaying clarification of his time-served credit would be patently inconsistent with the primary purpose of the Act.

For these reasons, I believe that the Act should be interpreted in a manner consistent with the trial court’s ruling in this case.

      .On appeal, Evans relied upon the Second District’s opinion in Phillips in arguing for a reversal. The State acknowledged that the Second District’s opinion would require a reversal, but suggested that we not follow Phillips. We were prepared to conflict with Phillips until we discovered that the majority opinion in that case had already been approved by the Florida Supreme Court — a fact not brought to our attention by either party (despite the fact that the Supreme Court approved the decision in Phillips approximately 10 months before the first brief was filed in this case).

      . The certified question in Phillips addressed a corrected award of gain time.

      . In re Commitment of Phillips, 69 So.3d 951 (Fla. 2d DCA 2010), approved, 74 So.3d 1084 (Fla.2011).

      . Although agreed to by the State, the calculation does not appear to be correct. Using the dates supplied by Evans in his motion, it appears that the time-served calculation should have yielded 631 days, rather than the stipulated 644 days.

      . The record contains no hint as to the nature of this additional information.

      . Larimore v. State, 2 So.3d 101 (Fla.2008).

      . In a very short dissent, Justice Wells noted his agreement with the "well-reasoned” decision of the First District "which correctly applied the statute as intended by the Legislature.” Id. at 117 (Wells, J., dissenting) The First District had concluded that the Ryce Act did not contain an "in custody” requirement. See Larimore v. State, 917 So.2d 354 (Fla. 1st DCA 2005), quashed, 2 So.3d 101 (Fla.2008).

      . It is this limiting language in Larimore itself which underpinned our initial conclusion that the result reached by the Second District in Phillips was not compelled by the holding in Larimore.


author: CIKLIN, J.

text:
    Erin ATAC, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3024.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      J. David Bogenschutz of Bogenschutz, Dutko & Rroll, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

In this appeal, we address an issue of first impression in Florida: whether Miranda warnings are required before law enforcement officials may engage in certain interactions with a “barricaded person” during a standoff. In appealing his manslaughter conviction, Erin Atac raises multiple issues, one of which warrants discussion. Atac argues that the police were required to administer Miranda warnings before questioning him over the telephone after Atac barricaded himself in his apartment and threatened to kill himself and anyone who entered the apartment. We join the consensus of states that have considered this issue and hold that Miranda warnings are not required in this type of situation.

Atac’s father was found murdered in January of 2007. The lead investigator of the murder (the “detective”) spoke to Atac multiple times at the start of the investigation. On the morning of January 14, 2007, the detective, along with a team of law enforcement officers, arrived at Atac’s apartment complex to arrest Atac and execute a search warrant for his apartment.

From the apartment building parking lot, the detective placed a telephone call to Atac and attempted to peacefully draw Atac out of his second-story unit so the team of law enforcement officers could effectuate both the arrest and the search. Atac, however, noticed through his back window that officers were positioned near his apartment. Atac refused to come out of his apartment, and told the detective that he was holding two firearms against his head. He warned law enforcement officials that if anyone entered his apartment, he would shoot them and save the last bullet for himself. Atac hung up the phone and the detective called back. Thereafter they engaged in a lengthy conversation spanning approximately two-and-one-half hours during which Atac repeatedly and abruptly terminated the various conversations. Atac twice ' reestablished contact with the detective by calling him. On one such call, Atac admitted to the detective, “I made my father beg for his life. I made him cry. And then I stuck him in the neck with a knife.” Atac repeatedly stated that his father “deserved what he got.”

At one point during the standoff, the detective began recording the telephone conversation with Atac. Eventually, the detective convinced Atac to peacefully exit his apartment and surrender, at which time he was arrested for the murder of his father.

Atac filed a motion to suppress directed at the incriminating telephone statements he made to the detective during the law enforcement operation at the apartment. Concluding that Atac was not in custody during the standoff, and therefore Miranda warnings were not required, the trial court denied the motion to suppress. A jury later found. Atac guilty of manslaughter and the trial court sentenced him to eighteen-and-one-half years in prison. Atac now appeals.

“The standard of review applicable to a motion to suppress requires this court to defer to the trial court’s factual findings but review legal conclusions de novo.” State v. Wilburn, 93 So.3d 1115, 1118 (Fla. 4th DCA 2012) (citation omitted).

“To protect suspects’ constitutional right[s] against self-incrimination, law enforcement officers are required to inform them of their right to remain silent and to have counsel present at any custodial interrogation.” Black v. State, 59 So.3d 340, 344-45 (Fla. 4th DCA 2011) (citing Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) (footnote omitted). “The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation.” Id. at 345 (citation and quotation marks omitted).

The dispositive issue here — and one which apparently has never been decided by a Florida appellate court — centers around custody during a barricaded standoff — a mixed question of law and fact. Custody can encompass either formal arrest or “the restriction of a suspect’s freedom of movement to a degree associated with formal arrest.” Schoenwetter v. State, 46 So.3d 535, 548 n. 7 (Fla.2010) (citation omitted). The Florida Supreme Court has adopted an “objective, reasonable-person framework in determining whether a suspect was in custody.” Peterson v. State, 94 So.3d 514, 527 (Fla.2012). This determination involves two inquiries: (1) what were the “circumstances sur-, rounding the interrogation,” and (2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Id. at 527-28 (citations and quotation marks omitted). The supreme court has provided four factors to consider when analyzing case-specific facts to determine whether a suspect was in custody for Miranda purposes:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is. confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez v. State, 739 So.2d 568, 574 (Fla.1999).

Regarding the first factor, law enforcement officials did not summon Atac for questioning, but rather were intending to arrest him upon his departure from his apartment. Here, the detective attempted to coax Atac to come downstairs by using a calm demeanor. They were unable to effectuate the arrest in this manner because Atac caught sight of them, barricaded himself in his apartment, and threatened to shoot himself or anyone who entered the apartment. Atac himself created the situation wherein the detective had to speak with him over the telephone in an effort to prevent Atac from carrying out his threats.

The second factor — the purpose, place, and manner of the interrogation— indicates that Atac was not in custody. The purpose of the telephone conversations during the standoff was to prevent Atac from doing any violence to himself or others. Whether we conclude that the place of interrogation was inside Atac’s apartment unit or, more broadly, the entire apartment complex, it is not our belief that the “place” of interrogation suggests that Atac was in custody. The multiple telephone calls comprised the manner of interrogation; Atac was free to end these telephone calls and in fact did so. Atac was free not to answer his phone and did not have to place calls to the detective, which he did twice.

As to the third factor, Atac was confronted with evidence of his guilt. However, the conversation with Atac naturally gravitated toward the murder because Atac was aware the police were at his apartment to arrest him for the killing.

The final factor — whether Atac was made aware he could leave the place of questioning — is not applicable to the facts of this case. Again, there was no discrete “place” of interrogation. Atac, however, was under no compulsion to speak with law enforcement officials as they surrounded his apartment complex. He was able to move freely about his apartment at all times. While he faced imminent arrest upon doing so, Atac was also free to exit his apartment.

While the “four-factor test” as enunciated in Ramirez is dispositive, a review of cases from other states that have considered this issue provides support for our conclusion that Atac was not in “custody” during the barricaded standoff. In Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996), the Pennsylvania Supreme Court analyzed the same issue and concluded as follows:

Appellant submits that the telephone contact initiated by the police while he was barricaded inside his home constituted custodial interrogation since the police knew at that time that Appellant was a suspect in the shootings, and thus, should have realized that their efforts to coax Appellant from his home via those oral communications was likely to elicit inculpatory statements. He also submits that hé was in police custody insofar as the police had his house surrounded and he was, thus, not free to leave. Appellant’s claim is wholly without merit. ... [Cjontrary to his assertions, he was not in custody at this time and, therefore, was not entitled to Miranda warnings.

Id. at 1188 (citations omitted); see also Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 115-16 (2001) (reaffirming the reasoning and holding of Jones).

In State v. Pejsa, 75 Wash.App. 139, 876 P.2d 963, 968 (1994), a Washington appeals court concluded, that a “barricaded person” is not entitled to Miranda warnings before speaking with police because that person can prevent law enforcement from exercising immediate control over his actions, can terminate the conversation simply by hanging up the phone, and can control the direction of the conversation. In West v. State, 923 P.2d 110 (Alaska Ct.App.1996), an Alaska appeals court held that the issue of a “barricaded person’s” Miranda rights had been considered by multiple courts around the country which had “unanimously conclude[d] that custodial interrogation requiring Miranda warnings does not occur when police communicate with a barricaded suspect who holds them at bay.” Id. at 113; see also Saldivar v. State, 980 S.W.2d 475, 490 (Tex.App.1998) (finding no custodial interrogation because, in part, “[a]lthough appellant was clearly surrounded by police and could not escape the parking lot during the standoff, she was armed and not restrained”).

Many courts in other jurisdictions have acknowledged the practical implications of requiring Miranda warnings before law enforcement can begin to interact with a barricaded person during a standoff or hostage situation. We echo the New Mexico Supreme Court’s concerns:

In a supercharged setting like an armed standoff between a criminal suspect and police, such a requirement could have devastating consequences. Telling a suspect that anything they [sic] say could be used against him in a court of law could undermine the trust that must be established between the suspect and the negotiator. It could escalate the dangers of a situation that might otherwise be resolved peacefully.

State v. Cooper, 124 N.M. 277, 949 P.2d 660, 667 (1997) (citations omitted); see also United States v. Mesa, 638 F.2d 582, 588-89 (3d Cir.1980) (“[T]he Miranda rule should be confined to those situations where the police have a fair choice in deciding whether to give the warnings. It should not be expanded to encorripass the present situation where the giving of warnings could have disastrous effects on the suspect and perhaps on others in the vicinity.”); State v. Bowen, 491 N.E.2d 1022, 1025 (Ind.Ct.App.1986) (“It would be facetious to say that while officers were trying to capture a barricaded suspected murderer, or trying to talk him out of his refuge, they must shout Miranda warnings at him.”).

Ultimately, we need not reach the issue of whether the detective’s conversation with Atac amounted to “interrogation.” As we have already concluded that Atac was not in custody during the standoff, Miranda warnings were not necessary, regardless of the questioning involved. Indeed, on appeal the parties argue extensively whether Atac was in custody during the standoff but only mention the issue of interrogation in passing. Further, the trial court based its order denying the motion to suppress on its finding that Atac was not in custody during the incident.

In conclusion, we hold that the trial court correctly found that Atac was not in custody for Miranda purposes during the barricaded standoff and the motion to suppress was properly denied. We affirm as to all other issues Atac raises on appeal without further comment.

Affirmed.

STEVENSON, J., and MORGAN, DAVID C., Associate Judge, concur.

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


author: WARNER, J.

text:
    Juliann GUERRERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1969.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In prosecuting the appellant for battery on a law enforcement officer and trespass, the state attorney highlighted the appellant’s alleged use of racial slurs against the law enforcement officer in opening statements, during witness testimony, and in closing argument. Although defense counsel had moved in limine to deter the state’s use of the racial slurs, the court denied the motion. The use of derogatory terms did not tend to prove any element of the offenses charged and became so pervasive that we conclude that the court erred in denying the motion in limine. The state cannot show that the error was harmless. Indeed, the state’s strategy cannot be condoned by this court. As a result, we reverse the conviction of appellant and remand for a new trial.

Appellant was charged by information with one count of battery on a law enforcement officer and one count of trespass after being warned to depart the premises after an incident occurring at a Fort Laud-erdale nightclub. Prior to trial, appellant filed a motion in limine to exclude testimony from various witnesses that appellant used racial epithets during the altercation leading to her arrest. Appellant argued that “the actual slur itself is unduly prejudicial to the Defendant and will not tend to prove or disprove any element of the charges ... and will be confusing and distracting for the jury.” The state opposed the motion, arguing that appellant’s use of the racial slurs was relevant to prove the elements of the crimes. The court denied the motion.

Armed with this ruling from the trial court, the prosecutor commenced her opening statement with several references to the racial slurs. Her first statement to the jury mentioned them:

Today we start our case, and this is the testimony that you are going to hear throughout this case.
You f-g house n-r. F- you. Get your hands off of me you dirty n-r.

Throughout her opening she made several other mentions of the racial slurs which various witnesses testified they heard. In response, in his opening, appellant’s counsel stated that there were witnesses who never heard appellant use such statements.

The testimony perpetuated the theme of racial slurs. According to the bartender, appellant was drinking at the bar of the club. She had become “rowdy.” Although the bar closes at 4 a.m., the bartender stopped serving appellant around 3:15 a.m., because she was drunk' or out of money. When the bartender asked her to leave at 4 a.m., she asked for another drink, which the bartender refused to serve. She then threw a glass at him.

The security guard saw the incident, and asked appellant to leave. In addition, the bar manager and a duty officer, a Fort Lauderdale policeman, came over to help. The duty officer, an African-American, tried to escort appellant out of the building. The bartender testified that he heard appellant say to the duty officer, “all you filthy n-rs are the same.” The bartender then observed that appellant pushed or punched the officer, and then the officer hit or slapped her.

The duty officer also testified as to his efforts to remove appellant from the bar. He attempted to take her drink away, and when he did, she pushed him and spilled the drink. “She started cursing, n-r this, n-r that....” The officer gave her a trespass warning and asked her to leave. He grabbed her arm and started to walk her out of the bar, while she continued to call him “all types of names.” The prosecutor then asked the officer what types of names she was using. He explained that she said, ‘You f-g, excuse me [sic] French, house n-r. Get the f— off me. Then she went from house n-r to field n-r, and she was just cursing up a storm. She was using a lot of derogatory terms.” Despite the derogatory terms, the officer stated that he was doing his job in trying to remove her.

At one point while the officer was leading her out, appellant turned around and hit him in the chest with her right hand, closed fist. He “gave her the distraction blow with [his] left hand”; the blow was to the right side of her face. After the officer hit appellant, he stopped her and arrested her, placing her in handcuffs while she was still inside the bar. He placed her in his patrol car. On the way to the police station, appellant was “yelling, screaming, cursing at me, calling me the N word.”

The bar manager also testified to the altercation and appellant’s unwillingness to leave the bar. When asked by the prosecutor, he also testified that the appellant used racial slurs against the duty officer. The manager stated that the duty officer asked her to leave, and when she refused, she was trespassing.

As part of her defense, an on-call security officer for the club, who was also an African-American, testified. He was present on the early morning of the incident. He knew appellant and had spoken to her at the bar. Just before closing time, he went to the restroom. When he returned, he noticed the duty officer interacting with appellant. The situation “escalated really fast,” and the duty officer “grabbed her by the arm, kind of forced her arm kind of behind her back, and he was like trying to force her out, pushing her towards the door.” He was “screaming that he was going to break her f-g arm,” and was “really over the top aggressive.” The on-call security officer did not hear appellant use racial slurs at any point, although she was using swear words. The on-call security officer walked up behind the duty officer and told him to calm down, “and at that point he started to release the arm and to allow me to escort her out.”

The on-call security officer also testified that appellant was a “friend of the bar,” meaning that she was given the privilege of staying at the bar after closing. In fact, the night before, appellant had stayed later with the manager of the bar and the club owner.

Appellant testified and claimed that she had been allowed to stay after closing as a “friend of the bar.” That night she was drinking with the on-call officer at bar closing, when she was tapped on the shoulder by the duty officer, demanding that she leave. Appellant looked for the bar manager for help, and the officer “immediately thought I was trying to defy his authority and became upset,” and grabbed her arm. She told him to get his hands off of her, but denied using a racial slur. The officer then said, “I’m going to break your f-g arm.” When she was being taken outside, she admitted using swear words at the officer, but not a racial slur. The officer then smacked her across the face. She continued to utter derogatory terms, but not racial terms, at the officer while being transported to the police station.

During closing arguments, the prosecutor made several references to the racial epithets used throughout the trial, concentrating on the words that appellant used and discussing their meaning. She related them to show the anger that appellant had toward the duty officer for demanding that she leave the bar.

The jury found appellant not guilty of battery on a law enforcement officer or any lesser offense and guilty as charged of trespass in a structure. Appellant was sentenced to five days in jail.

In this appeal, appellant contends that the court erred in denying her motion in limine to limit the use of racial slurs at trial as they were irrelevant, or if relevant, they were inflammatory and unduly prejudicial. “The standard of review for admissibility of evidence is abuse of discretion.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). “However, a trial court’s discretion is limited by the rules of evidence.” Id.

Was the use of racial slurs relevant to the issues in this case? “Relevant evidence is that which tends ‘to prove or disprove a material fact.’ ” Johnson v. State, 991 So.2d 962, 966 (Fla. 4th DCA 2008) (quoting § 90.401, Fla. Stat. (2007)). “In determining relevance, we look to the elements of the crime charged and whether the evidence tends to prove or disprove a material fact.” Id.

Regarding racial epithets, in Rich v. State, 18 So.3d 1227 (Fla. 4th DCA 2009), cited by both parties, this Court addressed the trial court’s evidentiary ruling on relevance in allowing testimony and argument regarding the defendant’s use of the term “cracker” while he was engaged in the sale of cocaine. Id. at 1228-29. This Court explained:

The fact that race may have motivated the defendant to sell cocaine to a black person instead of a white person, as the state argued in closing, had no bearing on the fact that the defendant was selling cocaine. This case is unlike those cases in which a defendant’s use of a racial slur was relevant to show the defendant’s state of mind as an element of the crime charged. See, e.g., Clinton v. State, 970 So.2d 412, 414 (Fla. 4th DCA 2007) (evidence that defendant, after stabbing victim, screamed “I’m going to kill you nigger” was properly admitted to prove defendant acted with premeditated design to cause the victim’s death).

Id. at 1229-30 (emphasis in original). “Ordinarily, racial slurs and ethnic epithets are so prejudicial as to render them inadmissible, unless the probative value outweighs any prejudice that may result from having the jury hear them.” MCI Exp., Inc. v. Ford Motor Co., 832 So.2d 795, 800 (Fla. 3d DCA 2002). “[Ijmproper remarks to the jury may in some instances be so prejudicial that neither rebuke nor retraction will destroy their influence, and a new trial should be granted despite the absence of an objection below or even in the presence of a rebuke by the trial judge.” Robinson v. State, 520 So.2d 1, 7 (Fla.1988) (citations omitted).

Throughout the motion jn limine hearing in this case, the prosecutor contended that all of the racial slurs by appellant were evidence of appellant’s state of mind at the time of the incident. As mentioned above, however, the use of the racial slur should be relevant to appellant’s state of mind as an element of the crime charged. See Wimberly v. State, 41 So.3d 298, 303 (Fla. 4th DCA 2010) (citing Rich). In contrast to the statements made in Wimberly, the statements made by the appellant here have little bearing on an element of battery on a law enforcement officer or any element of trespass. The vast majority of the racial slurs uttered by appellant as testified to by the witnesses had nothing to do with proving an intent to strike the duty officer, a necessary element of battery on a law enforcement officer. Thus, we conclude that most of the slurs were not relevant evidence. Moreover, even if some were relevant, we have no trouble in concluding that the prosecutor’s excessive use of the slurs crossed the line such that their prejudicial- effect outweighed their probative value.

“ ‘[Introduction into evidence of a racial or ethnic-slur is not per se reversible error.’ ” Wimberly, 41 So.3d at 303 (quoting Rich, 18 So.3d at 1230). Nevertheless, the state has the burden of proving that the error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); Rich, 18 So.3d at 1230-31. In Wimberly, for instance, this court affirmed an evidentiary decision when the defendant was charged with attempted first degree murder, “which required the state to prove that the shooting was committed with premeditation” — in such an instance, “the use of the racial slur was relevant to the shooter’s state of mind as an element of the crime charged.” 41 So.3d at 303. In Rich, we found that the introduction of the racial slur was also harmless where the defendant’s use of the racial slur would have been “meaningless” to the jury which also heard from five different officers about the witnessed drug transaction. 18 So.3d at 1280-81.

In this case, the use of racial epithets by the appellant became a feature of the prosecutor’s case from the very first statements she made to the jury to the end of closing argument. We count that the prosecutor herself used the slur twenty-three times during the trial, not counting all the times witnesses testified to various references. In Rich, we found that the racial slur was harmless, because the state was not “attempting to inject race as an issue in the trial or impermissibly appealing to bias and prejudice.” 18 So.3d at 1231; see also Jones v. State, 748 So.2d 1012, 1023 (Fla.1999). Here, it is apparent from the prosecutor’s entire trial strategy that the state was purposely injecting racial prejudice into the case.

It is true that the jury acquitted the appellant of battery on a law enforcement officer, the charge to which the state claimed the slurs might relate regarding the element of intent. However, the state cannot prove that this extensive focus on the slurs did not also affect her conviction for trespass. In order to find a trespass, the state must prove that the defendant refused to leave the preinises after being instructed to do so by an authorized person. See § 810.08(1), Fla. Stat. The racial references could have improperly influenced the jury on this issue, as the duty officer even testified that he forced her to leave after giving her a trespass warning without waiting for her to respond or allowing her to leave of her own volition. Appellant testified that she was a “friend of the bar” and had been allowed to stay. She was not refusing to leave but was being forced out of the bar by the duty officer. Because the issue was close, the state cannot prove beyond a reasonable doubt that the inflammatory references and prosecutorial argument centered on the racial slurs did not affect the jury.

Finally, we reiterate the comments we made in Rich that the prosecutor has a duty to do justice without appealing to inflammatory and prejudicial statements:

For future situations where a relevant statement includes an irrelevant racial slur, we remind attorneys and trial courts to consider redacting the racial slur. As the supreme court stated in Jones:
[W]e strongly caution prosecutors against eliciting testimony involving racial slurs unless absolutely necessary .... In circumstances such as this, we strongly suggest that prosecutors err on the side of caution by omitting these statements and that trial courts consider the danger that the prejudicial effect of such evidence will substantially outweigh any probative value. See § 90.403, Fla. Stat. (1995).
[748 So.2d at 1023] .... Moreover, redacting the express statement of the racial slur, as the defendant requested, may have prevented the defendant’s concern that his statement would affect the verdict.

Rich, 18 So.3d at 1231. The prosecutor in this case did not abide by these admonitions.

We reverse appellant’s conviction for trespass and remand for a new trial in which the racial slurs are not used.

CIKLIN, J„ and BLANC, PETER, Associate Judge, concur.


author: PER CURIAM.

text:
    Jennifer B. CHACE, Gregory R. Chace and Nancy Smythe, on behalf of themselves and all others similarly situated, Appellants, v. MARTIN MEMORIAL MEDICAL CENTER, INC., Medical Savings Insurance Company, a corporation, and Florida Life & Health Insurance Guaranty Association, Appellees.
    No. 4D10-4060.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Jeffrey M. Liggio of Liggio Benrubi, P.A., West Palm Beach, and Louis M. Silber of Silber, Valente & Davis, P.A., West Palm Beach, for appellants.
    Markham R. Leventhal and Michael N. Wolgin of Jorden Burt LLP, Miami, for appellee Florida Life and Health Insurance Guaranty Association.
   PER CURIAM.

This appeal is from a non-final order denying the appellants’ motion to join a third party in the litigation below. The order is not one of the appealable non-final orders found in Florida Rule of Appellate Procedure 9.130(a)(3) and is not otherwise appealable. Nor do we find a writ of certiorari to be appropriate were we to treat this appeal as a petition for one. See Karr v. Palm Peterbilt-GMC Trucks, Inc., 551 So.2d 1278, 1278-79 (Fla. 4th DCA 1989) (Warner, J., specially concurring) (noting that a petition for writ of certiorari directed at an order denying a motion to amend to add a party should be denied where an adequate remedy on plenary appeal is available). Therefore, we dismiss this appeal for lack of jurisdiction.

Dismissed.

WARNER, CIKLIN and LEVINE, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Wendy WHITNEY, Appellant, v. Manos MILIEN and Esurance Insurance Company, Appellees.
    Nos. 4D11-1565, 4D11-3792.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Order Granting Rehearing to Clarify and Denying Rehearing En Banc April 24, 2013.

      Wendy F. Lumish, Cristina Alonso and Christopher B. Corts of Carlton Fields, P.A., Miami, for appellant.
    Adam Lawrence of Lawrence & Daniels, Miami, and Malove Henratty, P.A., Fort Lauderdale, for appellee Manos Milien.
   PER CURIAM.

Appellant, Wendy Whitney, the defendant below, appeals the denial of her motion for new trial and/or remittitur and final judgment entered in favor of Appel-lee, Manos Milien, the plaintiff below. We affirm.

The plaintiff was a rear-seat passenger in a motor vehicle when it was struck in the rear by a motor vehicle driven by the defendant. As a result of the collision, the plaintiff was rendered a quadriplegic. After a lengthy, and what was described by the trial judge as a “draining” trial that turned mainly on the issues of comparative negligence and the reasonable and probable cost of the plaintiffs future medical care, the jury rendered a verdict resulting in a substantial award of damages to the plaintiff.

The defendant first argues that counsel exceeded the bounds of proper closing argument and made highly prejudicial and inflammatory arguments requiring a new trial. A trial court’s denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion. Philippon v. Shreffler, 33 So.3d 704, 709 (Fla. 4th DCA 2010).

The defendant urges that the cumulative effect of the improper arguments by the plaintiffs counsel was sufficient to taint the entire proceedings and require a new trial. Upon review of the entire record on appeal, we do not find that “the ‘totality of all errors and improprieties’ are ‘pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.’” Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004) (quoting Manhardt v. Tamton, 832 So.2d 129, 182 (Fla. 2d DCA 2002)). Under the circumstances presented in this case, it cannot be said that “no reasonable man would take the view adopted by the trial court” that these statements did not undermine the entire three-week trial. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (citation omitted). Therefore, we find the trial court did not abuse its discretion in denying the motion for new trial based on improper arguments by the plaintiffs counsel.

The defendant next argues that the trial court should have awarded a new trial, or at a minimum a remittitur, because the verdict was excessive and against the manifest weight of the evidence. The standard of review for an order denying a motion for new trial or denying a remittitur is abuse of discretion. See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999).

In order to obtain a new trial on grounds that the verdict was excessive, one must establish that “ ‘the verdict was so much greater than it should have been as to shock the judicial conscience’ and that the jury was ‘influenced by passion or prejudice.’ ” Abbott v. Dorleans, 41 So.3d 984, 986 (Fla. 4th DCA 2010) (quoting Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004)). As noted by this court in Abbott, “[wjhile we might disagree with the amounts awarded by the jury, mere disagreement with a jury’s verdict will not suffice; a verdict is contrary to the manifest weight of the evidence only where the evidence is ‘clear, obvious, and indisputable.’ ” Id. (quoting Becker v. Williams, 652 So.2d 1182, 1185 (Fla. 4th DCA 1995)).

The correctness of the jury’s verdict is strengthened when the trial judge refuses to grant a new trial or a remittitur. Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla.1976). The appellate court should not disturb a verdict as excessive, where the trial court refused to disturb the amount, unless the verdict is so inordinately large as to obviously exceed the maximum limit of a reasonable range within which the jury may properly operate. Id. Here, although disputed, evidence was presented which supports the jury’s verdict.

Affirmed.

POLEN, CONNER, JJ„ and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

On Motion for Rehearing

PER CURIAM.

Appellant, in her motion for rehearing, argues that this court overlooked the standard for harmless error delineated in Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011), rev. granted sub nom. Special v. W. Boca Med. Ctr., 90 So.3d 273 (Fla.2012); see also Intramed, Inc. v. Guider, 93 So.3d 503 (Fla. 4th DCA 2012). We deny Appellant’s motion for rehearing en banc and for certification to the Florida Supreme Court, but grant her motion for rehearing to clarify that we, in fact, considered the Special standard when we stated “[u]pon review of the entire record on appeal, we do not find that ‘the “totality of all errors and improprieties” are “pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.”’” Whitney v. Milien, 125 So.3d 817, 818 (Fla. 4th DCA 2013) (quoting Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004)). We reviewed the entire record and did not find any impropriety which affected the trial to such an extent as to deny Appellant a fair trial. See Intramed, Inc., 93 So.3d at 505. Therefore, Appellee met his burden by demonstrating that “it is more likely than not that the error[s] did not influence the trier of fact and thereby contribute to the verdict.” Special, 79 So.3d at 771.

POLEN, CONNER, JJ., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.


text:
    Rafael Arce GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2518.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Rafael Arce Gonzalez, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Finethy v. State, 962 So.2d 990 (Fla. 4th DCA 2007).

MAY, C.J., POLEN and DAMOORGIAN, JJ., concur.


text:
    Victor IBARRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1459.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Thomas A. Kennedy, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm in all respects the trial court’s summary denial of appellant’s untimely motion for postconviction relief. We write to explain the various reasons why petitioner is not entitled to relief on his claim that counsel was ineffective in giving him inaccurate advice about the immigration consequences of the plea. The trial court correctly concluded that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to this August 8, 2002 plea. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla. Nov. 21, 2012).

Further, as argued by the State in its response below, appellant is not subject to deportation based solely on his plea in this case, which is a requirement for obtaining relief under Padilla. Ioselli v. State, 122 So.3d 388, 2013 WL 611781 (Fla. 4th DCA Feb.20, 2013) (citing Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008)); see also Diez v. State, 102 So.3d 19, 20 (Fla. 4th DCA 2012).

The Department of Homeland Security’s Notice to Appear for removal proceedings reflects that appellant is an illegal alien and is subject to removal on that basis alone. As an illegal alien, appellant had no legitimate expectation that he would be allowed to remain in this country when he committed the offenses and entered the plea at issue. Joseph v. State, 107 So.3d 492 (Fla. 4th DCA Feb.13, 2013) (“Padilla applies only to those who were present in the country lawfully at the time of the plea.”). Any reliance that appellant allegedly placed on counsel’s purported advice that appellant would not be deported as a result of this plea is unjustified and illegitimate. The possibility that Ibarra might otherwise qualify for an adjustment in status is not a basis for relief. See Rosas v. State, 991 So.2d 1003 (Fla. 4th DCA 2008).

Affirmed.

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Patrick Alan MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3588.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Patrick Alan Miller, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Reeves v. State, 957 So.2d 625, 627, 630, 633 (Fla.2007) (Criminal Punishment Code sentence may follow a Prison Releasee Reoffender sentence consecutively when the two sentences are for separate offenses arising out of the same criminal episode); Kelly v. State, 126 So.3d 1149 (Fla. 4th DCA 2012) (same).

TAYLOR, DAMOORGIAN and GERBER, JJ., concur.