author: SALTER, J.

text:
    James BELLIZZI, et al., Appellant, v. ISLAMORADA, VILLAGE OF ISLANDS, Florida, et al., Appellees.
    No. 3D13-3058.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Rehearing Denied Oct. 23, 2014.

      Franklin D. Greenman, Marathon, for appellants.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Chris Ambrosio; Vernis & Bowling and Dirk Smits, Islamo-rada, and Jeffrey L. Hochman, Fort Laud-erdale, for appellees.
    Before LAGOA, SALTER and EMAS, JJ.
   On Motion for Rehearing

SALTER, J.

Upon consideration of the appellants’ motion for rehearing and the appellees’ response, the Court withdraws its opinion of August 6, 2014, replacing it with the opinion which follows.

Residential lot owners, Mr. and Mrs. Bellizzi, and Monroe County Land Trust, Inc. (MCLT), appeal a final judgment and summary judgment order in favor of the Village of Islamorada (Islamorada) and Venetian Shores Homeowners Association, Inc. (Association). The parties to this appeal sought to determine their respective property rights in three roadways (Severino Drive, Venetian Way, and Venetian Boulevard) in a platted subdivision in Isla-morada known as “Venetian Shores.” We affirm the trial court’s well-reasoned judgment and order, and we deny the appel-lees’ motion to dismiss this appeal as to two of the plaintiffs below, Mrs. Bellizzi and MCLT.

I. Facts and Claims

Venetian Shores was platted in 1956. Five additional plats were recorded through 1982, but the determination of this appeal turns on the first three plats. “Plat No. 1” laid out 130 residential lots and four roads. Pertinent here, Venetian Boulevard was divided into two segments; that portion of the road joining the Overseas Highway was depicted as a “Dedicated Road,” and the second (interior) part of Venetian Boulevard was depicted as a “Private Road.” The granting clauses of the first plat stated that the dedicated portion of Venetian Boulevard was “dedicated to the perpetual use of the public for proper purposes,” with a reversion to the developer “whenever discontinued by law.” The portion depicted as a “Private Road” was “reserved for the exclusive use of owners of property in this subdivision,” with no express term for reversion. (Emphasis added).

“Plat No. 2” (1957) expanded Venetian Shores, adding more roads, canals, and residential lots. One road, Porto Salvo Drive, was dedicated to public use with a reversion to the developer “whenever discontinued by law,” and “[a]ll other drives and [Venetian Boulevard] are not dedicated but are for the exclusive use of owners of property in the subdivision.” (Emphasis added). Finally, “Plat No. 3” (1961) further expanded the Venetian Shores subdivision. The granting clause included a provision that “The Boulevard [Venetian Boulevard], Drives, and Canals as shown hereon are not dedicated to the public, but are reserved for the exclusive use of owners of property in this subdivision.” (Emphasis added).

In 1961, the developer assigned its rights to operate and manage the subdivision to the Association. In 1966, City National Bank (as trustee for the successor developer) conveyed the roads depicted in Venetian Shores Plat No. 3 to Monroe County. In 1969, Monroe County deeded the roads in the subdivision to the Florida Department of Transportation (FDOT). FDOT then filed an official map of location and survey for Severino Drive, Venetian Way, and Venetian Boulevard and paved the roads. In 1984, the roads were quit-claimed by the State back to Monroe County. Litigation between the Association and the County, regarding the County’s alleged duty to maintain the roads in the subdivision, was settled in 1986. In 1997, Islamorada was incorporated as a municipality; the following year, Monroe County transferred title to the roads in Venetian Shores to Islamorada, which assumed responsibility for them.

Meanwhile, Mr. and Mrs. Bellizzi acquired a fee simple interest in Lot 15, Block 30, Venetian Shores Plat No. 3, in November, 1998, and MCLT acquired a fee , simple interest in 21 lots in various blocks in Plat No. 2, in 2010. In the second amended complaint, the Bellizzis and MCLT asserted causes of action: for a declaratory judgment that they own the fee simple interest in Severino Drive, Venetian Way, and Venetian Boulevard “to their midpoints, directly adjacent and abutting Plaintiffs’ respective properties” (Count I); to quiet title to those areas within the roadways and canals (Count II); for statutory and common law inverse condemnation compensation for those areas within the roadways, should the court determine that Islamorada is the legal owner of the roads (Counts III and IV); and for a declaratory judgment that the Bellizzis and MCLT own the canals shown on the plats “to their midpoints, directly adjacent and abutting Plaintiffs’ respective properties.”

Islamorada and the Association moved for and obtained a summary judgment regarding Islamorada’s ownership of the roads. The trial court found, among other things, that:

[T]he grantor-developer intended to retain ownership of the entire road until it could convey it to the [Association]. By retaining the fee to the disputed land, the developer would provide the Association, and the individual owners of the development, with a uniform system of roads accessing all parts of the development, and the world beyond.

A final judgment in favor of Islamorada and the Association was issued, and this appeal followed.

II. Jurisdiction

As a threshold matter, we must decide whether Mrs. Bellizzi and MCLT timely invoked this Court’s jurisdiction. We conclude that their omission from the initial notice of appeal did not prejudice the appellees, Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977), and we therefore deny the motion to dismiss the appeal for lack of jurisdiction as it pertains to each of them. The notice of appeal identified the final judgment and summary judgment sought to be- appealed and one of the appellants. An amended notice of appeal was filed, and the appellees have shown no prejudice regarding the initial and apparently inadvertent omission.

III. Analysis: Mr. Bellizzi’s Claims to Part of the Roadways

At the outset, it should be observed that Mr. Bellizzi’s theory of ownership of a fee interest in the platted road, Severino Drive, would wreak havoc in Venetian Shores if validated. If each lot owner owned a fee interest in the property below the pavement and to the midpoint of any roadway abutting the lot, subject to the exclusive use of all 531 subdivision lot owners, communal maintenance and repair of the street would be complex, at best. The trial court considered the plats and the 1957 Venetian Shores “Declaration Concerning Restrictions and Improvements” as uncontroverted evidence of the developer’s intention to create “a uniform system of roads accessing all parts of the development,” and a “blueprint for the governance of the development as it went forward.” Left to their own individual calculus of costs and benefits regarding the roads, some lot owners might prefer (and be willing to contribute their pro rata portion of the cost of) a uniformly paved and striped roadway, while others might be unwilling to make such contributions and might prefer to let the roadway revert to spalled asphalt and crushed coral fill.

It should also be mentioned that the record reflects no effort by the Bellizzis, MCLT, or other lot owners to (a) pay any part of the costs associated with paving or maintaining the roadways, or (b) obtain a property tax folio number for the applicable portion of the roadway purportedly owned by each lot owner, much less to pay property taxes on that small parcel.

But the test of common sense does not always carry the day in real estate disputes. We thus evaluate the legal arguments and authorities relied upon by the Bellizzis and MCLT. Foremost among these is the “common law rule” described in Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915), and Servando Building Co. v. Zimmerman, 91 So.2d 289 (Fla.1956). In Smith, that rule is summarized:

Where the owner of land has it surveyed, mapped, and platted showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets, in the absence of a contrary showing, extends to the center of such highway subject to the public easement. And, where the highway is lawfully surrendered, the then holder of the title to abutting property and to the center of the street has the property relieved of the public easement.

Smith, 70 So. at 436 (citations omitted).

Roadways, paving, and automobiles have changed over the intervening century, but the case is also distinguishable on its facts. In the present case, the developer never “surrendered” the fee interest in the roadway; rather, the developer assigned that interest to a successor, which in turn conveyed it to Monroe County, with conveyances continuing successively to FDOT, back to Monroe County, and thence to Islamorada. The limited piece of the bundle of rights granted by the plats to residential lot owners was an easement of use of the roadway by all such owners, not fee title to a portion of the roadway out to the middle of the street and abutting the lot.

Similarly, in Servando Building Co., a mortgagee foreclosed upon a developer’s reversionary interest in certain streets and alleys shown on a plat and dedicated to the public. A successor in title to the successful purchaser at the foreclosure sale claimed fee simple ownership of a portion of two streets shown on the plat, but later “vacated and discontinued” by the municipality. The trial court concluded that the developer’s intention was to grant the lot owners title to the center of those streets subject to the easement granted (and marketed) to the public. The Supreme Court of Florida affirmed, based on the impracticality of allowing the claimed owner of the vacated street to deprive lot owners of access, and based as well on the developer’s obvious intention to make the streets “a factor indispensable to successful marketing.” Servando Bldg. Co., 91 So.2d at 293.

In the present case, the parties that ultimately acquired the developer’s rever-sionary interests were public entities, not a private party, carrying out the developer’s intention to allow lot owners access to their property. Originally, it is true, the developer’s express intention was that a guard house would be constructed at the entrance to Venetian Shores, and that the roads would be private, for the exclusive use of the lot owners. But, as the trial court concluded, it is equally clear that “the grantor-developer intended to retain ownership of the entire road until it could convey it to the [Association].” The developer, its successors, and the Association ultimately concluded that the transfer of the roads to public entities was in the best interest of the lot owners. And those decisions were made and given effect in the public records many years before the Bel-lizzis or MCLT acquired any interest in the lots depicted on the plats.

The present case is also distinguishable from another case relied upon by the Bellizzis and MCLT, Langston v. City of Miami Beach, 242 So.2d 481 (Fla. 3d DCA 1971). In that case, the developer created a road for the private use of the lot owners, but also granted the abutting lot owners a right to close and vacate the private road, or part of it. In the present case, the developer retained, and did not convey to the lot owners, any rights to close or vacate the roadways.

Finally, we reject the Bellizzis’ and MCLT’s contention that there are “three documents in the Record that corroborate the finding that the roads in Venetian Shores are private, and not dedicated to the public.” A March 1983 letter from the Director of the Monroe County Public Works Department to the then-President of the Association expressed a belief that some of the roads were private roads (despite the fact that FDOT had paved them) and proposed a series of steps to bring those roads under County maintenance jurisdiction. These issues were resolved in the 1986 settlement of a lawsuit between the Association and County. A May 1986 letter from the County’s outside engineering consultant (several months before the 1986 settlement was approved) was apparently written by a non-lawyer recommending what should be done regarding the roadways and the wetlands portions of Venetian Shores. The November 2009 letter from an attorney employed by a title insurer provided a title report to a law firm then representing Islamorada. The report concludes that the County-Association settlement in 1986 “could clearly be construed to be an offer to dedicate” Venetian Boulevard and the feeder streets to the west of it, but concludes that without additional documents the insurer could not insure title. The report does not conclude or concede that the Bellizzis or MCLT acquired title to any part of the roadways.

IV. Conclusion

The trial court carefully and correctly reviewed the plats, deeds, declaration of restrictions, and other record evidence regarding the lots and roadways. No error having been demonstrated, the final judgment and order granting summary judgment below are affirmed in all respects.

      . The appellees’ motion to dismiss the appeal for lack of jurisdiction as to Mrs. Bellizzi and MCLT was carried with the case through briefing and oral argument.

      . MCLT was allowed to intervene as a plaintiff for purposes of the claims in the second amended complaint. Mr. Bellizzi is identified as a vice president of MCLT, and the Bellizzis and MCLT have been represented by the same counsel.

      . In this appeal, the Bellizzis and MCLT have not attempted to pursue their claims with respect to the canals. In the final judgment, the trial court also noted that “[Islamorada] has not claimed any interest in the canals,” and thus the court declined to determine the current owner of the canals.

      . The Bellizzis and MCLT also moved for summary judgment, and that motion was denied.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Steven FRISCHER, Appellant, v. Margarita QUINTANA, Jose Quintana, and Annette Quintana, Appellees.
    No. 3D14-824.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Rehearing Denied Dec. 9, 2014.

      Nancy C. Wear, B.C.S., and Nancy C. Wear, Miami, for appellant.
    Richard F. Watson, P.A., and Richard F. Watson, for appellees.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

Steven Frischer appeals from a final order of the trial court denying his motion for attorney’s fees and prejudgment interest as a sanction under section 57.105, Florida Statutes (2011), and denying him costs as the prevailing party under section 57.041, Florida Statutes (2011).

We affirm the denial of attorney’s fees under section 57.105. A trial court’s denial of a motion for attorney’s fees under section 57.105 is reviewed for abuse of discretion. Puglisi v. Puglisi, 135 So.3d 1146, 1147 (Fla. 5th DCA 2014); Lago v. Kame By Design, LLC, 120 So.3d 73, 74 (Fla. 4th DCA 2013). Admittedly, this lawsuit was filed almost fifteen years after the applicable statute of limitations had run. The argument, however, that the cause of action did not accrue until recently, although feeble, was not so entirely devoid of merit that the trial court’s decision to decline to award fees rose to the level of an abuse of discretion.

The trial court, however, erred in failing to award costs. Section 57.041 provides:

(1) The party recovering judgment shall recover all of his or her legal costs and charges which shall be included in the. judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

(2) Costs may be collected by execution on the judgment or order assessing costs.

A trial court has no discretion whether to award costs pursuant to this section. Higgs v. Klock, 873 So.2d 591, 592 (Fla. 3d DCA 2004) (“[UJnder the statute, every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs, and a trial judge has no discretion to deny costs to the parties recovering judgment.”) (internal quotation and citation omitted); Wilkerson v. Johnson, 139 So.3d 965, 967 (Fla. 1st DCA 2014) (“Courts have interpreted this statute as removing from the trial court the discretion to deny costs to the prevailing party in a civil action.”). Frischer specifically requested costs as the prevailing party pursuant to section 57.041. Because Frischer was the prevailing party, he was entitled to an award of costs.

Affirmed in part; reversed in part; and remanded for proceedings consistent with this opinion.


author: PER CURIAM.

text:
    John W. MANN, Appellant, v. Guard HOWL, et al., Appellee.
    No. 1D14-0218.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2014.
    Rehearing Denied Dee. 3, 2014.
    John W. Mann, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Daily v. Soloway, 125 So.3d 363 (Fla. 1st DCA 2013).

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Arthur W. FOLEY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D14-1023, 3D14-0627.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Rehearing Denied Nov. 6, 2014.
    Arthur W. Foley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   PER CURIAM.

On May 5, 2014, in Case Number 3D14-1023, Arthur W. Foley, filed a Notice of Appeal from the trial court’s April 17, 2014, “Order Recommending Sanctions and Directions to the Clerk of the Eleventh Judicial Circuit Court,” wherein the trial court recommended that Foley be sanctioned for abusing the judicial process and directed the Clerk of the Eleventh Judicial Circuit not to accept any further filings from Foley unless signed by an attorney duly licensed to practice law in Florida.

On July 10, 2014, we consolidated Case Number 3D14-0627 with the instant case, 3D14-1023, and ordered Foley to file his initial brief within twenty days of the date of that order, i.e., by July 30, 2014, limited only to arguments directed in Case Number 3D14-1023.

Having filed no initial brief by July 30, this court, on August 20, 2014, ordered Foley to show cause within ten days why the appeal in Case Number 3D14-1023 should not be dismissed for failure to file an initial brief. To date, Foley has not filed an initial brief.

Therefore, we dismiss the appeal in Case Number 3D14-1023. We further allow Foley twenty days from the date of this opinion to respond to this court’s previous May 28, 2014, show cause order as to why he should not be prohibited from filing any further pro se appeals, pleadings, motion, or petitions relating to lower tribunal number 99-37608. No further extensions shall be granted.

Appeal dismissed; show cause order issued.

      . Foley appealed the denial of the trial court's February 27, 2014, order denying his motion for postconviction relief. On May 28, 2014, this court affirmed the order and simultaneously ordered Foley to show cause why he should not be prohibited from filing further pro se pleadings relating to lower tribunal case number 99-37608 lest he face sanctions. See Foley v. State, 139 So.3d 456 (Fla. 3d DCA 2014).

      . In response to our initial show cause order in Foley, 139 So.3d at 456, Foley urged us to provide him more time in which to respond to the order, contending he had other pending appeals in this court. We implicitly granted Foley's request by consolidating the cases and affording him time to file an initial brief.


text:
    Geno Lewis HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3922.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2014.
    Rehearing Denied Dec. 5, 2014.
    Geno Lewis Hawkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, C.J., PADOVANO and CLARK, JJ., concur.


author: SCALES, J. LOGUE, J.,

text:
    MAGIC TINTING WINDOW & CAR ALARM, INC., Appellant, v. SCOTTSDALE INSURANCE COMPANY, Appellee.
    No. 3D13-2769.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2014.
    Stabinski & Funt, P.A., and Todd J. Stabinski, for appellant.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., and Hinda Klein and Thomas Regnier (Hollywood), for appellee.
    Before ROTHENBERG, LOGUE and SCALES, JJ.
   SCALES, J.

This case is before us on Scottsdale Insurance Company’s (Scottsdale) amended motion for appellate attorney fees filed pursuant to Florida Rule of Appellate Procedure 9.400. Scottsdale’s claim for fees is based upon section 768.79, Florida Statutes (2013) (Florida’s “Offer of judgment and demand for judgment” statute); Scottsdale served a proposal for settlement on Magic Tinting Window & Car Alarm, Inc. (Magic Tinting) on or about March 21, 2006.

Scottsdale prevailed below and obtained a final judgment in its favor on October 2, 2013. Magic Tinting filed its notice of appeal of the final judgment with this court on October 29, 2013. Before any briefing, Magic Tinting voluntarily dismissed its appeal on August 18, 2014.

We deny Scottsdale’s amended motion for appellate attorney fees. See Sanchez v. State Farm Fla. Ins. Co., 997 So.2d 1209, 1209 (Fla. 3d DCA 2008) (denying motion for appellate attorney fees when appellate record reflected “de minimis” activity).

Motion denied.

ROTHENBERG, J., concurs.

LOGUE, J.,

concurring.

I would simply deny Scottsdale’s amended motion for appellate attorney fees. See Sanchez v. State Farm Fla. Ins. Co., 997 So.2d 1209 (Fla. 3d DCA 2008).

      . On the basis of Sanchez, we are constrained to deny Scottsdale’s amended motion for appellate attorney fees. If we were writing on a clean slate, however, we would grant Scottsdale’s motion for fees consistent with Chief Judge Shepherd’s dissent in Sanchez and our sister courts' conclusions in Braxton v. Grabowski, 125 So.3d 936 (Fla. 2d DCA 2013), and First Real Estate, LLC v. Grant, 88 So.3d 1073 (Fla. 1st DCA 2012).


text:
    Lualhati CRESPO and Jose Crespo, Appellants, v. Eileen HERNANDEZ, M.D. and Women’s Care Florida, LLC d/b/a Partners in Women’s Healthcare, Appellees.
    No. 5D14-759.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.
    Rehearing En Banc Denied Dec. 9, 2014.

      Jessie L. Harrell and Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, for Appellants.
    Thomas E. Dukes, III, and Ruth C. Osborne, of McEwan, Martinez, & Dukes, P.A., Orlando, for Appellees.
   PER CURIAM.

The arbitration agreement at issue violates the public policy pronounced by the Legislature in the Medical Malpractice Act, chapter 766, Florida Statutes (2012), by failing to adopt the necessary statutory provisions. Franks v. Bowers, 116 So.3d 1240, 1248 (Fla.2013) (“Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.”). Therefore, we reverse the order rendered by the trial court compelling binding arbitration pursuant to the arbitration agreement under review. We certify conflict with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014). We remand this case to the trial court for further proceedings.

REVERSED; REMANDED; CONFLICT CERTIFIED.

TORPY, C.J., SAWAYA and LAMBERT, JJ., concur.


text:
    Ednere FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1558.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 12, 2014.
    Ednere Francois, Lauderdale Lakes, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We grant Ednere Francois’ petition alleging ineffective assistance of appellate counsel. Francois was convicted after jury trial of two counts of attempted second degree murder. On direct appeal, appellate counsel argued that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter, a lesser offense only one step removed. This Court affirmed without explanation. Francois v. State, 85 So.3d 497 (Fla. 4th DCA 2012) (table).

At the time of the direct appeal, the First District Court of Appeal had extended Montgomery v. State, 70 So.3d 603, 608 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), to the attempted voluntary manslaughter jury instruction. Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009). We certified conflict with Lamb in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), which was ultimately quashed by Williams v. State, 123 So.3d 23 (Fla. 2013).

Francois argues that counsel was ineffective in failing to request certification of the conflict in his ease or a citation to this Court’s decision in Williams. We agree.

We have granted relief in similar situations. See Wimberly v. State, — So.3d -, 2014 WL 4328067, 39 Fla. L. Weekly D1884 (Fla. 4th DCA Sept. 3, 2014) (granting ineffective assistance of appellate counsel petition for failure to raise Lamb and argue the fundamental error in the jury instruction); Walden v. State, — So.3d -, 2014 WL 4840751, 39 Fla. L. Weekly D2069 (Fla. 4th DCA Oct. 1, 2014) (granting habeas corpus where conflict was not certified and no citation was provided to the conflict case).

Appellate counsel was deficient in failing to preserve Francois’ ability to seek further review in the Florida Supreme Court. We have reversed and ordered a new trial in a number of cases that were remanded following the Florida Supreme Court’s decision in Williams. If counsel had requested certification of the conflict, or a citation to our decision in Williams, Francois would have obtained the same relief.

We have considered the State’s arguments in this proceeding and find them to be without merit. As in Wimberly, although Francois argued mistaken identity at trial, the issue of intent was disputed in this murder trial. — So.3d at-, 39 Fla. L. Weekly at D1885. The State’s argument that trial counsel invited the error by requesting the erroneous instruction overlooks the fact that the defendant in Williams had also requested the instruction. 123 So.3d at 25.

We therefore grant the petition. Because a new appeal would be redundant, we vacate the convictions for attempted second degree murder and remand for a new trial.

Petition granted.

STEVENSON, TAYLOR and GERBER, JJ., concur.

      . See, e.g., Rodriguez v. State, 139 So.3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So.3d 232 (Fla. 4th DCA 2014); Lopez v. State, 138 So.3d 488 (Fla. 4th DCA 2014); Davis v. State, 138 So.3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So.3d 1167 (Fla. 4th DCA 2014); Coriolan v. State, 137 So.3d 1080 (Fla. 4th DCA 2014); Cunningham v. State, - So.3d -, 2014 WL 714714, 39 Fla. L. Weekly D451 (Fla. 4th DCA Feb. 26, 2014); Cox v. State, 132 So.3d 956 (Fla. 4th DCA 2014); Morgan v. State, 132 So.3d 930 (Fla. 4th DCA 2014); Williams v. State, 121 So.3d 634 (Fla. 4th DCA 2013).


author: VAN NORTWICK, J. ROWE, J.,

text:
    Brian Scott LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4615.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 11, 2014.

      D. Gray Thomas, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Brian Scott Long appeals his convictions of two counts of lewd and lascivious molestation and one count of sexual battery by a person in familial or custodial authority. Because men wearing jackets embroidered with “Bikers Against Child Abuse” were in the presence of jurors prior to the commencement of the trial, we conclude that inherent prejudice has been established and that there was an unacceptable risk that impermissible factors affected the jury. Accordingly, Long’s convictions are reversed, the sentences vacated, and the cause remanded for a new trial.

Long was charged with multiple counts of lewd and lascivious molestation and sexual battery of his former step-daughter. The offenses were alleged to have occurred in Duval County and to have taken place over several years; the victim did not report the offenses until several years after the offenses were alleged to have occurred. Long raises multiple issues on appeal, but it is necessary for us to address only one issue.

He argues that a new trial is required because several persons selected to serve on the jury came into close proximity with men wearing leather jackets emblazoned with the phrase: “Bikers Against Child Abuse.” These men were observed sitting in a hallway with the jury on the morning trial was scheduled to commence. Prior to the start of trial, defense counsel brought the jury’s encounter with “burly” bikers to the attention of the trial court. Defense counsel asserted that a mistrial was in order, and as authority for such, cited Shootes v. State, 20 So.3d 434 (Fla. 1st DCA 2009). The prosecutor advised the trial court that these men had befriended the victim and appeared at trial in order to show support for her. The prosecutor added that she instructed the group not to wear their “paraphernalia” in the courtroom.

The trial court interviewed four of the jurors exposed to the bikers. Each juror stated that there was no conversation with the bikers, and each answered affirmatively when asked if he or she could remain impartial despite seeing the bikers. Yet, one juror was dismissed because her answer as to whether she could be impartial was deemed equivocal by the trial court. Another, Mr. Adams, was asked whether the bikers would cause him to “favor the State against the defendant in any way,” and the juror replied:

No. I would be disappointed if they were in the parking lot when we were going home. But other than that— Court: Why is that, sir?
Juror: I am being honest. I don’t think that will happen. I don’t think it will have any bearing on the case whatsoever, you know, other than what the facts are presented in here.

After the interviews and after excusing a juror, the trial court was confident that the remaining jurors would be impartial. The bikers were instructed by the trial court, outside of the presence of the jury, not to wear their “insignia” in the court room. They were also instructed not to congregate around the jurors during breaks. A mistrial was thus denied.

The jury returned a guilty verdict on all of the charges pending. The defense moved for a new trial on several grounds, including the ground that the trial court erred in denying Long’s motion for a mistrial in view of the prejudice caused by the presence of the “Bikers Against Child Abuse” group. In the motion for a new trial, the defense added that the prejudice caused by the presence of the bikers was aggravated by their close proximity to the jury during the trial itself.

A hearing was granted on the motion for a new trial, at which substantial argument was received. The trial court denied a new trial noting that all of the bikers were “properly attired” during the trial and that the court was confident that the jury was not affected by the presence of the bikers in the courtroom. The prosecutor did not take exception to the observation of defense counsel, made for the record immediately upon hearing the trial court’s reasons for denying a new trial, that there were eleven or twelve bikers in the courtroom and that the people who sat closest to the jury “were members of the Bikers Against Child Abuse group,” although the trial court had the impression that some of the trial observers were members of the victim’s family.

On appeal, Long argues that actual or inherent prejudice resulted from the presence of the bikers at the trial. We agree that an unacceptable risk was created that the verdict reached was, at least in part, a result of the pre-trial encounter with the insignia-laden bikers. Although the trial court appropriately questioned the jurors, at that point in the proceedings, by which time the jury members had been selected but not sworn, the trial court should have selected a new jury panel. That error was aggravated by the continued presence of the bikers in the courtroom in close proximity of the jury.

The due process clause of the Fourteenth Amendment guarantees the right of state criminal defendants to be tried by an impartial jury. Woods v. Dugger, 923 F.2d 1454, 1456 (11th Cir.1991). The Fourteenth Amendment incorporates the essence of the Sixth Amendment right to be tried “by a panel of impartial, ‘indifferent’ jurors ... [whose] verdict must be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (citations omitted). As Chief Justice Warren has observed, the constitutional guarantee of due process requires the courts to safeguard against “the intrusion of factors into the trial process that tend to subvert its purpose.” Estes v. Texas, 381 U.S. 532, 560, 85 S.Ct. 1628, 1642, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring). Specifically, the courts must vigilantly guard against “the atmosphere in and around the courtroom [becoming] so hostile as to interfere with the trial process, even though ... all the forms of trial conformed to the requirements of law....” Id. at 561, 85 S.Ct. at 1642.

This court explained in Shootes v. State that “[t]he presence of courtroom observers wearing uniforms, insignia, buttons, or other indicia of support for the accused, the prosecution, or the victim of the crime does not automatically constitute denial of the accused’s right to a fair trial.” 20 So.3d 434, 438 (Fla. 1st DCA 2009); see also Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). However, there are situations where the atmosphere in the courtroom might infringe on the defendant’s right to a fair trial. When such a claim is raised, a case-by-case approach is required to allow courts to consider the “totality of the circumstances.” Shootes, 20 So.3d at 438 (quoting Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)).

As we further explained in Shootes, a defendant claiming he was denied a fair trial must show “either actual or inherent prejudice.” Id.; see also Woods, 923 F.2d at 1457. Actual prejudice requires some indication or articulation by a juror or jurors that they were conscious of some prejudicial effect. See Pozo v. State, 963 So.2d 831 (Fla. 4th DCA 2007). Inherent prejudice, on the other hand, requires a showing by the defendant that there was an unacceptable risk of impermissible factors coming into play. Holbrook, 475 U.S. at 570, 106 S.Ct. 1340, 89 L.Ed.2d 525; Woods, 923 F.2d at 1457.

Inherent prejudice has been shown here. By displaying their insignia, the bikers intended to do more than be present as support for the victim.. After all, the victim already knew the bikers. Thus, they could have provided support to her by merely being present without wearing any distinguishing clothing. Instead, in apparent contravention of the prosecutor’s instruction, the bikers chose to appear, as the morning trial was set to commence, in clothing which was intended “to communicate a message to the jury.” Woods, 923 F.2d at 1459. That message was the appellant was a sexual abuser and that sexual abuse was to be condemned by a guilty verdict. As the trial court stated below, the bikers engaged in “reckless advocacy” — advocacy of a certain outcome to be reached by the jury regardless of what the State proved at trial.

We must not and do not take lightly the solemn obligation to ensure that those whose liberty is at risk are tried by a jury which feels unpressured to reach a certain verdict. A fair trial is, fundamentally, a trial free from “influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915). While we would not describe the bikers with a perjorative term such as mob, it is nevertheless the case that these individuals appeared at trial with the announced purpose of remonstrating “against child abuse.” The bikers, then, sought to send an implied message to the jury that Long should be found guilty. Such a message has no part in a trial.

Norris v. Risley, 918 F.2d 828 (9th Cir.1990), is instructive. In Norris, a number of women wearing “Women Against Rape” buttons were present in the courthouse before the start of a trial on charges of kidnapping and rape; some buttons were also observed during trial. At least three jurors saw the buttons. In ordering a new trial, the Ninth Circuit observed:

A courtroom practice or arrangement is inherently prejudicial if “an unacceptable risk is presented of impermissible factors coming into play.” [Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976).] Because the buttons, which were donned before any evidence was introduced, conveyed an implied message encouraging the jury to find Norris guilty, and because the buttons were not subject to the constitutional safeguards of confrontation and cross-examination, they are clearly the sort- of “impermissible factors” that courts must ensure receive no weight.
Just as the compelled wearing of prison garb during trial can create an impermissible influence on the jury throughout trial, the buttons’ message, which implied that Norris raped the complaining witness, constituted a continuing reminder that various spectators believed Norris’s guilt before it was proven, eroding the presumption of innocence. Moreover, the buttons’ message was far more direct than that to be inferred from the wearing of prison attire, which has no communicative purpose. The women who wore buttons obviously intended to convey a message.
Thus, though far more subtle than a direct accusation, the buttons’ message was all the more dangerous precisely because it was not a formal accusation. Unlike the state’s direct evidence, which could have been refuted by any manner of contrary testimony to be judged ultimately on the basis of each declarant’s credibility, the buttons’ informal accusation was not susceptible to traditional methods of refutation. Instead, the accusation stood unchallenged, lending credibility and weight to the state’s case without being subject to the constitutional protections to which such evidence is ordinarily subjected.

918 F.2d at 830-33 (footnotes omitted). There is nothing in Norris which suggests that a certain number of buttons or displays of insignia must be demonstrated before inherent prejudice can be found. As noted, only three jurors appeared to have seen the “Women Against Rape” buttons in Norris.

The dissent argues that the case before us, which involves the conduct of private spectators, should be treated differently than a case where prejudice against the accused is the result of state-sponsored activity. We fail to see a merit in that distinction for the issue before us is whether there was a risk that Long was denied the right to a trial “by a panel of impartial, ‘indifferent’ jurors ... [whose] verdict [was] based upon the evidence developed at the trial” and not upon outside pressures. Irvin, 366 U.S. at 722, 81 S.Ct. at 1642. It matters not whether the impartiality of the jury was adversely affected by a state agent or a private citizen, for the result is the same: a denial of a fair trial.

Further, we do not find the cases cited by the dissent to compel a different result. The dissent cites Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006), noting that the question of whether conduct by a private spectator at trial can be found to be inherently prejudicial has been unanswered by the United States Supreme Court. That the U.S. Supreme Court has not drawn a distinction between private and state-sponsored conduct which adversely affects the impartiality of a jury suggests that no distinction should be drawn here.

In Carey, the U.S. Supreme Court considered the question of whether a holding by a state court-that the display of buttons bearing a murder victim’s image did not deny the defendant a fair trial — “was contrary to or an unreasonable application of clearly established federal law.” 549 U.S. at 72, 127 S.Ct. at 651. Justice Thomas, writing for the majority, held the holding of the state court was not contrary to clearly established federal law because federal law on the question is not clearly established.

The dissent also cites Bell v. State, 965 So.2d 48, 69 (Fla.2007), in support of affir-mance. Bell is not dispositive. The appellant in Bell, who was under sentence of death, raised a claim of ineffective assistance of trial counsel in a motion for post-conviction relief. More particularly, the appellant in Bell argued trial counsel was ineffective for failing to get “a conclusive ruling” on his motion to strike the entire jury venire because of the presence during voir dire of a spectator wearing a t-shirt “memorializing and depicting one of the victims.” Id. The trial court inquired of the venire panel, and while some saw the t-shirt, none knew who was depicted on it; also, all of them indicated that the t-shirt would not influence their verdict. The Florida Supreme Court denied that trial counsel was ineffective under these circumstances.

Unlike Bell, the case at bar is not a collateral attack, but a direct appeal of his conviction. We therefore are not asked to consider whether trial counsel for Long performed at a level “below an objective standard of reasonableness ... under prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Instead, we are asked to consider whether, given the totality of circumstances, there was an unacceptable risk that the jury was influenced by factors beyond the evidence adduced. See Shootes, 20 So.3d at 440. These are two very different considerations.

The dissent cites as well Buckner v. State, 714 So.2d 384 (Fla.1998). Buckner does not compel a different result here. In Buckner, a juror came forward during a first degree murder trial to say that she saw spectators holding up photographs. While none of the jurors saw two eight-by-ten photographs, two saw a small collage of photographs. The defendant moved for a mistrial, which was denied. The Florida Supreme Court did not reverse noting that the photographs were nothing more than the victim pictured with others and that none of the jurors who saw the photographs “could identify who was depicted” in them. Id. at 389. Thus, the jury could not have been improperly influenced by them. Unlike the jury in Buckner, the jury in the case at bar certainly could identify what message was being conveyed by the badge: “Bikers Against Child Abuse.” As the trial court correctly observed, the wearing clothing with such a message was “advocacy.”

It is true, as the State emphasizes on appeal, that the jurors who were in close proximity to the bikers prior to trial and who remained on the panel each stated they would not be influenced by the bikers. However, such disavowals of impartiality are only proof that actual prejudice did not occur. It is by no means certain that the jury was not intimidated and thus not improperly influenced by the bikers. Justice Clark once said, “[n]o doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one’s fellows is often its father.” Irvin v. Dowd, 366 U.S. at 728, 81 S.Ct. at 1645. The same may be said in the case before us. After all, a juror’s assurance of impartiality is not “dispositive.” Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); see Holbrook, 475 U.S. at 570, 106 S.Ct. at 1346-1347 (“Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused. This will be especially true when jurors are questioned at the very beginning of proceedings; at that point, they can only speculate on how they will feel after being exposed to a practice daily over the course of a long trial.”); see also Overton v. State, 801 So.2d 877, 892 (Fla.2001). If there is any basis for reasonable doubt as to a juror’s ability to be impartial, the juror should be excused. See Ault v. State, 866 So.2d 674, 683 (Fla.2003). As trial had not commenced at the time the jury was exposed to the bikers’ insignia, the danger posed could have been easily remedied by the empaneling of a new jury. So, while the dissent argues for affirmance because “there is absolutely no evidence in the record that the jurors in this matter were in any way influenced by the presence of the bikers before or during the trial,” the lack of record evidence is not the point. Typically, there is unlikely to be evidence of record that a jury was influenced by factors beyond the evidence adduced because jurors “will not necessarily be fully conscious of the effect” of an inherently prejudicial occurrence or atmosphere at trial. Holbrook, 475 U.S. at 570, 106 S.Ct. at 1346. Thus, “[wjhenever a courtroom arrangement is challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play.’ ” Id., 475 U.S. at 570, 106 S.Ct. at 1346-1347 (citing Estelle v. Williams, 425 U.S. at 505, 96 S.Ct. at 1693).

A final point bears mentioning. In denying the motion for a new trial, the trial court indicated that it did not believe it had the authority to exclude “anybody from coming into the courtroom.” This view is incorrect. Safeguards may be adopted to ensure that “the administration of justice at all stages is free from outside control and influence” without running afoul of the constitution. Cox, 379 U.S. at 562, 85 S.Ct. at 480. Indeed, the due process clause of the federal constitution obliges the judiciary to guard against the possibility that “the atmosphere in and around the courtroom might [become] so hostile as to interfere with the trial process, even though ... all the forms of trial conformed to the requirements of law.” Estes, 381 U.S. at 561, 85 S.Ct. at 1642 (1965) (Warren, C.J., concurring); see also Mills v. Singletary, 63 F.3d 999 (11th Cir.1995).

In conclusion, while jurors no doubt endeavor to remain impartial, a theatrical atmosphere permitted in and around a courtroom is likely to have some effect. Indeed, that some effect may result is the very reason why many trial spectators choose to adorn themselves with messages or images which favor one side or another at trial. The principle of American jurisprudence that a conviction may only be premised on the evidence presented at trial remains sacrosanct. Holbrook, 475 U.S. at 566, 106 S.Ct. at 1345; Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Vindication of this principle requires reversal of Long’s conviction and a remand for a new trial because there was an unacceptable risk that the bikers’ presence affected the jury’s impartiality.

REVERSED and REMANDED.

PADOVANO, J., concurs, and ROWE, J., dissents with written opinion.

ROWE, J.,

dissenting.

I respectfully dissent. . Long asserts that the trial court erred in denying his motion for new trial because of actual or inherent prejudice arising from the presence of a group of private spectators, “Bikers Against Child Abuse,” at trial. Because the record demonstrates that the spectator conduct at issue in this case did not inherently or actually prejudice Long’s right to a fair trial, I would affirm the order of the trial court denying the motion for new trial.

Procedural History

On the morning of trial, four of the jurors observed multiple individuals sitting within several feet of them, outside the courtroom in the hallway. The individuals, who were mostly men, were wearing leather vests which read “Bikers against Child Abuse.” Defense counsel immediately brought the matter to the attention of the trial court and moved for a mistrial. In response, the trial court questioned the prosecutor, who admitted that she knew some of the bikers, but she asserted that she advised them not to wear their vests or paraphernalia in the courtroom. The trial court then interviewed individually each of the jurors who observed the spectators in the hallway. Each of the jurors admitted that they observed the bikers, but they stated that no one spoke with them. All but one of the jurors admitted to reading the patches on the bikers’ vests. Each juror answered affirmatively when asked if they could still be impartial at trial, despite observing the spectators in the hallway. Finding one of the juror’s responses to be equivocal, the trial court dismissed the juror. One of the remaining three jurors, when he was asked whether the spectators would cause him to favor the State against the defendant in any way, responded: “No, I would be disappointed if they were in the parking lot when we were going home.” The trial court then asked, “Why is that, sir?” The juror responded, “I am being honest. I don’t think that will happen. I don’t think it will have any bearing on the case, whatsoever, you know, other than what the facts are presented in here.” The trial court offered to have a bailiff escort the juror to and from the courthouse so he would not have further contact with the group. The juror assured the court that he was not intimated by the group.

After excusing the one juror whose response was equivocal, the trial judge stated that he had no reservations about the other three jurors. While the jurors were outside of the courtroom, the trial judge addressed the bikers and informed them that their actions had delayed the proceedings. The judge explained that he had to question the jurors to make sure that no one had been influenced by the group and that he had to strike a juror because of the group’s behavior. The trial judge then instructed the bikers not to wear their “insignia” in the courtroom and not to congregate around the jury. He explained that he could not take the chance of a juror running into a member of the group during recesses. The trial judge' then denied the motion for mistrial.

The trial proceeded with several of the bikers present as spectators in the courtroom. Following the jury’s return of a guilty verdict as charged on all of the pending charges, the defense moved for a new trial. Counsel argued that Long’s right to a fair trial was prejudiced by the presence of the bikers, whom defense counsel described as “burly men.” Counsel asserted that twelve or thirteen bikers sat in the courtroom in close proximity to the jury during the trial. The trial court held a hearing on the motion, and substantial argument was presented. The trial court denied the motion, carefully outlining its reasoning and disputing several of the factual assertions defense counsel made regarding the presence of the bikers in the courtroom:

I made the decision at the time. I looked at the jurors when they came in here. I judged their demeanor. . I felt like the three that answered my questions were sincere, and they said, “It’s not going to bother us.” The one guy did make the offhand comment, “Well, I don’t want them to be there in the parking lot afterwards,” but that didn’t — it was not — it did not undermine my confidence in his ability to be fair and impartial, particularly, in the way he addressed my questions.
Understanding, I’ve thought a lot about this, since the trial, because it’s not a simple issue. For the record, though, I do want to make it very clear, that there was a reference in the new trial motion that somehow there were like 12 or 13 individuals from this group sitting in the, you know, in the pews — in the seats closest to the jury, is the way it’s been referenced in there.
I’m not sure you can say all those individuals that were in that group of people, were with the Bikers Against Abuse. Some of them were family members that were non-testifying family members, they appeared to me anyway. And I don’t — some were with the biker group. No question about it.
They were properly attired. No one had on leather or chains or anything of that nature or whatever. But it’s not — I don’t want the record to somehow go up, and that be accepted as the fact. Because there were plenty of people out there that looked to me like they’re just simply family members.
And so I don’t know exactly how many were there. There were some that stayed through. They were sitting in the pews that are set aside for people that are, you know, sitting in the audience. And I didn’t feel like — it’s an open proceeding. And I didn’t feel like at this point I could ban anybody from coming in the courtroom. And so that made my decision.
I have confidence that the people who remained on the trial, were not effected [sic] by it, in the way of their impartiality in the case. One of them, in fact, was kind of offended that they were out there in a way, the tone. I forget the gentleman’s name. But he was basically like, “I don’t really care that they’re out there.” And so I feel like it’s — that the motion should be denied on that basis, all right.

Based on the foregoing facts, the trial court denied the motion for new trial. This appeal follows.

Analysis

The issue before this Court is whether Long received a constitutionally fair trial where several individuals appeared briefly outside the courtroom, in the presence of four jurors, wearing vests adorned with the words “Bikers Against Child Abuse” and then a number of those individuals attended the trial not wearing the vests. I would affirm the trial court, holding that it did not abuse its discretion and that Long received a constitutionally fair trial.

The right to a fair trial by an impartial jury is the cornerstone of our criminal justice system. It is well-settled that certain “courtroom practices are so mimical to the presumption of innocence that they violate defendants’ due process rights.” U.S. v. Olvera, 30 F.3d 1195, 1196 (9th Cir.1994). Practices such as requiring the defendant to appear at trial while shackled or wearing prison garb have been universally condemned by state and federal courts as inherently prejudicial based on the unacceptable risk of impermissible factors coming into play. Carey v. Musladin, 549 U.S. 70, 75, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); Moon v. Head, 285 F.3d 1301, 1317 (11th Cir.2002); Olvera, 30 F.3d at 1196; U.S. v. Harris, 703 F.2d 508, 510 (11th Cir.1983); Knight v. State, 76 So.3d 879, 886 (Fla.2011). Courts have also determined that the defendant’s right to a fair trial is inherently prejudiced by the presence of a large number of uniformed law enforcement officers attending the trial as spectators. Woods v. Dugger, 923 F.2d 1454 (11th Cir.1991); Shootes v. State, 20 So.3d 434 (Fla. 1st DCA 2009). Central to the courts’ condemnation of each of these practices — the shackling of defendants, compelling defendants to wear prison garb, or the presence of uniformed officers as spectators — is the conclusion that government-sponsored conduct in the courtroom runs an unacceptably high risk of influencing the jury in favor of the prosecution.

This case requires us to decide whether the presence of a group of private individuals, members of the group “Bikers Against Child Abuse,” who wore vests outside the courtroom in the presence of four jurors before trial, coupled with the presence of unidentified members of the biker’s group (not wearing vests or other insignia) inside the courtroom deprived Long of his fundamental right to a fair trial. Long urges this Court to apply the inherent prejudice test to resolve this issue, even though this situation involved conduct by private spectators.

The question of whether conduct by a private spectator at trial can be found inherently prejudicial is a matter of first impression for this Court and has been expressly left unanswered by the United States Supreme Court. Carey, 549 U.S. at 76, 127 S.Ct. 649. In Carey, the Supreme Court addressed the limits of the inherent prejudice test. In a case involving a petition for habeas corpus, a California state court had decided that the petitioner’s right to a fair trial was not denied where members of the murder victim’s family wore buttons displaying the victim’s image during the petitioner’s trial. Id. at 72, 127 S.Ct. 649. The petitioner sought habeas relief, which led the Ninth Circuit to issue an opinion finding that the state court’s decision was contrary to a clearly established rule of federal law. Id. at 73, 127 S.Ct. 649. In its opinion, the Supreme Court distinguished its previous decisions in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), observing that those cases involved government-sponsored conduct by spectators, as opposed to the situation in Carey, which involved buttons worn by private spectators. Id. at 75, 127 S.Ct. 649. The Supreme Court noted that while it had prescribed the test for inherent prejudice applicable to state conduct, “we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn asking whether the practices furthered an essential state interest-suggests that those cases apply only to state-sponsored practices.” Id. at 76, 127 S.Ct. 649 (emphasis in original). The Supreme Court concluded that none of its holdings required the California state court to apply the Williams and Flynn tests to conduct by private spectators, and it vacated the grant of the writ of habeas. Id. at 77,127 S.Ct. 649.

Since Carey was decided, only a handful of federal and state courts have addressed whether conduct by private spectators inside the courtroom, such as the displaying of buttons, badges, or photographs, may inherently prejudice a defendant’s right to a fair trial. The Fourth Circuit Court of Appeals addressed a situation where an alternate juror wore a shirt that said “No Mercy — No Limits.” Billings v. Polk, 441 F.3d 238, 247 (4th Cir.2006). There, the court found no violation and cautioned that a defendant’s right to a fair trial is not violated “whenever an article of clothing worn at trial arguably conveys a message about the matter before the jury.” Id.

The Supreme Court of Washington held that the defendant was not deprived of a fair trial where private spectators wore buttons depicting the murder victim at trial. State v. Lord, 161 Wash.2d 276, 165 P.3d 1251, 1254 (2006) (en banc). In so holding, the court observed that spectators’ signs of affiliation “do not automatically present ‘an unacceptable risk ... of impermissible factors coming into play.’” Id. at 1254 (citing Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). The Supreme Court of Indiana held that nothing in the record supported a finding that trial counsel was ineffective for failing to object or move the trial court for an order directing spectators not to wear buttons with pictures of the victim. Overstreet v. State, 877 N.E.2d 144, 157-59 (Ind.2007). The Supreme Court of Kentucky has held that the defendant’s right to a fair trial was not violated when members of the victim’s family wore shirts containing the words, “In loving memory,” and displaying the victim’s image. Allen v. Commw., 286 S.W.3d 221, 227-29 (Ky.2009).

At issue in this case is whether the wearing of insignia by spectators outside the courtroom in the presence of four jurors, followed by the mere presence of a group of those spectators, not wearing any sign of group affiliation, at trial may deprive a defendant of a fair trial. The Sixth Amendment of the United States Constitution and Article I, section 16(a) of the Florida Constitution guarantee the defendant the right to a fair trial by an impartial jury. At the same time, an important tenet of our criminal justice system is that the criminal trial and courtroom shall be open to the public, including the victims of crime, their next of kin, and their lawful representatives. Art. I, § 16, Fla. Const; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (O’Connor, J., concurring) (discussing our “long history of open criminal trials and the special value, for both the public and accused, of that openness”); People v. Cummings, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1, 43 (1993) (“The right to public trial is not that of the defendant alone.”). With these principles in mind, trial courts must strike a balance between the defendant’s right to a fair and impartial jury and the right to a public trial. A due process violation will not be found “every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Instead, “[cjourts must presume that jurors we entrust with determining guilt both understand, and have the fortitude to withstand, the potential influence from spectators who show sympathy or affiliation.” Lord, 165 P.3d at 1253.

The Florida Supreme Court has never held or implied that a defendant has been deprived of the right to a fair trial by private spectators displaying buttons, pictures, or other insignia inside the courtroom. And, it has certainly never attempted to regulate the conduct of spectators outside the courtroom, in regards to the wearing of buttons, pictures, or other insignia. The supreme court addressed the issue of private-spectator conduct inside the courtroom in Bell v. State, 965 So.2d 48, 69 (Fla.2007). Bell claimed that his trial counsel was ineffective for failing to obtain a definitive ruling on a motion to strike the jury panel because a spectator wore a shirt memorializing and depicting one of the murder victims during jury selection. Id. The supreme court noted that the trial court inquired into whether the jury had seen the shirt and found that none of the jurors realized who was depicted on the shirt and that none of the jurors would have let the shirt influence their decision. Id. at 70-71. The supreme court held that there was no reason for the court to strike the panel and that Bell failed to show that any prejudice occurred. Id. at 71.

The supreme court considered another claim involving private-spectator conduct inside the courtroom in Buckner v. State, 714 So.2d 384 (Fla.1998). In Buckner, the defendant asserted that spectators holding up photographs during the guilt phase of his trial created undue sympathy that warranted a mistrial. Id. at 389. The trial court determined that two of the jurors saw the photographs. Id. One juror stated that she thought the family’s actions were inappropriate and that it would not influence her decision. Id. The second juror stated that she refused to look at the pictures and that the incident would not influence her decision. Id. The trial court denied Buckner’s motion for mistrial. Id. The supreme court acknowledged that such displays may deprive a defendant of a fair trial, but it held that “a judge may objectively look to the extrinsic factual matters disclosed to the jury and then determine whether there was a reasonable possibility that the breach was prejudicial to the defendant.” Id. As in Bell, the supreme court concluded that there was no reasonable possibility that the jury’s brief exposure to the photographs influenced the outcome of the proceeding. Id.

Based on the record, the conduct by private spectators in this case did not deprive Long of his right to a fair trial. After the trial court ruled on Long’s motion for mistrial, Long did not object in any way during the trial to the presence of the bikers in the courtroom. Not until all of the evidence had been presented and the jury had rendered its verdict did Long voice his objection to the presence of the bikers through his motion for a new trial. For this reason, there is no record as to precisely how many bikers were present in the courtroom or precisely where the bikers sat in the courtroom. See Overstreet, 877 N.E.2d at 159 (holding that the defendant failed to show that counsel rendered deficient performance by failing to object to spectators wearing buttons with the victim’s picture because there was no record as to the size of the buttons, if the jurors could see the buttons, how many people were wearing the buttons, how many days of the trial the buttons were worn, or whether any juror was affected by the buttons).

The record is undisputed that the bikers did not engage in any conduct inside the courtroom to disrupt the trial. The record reflects that none of the bikers wore vests or other identifying insignia inside the courtroom. The trial court took precautionary measures and questioned the veni-re regarding the effect, if any, of their brief observation of the bikers in their vests outside the courtroom. The three jurors who remained on the jury after questioning all denied that their observations of the bikers would affect them. Finally, the court instructed the jurors not to permit sympathy or prejudice to affect their verdict. Simply put, there is absolutely no evidence in the record that the jurors in this matter were in any way influenced by the presence of the bikers before and during the trial. Indeed, the trial court, who was in the best position to monitor the atmosphere of the courtroom, found no actual or inherent prejudice as a result of the presence of the bikers in the hallway before trial or as a result of the presence of the unidentified bikers in the courtroom during the trial. The trial court’s examination of the circumstances must be given considerable weight. On this record, I would conclude that the trial court did not abuse its discretion in denying the motion for mistrial and the motion for new trial. There is no reasonable probability that the bikers’ conduct, wearing vests outside the courtroom and attending the trial as unidentified spectators, created an unacceptable risk of impermissible factors coming into play during the trial. Accordingly, I dissent, and I would affirm Long’s judgments and sentences.

      . Attached to the motion for a new trial was a copy of the press release issued by the Duval County State Attorney following the trial. In the press release, the prosecutor is quoted as saying: "Justice has finally been served for the victim and her family. The victim was able to face her abuser in court today with support from her family as well as Bikers Against Child Abuse.”

      . Neither Long nor the majority cites to anything in the record to indicate that the conduct complained about here was state-sponsored. Although the prosecutor had spoken to a group of bikers before the day of trial, she also advised the bikers NOT to wear their insignia in the courtroom. It is also not clear whether the bikers the prosecutor spoke to were the same bikers who were present at trial.

      . Long and the majority rely heavily on Norris v. Risley, 918 F.2d 828 (9th Cir.1990), to support their argument. However, Noiris was decided sixteen years before the Supreme Court’s decision in Carey. Based on the Supreme Court’s language in Carey regarding the question of whether private-spectator conduct may result in inherent prejudice, their reliance on Noms is misplaced.

      . In striking this balance, the trial court has several remedies available to minimize the risk of prejudice raised by spectator conduct including, offering a remedial instruction to the jury, requiring spectators to remove buttons or insignia, or excluding spectators. See State v. Atwood, 171 Ariz. 576, 832 P.2d 593, 633 (1992), overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001).


author: VAN NORTWICK, J.

text:
    Eugene SMITH, Appellant, v. Reginald BRUSTER, et al., Appellees.
    No. 1D13-5093.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 11, 2014.

      Eugene Smith, pro se, Appellant.
    Lisa Truckenbrod of Jolly & Peterson, P.A., Tallahassee, for Appellees Sheriff David Morgan and Deputy Reginald Brus-ter.
    Stephen R. Moorhead of McDonald Fleming Moorhead, Pensacola, for Appel-lee Pensacola Habitat for Humanity, Inc.
   REVISED OPINION

VAN NORTWICK, J.

Eugene Smith challenges a final judgment entered in favor of the appellees, Reginald Bruster and David Morgan, following entry of an order dismissing Smith’s amended complaint with prejudice. We reverse the final judgment as to Brus-ter and Morgan, and we remand for further proceedings.

On January 6, 2012, Eugene Smith, pro se, filed a complaint against Reginald Bruster alleging that Bruster, an Escam-bia County deputy, telephoned Hattie Smith, the mother of Eugene Smith, to advise that the real property on which she was residing was being seized by the Es-. cambia County Sheriffs Department and would be subject to forfeiture pursuant to Florida law. Smith and his mother were directed to report to the sheriffs office. According to the allegations of the complaint, when they reported on October 13, 2005, they were each instructed to execute a quitclaim deed. No forfeiture proceedings, as required by the Florida Contraband Forfeiture Act, section 932.703 et seq., Florida Statutes, were conducted, Smith alleged. By his complaint, he sought damages for violation of the Contraband Forfeiture Act. By an amended complaint, Smith also asserted a cause of action for fraud.

Bruster moved to dismiss the action on the ground that Smith had failed to join Hattie Smith, an indispensable party by virtue of her joint ownership of the property. He also alleged that Smith failed to state a cause of action. Attached to the motion was a copy of the quitclaim deeds which bear an execution date of October 13, 2005. By these deeds, the ownership interests of Eugene Smith and Hattie Smith were transferred to the Escambia County Sheriffs Office. Bruster had witnessed the deeds.

Smith opposed dismissal and attached to his memorandum filed with the court were copies of correspondence from the office of the Escambia County Sheriff which reports that the property was “deeded/forfeited” to the sheriff “during the course of a narcotics investigation.” In 2007, the sheriff offered the property to Pensacola Habitat for Humanity, Inc. According to a letter submitted by Smith, the property was received “through the Florida forfeiture statute and the prior owners have quitclaimed them over to the Escambia Sheriffs Office.”

Smith moved ore terms to amend his complaint to add indispensable party. This motion was granted, and Bruster’s motion to dismiss was denied. Thereafter, Smith filed an amended complaint listing Hattie Smith as an “involuntary, plaintiff ’ and listing Habitat for Humanity, as an additional defendant. Bruster again moved to dismiss, arguing, among other things, that a claim against him, whether it be in his official or individual capacity, was barred by the statute of limitations. He asserted that Smith’s cause of action accrued on October 13, 2005, the date the quitclaim deeds were executed. Smith again opposed dismissal attaching to his memorandum a letter to Smith from the tax collector’s office, dated April 11, 2007, advising that Smith was delinquent in his property taxes for the real property at issue for the years 2005 and 2006. Smith also moved for summary judgment attaching to his motion the deed and a letter from the Clerk of the Court for Escambia County, dated August 25, 2010, ‘advising Smith that a search disclosed no record of a forfeiture action in Escambia County naming Smith as a defendant.

Although not initially named as a defendant, Smith added David Morgan, Sheriff of Escambia County, as a defendant. Morgan joined in a motion with Bruster to dismiss the amended complaint. The trial court granted dismissal of the amended complaint, observing that Smith’s cause of action was one for return of real property, which must be commenced within seven years after the cause of action accrued. The trial court determined that the cause of action accrued on October 13, 2005, when the quitclaim deeds were executed. The trial court found that, while the original and first amended complaint were timely filed, neither included Hattie Smith as a party. The trial court ruled that the statute of limitations had since run, and that Hattie Smith could not be now added as a party because an amended pleading seeking to add a new party does not relate back to the date of the original pleading, citing the authority of Arnwine v. Huntington Nat. Bank., N.A., 818 So.2d 621 (Fla. 2d DCA 2002). This appeal ensued.

The standard of review governing the dismissal of a complaint is de novo. Allen v. Frazier, 132 So.3d 361 (Fla. 1st DCA 2014). This court is required to accept as true at this stage the amended complaint’s well-pleaded factual allegations and is to draw all reasonable inferences from these allegations in Smith’s favor. See Hall v. Knipp, 982 So.2d 1196, 1198 (Fla. 1st DCA 2008); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002); Todd v. Johnson, 965 So.2d 255, 257 (Fla. 1st DCA 2007).

The statute of limitations begins to run from the time the cause of action accrues. § 95.031, Fla. Stat.; see Bauld v. J.A. Jones Constr. Co., 357 So.2d 401 (Fla. 1978). A cause of action accrues when the last element constituting the cause of action occurs. § 95.031(1); see Bauld. In a fraud action, the last element occurs, and thus the cause of action accrues, when the plaintiff knew, or through the exercise of due diligence should have known, of the facts constituting the fraud. See, e.g., Brugiere v. Credit Commerciale France, 679 So.2d 875 (Fla. 1st DCA 1996); First Fed. Sav. & Loan Ass’n of Wisconsin v. Dade Fed. Sav. & Loan, 403 So.2d 1097 (Fla. 5th DCA 1981). Taking the allegations of the second amended complaint as true, as we must, the complaint states a cause of action for fraud. By his amended complaint, Smith sought either the return of the real property or damages.

We cannot agree with the trial court that Smith’s - cause of action accrued at the time of the execution of the quitclaim deeds. Here, as alleged in the complaint, a uniformed narcotics officer advised the owners of real property that their property was being seized pursuant to the state forfeiture act and the owners were thus instructed to execute a quitclaim deed. That forfeiture proceedings pursuant to section 932.704, Florida Statutes, had not and would not be followed was not a matter obviously knowable'to the Smiths at that time. As the reviewing court in First Federal Sav. & Loan explained, while the law of fraud does not endorse a “hear no evil, see no evil approach,” neither does it require that an aggrieved party to have presumed wrongdoing from the outset. 403 So.2d at 1100 (citing Hudak v. Economic Research Analysts, Inc., 499 F.2d 996,1002 (5th Cir.1974)).

Section 95.11(3)(j) provides that a legal or equitable action founded on fraud must be brought within four years; however, pursuant to section 95.031(2)(a), the period for filing a cause of action founded on fraud does not commence to run until the time the facts giving rise to the cause of action were discovered, or should have been discovered by the exercise of due diligence. Whether an individual, by the exercise of reasonable diligence, should have known he had a cause of action against the defendant is, ordinarily, an issue of fact. Puchner v. Bache Halsey Stuart, Inc., 553 So.2d 216 (Fla. 3d DCA 1989). Focusing solely on the allegations of the amended complaint, which we must accept as true, we cannot say as a matter of law that by the exercise of reasonable diligence, Smith could have discovered the alleged fraud more than four years before January 6, 2012, the date Smith’s original complaint was filed. A more developed record is required for such a determination. See Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773 (Fla. 3d DCA 2012) (reversing dismissal of fraud complaint and remanding for further development of the record to determine when the cause of action accrued). Accordingly, the cause is remanded to the trial court to determine when, by the exercise of due diligence, Smith should have determined he had a cause of action for fraud given the allegations of his amended complaint.

Further, on remand, the trial court is to allow the addition of Hattie Smith as a party to the complaint. We recognize that Amwine does hold that, generally speaking, the addition of a new party will not relate back to the date of the original pleading, as the trial court ruled below. However, the addition of a new party will relate back when the new party is sufficiently related to the existing parties that the addition will not cause prejudice. Arnwine, 818 So.2d at 624; Darden v. Beverly Health & Rehab., 763 So.2d 542, 542-43 (Fla. 5th DCA 2000); Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So.2d 451, 453 (Fla. 4th DCA 1999); Kozich v. Shahady, 702 So.2d 1289, 1291 (Fla. 4th DCA 1997). As explained in Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 137 So.3d 487, 491 (Fla. 4th DCA 2014),

[w]here there is no doubt regarding the identity of the party intended to be named, it is not unfair or unjust to permit a plaintiff to correct its pleading particularly because the defendant suffers no prejudice. See St. John’s Hosp. & Health Ctr. v. Toomey, 610 So.2d 62, 64 (Fla. 3d DCA 1992) (finding amendment of plaintiff from hospital to hospital foundation was correction of a misnomer which related back to original complaint where the subject of the suit remained the same, and the defendant had actual notice who the intended plaintiff was.

Factors typically considered in determining whether a new party should relate back include whether the ownership interests of the new and original parties overlap. Arnwine, 818 So.2d at 624; Schwartz, 725 So.2d at 453; Palm Beach County v. Savage Constr. Corp., 627 So.2d 1332, 1334 (Fla. 4th DCA 1993). As both Hattie Smith and Eugene Smith had an ownership interest in the property quit-claimed to the Sheriffs Department, their interests obviously overlapped. The rule permitting amendments to pleadings, and the relation-back doctrine, are to be liberally construed and applied. Linafelt v. Bev, Inc., 662 So.2d 986 (Fla. 1st DCA 1995). Thus, the addition of Hattie Smith should relate back to the original complaint. As our Supreme Court has explained,

the objective of all pleadings is merely to provide a method for setting out the opposing contentions of the parties. No longer are we concerned with the ‘tricks and technicalities of the trade.’ The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.

Cabot v. Clearwater Constr. Co., 89 So.2d 662, 664 (Fla.1956).

According, the final judgment is REVERSED and REMANDED for further proceedings. However, the final summary judgment entered in favor of Pensacola .Habitat for Humanity, Inc., is not disturbed by our disposition as a claim of fraud has not been alleged against it.

ROBERTS and CLARK, JJ., concur.

      . The essential elements of a fraud claim are: (1) a false statement concerning a specific . material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reli-anee; and (4) consequent injury by the other party acting in reliance on the representation. See Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002).


text:
    Shirley ANDERSON, Appellant, v. WOODLAND TERRACE EXTENDED CARE, Appellee.
    No. 1D14-2253.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 17, 2014.
    Shirley Anderson, pro se.
    Derek V. James of Jones, Hurley & Hand, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a); Anderson v. North Port Service of Fla., LLC, Case No. 1D14-2255, 2014 WL 5462514 (Fla. 1st DCA 2014).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Dionte DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4773.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2014.
    Rehearing Denied Dec. 17, 2014.
    Dionte Davis, 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.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Walter L. CHANEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-5570.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2014.
    Rehearing Denied Dec. 17, 2014.

      Walter L. Chaney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Steven D. HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5576.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

In November 2007, Steven D. Holland was convicted of attempted first-degree murder and second-degree murder for the shooting of his on-again, off-again girlfriend and the man she agreed to meet one night after her bartending shift. This court affirmed and rejected Holland’s challenge to his second-degree murder conviction based on what he asserted was an erroneous jury instruction for the lesser-included offense of manslaughter by act. See Holland v. State, 22 So.3d 129, 130 (Fla. 2d DCA 2009). The case law regarding this jury instruction has significantly developed since then, and the Florida Supreme Court recently quashed our decision and remanded for reconsideration of the jury instruction issue. See Holland v. State, 137 So.3d 1020, 1020 (Fla.2014) (table). Upon reconsideration, we affirm Holland’s conviction for attempted first-degree murder but reverse the second-degree murder conviction and remand for a new trial.

After we affirmed Holland’s convictions on direct appeal, the supreme court ruled that the standard jury instruction on manslaughter by act that was given in this case is erroneous because it requires an intent to kill. See State v. Montgomery, 39 So.3d 252, 257 (Fla.2010). The court also ruled that if defense counsel does not object to this instruction at trial reversal will be required on appeal only upon a determination that the instruction gave rise to fundamental error. See id. at 258. And the court set forth the following test for determining whether the erroneous manslaughter by act instruction gave rise to fundamental error: (1) the defendant must have been convicted of an offense not more than one step removed from manslaughter by act, (2) the element of intent must have been in dispute, and (3) the erroneous instruction must have been pertinent or material to what the jury had to consider in reaching its verdict. See Haygood v. State, 109 So.3d 735, 740 (Fla.2013); Montgomery, 39 So.3d at 258-59.

Because defense counsel failed to object to the erroneous manslaughter instruction at trial, we must determine whether it gave rise to fundamental error. There is no dispute that Holland’s conviction for second-degree murder is not more than one step removed from manslaughter by act. Therefore, we must determine whether the element of intent was in dispute and whether the erroneous instruction was pertinent or material to what the jury had to consider in reaching its verdict.

When the element of intent is in dispute, the faulty manslaughter by act instruction deprives the jury of its ability to decide whether the defendant’s lack of intent to kill in conjunction with the attendant circumstances established the crime of manslaughter by act. Haygood, 109 So.3d at 743. In Haygood, because the jury determined that the defendant did not have the intent to kill, the only applicable non-intentional offense remaining for consideration was second-degree murder. And because the jury was improperly instructed as to manslaughter, it was “deprived of all the tools it need[ed] to reach a proper verdict.” Id.

At trial, the State presented evidence that Holland and Kelly McKenna had been involved in a tumultuous on-again, off-again relationship. McKenna was bar-tending at a pub on the night of the shooting. During her shift, she met a man named Derek Blanton and agreed to meet up with him after work. At 3:15 a.m., McKenna pulled her car up next to Blan-ton’s in the pub parking lot. As she was speaking to Blanton and his passenger through her front passenger side window, Holland appeared outside her driver side window. Holland was jealous and told McKenna she was going home with him. Blanton intervened, and Holland and Blan-ton got into a fistfight. Blanton appeared to be getting the better of Holland, but Blanton’s friend was able to separate the two men. Holland returned to his car and got inside. Blanton and McKenna approached Holland’s car, and the three started arguing again.

What happened next was hotly disputed at trial. Holland testified that Blanton punched him in the head while Holland was sitting in his car, and Blanton’s friend corroborated this in his statement to the police. But Blanton’s friend recanted at trial, and McKenna did not see Blanton punch Holland through the window. It is undisputed that Holland reached into his glove compartment, pulled out a .38 caliber revolver, and fired two shots. One of the shots went through McKenna’s thumb and struck Blanton in the back and killed him.

Holland fled the scene and was located by the police not long afterward. He initially asserted that he left the scene before any shots were fired. He eventually admitted that he fired the shots but claimed that he did so in self-defense. Importantly, Holland never admitted that he intended to shoot Blanton or McKenna. He consistently maintained that he fired the gun in Blanton’s general direction to stop Blanton from pummeling Holland in his car.

The supreme court has held that when a defendant argued that he intended to shoot a firearm but did not intend to kill the victim, the element of intent was in dispute for purposes of the fundamental error analysis. See Daniels v. State, 121 So.3d 409, 418 (Fla.2013). In Daniels, the defendant was involved in an altercation when he and some friends went to confront his former girlfriend’s new boyfriend. Id. at 411. When the defendant and his friends approached, they were met by the boyfriend and a group of his friends. The defendant retreated, procured a firearm, and returned to the scene. He was again approached by the boyfriend and his group of friends. Assuming that they had a gun, the defendant fired a shot toward the group and fled the scene. The shot struck and killed a female bystander.

At his trial for first-degree murder, the defendant in Daniels claimed that he did not intend to kill anyone but that he fired the gun into the crowd to scare them away. Id. at 418. His testimony was corroborated by a friend’s testimony that, when he retrieved the gun, the defendant told her he intended to use it to scare someone. Based on the evidence and arguments presented, the supreme court concluded that the defendant’s intent was in dispute.

In Horne v. State, 128 So.3d 953, 957 (Fla. 2d DCA 2013), this court relied on Daniels to conclude that the erroneous manslaughter instruction constituted fundamental error. There, the defendant was convicted of second-degree murder based on evidence that he pulled out a gun during a fistfight and fired it at his opponent. Id. at 955. In determining that the defendant’s intent was in dispute, this court explained that the defendant testified that he intended to shoot the victim in the leg because the defendant felt his life was threatened. Id. at 956-57. And defense counsel argued that the defendant did not intend to kill the victim but shot at the victim to protect himself. Id. at 957; see also Lopez v. State, 136 So.3d 1265, 1266 (Fla. 2d DCA 2014) (relying on Home to find the erroneous manslaughter instruction constituted fundamental error when the defendant admitted that he threw a knife at the victim but argued that he did not intend to kill the victim and acted in self-defense).

In this case, as in Daniels and Horne, Holland asserted that he intended to shoot a firearm but did not intend to kill Blanton or McKenna. Both Holland and defense counsel repeatedly emphasized that Holland shot in Blanton’s direction, as opposed to directly at Blanton. Arguably, this testimony was supported by the physical evidence suggesting that Holland’s bullet struck McKenna’s thumb first and then fatally injured Blanton.

If the jury found that Holland did not have the intent to kill but that his acts were not justifiable or excusable under the law, the jury would have had to determine whether Holland’s lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of second-degree murder or manslaughter by act. But the erroneous manslaughter instruction rendered second-degree murder the only offense realistically available to the jury and therefore deprived it of all the tools it needed to reach a proper verdict. Therefore, the element of intent was in dispute and the erroneous instruction was pertinent and material to what the jury had to consider. Accordingly, the erroneous manslaughter by act instruction gave rise to fundamental error.

We reject the State’s argument that our recent decisions in Richards v. State, 128 So.3d 959 (Fla. 2d DCA 2013), and Saldana v. State, 139 So.3d 351 (Fla. 2d DCA 2014), require a different holding. In Richards, the defendant was convicted of attempted second-degree murder based on evidence that he stabbed the victim in the neck during an altercation. 128 So.3d at 961. The defendant admitted that he stabbed the victim but claimed he did so in self-defense to keep from being choked to death. This court rejected the defendant’s argument that the attempted manslaughter instruction was fundamentally erroneous in part because the element of intent was not disputed at trial. Id. at 963. This court explained its reasoning as follows:

Mr. Richards never claimed that he did not intend to kill Mr. Russell. Mr. Richards’ sole defense was that the stabbing was done in self-defense. So, in deciding whether to find Mr. Richards guilty of attempted second-degree murder or any of the lesser offenses, the only issue that was disputed that the jury had to consider was whether Mr. Richards’ actions were justified as self-defense.

Id.

In Saldana, this court relied on Richards to determine that the attempted manslaughter by act instruction did not give rise to fundamental error because the element of intent was not disputed at trial. 139 So.3d at 353. This court explained that the defendant never disputed that he intended to shoot the victim and that his sole defense was self-defense. “Thus, the only disputed issue for the jury to consider was whether Saldana’s use of force was justified as self-defense.” Id.) see also Brown v. State, 145 So.3d 883, 884 (Fla. 2d DCA 2014) (“[T]he only disputed issues the jury had to consider in deciding whether to find Mr. Brown guilty of second-degree murder or manslaughter were whether his friend shot the victim or, if not, whether Mr. Brown’s actions were justified as self-defense.”).

We find this line of cases inapposite because Holland never admitted that he intended to kill Blanton and both Holland and defense counsel repeatedly emphasized that Holland shot in Blanton’s direction, as opposed to directly at Blanton. While Holland’s main defense was that he was justified in his actions because he was attacked by Blanton, self-defense was not Holland’s only theory of defense. If the jury found that his acts were not justifiable or excusable under the law, it would have been required to consider whether Holland’s intent, when considered with all the other evidence, fit within the elements of the offense of second-degree murder or manslaughter by act.

In summary, the standard jury instruction on manslaughter by act that was given in this case is erroneous because it requires an intent to kill. Although defense counsel did not object to this instruction at trial, it gave rise to fundamental error because: (1) Holland was convicted of an offense no more than one step removed from manslaughter by act, (2) the element of intent was in dispute, and (3) the erroneous instruction was pertinent and material to what the jury had to consider in reaching its verdict. Accordingly, we affirm Holland’s conviction for attempted first-degree murder but reverse the second-degree murder conviction and remand for a new trial.

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.

      . We also rejected Holland’s challenge to the admission of certain evidence, and we do not address that issue further.

      . The instruction for attempted manslaughter was held to be erroneous because it suffered from the same defect as the instruction for the completed crime of manslaughter. See Williams v. State, 123 So.3d 23, 27 (Fla.2013). The fundamental error analysis is the same for both crimes. See id. at 29.


text:
    Marcus Tramaine TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4291.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Rehearing Denied Dec. 5, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, Wes,t Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and. Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We agree with appellant that a rule 3.800(b) motion is an appropriate means for asserting an unpreserved procedural error in the sentencing process relating to whether appellant was properly habitual-ized by the court. Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (citing Brannon v. State, 850 So.2d 452, 454 (Fla.2003)). Defendants may raise such constitutional challenges to a sentence in a rule 3.800(b) motion. Miller v. State, 788 So.2d 330, 331 (Fla. 4th DCA 2001). However, we affirm on all other issues raised by appellant on the merits.

Affirmed.

GERBER, LEVINE and KLINGENSMITH, JJ., concur.


text:
    William GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-263.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Rehearing Denied Dec. 16, 2014.
    William Gonzalez, pro se.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Gonzalez v. State, 141 So.3d 569 (Fla. 3d DCA 2013).


text:
    Giannina GIUSTI and Justin Lewis, Appellants, v. WYNDHAM HOTELS AND RESORTS, LLC, etc., Appellee.
    No. 3D14-722.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Wadsworth Huott and Christopher W. Wadsworth and Isha Kochhar and Raymond R. Dieppa, for appellants.
    Cole, Scott & Kissane and Scott A. Cole and Kathryn L. Smith; Foley <& Lardner and Mary L. Smith, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Based on the facts of this case, we find that the trial court did not abuse its discretion in denying the Motion to Continue nor in granting the Motion for Summary Judgment.

Affirmed.


text:
    Angel BETANCOURT, Appellant, v. Zaida NUNEZ, Appellee.
    No. 3D14-770.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Rehearing Denied Dec. 11, 2014.
    Angel Betancourt, in proper person.
    Zaida Nunez, in proper person.

      Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Finding no abuse of discretion, we affirm the denial of the former husband’s petition to modify his alimony obligation to his former wife. See Garvey v. Garvey, 138 So.3d 1115, 1118 (Fla. 4th DCA 2014) (“The standard of review for an order on a [petition] to modify alimony is abuse of discretion.”); Lopez v. Lopez, 920 So.2d 1165, 1167 (Fla. 3d DCA 2006) (“A trial court’s Order regarding modification of alimony may not be disturbed on appeal in the absence of a showing of clear abuse of discretion.”).

Affirmed.