author: LOGUE, J. EMAS, J.,

text:
    Carlos JENNINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1200.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Rehearing Denied Nov. 14, 2013.

      Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., and Benjamin S. Waxman, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   LOGUE, J.

Carlos Jennings appeals his conviction of attempted trafficking in cocaine. He raises two issues on appeal: (1) the State failed to prove he was in constructive possession of cocaine; and (2) the trial court abused its discretion when it issued a curative instruction, rather than granting a mistrial, after the prosecutor made improper remarks in closing argument. We are not persuaded by these arguments and affirm.

FACTS AND PROCEDURAL BACKGROUND

On September 20, 2010, an off-duty police officer conducted a traffic stop of a four-door Toyota Camry that had three occupants. Before the officer could exit his vehicle, Jennings, the driver, jumped from his rental car and walked to the officer’s vehicle with his driver’s license in hand. Jennings was “very, very nervous.” As the officer conversed with Jennings, the backseat passenger attempted to flee but was stopped by another officer who had responded to the scene. The officer who had effectuated the traffic stop escorted Jennings back to the car to retrieve the car’s registration. The front seat passenger then tried to flee, but was apprehended.

Through the open door on the passenger’s side, the officer observed a large gym bag lying open on the front passenger seat floorboard. Plainly visible within the unzipped bag was a large amount of cash that was stacked and bundled. The money exceeded thirty-thousand dollars. Also in full view within the open gym bag was a square package that appeared to the officer to contain cocaine. Among other things, under its cellophane wrapping, there was white, powdery residue visible “all over the package.” The officer found a second package in the gym bag. Each package contained over one kilogram of cocaine. The packages were dusted for fingerprints and swabbed for DNA. No fingerprints were found on the packages and the DNA test results were not obtained in time for trial.

During the traffic stop, the officer had kept close watch on the passengers in the car based on a concern for his safety. As soon as Jennings exited the car, the officer explained, he felt he might be confronted with a “flight or fight” situation by all of the passengers. He was ready to draw his weapon if he had observed the front seat passenger moving in the direction of the floorboard. According to his observations, the backseat passenger never tossed anything into the front seat and the front seat passenger did not engage in any movements in the direction of the floorboard.

Jennings was charged by information with trafficking in cocaine on October 13, 2010. He filed a notice of expiration of speedy trial time on March 22, 2011. The case was then set for trial on March 28, 2011.

At trial, the State did not present any DNA evidence. Defense counsel drew attention to this fact during the cross-examination of the arresting officer. When the officer testified that the laboratory testing had not been completed at the time of trial, defense counsel commented: “That is unbelievable.” His questions insinuated that the officer knew the results could exonerate Jennings.

At the close of the State’s case, defense counsel moved for a judgment of acquittal, arguing the State failed to prove Jennings was in constructive possession of cocaine. The trial court deniéd the motion.

At one point in the State’s initial closing argument, the prosecutor addressed the absence of the DNA results. The State explained that no one knew the outcome of the DNA tests because, as the officer testified, the laboratory testing had not been completed. The State also downplayed the significance of DNA evidence in this case, contending Jennings’ DNA on the cocaine packages “would prove nothing” because skin particles and hair follicles of any of the three occupants could easily circulate in the car and land on the packages.

Defense counsel in his closing reviewed the various types of forensic evidence that were not presented at trial, including fingerprints and DNA. Regarding the lack of DNA evidence, defense counsel briefly discussed the arresting officer’s testimony that the laboratory testing had not been completed at the time of trial. The officer’s explanation, the defense argued, was “stupid,” “poppycock,” and “a lie.” The thrust of this part of the defense’s argument was to encourage the jurors to speculate that the State was lying about the DNA because the test results could exonerate Jennings. The trial court denied the State’s request for a curative instruction.

At one point on rebuttal, the State made the comments that have become an issue in this appeal. In response to the defense’s contentions regarding the absence of DNA evidence, the prosecutor pointed out that it can take over a year to obtain DNA test results, as the officer had testified. Not content to stop there, the prosecutor argued that the defense, if anyone, was at fault for the lack of DNA evidence. After all, the State argued, Jennings exercised his right to a speedy trial before the laboratory results that “could possibly implicate him” were ready.

Defense counsel objected, requested a curative instruction, but then moved for a mistrial. Although the trial court denied the motion for mistrial, the court sustained defense counsel’s objection to the prosecutor’s remarks, struck the remarks, and offered a curative instruction:

The objection is sustained. Going to strike the last comment and statements made by the attorneys. Ladies and gentlemen, you are to rely on your own recollection of the facts in this case. The facts are that which you determine to be true and relying on the evidence [as] you have heard it by way of testimony of witnesses and the exhibits that have been legally introduced as evidence in this case.

At the conclusion of closing arguments, the trial court instructed the jury that reasonable doubt could be based upon a lack of evidence. At various points throughout closing argument, the jury was also reminded that arguments of counsel are not evidence and that they must rely on the evidence submitted at trial in determining whether the State met its burden of proof.

The jury found Jennings guilty of attempted . trafficking in cocaine, a lesser included offense of trafficking in cocaine. Jennings moved for a new trial on the basis of the prosecutor’s improper remarks, but his motion was denied. He was sentenced to ten years in prison. This appeal followed.

DISCUSSION

I. Denial of Motion for Judgment of Acquittal

In the first issue raised on appeal, Jennings contends the trial court erred in denying his motion for judgment of acquittal because the State failed to prove he was in constructive possession of cocaine. We reject this argument. The record contained evidence sufficient for the jury to conclude that the cocaine was within Jennings’ view and under his control.

A. Standard of Review

“The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence.” Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). It is well-settled that “[i]n moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the [State] that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

In circumstantial evidence cases, such as this case, “a special standard of review applies whereby the trial court is tasked with reviewing the evidence to determine whether competent evidence exists ‘from which the jury could infer guilt to the exclusion of all other inferences.’ ” Giralt v. State, 935 So.2d 599, 601 (Fla. 3d DCA 2006) (quoting Boyd v. State, 910 So.2d 167, 180 (Fla.2005)). This standard does not require the State to conclusively rebut every possible variation of events that could be inferred from the evidence, but only “to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Id. “Once the State meets its threshold burden of creating an inconsistency with the defendant’s theory, the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency.” Id. at 602.

B. Constructive Possession

Because there was a passenger in the front passenger seat, Jennings did not have exclusive possession of cocaine in the gym bag on the front passenger seat floorboard. The evidence, however, was sufficient for the jury to conclude that Jennings was in constructive possession.

To prove constructive possession, the State must present competent, substantial evidence of the accused’s knowledge of the presence of contraband and his or her ability to exercise dominion and control over it. Reynolds v. State, 983 So.2d 1192, 1194 (Fla. 3d DCA 2008); Links v. State, 927 So.2d 241, 243 (Fla. 2d DCA 2006). If the contraband is not located within the accused’s exclusive possession, the jury cannot infer the accused’s knowledge of and control over the contraband based upon proximity alone. Reynolds, 983 So.2d at 1194. Instead, the State must provide independent proof of these two elements. Blanchard v. State, 67 So.3d 309, 311 (Fla. 4th DCA 2011); State v. Cadore, 59 So.3d 1200, 1203 (Fla. 2d DCA 2011).

i. Knowledge

On the issue of knowledge, this matter is a straightforward plain view case. A person looking at the front passenger seat floorboard could see a large, unzipped gym bag with a visible square package that had the size and appearance typical of a packaged kilogram of cocaine. From this evidence, the jury could fairly and reasonably infer that the cocaine was in Jennings’ plain view from the driver’s seat. This fact alone is sufficient evidence of knowledge. Brown, v. State, 428 So.2d 250, 252 (Fla.1988), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Jiles v. State, 984 So.2d 622, 623 (Fla. 2d DCA 2008); Martoral v. State, 946 So.2d 1240, 1243 (Fla. 4th DCA 2007).

This is not a case where officers found contraband concealed from the defendant. See, e.g., Brown v. State, 8 So.3d 1187, 1189 (Fla. 4th DCA 2009) (Xanex in a jewelry box); Earle v. State, 745 So.2d 1087, 1090 (Fla. 4th DCA 1999) (cocaine concealed behind a door panel); Green v. State, 667 So.2d 208, 210 (Fla. 2d DCA 1995) (cocaine hidden in a compartment over the vehicle’s glove box).

The one twist on this point is that Jennings suggests a hypothesis of innocence based on the possibility that the gym bag was opened only after he left the car. Even if such a hypothesis were reasonable, the following facts conflict with it: (1) his attempt to keep the officer away from the car; (2) his extreme nervousness; and (3) the officer’s testimony that he had watched the other passengers and they made no movements towards the front passenger seat floorboard. Therefore, the issue was properly submitted to the jury to weigh the evidence.

ii. Dominion and Control

Knowledge, of course, does not by itself establish the element of dominion and control. Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994) (“It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.”). “In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found.” Johnson v. State, 456 So.2d 923, 924 (Fla. 3d DCA 1984).

In the leading case in this area, Brown, the Florida Supreme Court held that a jury question existed on the issue of dominion and control where officers found contraband in the defendant’s plain view in the kitchen, family room, and garage of a house he owned and occupied, even though he was renting space to other persons who also lived in the house. 428 So.2d at 252. The dominion and control element was met because the defendant had control over the common areas of his home. Id.

Properly understood, the rule of Brown, as applied to contraband found in a jointly occupied vehicle, can be stated simply as follows: generally, evidence that the defendant knew contraband was in the vehicle and had control of the vehicle is sufficient to create a jury question on the issue of dominion and control. See Ubiles v. State, 23 So.3d 1288, 1291 (Fla. 4th DCA 2010), review denied, 66 So.3d 304 (Fla. 2011) (applying Brown’s holding to the context of vehicles). Viewing the evidence in this case in the light most favorable to the State, this case fits within the ambit of Brown’s holding: (1) Jennings had control of the vehicle as the driver at the time the cocaine was discovered; and (2) Jennings knew he was transporting cocaine because the cocaine was in his plain view.

In Ubiles, the Fourth District applied Brown, in a review of probation revocation, to hold that the driver of a vehicle with a passenger had construction possession of marijuana cigarettes in an open ashtray, which was accessible to the driver and the passenger. Ubiles, 28 So.3d at 1291. The court reasoned, “because Ubiles owned and was driving the vehicle, and the marijuana was in plain view, it can also be inferred that he had dominion and control of the marijuana cigarettes in the ashtray.” Id. We find this approach persuasive.

Similarly, Judge Altenbernd’s concurrence in Williams v. State, 110 So.3d 59 (Fla. 2d DCA 2013), reflects our view of the proper state of the law in this area. In Williams, officers stopped a car that had three occupants. Id. at 61. From outside the vehicle, the officers detected a strong odor of fresh marijuana that they traced to a bag in the hatchback of the car. The bag contained a pound of marijuana. Id. at 62. The Second District held a jury could not find that the driver had dominion and control of the marijuana, even though a jury could infer that the driver knew she was transporting a substantial amount of marijuana given the strong odor of marijuana permeating the vehicle. Id. at 65.

Because the difference between “plain smell” and “plain view” is a distinction without a legal difference in this context, we conclude that Williams does not conform to the Florida Supreme Court’s precedent in Brown as subsequently applied to vehicles. The driver in Williams was knowingly transporting a relatively-large amount of marijuana found in a common area of the vehicle. In our opinion, the issue of constructive possession was properly submitted to the jury.

Judge Altenbernd, in his concurrence, indicated he was bound by Second District precedent to join the majority. He stated, however,

If I were writing on a clean slate, I would be inclined to believe that a jury should be authorized to return a guilty verdict on a drug charge where the defendant is an operator of a motor vehicle and has actual knowledge that the vehicle contains illegal drugs that easily could be removed from the vehicle.

Id. at 65 (Altenbernd, J., concurring). We agree.

Jennings, as the driver in this case, clearly had control over the car. Merely moving the car when cocaine was in plain view on the front passenger seat floorboard, and thereby knowingly transporting a substantial amount of cocaine, was an exercise of dominion and control. The presence of passengers in the car did not deprive Jennings of control over the interi- or of the car, including the front passenger seat floorboard, any more than the presence of other occupants in Brown negated the defendant’s control over contraband found in his plain view in common areas of a house he owned and occupied. Brown and its progeny therefore dictate that sufficient evidence existed for the question of the driver’s dominion and control to be submitted to the jury.

We acknowledge that a jury issue on a driver’s dominion and control over contraband may not be present under different circumstances. For example, the State may fail to present evidence inconsistent with a reasonable hypothesis of innocence that a passenger had exclusive dominion and control over the contraband. See, e.g., Corker v. State, 31 So.3d 958, 960 (Fla. 1st DCA 2010) (holding, in a review of probation revocation, that a male driver did not have dominion and control over “marijuana in a multicolored makeup pouch concealed in the back seat of the car near where the female passenger in question was sitting”). But this concern is generally not implicated where, as here, the defendant knowingly transports a large quantity of contraband found in a common area of the vehicle. We therefore affirm the denial of the motion for judgment of acquittal.

II. Denial of Motion for Mistrial

In the second issue raised on appeal, Jennings argues the trial court abused its discretion when it refused to grant a mistrial following improper remarks by the prosecutor in closing argument. We disagree. In light of our review of the entire record, we conclude that the trial court did not abuse its discretion when it issued a curative instruction instead of granting a mistrial.

A. Standard of Review

A motion for a mistrial should be granted only when an error is so prejudicial as to vitiate the entire trial, which is another way of saying that the motion should be granted only when necessary to ensure the defendant a fair trial. Salazar v. State, 991 So.2d 364, 372 (Fla.2008). “A trial court’s ruling on a motion for mistrial is presumed correct and will not be reversed on appeal absent a clear showing of abuse of discretion.” Boyd v. State, 963 So.2d 884, 886 (Fla. 3d DCA 2007) (citation omitted), Under this standard, a trial court’s decision will not be overturned unless it is “arbitrary, fanciful, or unreasonable.” Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). In other words, a trial court abuses its discretion if no reasonable person would take the view adopted by the court. Id.

The essential aspect of this case that determines the standard of review is the trial court correctly determined that the State’s argument was improper, sustained the objection, struck the remarks, and issued a curative instruction. This feature of the case clearly distinguishes it from cases cited by the dissent that apply the harmless error analysis.

Where a court commits the error of allowing, or failing to correct, improper testimony or argument despite the defense’s objection, the standard of review is the harmless error analysis. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). That analysis places the heavy burden on the State, as the beneficiary of the error, to show “no reasonable possibility that the error contributed to the conviction.” Id.

The Florida Supreme Court, however, held that the harmless error analysis does not apply where, as here, the State was not the beneficiary of any error because the trial court recognized the improper argument:

The use of a harmless error analysis ... is not necessary where the trial court recognizes the error, sustains the objection, and gives a curative instruction. Rather, the correct appellate standard of review is whether the trial court abused its discretion in its denial of a mistrial.

Anderson v. State, 841 So.2d 390, 403 (Fla. 2003) (internal citations omitted); see also Villanueva v. State, 917 So.2d 968, 972 (Fla. 3d DCA 2005).

B. The Improper Remarks

We agree with the trial court that the prosecutor’s remarks, although provoked by defense counsel’s improper arguments, were themselves clearly improper. Not content to stay within the. proper bounds of argument that the lack of DNA evidence might raise a reasonable doubt, defense counsel went further and improperly insinuated that the State was lying in order to conceal DNA evidence that could exonerate Jennings. The defense pressed this argument in its closing argument by referring to the arresting officer’s testimony as “stupid,” “poppycock,” and “a lie.” Nevertheless, as the trial court properly found, it was still improper for the State to reply with its suggestion that the absence of DNA evidence at trial that “could possibly implicate” Jennings was due to his action in insisting on an early trial date.

The State argues the prosecutor’s comments were not error, but rather a fair reply to defense counsel’s improper remarks in closing argument, citing to Broge v. State, 288 So.2d 280, 281 (Fla. 4th DCA 1974) (holding a prosecutor’s comments indicating his personal belief in the State’s witnesses was a fair reply to defense counsel’s attack on the veracity of the State’s witnesses). The fair reply doctrine, however, has limits. Kearney v. State, 846 So.2d 618, 621 (Fla. 4th DCA 2003).

Initially, the prosecutor responded to the defense’s insinuations by pointing out that no one knew the results of the DNA tests; by emphasizing the length of time it takes to obtain DNA test results; and by downplaying the probative value of the potential DNA evidence in the facts of the case. These arguments were an appropriate response. But the prosecutor did not stop there. The prosecutor exceeded the scope of a fair reply by suggesting the defendant was exercising his right to a speedy trial to prevent possibly incriminating evidence from coming forward. See Hazelwood v. State, 658 So.2d. 1241, 1243-44 (Fla. 4th DCA 1995) (holding that the prosecutor’s explanation of a defendant’s subpoena power was a fair reply to defense counsel questioning the absence of testimony from certain witnesses, but going a step further to claim uncalled witnesses would bolster the State’s case exceeded the boundaries of a fair reply). Without much difficulty, we hold the trial court was correct in concluding that the prosecutor’s remarks were improper.

C. The Curative Instruction

Recognizing that the prosecutor’s comments went too far, the trial court sustained defense counsel’s objection to the improper remarks, struck the remarks, and provided a contemporaneous curative instruction instead of granting a new trial. In determining whether the improper remarks warrant a new trial, the remarks must be examined in “the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001). We conclude that the curative instruction in this case was sufficient to dispel the prejudicial effect of the prosecutor’s remarks in light of our examination of the entire record at trial.

“Generally speaking, the use of a curative instruction to dispel the prejudicial effect of an objectionable comment is sufficient.” Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999) (citing Buenoano v. State, 527 So.2d 194 (Fla.1988)). In Espute v. State, 85 So.3d 532, 536 (Fla. 4th DCA 2012), for example, the Fourth District held the trial court did not abuse its discretion in denying a mistrial after the prosecutor commented on the defendant’s right to silence during cross-examination of the defendant because the defense’s objection was sustained and followed by a curative instruction to “disregard the last question, draw no inferences from it” and cross out any notes regarding the comment. Similarly, in Thomas v. State, 726 So.2d 369, 372 (Fla. 4th DCA 1999), the court held a prosecutor’s impermissible comment in rebuttal closing argument on the failure of the defense to call a witness did not require a new trial because the trial court instructed the jury that the defense had no burden of proof.

Turning to the instant case, when placed in context, the upshot of the prosecutor’s remarks was to negate the defense’s false insinuation that the State was withholding evidence that exonerated Jennings. In the State’s closing argument, it reminded the jurors of the officer’s testimony that no one knew the outcome of the DNA tests. The State also explained that DNA on the cocaine packages would have very limited probative value anyway because skin particles and hair follicles of anyone in the car could easily have landed on the open bag and its contents, whether or not the person actually handled the packages. The State would hardly have emphasized these points if it was trying to persuade the jurors that the unknown results of the DNA test actually implicated Jennings.

Second, this whole dispute was merely a passing sideshow in the trial. The remarks played no part in the State’s initial closing argument or case-in-chief against Jennings, which had instead focused on the ample evidence in the record supporting Jennings’ conviction. For that matter, based upon our review of the entire trial transcript, the contention of the defense that the State was lying about the DNA results was not a major part of the defense’s cross-examination or closing argument.

Finally, it was clear to an attentive juror that both sides were merely speculating. After the defense brought out the fact that the DNA swabs were taken at the scene, but no test results were entered into evidence, every juror was aware of the obvious possibility that the unknown laboratory results might help one side or the other. The defense’s improper insinuation that the DNA test results might exonerate and the prosecutor’s improper insinuation that the DNA test results “could possibly” implicate were mirror images of the same obvious, gratuitous, and rank speculation.

In summary, both the defense and the State embarked on an improper, but fleeting, diversion from the evidence in the record that had the tendency to draw the jurors’ attention away from the facts in the record and into the clouds of speculation.

In this context, the trial court sustained defense counsel’s objection to the prosecutor’s comments, struck the comments, and gave the curative instruction reminding the jury to focus on the evidence admitted at trial. This- instruction directed the jurors’ focus away from speculation and towards the evidence. In fact, at several other points, the trial court instructed the jurors that arguments of counsel are not evidence and that they must rely only on the evidence submitted at trial in determining guilt. The beneficial effect of the curative instruction was further enhanced by the trial court’s directive at the conclusion of closing argument that reasonable doubt could be based upon a lack of evidence, a point emphasized by the defense in its closing argument.

The trial judge has discretion in these matters because she has a unique vantage point. Being present in the courtroom and having listened to the witnesses, examined the exhibits, heard the arguments, and observed the jurors, the trial judge was in the best position to gauge the impact of the improper arguments on the entire trial. The trial judge’s unique vantage point in this regard is precisely why the question of whether to" issue a curative instruction or to grant a mistrial rests within her sound discretion.

Considering the controversy in light of the entire record, we conclude that the trial judge’s decision to issue a curative instruction, rather than grant a mistrial, was not an abuse of discretion. In order to hold otherwise, we would have to determine that no reasonable person could agree with her decision and that her decision was arbitrary or fanciful. We fail to see how the measured response of the trial judge in this case could be characterized in such a manner.

CONCLUSION

Because Jennings was not denied a fair trial and legally sufficient evidence supported his conviction, the decision under review is affirmed.

ROTHENBERG, J., concurs.

EMAS, J.,

concurring in part and dissenting in part.

I concur with the majority that the trial court properly denied Jennings’s motion for judgment of acquittal. However, I believe the State’s improper closing argument necessitated a mistrial and the trial court abused its discretion in denying the mistrial request. I therefore must respectfully dissent from that portion of the majority’s opinion.

The prosecutor’s closing argument im-permissibly suggested to the jury that there was extra-record evidence of Jennings’s guilt, and argued that Jennings had demanded a speedy trial in a calculated effort to prevent this evidence from being presented to the jury. The following are the relevant excerpts from the prosecutor’s closing:

STATE: This was something to when you get a[DNA] swab, you just don’t swab the DNA and keep it. It takes a couple of years or two. The fact of the matter though, ladies and gentlemen, the defendant has a right to speedy trial. He has that right to proceed to trial, and he has a right to demand that the State fulfill that constitutional right. So if he jumps up, “I want my speedy trial,” yuess what? We yot to yive it to him. The State is not jumping and asking for a speedy [trial] when we don’t have DNA evidence back yet. Who does that go well for really, if he demanded a speedy trial?
DEFENSE: Objection. Misstatement, state satisfied the demand for a speedy trial.
COURT: Overruled.
STATE: If the defendant wants a trial, he’s going to get one, and the State has to be prepared. And if that means the defendant wants to go to trial and the State hasn’t received back DNA evidence, which could possibly implicate him, then we just have to go without it then. And who does that help? Well, so knowing DNA takes years to come back, doesn’t it make sense to want your trial to go as soon as possible? Of course, it does. And let me remind you this happened September 20th. So October, November, December, February, March. We are only at the six-month mark, six month-line since this incident.
DEFENSE; Objection. I have a motion to make.
COURT: Come sidebar.
(Thereupon, a sidebar was had.)
DEFENSE: The prosecutor is purposely misstating the facts. Because in the discovery there is no mention that there is a DNA swab. She [the prosecutor] couldn’t have known about this until she prepared her witness recently. So she is trying to say this is a race to go to trial and beat the results of the DNA testing, yet this is no revelation and discovery that. there was ever swabbing for DNA. It [the discovery response] states there is no scientific test. So what this is doing is this is a material falsehood. This is saying we are trying to beat something which nobody knew existed.

(Emphasis added).

The arguments continued at sidebar for five transcript pages. During this sidebar, the defense requested a curative instruction and moved for a mistrial, contending no instruction could be fashioned to cure the improper argument made by the State.

The trial court denied the motion for mistrial and gave the following curative instruction to the jury:

The objection is going to be sustained. Going to strike the last comment and statements made by the attorneys. Ladies and gentlemen, you are to rely on your own recollection of the facts in this case. The facts are that which you determine to be true and relying on the evidence [as] you have heard it by way of testimony of witnesses and the exhibits that have been legally introduced as evidence in this case.

While the majority acknowledges that these arguments were improper, they were much more than that. These arguments vitiated the defendant’s right to á fundamentally fair trial, because they:

1. Were made upon a false factual premise, given that the defense was not even aware of the DNA testing until the trial commenced;
2. Were made upon a false factual and legal premise, given that the defense never demanded a speedy trial, but simply filed a notice (as provided under rule 3.191(a)) that the speedy-trial-without-demand period had expired;
3. Pointed out to the jury that there was evidence — not introduced at the trial — which could have helped to establish Jennings’s guilt;
4. Denigrated the defendant by accusing him of deliberately using his right to a speedy trial to “rush” the case to trial in order to keep this relevant (and possibly incriminating) evidence from being considered by the jury; and-
5. Suggested to the jury that these actions showed consciousness of Jennings’s own guilt; after all, why would Jennings “demand” that the case proceed to trial before the DNA test results were available, unless Jennings knew that those test results would implicate him?

The trial court abused its discretion in denying the motion for mistrial. See Martinez v. State, 761 So.2d 1074 (Fla.2000) (reversing conviction where detective, during his testimony, suggested to jury he was aware of the existence of extra-record evidence, leading detective to conclude he had no doubt defendant was guilty); Ser- vis v. State, 855 So.2d 1190, 1194 (Fla. 5th DCA 2003) (holding it is improper for prosecutor to suggest that evidence which was not presented at trial provides additional grounds for finding the defendant guilty); D'Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) (reversing conviction for improper closing argument during which prosecutor urged jury to consider evidence not introduced at trial); Hazelwood v. State, 658 So.2d 1241 (Fla. 4th DCA 1995) (reversing conviction based upon prosecutor’s improper argument suggesting there were other witnesses who would have corroborated the State’s case had those witnesses been called to testify at trial). See also Adams v. State, 830 So.2d 911 (Fla. 3d DCA 2002) (reversing conviction where prosecutor denigrated defense counsel and made argument which implicated defendant’s exercise of a constitutional right); Kearney v. State, 846 So.2d 618 (Fla. 4th DCA 2003) (reversing conviction based on improper closing in which prosecutor argued that State was prevented from presenting certain evidence at trial because defendant exercised a constitutionally protected right).

As the Florida Supreme Court has noted:

The role of the attorney in closing argument is “to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to ‘testify’ as an ‘expert witness.’ The assistance permitted includes counsel’s right to state his contention as to the conclusions that the jury should draw from the evidence.” United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978). To the extent an attorney’s closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty.
It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.
“The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.”

Ruiz v. State, 743 So.2d 1, 4 (Fla.1999) (quoting United States v. Garza, 608 F.2d 659, 662-63 (5th Cir.1979)) (internal citations omitted) (underlined emphasis added).

In the instant case, the trial court overruled the defense objection to the first of the State’s improper arguments. (“So if he jumps up, 1 want my speedy trial,’ guess what? We got to give it to him. The State is not jumping and asking for a speedy [trial] when we don’t have DNA evidence back yet. Who does that go well for really, if he demanded a speedy trial?”).

The prosecutor, no doubt emboldened by the trial court’s ruling, ratcheted up the rhetorical impropriety to drive the point home to the jury. (“If the defendant wants a trial, he’s going to get one, and the State has to be prepared. And if that means the defendant wants to go to trial and the State hasn’t received back DNA evidence, which could possibly implicate him, then we just have to go without it then. And who does that help? Well, so knowing DNA takes years to come back, doesn’t it make sense to want your trial to go as soon as possible? Of course, it does.”).

The defense interposed a second objection which, this time, was sustained by the trial court. Although the trial court made a valiant effort to remedy the prejudicial impact of these arguments, the harm was beyond repair, and the curative instruction was simply insufficient to cure the prejudice. See Adams v. State, 830 So.2d 911 (Fla. 3d DCA 2002) (reversing conviction where prosecutor’s personal attacks on defense counsel in closing argument was not remedied by trial court’s curative instruction); Paul v. State, 980 So.2d 1282 (Fla. 4th DCA 2008) (reversing conviction where trial court’s curative instruction to State’s improper closing argument was insufficient to remedy prejudice); Johns v. State, 832 So.2d 959 (Fla. 2d DCA 2002) (same). Given that the curative instruction was inadequate to remedy the prejudice caused by the improper argument, a mistrial was warranted. Henderson v. State, 789 So.2d 1016 (Fla. 2d DCA 2000).

As the majority notes, any assertion of “fair reply” by the State is unavailing. In Kearney, 846 So.2d at 619, the defendant was charged with unlawful interception by tape recording a conversation without consent of the other party to the conversation. She was also charged with perjury for allegedly telling an investigator, under oath, that such a tape did not exist. At trial, Kearney was acquitted of the unlawful interception but convicted of the perjury. On . appeal, Kearney contended that the prosecutor, in closing argument, improperly commented on her Fourth and Fifth Amendment rights. In closing, the prosecutor argued:

The Defense says, where’s the tape? The State should present the tape to you. That’s a ridiculous argument, and the reason why it’s a ridiculous argument is because the Defense fully knows well that the State doesn’t have the tape. The Defense fully knows well that there’s something called the Fifth Amendment, self-incrimination, and the Fourth Amendment, the right against illegal searches and seizures.
And that the government can’t just bust down somebody’s door and say, we’re taking everything out of your house. The government can’t just grab somebody by the hand and say, get over here, sit down, you’re going to tell us what we want to know. We can’t do it. We can’t do it.

Id. at 620.

The Court reversed the perjury conviction, noting:

[T]he prosecutor’s first comment explicitly highlighted the Fourth and Fifth Amendments as impediments to the prosecution’s ability to produce the tape. The second comment is even more egregious in nature, due to its sheer dramatic effect. This comment cites the constitutional restraints placed on the government as an obstacle to the prosecution of the case, and then points a finger at Kearney for invoking the constitutional protections intended to shield her from governmental abuse. These comments, on their face, are “fairly susceptible” of being read as impermissible comments on the defendant’s constitutional rights.

Id. at 620-21.

The State in Kearney contended that the prosecutor’s comments were merely “fair reply” to the defense closing during which it argued the State did not prove its case because it failed to produce the tape. Our sister court disagreed:

[T]he fair reply doctrine is limited in scope. In Hazelwood v. State, 658 So.2d 1241 (Fla. 4th DCA 1995), the prosecutor stated that both parties had subpoena power and suggested that other witnesses existed who would corroborate the State’s case. This Court decided that it was not error to explain the subpoena power, but that it was error to go one step further and claim uncalled witnesses would bolster the State’s case. In the present case, the defense did question the existence of the tape in its closing argument. However, this was to be expected in a case alleging that an illegal tape had been produced, because without the tape, the charge is less convincing. Furthermore, the defense did not pepper its entire argument with repeated statements regarding the whereabouts of the tape that were intended to push the prosecution toward fatal error. Even if this were not the case, and even assuming it was acceptable for the prosecution to explain the function of the Fourth and Fifth Amendments, it was beyond the scope of fair reply to beleaguer the constitutional restraints and protections implicit in any criminal case and then point a finger at Kearney for having a greater appreciation of the Constitution.

Id. at 621 (internal citations omitted).

The instant case provides an even more compelling basis for reversal than the circumstances in Kearney. In the instant case, the prosecutor told the jury that there was other evidence (pending DNA test results) that was not introduced into evidence, and that this DNA evidence “could possibly implicate” Jennings. This argument was, standing alone, wholly improper. It might well be that, had the prosecutor gone no further, the curative instruction would have been sufficient and no mistrial warranted. But the prosecutor in fact went further, suggesting to the jury that because the defendant knew the results of the DNA testing would implicate him, Jennings “demanded” a speedy trial to ensure those test results would be unavailable for the jury to consider.

These arguments denigrated the defense by accusing the defendant of misusing the right to a speedy trial to prevent the State from presenting, and the jury from considering, relevant evidence that the prosecutor suspected (and which the defendant must have known) would be incriminating. These impermissible corn-ments on a defendant’s exercise of his Sixth Amendment right, together with the assertion of extra-record inculpatory evidence and accusations of improperly-motivated conduct by the defendant, require reversal for a new trial. The taint was not (and could not be) ameliorated by the trial court’s “rely on your own recollection of the facts” curative instruction. Because of the State’s beyond-the-pale argument, the trial court found itself facing a situation “in which the prejudice is so great that it is impossible ‘to unring the bell.’ ” Tumblin v. State, 29 So.3d 1093, 1102 (Fla.2010) (quoting Graham v. State, 479 So.2d 824, 825-26 (Fla. 2d DCA 1985)). The trial court’s instruction could not unring the bell; the arguments unduly prejudiced the jury and fatally impaired the fairness of the proceeding. A mistrial was necessary to protect the defendant’s right to a fair trial.

I would affirm the denial of the motion for judgment of acquittal but would reverse and remand for a new trial based upon the improper closing arguments.

      . The filing of a notice of expiration of speedy trial time triggers the protections set forth in Florida Rule of Criminal Procedure 3.191, including the requirement that the trial court hold a hearing within five days of the filing of the notice. State v. Pfeiffer, 872 So.2d 313, 314-15 (Fla. 4th DCA 2004). If no exceptional circumstances exist, the defendant must be tried within ten days or discharged. Id. at 315.

      . The utility of this special standard has been called into question and most jurisdictions have discarded it for an across-the-board standard of reasonable doubt. See Knight v. State, 107 So.3d 449, 456-58 (Fla. 5th DCA 2013).

      . Although a defendant’s nervousness during a traffic stop alone is insufficient evidence of knowledge of contraband in a vehicle, see, e.g., Hill v. State, 736 So.2d 133, 134 (Fla. 1st DCA 1999), it is one factor among others a trier-of-fact may consider in constructive possession cases. See Meme v. State, 72 So.3d 254, 257 (Fla. 4th DCA 2011).

      . Although not necessary to our holding, additional facts that support a jury finding of dominion and control here include: (1) Jennings rented the car; and (2) Jennings attempted to protect the cocaine from discovery by trying to keep the officer away from the car.

      . The prosecutor was referring to DNA evidence taken from the cocaine packaging and sent for testing. The results of those tests were apparently not available at the time of the trial.

        . In point of fact, the case proceeded to trial not upon a demand for speedy trial, see Florida Rule of Criminal Procedure 3.191(b), but upon a notice of expiration of the speedy trial period under Rule 3.191(a) ("Speedy Trial Without Demand”). Further, the State could have sought, but did not seek, an extension of the speedy trial period for "exceptional circumstances.” See Fla. R.Crim. P. 3.19l(f )(3) (providing trial court "may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist.... These circumstances include: ... a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time”).

      . The defense requested that, as part of any curative instruction, the trial court advise the jury that the existence of DNA testing had not been revealed to the defense until the day of the trial. The trial court did not include this in its curative instruction.

      . Because the trial court overruled the defense objection to the State’s first improper argument, the State would have to prove that this first argument was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Mitchell v. State, 118 So.3d 295 (Fla. 3d DCA 2013). Because the court sustained the defense objection to the second improper argument (and gave a curative instruction), the standard of review for the court’s denial of a motion for mistrial based upon this portion of the closing argument is an abuse of discretion. Anderson v. State, 841 So.2d 390 (Fla.2003). Even analyzing both arguments under the more deferential abuse of discretion standard, I conclude that a mistrial was necessary.

      . In its closing argument, the State characterized this speedy trial right as having a constitutional dimension: "The fact of the matter though, ladies and gentlemen, the defendant has a right to speedy trial. He has that right to proceed to trial, and he has a right to demand that the State fulfill that constitutional right.” On the heels of this description, the State argued that the defendant exercised this right to rush the case to trial before the DNA test results were available. Just as it is improper to denigrate a defendant’s exercise of his right to trial, see Bell v. State, 723 So.2d 896 (Fla. 2d DCA 1998), it is likewise improper to denigrate a defendant's exercise of his right to a speedy trial, especially when the prosecutor argues that the defendant exercised that right in a deliberate attempt to thwart the prosecution's effort to obtain, and the jury from receiving, relevant and possibly incriminating evidence. See Kearney, 846 So.2d at 620 (reversing conviction where State argued it was unable to obtain certain evidence because of defendant’s exercise of his constitutional rights under the Fourth and Fifth Amendments). See also Bravo v. State, 65 So.3d 621 (Fla. 1st DCA 2011); Gomez v. State, 572 So.2d 952 (Fla. 5th DCA 1990).


source: Caselaw Access Project

author: CLARK, J. OSTERHAUS, J.,

license: Public Domain

text:
    Edwin E. GENNETTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3407.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Rehearing Denied Oct. 23, 2013.

      Nancy A. Daniels, Public Defender, Courtenay H. Miller, Assistant Public Defender, Tallahassee, and John Knowles, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Monique Rolla, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes. The conviction was based on Appellant’s plea of nolo con-tendere, entered after the trial court denied the defense’s motion to dismiss the charges. Appellant’s plea reserved his right to appeal the denial of the motion to dismiss. In his motion, Mr. Gennette argued that his conduct was the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law. We agree, reverse the denial of the motion to dismiss and the resulting conviction and sentence, and remand to the trial court with instructions to dismiss the charge.

As a preliminary matter, although not raised by the parties at the motion hearing or on appeal, we consider whether Appellant’s entrapment defense was even cognizable by the trial court on a pre-trial motion to dismiss. As the dissent notes, section 777.201(2), Florida Statutes requires a defendant to prove, “by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment.” The statute further provides: “The issue of entrapment shall be tried by the trier of fact.” The dissent correctly stresses that ordinarily, juries are the triers of fact, tasked with resolving conflicts in the evidence after weighing the credibility and reliability of documents, witnesses and other sources of evidence. However, no disputes of fact or conflicts in evidence were presented to the trial court on the motion to dismiss or argued by the parties on appeal. Where the factual circumstances of the case are not in dispute, the trial judge has authority to rule on entrapment as matter of law. Munoz v. State, 629 So.2d 90, 99 (Fla.1993); see also State v. Ramos, 632 So.2d 1078 (Fla. 3d DCA 1994) (although section 777.201(2) provides that issue of entrapment shall be submitted to trier of fact, determination of whether defendant was entrapped may be determined as a matter of law when factual issues not in dispute).

None of the critical factual circumstances of this case are in dispute. Section 934.214, Florida Statutes describes the elements of the offense of “Unlawful use of a two-way communications device” and Appellant did not contest the State’s allegations that he committed the acts described in that statute. The content and sequence of the government’s advertisement and ensuing e-mail chain were agreed upon by the parties, as was Appellant’s lack of any predisposition to commit any of the offenses charged. The trial court’s denial of the motion to dismiss was not based on any resolution of conflicts in the documents or testimony presented by the defense, but was the result of the court’s application of the terms of section 777.201, Florida Statutes to the undisputed evidence. The State’s disagreement with the defense’s assertion that the facts established entrapment under the statute did not create a dispute of fact. Accordingly, the trial court correctly considered, on the motion to dismiss, whether the critical facts presented by the defense constituted entrapment under the language of section 777.201.

On the merits of this appeal, “[w]e review de novo a trial court’s order on a motion to dismiss.” O’Leary v. State, 109 So.3d 874, 876 (Fla. 1st DCA 2013).

Appellant was charged as a result of a police operation intended to apprehend persons seeking illegal contact with minors. To this end, government agents published an on-line (Craigslist) advertisement for apparently legal activity with a fictitious adult or adults: “Sisters looking for a hot night — w4m—19 (Pcola/Des-tin/PC).” Testimony at the motion hearing confirmed that “w4m” meant female looking for male, and the number 19 was to indicate the advertiser’s age. The ad did not suggest illegal activity.

Appellant responded to the advertisement late on a Thursday night:

Appellant (11:24 p.m.): For real? nah, I don’t believe it, LOL can U prove me wrong? cute guy here, Trey
“Amber” (11:42 p.m.): Hi Trey! Let see how cute!!! My lil sis is in town visiting me for the summer. She is 14, you ok with that?

The next morning, Appellant continued his e-mail correspondence with the law enforcement agent posing as the 19-year-old “Amber” as follows:

Appellant (10:21 a.m.): well I think she is a bit young, lol but depends on what you have in mind before i send my pic, are there any age requirements? lmao well the hell with it, ill send a pic anyway me and my pet possum.
“Amber” (3:44 p.m.): Nice pic! Why in the world do you have a pet possum? There are no age requirements here.
Appellant (3:59 p.m.): Well thank you.... I found my lil-bear in my backyard when she was just a baby and ive raised her .... she’s so spoiled and thinks shes a people, lol.now its your turn, lol.

The State maintained that Appellant’s response, in the third e-mail message of the chain, defeated his claim of entrapment because he readily accepted the government’s offer for sexual activity with a minor. To the contrary, Appellant’s e-mail shows only that he understood that a minor sister was visiting 19-year-old “Amber” for the summer. The agent’s question of “you ok with that?” and Appellant’s response “she is a bit young ... but depends on what you have in mind ... are there any age requirements?” was equivocal. Neither the agent’s nor Appellant’s messages at this point contained any reference to sexual activity or performance with either “Amber” or the minor. The early messages are simply too vague to constitute an offer and acceptance for criminal conduct.

In the eighth e-mail message, the agent sent Appellant a photograph of two young women posing as the fictional adult female and the minor. The agent’s subsequent messages described the photo as showing a “fun” weekend and plans to “get into some fun.” Appellant described his weekend plans as watching a movie at home and caring for his pet opossum, who was recovering from veterinary surgery. In the seventeenth message, Appellant invited “u” to his home where “we could figure out something to do if you like,” to which the agent replied “we host only.” Appellant then lamented that “u” would be unable to meet his pet possum and inquired “if I was invited over, what would u have in mind?” The agent repeated “fun,” and inquired “what do you have in mind for us?” While the agent used the plural terms “us” and “we” in her e-mails, Appellant consistently responded with “u” and “you,” making his intentions ambiguous about whether he was still contemplating contact only with “Amber” (the adult, as originally advertised) at this point in the conversation.

Appellant’s e-mails at this point continued to discuss his pet opossum and contained no words or phrases that suggested any sexual activity with either “Amber” or her “sister” or in the “sister’s” presence. Appellant’s only reference to physical features were to his pet’s “female parts,” because the recovering animal had recently been spayed. He sent a photo of the opossum to “Amber” and suggested “a ride in my talking Mustang.” When Appellant described his current activity as “just cleaning house,” the agent again stated “we are looking to have fun tonight.” The twenty-seventh e-mail in the exchange, sent by Appellant the Friday night after his response to the Craigslist advertisement, stated “maybe you can twist my arm, lol, I have some things to do tomorrow am, and since you cant come here ... but I can be persuaded, lol.” Four more e-mails were exchanged and both of the agent’s messages inquired about what Appellant wanted “to do with us.” Appellant’s responses remained ambivalent about any particular activity with either female.

In the thirty-second e-mail, the agent tried to clarify the offer, stating “do u realize that its me and my lil sis.” Appellant responded: “im trying to keep things clean so to speak, lol until told otherwise, lmao but my car is fast, I can get somewhere pretty quick if needbe, just hope I don’t get a ticket.” The agent' continued to urge Appellant to provide details and assured him that “we like it dirty.” When Appellant’s responses continued to lack sexual content pertaining to the “minor,” the agent insisted that she needed details because “I need to prep her.” Appellant’s response “Prep her? what does that consist of?” shows that the agent’s offer including the minor is finally beginning to dawn on him. Appellant’s vague response caused the agent to demand in the fortieth message: “r u scared to talk about it[?]” Finally, in the forty-first message of the email chain, Appellant acknowledges the “underage sister,” asks “is that all consensual,” and the agent assures him that “everything is consensual.” The messages continued into the next day (Saturday). The agent responded to Appellant’s continued use of the singular, “you” by prompting him not to “leave out” the minor sister. From that point on, both the agent’s and Appellant’s messages increased in suggestiveness, including suggestions of sexual activity including the minor.

The defense of entrapment has evolved under federal and Florida law as both crime and its detection have increased in sophistication. Beginning with the opinion in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the courts have consistently recognized a policy disapproving use of the government’s police power to trick otherwise law-abiding citizens into violating the law. The power to use the “potentially dangerous tool” of deception to prevent and detect crime is abused “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. United States, 287 U.S. at 442, 53 S.Ct. 210. As stated in Sherman v. United States, 356 U.S. 369, 372-73, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), “[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” However, subsequent courts in various jurisdictions differed regarding the relative weight to be given the “predisposition” of the accused versus the degree of government inducement or deception which might have caused the actions of the accused.

In 1987, the Florida Legislature adopted section 777.201, Florida Statutes, codifying the entrapment defense in this state. The Florida statute addresses both the government’s actions to induce or encourage, and the status of the accused as “one who is ready to commit” the offense or not. Section 777.201 provides:

(1) A law enforcement officer ... perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

(emphasis added). The Florida Supreme Court has described the application of section 777.201 thusly: “The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence.” Munoz v. State, 629 So.2d 90, 99 (Fla.1993). Accordingly, a defendant must first show that the government agent induced or encouraged him or her to the extent that the defendant’s conduct was caused by the persuasive methods of the agent.

“Inducement” in the context of the entrapment defense has been defined as “persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.” State v. Henderson, 955 So.2d 1193, 1195 (Fla. 4th DCA 2007) (citations omitted). “Encourages” has not been further defined in an entrapment context by case law. Black’s Law Dictionary defines “encourage,” in reference to criminal law, as “[t]o instigate; to incite to action; to embolden; to help.” Black’s Law Dictionary (9th ed.2009). Merriam-Webster defines “encourage” as “to attempt to persuade: “urge” or “to spur on.”

In the ease before us, the e-mail chain established, by a preponderance of evidence, that the government induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was “a person other than one who is ready to commit” the offense. § 777.201(1), Fla. Stat. Throughout the e-mail chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor, though without any specific proposition of sexual or other criminal involvement between Appellant and the minor. When Appellant’s communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor. The agent redirected Appellant’s lack of focus on the minor by introducing and promoting the idea of participation by the minor in sexual activity with Appellant. It was the agent who coaxed and cajoled Appellant for more details and challenged Appellant’s reluctance by impugning his nerve and suggesting he was “scared.” The agent’s persistent urging to overcome Appellant’s obvious reluctance to commit or even describe illegal activity in his e-mail messages easily fits the statutory definition of entrapment— “induces or encourages” and “as a direct result, causes” Appellant’s eventual unlawful communications — as set out in section 777.201, Florida Statutes. The definitions of “induces” and “encourages,” including “instigation,” “persuasion,” “harassment,” “urging,” “spurring on,” and “incitement to action” all apply to the progression of the government’s messages to Appellant in this case. Appellant’s eventual sexually suggestive communications pertaining to the minor occurred only after the agent “cast her ‘fishing expedition’ to bait, hook, net, and land him for” the offenses charged. See Futch v. State, 596 So.2d 1150, 1152 (Fla. 4th DCA 1992).

Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer’s methods of persuasion induced or encouraged, and as a direct result caused Appellant’s unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statutes was met and the motion to dismiss should have been granted. The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.

The conviction and sentence are REVERSED and this cause REMANDED for DISMISSAL of the charges.

VAN NORTWICK, J., concurs.

OSTERHAUS, J., dissents.

OSTERHAUS, J.,

dissenting.

I respectfully dissent and would affirm the trial court’s decision to deny Appellant’s motion to dismiss.

In Munoz v. State, the Florida Supreme Court said that trial judges may resolve the issue of entrapment as a matter of law in a motion to dismiss where two conditions prevail: “when the evidence is not conflicting and factual circumstances are not in dispute.” 629 So.2d 90, 95 (Fla.1993). Where I differ from my colleagues is that I view this case to involve conflicting evidence that precludes resolution of the entrapment issue as a matter of law. Specifically the trier of fact, rather than a court, should decide whether government inducement directly caused Appellant’s conduct.

Appellant’s entrapment defense asserts a particular interpretation of the evidence to resolve the key question of whether he decided for himself — -versus whether law enforcement directly caused him — to engage in the unlawful conduct. See § 777.201(1), Fla. Stat. (2011) (recognizing entrapment if law enforcement “induces or encourages and, as a direct result, causes another person to engage in [unlawful] conduct”). Appellant makes a reasonable argument for blaming his conduct on government inducement. And, in fact, the majority sees the evidence his way.

The problem is, however, that Appellant’s perspective is not the only reasonable way of interpreting the evidence. The state has posited an alternate, but perfectly reasonable, interpretation of the facts that places responsibility for Appellant’s conduct on Appellant himself. From the state’s perspective “Appellant failed to establish by a preponderance of the evidence that he was induced by law enforcement to commit the offense.” Compounding the force of the state’s view of the evidence at this juncture is that all questions and inferences from the facts must be resolved in its favor. See, e.g., Parks v. State, 96 So.3d 474, 476 (Fla. 1st DCA 2012) (“The State is not required to pre-try its case in defense of a motion to dismiss, but need only present sufficient facts that, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor.”). Because two conflicting, but wholly reasonable, interpretations of the facts exist in this case, I think the trial court correctly denied Appellant’s motion to dismiss. See Munoz, 629 So.2d at 100 (construing section 777.201 to require questions to be submitted to a jury when “reasonable persons could draw different conclusions from the facts”).

Furthermore, letting a jury resolve the issue of what precipitated Appellant’s unlawful conduct would closely comport with the statute. § 777.201(2), Fla. Stat. (2012) (“The issue of entrapment shall be tried by the trier of fact”). It would also be consistent with how other courts have handled entrapment cases with mixed evidence. See, e.g., Jackson v. State, 810 So.2d 545, 547-48 (Fla. 4th DCA 2002) (finding that whether defendant was induced required an interpretation of the facts and was a jury question); Irsula v. State, 805 So.2d 912 (Fla. 2d DCA 2001) (holding that because the entrapment evidence was not compelling and unopposed, it was properly submitted to the trier of fact); State v. Dawson, 681 So.2d 1206, 1208 (Fla. 3d DCA 1996) (quoting Munoz, 629 So.2d at 100) (explaining that entrapment “ordinarily present[s] factual issues to be decided by the jury, and should be submitted to the jury ‘when ... reasonable persons could draw different conclusions from the facts’ ”); Sallomi v. State, 629 So.2d 969, 970 (Fla. 5th DCA 1998) (finding that entrapment should be submitted to a jury to resolve disputed matters of fact unless the evidence is clear). See also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (“The question of entrapment is generally one for the jury, rather than for the court.”).

For these reasons, I think the trial judge correctly denied the motion to dismiss and kept this case on track for the trier of fact to resolve whether government inducement caused Appellant’s conduct.

      . Appellant was originally charged with three additional felonies, but upon his plea to the communications device offense, the State nolle prossed the other three counts.

      . Like the defendant in Farley v. State, 848 So.2d 393 (Fla. 4th DCA 2003), the State did not assert that Appellant had any previous contact with law enforcement or the court system in terms of investigations, charges, or convictions for any offense, let alone a crime involving sexual activity with a minor.

      . Apparently this type of general advertisement is a common practice by law enforcement agents, who later suggest illegal activity to those who respond to the ad. See Morgan v. State, 112 So.3d 122 (Fla. 5th DCA 2013)(reversing conviction of attempted lewd exhibition for failure to instruct jury on entrapment). The court described the investigative operation and communication in that case thusly:
      Unlike circumstances where the suspect is communicating with a person believed to be a minor, Morgan responded to an advertisement for a casual encounter with an adult female. When the law enforcement officer interjected the prospect of including a minor, Morgan expressed reservations and was equivocal in his responses. We recognize that most within our society would immediately terminate the conversation at the mention of the involvement of a minor, and perhaps the jury will reject the defense. However, there is at least some evidence with which the defense could suggest that Morgan was entrapped.

        Morgan v. State, 112 So.3d at 125.

      . Cruz v. State, 465 So.2d 516, 519 (Fla.1985), abrogation by statute recognized, Munoz v. State, 629 So.2d 90 (Fla.1993).

      . While an entrapment defense where government action is so egregious that even a predisposed defendant’s due process rights are violated ("objective” entrapment) has survived the passage of section 777.201, Florida Statutes, no such predisposition of the defendant or egregious government action is at issue in this case. See Munoz v. State, 629 So.2d 90 (Fla.1993); Hernandez v. State, 17 So.3d 748 (Fla. 5th DCA 2009).

      . Merriam-Webster, m-w.com, http://www. merriam-webster.com/dictionary/encouraged? show=0 & t= 1374525505 (last visited July 23, 2013). The "encourage” entry also lists "assure,” "reassure,” and "provoke” as related words. Id.


author: PER CURIAM.

text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC., d/b/a Shands At Uf, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Appellee.
    No. 1D13-1029.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2013.
    Rehearing Denied Nov. 5, 2013.
    Seann M. Frazier of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for Appellant.
    Jennifer Tschetter, General Counsel, Department of Health, Tallahassee, for Appellee.
    Stephen A. Ecenia, R. David Prescott, and Marsha E. Rule of Rutledge Ecenia & Purnell, P.A., Tallahassee, for Intervenor Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center.
   PER CURIAM.

REVERSED. St. Joseph’s Hosp., Inc., etc., v. State of Fla., Dep’t of Health, et al., 123 So.3d 86 (Fla. 1st DCA 2013).

THOMAS, WETHERELL, and RAY, JJ., concur.


author: SILBERMAN, Judge. WALLACE, Judge,

text:
    April LOPEZ, as Personal Representative of the Estate of Amalia Lozoya, Deceased, Appellant, v. WINK STUCCO, INC. and Jesus Rivera, III, Appellees.
    No. 2D10-5181.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 4, 2013.
    Samuel R. Mandelbaum of Mandelbaum, Fitzsimmons & Hewitt, P.A., Tampa, for Appellant.
    Michael S. Rywant and Kerry C. McGuinn, Jr. of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appel-lee Wink Stucco, Inc.
    No appearance for Appellee Jesus Rivera, III.
   SILBERMAN, Judge.

April Lopez, as personal representative of the Estate of Amalia Lozoya, seeks review of the final judgment which was rendered after a defense verdict in this automobile negligence action. We affirm the final judgment in all respects. We write to address the admissibility of evidence that one of the drivers was unlicensed at the time of the accident.

The accident occurred at the intersection of U.S. Highway 301 and S.R. 674 in Ruskin during the late afternoon of December 14, 2006. Lozoya was riding in a red Nissan Sentra driven by her eighteen-year-old nephew, Jesus Rivera, III. Rivera was driving northbound on U.S. 301. As Rivera was attempting to turn left onto S.R. 674, he collided with a white cargo van that was driving southbound on U.S. 301. Ramiro Pantoja-Vega, an employee of Wink Stucco, Inc., was driving the cargo van and was hauling a cement mixer affixed to a trailer.

Lozoya died at the scene from her injuries, and Lopez filed a complaint alleging negligence and wrongful death against Wink Stucco, Pantoja-Vega, Rivera, and Rivera’s mother, Yvette Rivera. Lopez settled with Pantoja-Vega and voluntarily dismissed her claim against Yvette Rivera prior to trial. The remaining parties agreed to bifurcate the claims, and Lopez proceeded to trial against Wink Stucco and Jesus Rivera on the issue of liability.

Rivera testified that he was driving north on U.S. 301 in the Nissan with Lozo-ya on the way to pick up his little sister from daycare. When he first reached the intersection of U.S. 301 and S.R. 674, Rivera stopped at a red light in the left turn lane. He was the third car in line. The light changed to a green arrow, and Rivera started to turn behind the cars in front of him. He did not see the van coming until it was too late to avoid a collision. By that time, the two vehicles in front of him had already made the turn safely. He believed the van was speeding and that it had violated his right of way.

None of Lopez’s other witnesses specifically confirmed Rivera’s testimony that he turned on a green arrow, and certain witnesses testified that the light had changed from a green arrow to a green ball. But Lopez presented testimony of an expert accident reconstructionist and two eyewitnesses that Pantoja-Vega was speeding in the white cargo van. Lopez’s accident reconstruction expert estimated that the white cargo van was traveling at least 60 mph at the time of impact, which was at least 15 mph over the 45 mph speed- limit.

Wink Stucco presented the testimony of Pantoja-Vega, an expert accident recon-structionist, and an eyewitness. They testified that Pantoja-Vega was not speeding in the white cargo van, and the eyewitness stated that Pantoja-Vega had a green light. Wink Stucco defended on the theory that the red Nissan violated the white cargo van’s right of way by turning left on a solid green light directly into the van’s path. Wink Stucco claimed that eighteen-year-old Rivera was an untrained driver without enough experience to safely judge whether he had enough time to make the left turn.

The issue we address today is the admissibility of evidence that Rivera had never obtained a driver’s license. This issue was first brought before the trial court in a pretrial motion in limine filed by Lopez. The court heard argument and reserved ruling on the issue. The court revisited the issue during the reading of Rivera’s deposition testimony when Wink Stucco sought to read a series of questions to which Rivera had responded, “No Comment.” The questions asked whether Rivera had a Florida driver’s license, when he first drove a vehicle, and how many times he had driven- a vehicle in the past. The court denied Lopez’s motion to exclude the testimony.

The court also permitted the investigating officer to testify that Rivera had a Florida identification card, but he had not taken the written exam and driving proficiency test necessary to obtain a driver’s license. The officer reported that Rivera said he started driving when he was fifteen or sixteen and had driven occasionally since then. Rivera told the officer he had lived in Miami before the accident and had driven the red Nissan to the auto parts store or around the neighborhood when the car made a weird sound to try to determine what was wrong. He also picked up his little sister from daycare. But for the most part, Rivera used public transportation because his parents did not like for him to drive the car.

The admissibility of evidence of a violation of a licensing statute is a question of law that turns on the relevancy of that evidence as it pertains to the facts of a particular case. Brackin v. Boles, 452 So.2d 540, 545 (Fla.1984). In order for such evidence to be admissible, there must be “a causal connection between that violation and the injuries incurred.” Id. at 544. To establish this causal connection the driver’s competence and experience must be placed at issue in the case. Id. at 545.

In Brackin, the negligence action arose after the plaintiff stopped at a three-way intersection, turned left, and was struck by the defendant’s vehicle from the left. Id. at 542. The plaintiffs theory of negligence was that the defendant was speeding. Id. at 545. The plaintiff also sought to present evidence that, at the time of the accident, the defendant had been driving in violation of the terms of his restricted driver’s license by failing to be accompanied by a licensed driver over eighteen years of age. Id. at 542.

The trial court held that evidence of the driver’s violation of the licensing statute was inadmissible because there was no causal connection between the evidence and the injuries sustained in the accident. Id. at 544. The First District disagreed, holding that the evidence was admissible despite the lack of any causal connection. Id. at 545. The supreme court disagreed with the district court and concluded that the trial court had properly decided the issue.

The supreme court explained that, despite its precedent holding that a violation of a traffic law is evidence of negligence, the general rule that evidence must be relevant to be admissible still applied. Id. Thus, the court concluded that “a person’s violating a traffic regulation is admissible evidence only if it tends to prove that that person has negligently operated an automobile.” Id. And the court noted that in some cases, the violation of a licensing statute “may be relevant to show the driver’s inexperience and incompetence in handling an automobile.” Id. However, the plaintiff had not placed the defendant’s experience and competency in issue but had argued that the accident was caused by the defendant’s speeding. Thus, ■ the supreme court determined that evidence of the licensing violation was not admissible.

In Brackin, the supreme court approved the reasoning of the Third District in two cases in which the court held that the violation of a- licensing statute was relevant to the injuries incurred in those cases. See id. at 544 (citing Corbett v. Seaboard Coastline R.R. Co., 375 So.2d 34 (Fla. 3d DCA 1979), and Dorsett v. Dion, 347 So.2d 826 (Fla. 3d DCA 1977)). In Corbett, the district court held that evidence that the sixteen-year-old defendant was driving without a license was admissible when the plaintiffs theory of negligence was that the defendant collided with a crossing train because she was speeding and “inattentive in that she failed to heed the warnings that were given” at the crossing. 375 So.2d at 39. In Dorsett, evidence that the plaintiff was illegally driving with a learner’s permit was similarly deemed relevant because the accident did not involve any contact between her vehicle and the defendant’s vehicle and “the plaintiffs injury may well have resulted from her own inexperience and her inability to handle her own car.” 347 So.2d at 827; see also Lenhart ex rel. Chronister v. Basora, 100 So.3d 1177, 1178-79 (Fla. 4th DCA 2012) (holding that evidence of a driver’s unlicensed status and limited driving experience was relevant to the issue of the driver’s comparative negligence when the driver caused the accident by abruptly turning into the plaintiffs lane); Klanseck v. Anderson Sales & Serv., Inc., 426 Mich. 78, 393 N.W.2d 356, 361 (1986) (holding that the plaintiffs failure to have a motorcycle endorsement was relevant when the defense theory of the case was that the plaintiff could have avoided the accident by handling his tire blowout competently).

In this case, Wink Stucco’s theory of defense was that Rivera was an unlicensed driver without sufficient experience to safely judge whether he had enough time to make the left turn in front of the white cargo van. In support of this theory, Wink Stucco presented testimony that Rivera followed other cars into the intersection after the green arrow went off and made a left turn directly in the path of the white cargo van. Rivera was eighteen years old and had only driven occasionally since he was fifteen or sixteen because his parents did not like for him to drive their car. Wink Stucco also presented testimony that the white cargo van had the right of way with a solid green light, was not speeding, and did not have enough time to avoid the collision. While there were factual disputes at trial, Wink Stucco’s evidence and theory of defense established the requisite causal connection to support the admission of evidence that Rivera was an unlicensed driver.

Affirmed.

VILLANTI, J., Concurs.

WALLACE, J., Dissents with opinion.

WALLACE, Judge,

Dissenting.

In my view, there are two reasons why the trial court erred in allowing Wink Stucco to introduce evidence that Jesus Rivera, III, did not have a driver’s license. First, Wink Stucco did not prove that Rivera was an inexperienced driver. Second, Wink Stucco did not establish a causal link between Rivera’s asserted inexperience and his alleged failure to yield the right of way to the oncoming vehicle.

Rivera, the driver of the red Nissan Sentra, was eighteen years old when the crash occurred. Rivera moved to the Tampa area from South Florida approximately five to six months before the crash. He did not have a driver’s license, and he relied primarily on public transportation. Nevertheless, Rivera began driving when he was fifteen or sixteen years of age. Thus, at the time of the crash, Rivera had been driving “for two years on and off.” Rivera was simply not a new or inexperienced driver. At trial, the evidence did not establish that Rivera’s driving experience was so limited that his ability to drive safely was affected as in the cases relied upon by Wink Stucco and cited by the majority. Cf. Lenhart, 100 So.3d at 1178 (observing that the unlicensed driver “had driven a car only once before the accident — on a joyride when he was thirteen”); Corbett, 375 So.2d at 38 (noting that the unlicensed driver was only sixteen years old); Dorsett, 347 So.2d at 827 (stating only that the driver “was illegally driving with a learner’s permit”); Klanseck, 393 N.W.2d at 357-58 (explaining that the driver of a motorcycle who lacked the required motorcycle endorsement on his driver’s license and had not previously owned a motorcycle was driving his new motorcycle home from the dealership when the accident occurred).

To be sure, Rivera’s alleged failure to yield the right of way to the oncoming white van may have contributed to the fatal crash. But Wink Stucco did not present any evidence demonstrating that Rivera’s claimed inexperience or incompetence as a driver led to his failure to yield the right of way. There was no evidence that Rivera drove recklessly, swerved back and forth on the road, failed to have his vehicle under control, drove off the roadway, drove at an excessive speed, or otherwise drove incompetently. Indeed, Jose Velasquez, an independent witness to the crash, testified that Rivera’s “Sentra did nothing wrong,” and “that [its] driving pattern was completely normal.”

In addition, the evidence at trial suggested that the speed of the oncoming vehicle contributed to the accident. The speed at which Wink Stucco’s employee, Ramiro Pantoja-Vega, was driving as he approached the intersection was a disputed issue at trial. Nevertheless, the plaintiff’s accident reconstruction expert and two independent witnesses testified that Panto-ja-Vega was travelling in excess of the posted speed limit as he approached the intersection.

In support of its theory that Rivera’s claimed inexperience as a driver contributed to his failure to yield the right of way, Wink Stucco relied exclusively on the occurrence of the crash itself. Wink Stucco’s argument assumed the truth of the proposition it had undertaken to prove. As the majority explains, “Wink Stucco’s theory of defense was that Rivera was an unlicensed driver without sufficient experience to safely judge whether he had enough time to make the left turn in front of the white cargo van.” But the proposition that younger, less experienced drivers are more likely to be involved in left-turn intersection crashes than other drivers is not self-evident, and Wink Stucco did not introduce any evidence — as opposed to counsel’s theorizing — to support it. Wink Stucco’s accident reconstruction expert testified that “one of the. most common crash scenarios” occurs when a vehicle turning .left at an intersection is struck by an oncoming vehicle. However, Wink Stucco’s expert did not testify that the lack of driving experience renders younger, inexperienced drivers less able to judge the speed and distance of oncoming vehicles at intersections than other drivers. To summarize, Wink Stucco did not establish that Rivera’s asserted driving inexperience had anything to do with the accident.

Unfortunately, crashes involving left turns at intersections occur with disturbing frequency among drivers of all age groups. See U.S. Dep’t of Transp., Nat’l Highway Traffic Safety Admin., Crash Factors in Intersection-Related, Crashes: An On-Scene Perspective (Sept.2010), http://www-nrd.nhtsa.dot/gov/Pubs/811366. pdf. Contrary to Wink Stucco’s unsupported theory, it is equally plausible to suppose that a younger, less experienced driver would be less likely to be involved in a left turn intersection collision than other drivers for two simple reasons. A younger, less experienced driver should be better able to judge the speed and distance of an oncoming vehicle than an older, more experienced driver because the younger driver will generally have better vision and depth perception than the older driver. In addition, the younger driver will have the benefit of a faster reaction time. Granted, this theory is speculative; but Wink Stucco’s theory is no less so.

Because Wink Stucco’s theory of defense as it related to the driver’s license issue lacked any evidentiary support, I conclude that the trial court erred in allowing Wink Stucco to introduce evidence that Rivera was unlicensed at the time of the crash. I also conclude that the error was not harmless. Wink Stucco’s counsel made Rivera’s claimed driving inexperience and failure to have a valid driver’s license major themes of his closing argument. Accordingly, I dissent. I would reverse the final judgment and remand for a new trial at which evidence that Rivera did not have a valid driver’s license at the time of the crash must be excluded.


author: VILLANTI, Judge.

text:
    Christopher WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4260.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Christopher Williams, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Christopher Williams challenges an order denying his two-claim motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm as to claim one and reverse as to claim two.

Following a jury trial, Williams was convicted of and sentenced on five charges: attempted robbery, forty-five years’ prison as a habitual felony offender (HFO); two counts of aggravated assault, thirty years each as an HFO; felonious possession of a firearm, three years unenhanced; and resisting an officer with violence, ten years as an HFO. All sentences were run concurrent, resulting in an overall sentence of forty-five years. We affirmed Williams’ convictions but reversed his sentences due to improper multiple enhancements and an oral-written discrepancy. Williams v. State, 658 So.2d 612 (Fla. 2d DCA 1995). The resentencing court reduced four of the five sentences, retaining the HFO enhancement on all but the conviction for resisting with violence: attempted robbery, thirty years; aggravated assault, ten years each; resisting with violence, five years. Additionally, the court ran the sentence for resisting with violence (unen-hanced) consecutive to the sentence for one of the aggravated assaults (enhanced) and ran these two sentences consecutive to the other sentences. The aggregate sentence amounted, again, to forty-five years.

In claim one, Williams argued that the resentencing court failed to properly award prison credit and jail credit. Specifically, when the resentencing court changed two sentences to run consecutive, the court should have, Williams contended, awarded credit on these sentences for both time spent in prison after sentencing and time spent in county jail before sentencing. The resentencing court awarded these credits only on the sentences that remained concurrent.

Agreeing with Williams in part, the postconviction court applied prison credit to each of the sentences. However, the court declined to award jail credit to the two sentences run consecutive to the others, ruling that, upon resentencing, jail credit applies only to the chronologically first sentence in a series of consecutive sentences.

When, at original sentencing, the court imposes concurrent sentences on multiple convictions, credit for time spent in jail prior to sentencing must be awarded against each sentence. Daniels v. State, 491 So.2d 543, 545 (Fla.1986). In contrast, jail credit may be awarded only against the first of consecutive sentences at original sentencing. Steadman v. State, 23 So.3d 811, 813 (Fla. 2d DCA 2009); Canete v. Fla. Dep’t of Corrs., 967 So.2d 412, 415-16 (Fla. 1st DCA 2007). Upon resentenc-ing de novo, prison credit must be applied to each consecutive sentence. State v. Rabedeau, 2 So.3d 191, 193-94 (Fla.2009); see also Gisi v. State, 4 So.3d 613 (Fla.2009); Steadman, 23 So.3d at 812-13 (clarifying the distinction between jail credit and prison credit and noting that Rabedeau and Gisi concern prison credit only). The issue in the present case is whether, upon de novo resentencing when one or more sentences are changed from concurrent to consecutive, pre-original sentencing jail credit is to be applied only to the first of consecutive sentences, as in Steadman, or to each of the sentences, each of which has already begun to be served on a concurrent basis with the jail credit applied.

We conclude that because resen-tencing is a new proceeding, the court may essentially start afresh in the sentencing process and apply jail credit as in an original sentencing. See, e.g., State v. Collins, 985 So.2d 985, 989 (Fla.2008) (noting that “a resentencing must proceed as an entirely new proceeding and ... should proceed de novo on all issues bearing on the proper sentence” (citation and internal quotation marks omitted)). Even if the new sentence could be considered harsher than the original one, double jeopardy is not implicated because “it does not offend double jeopardy principles to resentence a defendant to a harsher term when the original sentence was invalid.” Johnson v. State, 53 So.3d 360, 362 (Fla. 5th DCA 2011). As neither the resentencing court nor the postconviction court committed error, we affirm as to claim one.

In claim two, Williams argued that the nonhabitualized sentence for resisting with violence cannot run consecutive to the habitualized sentence for one of the aggravated assaults (count four) because both offenses arose out of a single episode. Additionally, attaching relevant pages from the trial transcript, he argued that this circumstance is demonstrable from the face of the record. See Johnson v. State, 809 So.2d 892, 892 (Fla. 2d DCA 2002) (“Johnson’s claim is facially sufficient and can be brought pursuant to rule 3.800(a) because he alleges that it can be determined from the face of the record that the sentences are illegal.”). Acknowledging Hale v. State, 630 So.2d 521, 524 (Fla.1993), which held that two habitualized sentences cannot run consecutive when the underlying offenses arose out of a single episode, the posteonviction court nevertheless denied the claim on the basis of certain subsequent case law that distinguishes between the Hale posture and a combination of habitualized and nonhabitualized sentences. E.g., Mills v. State, 23 So.3d 186, 188 (Fla. 1st DCA 2009) (“[Cjonsecu-tive HFO and non-HFO sentences imposed for crimes committed during a single criminal episode are legal if the aggregate sentence is less than that which could have been imposed if all HFO eligible convictions had been enhanced and ordered to run concurrently.”); see also Hamilton v. State, 996 So.2d 964, 965 (Fla. 1st DCA 2008); Kiedrowski v. State, 876 So.2d 692, 694-95 (Fla. 1st DCA 2004).

However, after the postconviction court entered its order, this court issued Swanson v. State, 98 So.3d 194 (Fla. 2d DCA 2012), in which we held that a combination of habitualized and nonhabitualized sentences running consecutively is illegal under Hale when the offenses arose from a single episode. At least two other district courts of appeal have also extended the Hale principle to this combination. See Fuller v. State, 867 So.2d 469, 470 (Fla. 5th DCA 2004) (“The whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence.”); Dawson v. State, 951 So.2d 931, 934 (Fla. 4th DCA 2007) (following Fuller). We hereby align ourselves with the Fourth and Fifth districts. Additionally, we certify conflict with the First District Court of Appeal.

On remand, the court shall reconsider Williams’ claim two in light of the record and either deny the claim again or grant it and adjust the sentences on counts four and five to run concurrent -with each other. Williams need not be present for such a correction.

Reversed and remand with instructions; conflict certified.

CASANUEVA and CRENSHAW, JJ., Concur.

      . The resentencing order does not address the conviction for felonious possession of a firearm.

      . The new sentence here would not appear to be harsher in net terms because the sentences to which the originally specified number of days had already been applied had been run concurrent. On resentencing, the same number of days was applied once, giving the same net jail credit.