author: DAMOORGIAN, C.J.

text:
    PHILIP MORRIS USA, INC.; Lorillard Tobacco Company; Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company); R.J. Reynolds Tobacco Company and Vector Group, Ltd., Inc. (f/k/a Brooke Group, Ltd.), Appellants, v. Mary TULLO, as Personal Representative of the Estate of Dominick Tullo, deceased, Appellee.
    Nos. 4D11-2788, 4D11-2886.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Stephen N. Zack and Andrew S. Brenner of the law firm of Boies, Schiller & Flexner LLP, Miami, Gary L. Sasso and Joseph H. Lang, Jr., of Carlton Fields, Tampa, for appellant Philip Morris U.S.A, Elliot H. Scherker and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, for appellant Lorillard Tobacco Co.
    Karen H. Curtis of Clarke Silverglate, P.A., Miami, and Kelly Anne Luther of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for appellant Liggett Group LLC.
    Lenore Smith, Eric L. Lundt and Gordon James, III, of Sedgwick LLP, Fort Lauderdale, Charles R.A. Morse, Jones Day, New York, and Gregory G. Katsas of Jones Day, Washington, D.C., for appellant R.J. Reynolds Tobacco Co.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Steven J. Hammer and Jonathan Gdanski of Schlesinger Law Offices, P.A., Ft. Lauder-dale, for appellee Mary Tullo.
   DAMOORGIAN, C.J.

Philip Morris USA, Inc. (“PM USA”), Lorillard Tobacco Company (“Lorillard”) and Liggett Group, LLC (“Liggett”) (collectively referred to as the “Tobacco Companies”) appeal the trial court’s final judgment entered in favor of Mary Tullo, as surviving spouse and personal representative of the estate of her deceased husband, Dominick Tullo. The Tobacco Companies raise three issues on appeal. First, they contend that the trial court erred in giving a concurring cause jury instruction on class membership. Next, they assert that the trial court erred in denying their motion for a new trial due to improper comments made by Mrs. Tullo’s counsel during closing arguments. Finally, they argue that the trial court misapplied the Engle findings. Liggett separately argues that it is not bound by the Engle findings. Mrs. Tullo cross appeals the jury’s finding of no liability as it relates to R.J. Reynolds Tobacco Company (“RJR”), arguing that the verdict was against the manifest weight of the evidence. We affirm in all respects.

Background

The instant case commenced as one of the Engle progeny cases. See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). By way of background, Mrs. Tullo filed a complaint against the Tobacco Companies for strict liability, negligence, conspiracy to commit fraud, fraudulent concealment, breach of express warranty, and breach of implied warranty, seeking to recover damages for the death of her husband, a longtime smoker. The complaint admitted that Mr. Tullo bore some measure of fault for his smoking-related injuries and death.

Prior to the start of trial, the parties stipulated that lung cancer was the cause of Mr. Tullo’s death and that smoking was the cause of his lung cancer. The court also considered numerous evidentiary motions. One such motion was the Tobacco Companies’ collective motion to prevent Mrs. Tullo from comparing them to criminals. Mrs. Tullo’s counsel agreed “not to do that,” and the court entered an order granting the Tobacco Companies’ motion. Notably, the court emphasized that all of its pre-trial rulings were preliminary in nature and could be re-argued as the trial progressed.

The ease proceeded to trial in two phases and in the manner we approved in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 714 (Fla. 4th DCA 2011). In the first phase, the jury was required to determine whether Mr. Tullo was a member of the Engle class, i.e. whether he was addicted to cigarettes, and, if so, whether the Tobacco Companies’ conduct was the legal cause of his death. Finally, the jury was asked to determine compensatory damages. If the jury found that the Tobacco Companies were grossly negligent, then the trial would proceed to the second phase for the purposes of determining punitive damages.

In the first phase, Mrs. Tullo presented substantial evidence of Mr. Tullo’s smoking history and medical background, as well as expert testimony regarding his addiction. Mrs. Tullo’s experts testified regarding the addictive nature of nicotine, comparing its addictive properties to those found in heroin and cocaine. The evidence presented established that Mr. Tullo’s cigarette brand of choice was Parliament (PM USA), but that at some points in his life, he smoked Marlboros (PM USA), Chesterfields (Liggett) and Kents (Lorillard). There was some evidence that he may have also smoked Lucky Strike, Camel, and Pall Mall brand cigarettes (all RJR) as well.

During closing arguments, Mrs. Tullo’s counsel made several comments regarding the Tobacco Companies’ alleged bad behavior. Those comments were comprised of the following statements:

• “When the defense gets up and gives their closing, I can assure you that they’re not going to take any responsibility whatsoever, even though their companies told the American public back in 1954 they would.”
• “So what I ask you to do throughout this trial, throughout your deliberations is hold them to that promise. Hold them to that responsibility that they took on behalf of their smokers. Because they took it. They accepted the responsibility in that Frank Statement. They accepted that responsibility. And what we’re asking you to do today in this courtroom is hold them to that responsibility. If you’re going to go out there and accept the responsibility, you’ve got to be man enough or in a corporate situation, business-like enough to honor your obligations.”
• “What they’ve done in the past 50 years, because think about this, and it’s even been longer, what they did for the past 50 plus years saying, it’s not proven, you know, it’s not addictive, it doesn’t cause lung cancer, now at least they acknowledge, as they did in the stipulation, that it is addictive and it causes lung cancer, but you know what they’re doing in this courtroom, they’re saying, yeah, it’s addictive, but you know what, Dominick Tullo, he wasn’t addicted. Yeah it causes lung cancer, the addiction causes lung cancer, but not with Dominick Tullo. They’re doing the same thing. Don’t let them do it to you. Please. Hold them to their responsibility.”
• “You saw the evidence throughout this trial that what each one of these Defendants acting in concert together, they put a message out there that said, keep smoking, it’s okay. There are no health risks, and if there are, we’ll take it out, we’ll find it, we’ll take it out. And when you tell an addict something like that, that’s like telling a heroin addict, hey, listen, use these clean needles and it will be okay, it won’t hurt you, it will be all right.”
• “And [Mr. Tullo] started filling out these things from Marlboro that you saw today and you saw the other day so he could get free cigarettes. Free cigarettes. And who would send him those things? Philip Morris, the tobacco companies. Knowing their product was going to kill him, knowing he was addicted, because that’s what addicted smokers do, hey get free cigarettes now, let’s go for it ... You’re an addicted smoker, that’s like giving a bag of heroin to a drug addict. Free coupons, give me that, I’ll fill that out.”

The Tobacco Companies did not raise a contemporaneous objection to any of these comments, but did move for a mistrial and a new trial. The court denied both of the motions.

At the conclusion of the first phase, the court instructed the jury on the threshold issue of Engle class membership and the issues of liability, comparative fault, compensatory damages, and entitlement to punitive damages. On the class membership issue, the court instructed the jury to determine whether Mr. Tullo was addicted to cigarettes containing nicotine, and if so whether addiction was a legal cause of his death, and provided the following concurring cause instruction on class membership:

In order to be regarded as the legal cause of death, addiction need not be the only cause. Addiction may be a legal cause of death even though it operated in combination with some natural cause or some other cause if such other cause occurs at the same time as the addiction and if the addiction contributes substantially to producing such death.

The jury was also provided with a comparative fault instruction regarding Mr. Tul-lo’s conduct.

The jury found that Mr. Tullo was a member of the Engle class, and returned a verdict in Mrs. Tullo’s favor on her claims for strict liability, negligence, and breach of implied warranty against PM, Lorillard, and Liggett. It returned a verdict in favor of RJR on all counts, and found in favor of the Tobacco Companies on Mrs. Tullo’s claims for fraudulent concealment, conspiracy to commit fraudulent concealment and gross negligence. Thus, the trial did not proceed to phase two. The jury allocated 45% of the fault to Mr. Tullo, 45% to PM, and 5% each to Lorillard and Liggett. The jury awarded total damages of $4.5 million, which was reduced to $2,475,000 based on Mr. Tullo’s comparative fault. This appeal follows.

Analysis

We affirm the jury’s verdict of no liability as to RJR, and the court’s application of the Engle findings to Liggett with no further comment. We also affirm the court’s application of the Engle findings to the remainder of the Tobacco Companies pursuant to our decision in Brown and our supreme court’s decision in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla.2018). We write only to address the concurring cause jury instruction and Mrs. Tullo’s counsel’s closing comments.

a) The Concurring Cause Jury Instruction

The Tobacco Companies argue that the court erred in giving a concurring cause instruction regarding class membership because the only possible other cause of Mr. Tullo’s illness besides his addiction to cigarettes was his own negligence in failing to quit smoking. PM USA, Lorillard, and Liggett maintain that a plaintiffs own negligence cannot warrant a concurring cause instruction, and thus argue that the court reversibly erred in giving it to the jury. We disagree.

First, we note that a trial court has wide discretion regarding jury instructions, and its decision to give an instruction should not be disturbed on appeal absent prejudicial error. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). Prejudicial error only occurs when the error results in a miscarriage of justice, or in other words, the instruction was calculated to mislead or confuse the jury. Id. (quoting Fla. Power & Light v. McCollum, 140 So.2d 569, 569 (Fla.1962)).

Florida courts generally define concurring causes as “two separate and distinct causes that operate contemporaneously to produce a single injury.” Goldschmidt, 571 So.2d at 424 (citation omitted). “Although the term ‘concurring’ suggests that such causes of damage must occur ‘simultaneously,’ it has been held that temporally preceding conditions can conjoin with a defendant’s subsequent alleged negligence.” Zigman v. Cline, 664 So.2d 968, 970 (Fla. 4th DCA 1995). “If a defendant’s negligence operates in combination with the negligent act of another or a natural cause, ... the concurrent causation instruction should be given.” Hart v. Stern, 824 So.2d 927, 930 (Fla. 5th DCA 2002) (citations omitted). However, when the plaintiffs own negligence is the only other alleged concurring cause, a concurrent cause instruction is not mandatory. See La Petite Acad. v. Kamerzel, 751 So.2d 641, 642-43 (Fla. 5th DCA 1999) (holding that plaintiff was not entitled to a new trial based on the fact that the trial court refused to provide a concurring cause instruction where no other extraneous cause other than plaintiffs own negligence was established). The rationale for this rule is that when a plaintiffs own negligence is at issue, a comparative fault instruction encompasses the applicable law. Thus, the instruction is not necessary. See Robinson v. Gerard, 611 So.2d 605, 607 (Fla. 1st DCA 1993) (acknowledging “the well-established rule that a trial court’s refusal to give requested instructions on issues adequately covered by the court’s instructions is not error”).

However, just because the instruction may be redundant does not mean that the court’s decision to provide it is erroneous. Indeed, there is not one Florida case holding that giving a concurrent cause instruction when the plaintiffs own negligence is the only alleged concurring cause merits reversal. Further, at least two of our sister courts have rejected the Tobacco Companies’ argument that giving the concurring cause instruction as it relates to class membership is reversible error. Philip Morris USA v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012), disapproved in part on other grounds, 110 So.3d 419 (Fla.2013) (rejecting tobacco company defendants’ argument that the trial court erred in giving a concurring cause instruction in relation to the question of class membership); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (rejecting without comment the tobacco companies’ argument that the court erred in providing the jury with a concurrent cause instruction). We hold the same, and affirm on this issue.

b) Closing Comments

Next, we write to address some of the comments made by Mrs. Tullo’s counsel during closing arguments. As outlined above, Mrs. Tullo’s counsel made several comments to the effect that the Tobacco Companies failed to take responsibility for their actions and comparing their distribution of cigarettes to the distribution of heroin. The Tobacco Companies argue that these comments had the effect of denying them their right to a fair trial.

As our supreme court explained in Murphy v. International Robotic Systems, Inc.:

The purpose of closing argument is to help the jury understand the issues in a case by “applying the evidence to the law applicable to the case.” Attorneys should be afforded great latitude in presenting closing argument, but they must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Moreover, closing argument must not be used to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.”

766 So.2d 1010, 1028 (Fla.2000) (internal citations omitted).

“If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial. To justify granting a motion for a new trial based on unobject-ed-to improper argument, the trial court must find that the improper argument is of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.” Engle, 945 So.2d at 1271 (internal citations and quotations omitted).

Here, the Tobacco Companies failed to raise a contemporaneous objection to any of the challenged comments. The Tobacco Companies argue that the court’s pre-trial ruling on their motion to prevent Mrs. Tullo from comparing them to criminals should function as a contemporaneous objection to the heroin comments; however, the trial court was explicit that its pretrial rulings were not final. It is well established that pre-trial evidentiary rulings preserve an issue for appeal only if they are definitive and unequivocal as opposed to preliminary in nature. See Williams v. Lowe’s Home Ctrs, Inc., 973 So.2d 1180, 1185-86 (Fla. 5th DCA 2008) (holding that absent a contemporaneous objection, a non-definitive ruling on a motion in limine does not preserve an issue for appellate review). Thus, the trial court’s preliminary ruling on the Tobacco Companies’ motion to prevent Mrs. Tullo from comparing them to criminals did not negate their duty to contemporaneously object to the comments during closing.

Absent preservation of any of the objectionable comments, we are constrained in our review capacity, and can only reverse upon a showing of fundamental error. Murphy, 766 So.2d at 1027. In order to establish that fundamental error occurred, “the appellant must show: (1) that the comments were improper; (2) that the argument was harmful; (3) that the argument was incurable; and (4) that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. at 1028-30; Aarmada Prot. Sys.2000, Inc. v. Yandell, 73 So.3d 893, 900 (Fla. 4th DCA 2011). “Harmfulness in this context also carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury. Passing remarks of little consequence in the scope of a lengthy trial should find little sympathy if no contemporaneous objection is voiced. The extensiveness of the objectionable material is a factor to be considered in the harmfulness analysis.” Murphy, 766 So.2d at 1029-30.

We agree with the Tobacco Companies that Mrs. Tullo’s counsel’s comments during closing were improper. The comments referring to the Tobacco Companies’ failure to take responsibility for their actions fall under the umbrella of our recent opinions in Allstate Insurance Co. v. Marotta, — So.3d -, 2013 WL 2420451, 38 Fla. L. Weekly D1224 (Fla. 4th DCA June 5, 2013), and Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012), wherein we held that it is improper for a plaintiffs counsel to disparage the defendant for defending itself and for failing to take responsibility for its actions. Likewise the comments referring to heroin addicts were also improper. Although there was evidence in the record establishing that nicotine has similar addictive properties to heroin, the challenged closing comments did more than allude to the addictive nature of nicotine; they implied that the tobacco companies were as culpable as drug dealers.

Despite the fact that the challenged comments were improper, we hold that the Tobacco Companies failed to establish the remaining elements of harmful error. In the context of Mrs. Tullo’s entire closing argument, which was two and a half hours long, the challenged comments were limited in their extent. Cf., Marotta, — So.3d at -, 38 Fla. L. Weekly D1224 (improper closing comments were so numerous that they tainted the entire closing argument so that it was no longer designed to prompt a logical analysis of the evidence). In the context of the entire trial, which was almost two weeks long, the comments were even less substantial, and were not extensive enough to taint the underlying fairness of the trial. Further, unlike in both Marotta and Intramed, where we held that improper comments were not harmless when viewed in conjunction with other preserved evidentiary errors, the Tobacco Companies have not established the presence of any additional errors in the trial. Accordingly, the challenged comments, while improper, were not so harmful on their own as to necessitate a new trial.

In arriving at our conclusion, we emphasize that we are in no way condoning the challenged remarks, and caution counsel to be vigilant in crafting closing arguments that fall within the confínes of permissibility. However, due to the lack of preservation and viewing the comments in the context of the trial as a whole, we hold that there was no harmful error, and affirm.

Affirmed.

CIKLIN and CONNER, JJ„ concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessie SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-726.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Sept. 16, 2013.
    Jessie Smith, Okeechobee, pro se.
    No appearance required for respondent.
   PER CURIAM.

Petitioner Jessie Smith seeks a writ of habeas corpus to review alleged ineffective assistance of appellate counsel in Smith’s direct appeal of his convictions for kidnapping and assault. Smith asserts that his appellate counsel was ineffective for not raising an alleged deficiency of trial counsel in his direct appeal. We deny the petition.

It is well established that “appellate counsel is not ineffective for failing to raise a claim of ineffective assistance of trial counsel on direct appeal.” Ferrell v. State, 29 So.3d 959, 988 (Fla.2010); see also Stewart v. Crosby, 880 So.2d 529, 531 (Fla.2004); Rutherford v. Moore, 774 So.2d 637, 647-48 (Fla.2000); Suarez v. Dugger, 527 So.2d 190, 193 (Fla.1988); Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); Blackwell v. State, 831 So.2d 793, 794 (Fla. 5th DCA 2002).

Petition denied.

DAMOORGIAN, C.J., CIKLIN and LEVINE, JJ., concur.

      . Smith v. State, 84 So.3d 1041 (Fla. 4th DCA 2012).


text:
    Darrin L. McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-530.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Sept. 26, 2013.
    Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Darrin McCray (“McCray”), a former Lieutenant with the Palm Beach County Sheriffs Office (“the Sheriff’), appeals his convictions for organized scheme to defraud in violation of section 817.034(4)(a)(3), Florida Statutes (2006), and nine counts of official misconduct in violation of section 838.022, Florida Statutes (2006). These convictions resulted from allegations that McCray and other Sheriffs employees manipulated the overtime assignment computer system and obtained more hospital guard assignments than allowable under the Sheriffs policy. We reverse McCray’s conviction for organized scheme to defraud. We affirm his convictions for official misconduct without further discussion.

By way of background, the Sheriff provides guards for overtime duty when an inmate or arrested person is admitted to the hospital. In order to assure broader access to available hospital shifts, the Sheriff established policies and procedures designed to limit employees’ abilities to sign up for shifts in the computer system. These procedures included restricting how far in advance an employee could sign up for a shift, allowing employees to sign up for only one shift at a time, and imposing a 48-hour waiting period between sign-up opportunities. Further, according to the Sheriffs policy, employees generally could not sign up another deputy for an overtime shift. Lieutenants and other supervisors, however, had administrative rights that permitted them to assign other employees to cover immediate, uncovered, or hard-to-cover shifts.

After receiving complaints about certain individuals “blocking out” overtime slots, the Sheriff commenced an internal affairs investigation, which led to the underlying criminal investigation against McCray. From September 2006 to September 2007, McCray assigned himself or others to work approximately 260 overtime shifts. Of those, McCray assigned himself to approximately 116 overtime shifts, even though McCray worked only 14 overtime shifts due to prisoner release or alternate coverage. McCray worked every shift for which he received overtime pay. In addition, McCray assigned several individuals to work overtime shifts without their knowledge or permission.

Based on these facts, the State charged McCray and five others with organized scheme to defraud. This Court reviewed the conviction of one of McCray’s co-defendants on the same charge and determined that the alleged pattern of conduct did not constitute a criminal violation under section 817.034(4)(a)(3). Dent v. State, — So.3d -, 2013 WL 440117, 38 Fla. L. Weekly D287 (Fla. 4th DCA Feb 6, 2013), review denied, 116 So.3d 1263 (Fla.2013). Specifically, we noted that no statutory violation occurred because the alleged “lost ... opportunity for other deputies to work for overtime pay ... simply does not fit the definition of property traditionally used in criminal prosecutions.... ” Id. Likewise, McCray’s conduct does not support a conviction for organized scheme to defraud.

Accordingly, we remand for resentenc-ing on the convictions for official misconduct.

Affirmed in part; Reversed in part and Remanded.

CIKLIN and CONNER, JJ., concur.

      . Section 817.034(4)(a)(3) provides:
      Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud, punishable as follows ... [i]f the amount of property obtained has an aggregate value of less than $20,000, the violator is guilty of a felony of the third degree....
      Section 817.034(3)(c) defines property as "anydiing of value, and includes: 1. Real property, including things growing on, affixed to, or found in land; 2. Tangible or intangible personal property, including rights, privileges, interests, and claims; and 3. Services.”


text:
    STATE of Florida, Appellant, v. Louis A. MERCADO, Appellee.
    No. 5D12-2122.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    Rehearing Denied Sept. 13, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Following a mistrial, the State of Florida appeals an order prohibiting the retrial of Louis A. Mercado for capital sexual battery. The trial court barred a retrial based on the court’s finding that the State intentionally disregarded a court order to redact certain portions of a controlled telephone call between Mr. Mercado and law enforcement. The State argues that the trial court erred in dismissing the charge because the record fails to demonstrate any prosecutorial intent to goad Mr. Mercado into moving for a mistrial. We agree and reverse.

It would serve no useful purpose to recount the details of this proceeding. Suffice it to say that neither the prosecutor nor judge is likely to wish to repeat their actions during this trial. Generally, when a trial court declares a mistrial on the defendant’s motion or with his consent, or upon a manifest necessity, double jeopardy does not bar a retrial. Turner v. State, 37 So.3d 212, 221 (Fla.2010); Fuente v. State, 549 So.2d 652, 657 (Fla.1989); Rutherford v. State, 545 So.2d 853, 855 (Fla.1989). A narrow exception exists when the prosecution’s misconduct was intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2088, 72 L.Ed.2d 416 (1982); Fuente, 549 So.2d at 658; Rutherford, 545 So.2d at 855. Further, prosecutorial conduct that might be viewed as harassment or overreaching sufficient to justify a mistrial, is insufficient to bar a retrial absent such an intent. Kennedy, 456 U.S. at 675-76, 102 S.Ct. 2083. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676; see also Gore v. State, 784 So.2d 418, 427 (Fla.2001); State v. Gaines, 770 So.2d 1221, 1228 (Fla.2000). Thus, absent improper governmental action intended to provoke the defendant’s mistrial request and subject the defendant to the substantial burden imposed by multiple prosecutions, the defendant waives his or her constitutional double jeopardy rights where the defendant moves for a mistrial, consents to one, or by his or her conduct causes one. Gaines, 770 So.2d at 1228; see Kennedy, 456 U.S. at 672, 102 S.Ct. 2083; United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

The sole issue we address here is whether the State’s conduct was intended to provoke Mr. Mercado into requesting a mistrial. We conclude that the trial court’s findings are not supported by the evidence. We reverse for a new trial.

REVERSED and REMANDED.

PALMER, ORFINGER and BERGER, JJ., concur.

      . The attorneys involved in this appeal and Judge Leblanc did not participate in the trial.


text:
    FEDERATED NATIONAL INSURANCE COMPANY, Petitioner, v. Jill M. FORTIN, as Personal Representative of the Estate of Paul Thibault, Deceased, and T & M Lawn Care, Inc., Respondents.
    No. 4D13-132.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing Denied Oct. 9, 2013.
    Warren B. Kwavnick, Bruce M. Trybus, Blair M. Dickert, and Meredith Chaiken-Weiss of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for petitioner.
    Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Plantation, for respondent Jill M. Fortin.
   PER CURIAM.

Federated National Insurance Company seeks a writ of certiorari to quash an order denying its motion for protective order to prevent the production of Federated’s entire claims file. Respondent sought the claims file in its action for declaratory judgment, to determine Federated’s duty to defend in an action filed against Federated’s insured, T & M Lawn Care, Inc., as well as damages for that failure to defend the prior suit. The prior suit resulted in a substantial judgment against T & M and in favor of respondent. Coverage under the policy is an issue in dispute in the declaratory judgment action. We grant the writ on the authority of Superior Insurance Co. v. Holden, 642 So.2d 1139, 1140 (Fla. 4th DCA 1994) (an order compelling discovery of claims file was premature where coverage is still in dispute, as the claims file constitutes work product; noting that a claimant may request an in camera inspection to confirm that the documents meet the criteria of work product or attorney/client privilege).

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: STEVENSON, J.

text:
    CHUBB INDEMNITY INSURANCE COMPANY a foreign corporation, a/s/o Hank Freid, Appellant, v. Marie STOYANOVICH, Appellee.
    No. 4D12-3523.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing Denied Sept. 16, 2013.
    Robert I. Buchsbaum and Craig M. Greene of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellant.

      No brief filed for appellee.
   STEVENSON, J.

Appellant Chubb Indemnity Insurance Company (“Chubb Indemnity”) appeals the dismissal of its claims of (1) negligence and (2) breach of bailment in favor of appellee Marie Stoyanovich, the defendant below. Ms. Stoyanovich, in breaking off a wedding engagement, claimed she did not know the whereabouts of the engagement ring when Hank Freid, the insured and disappointed suitor, demanded its return. As a result, Chubb Indemnity paid Mr. Freid $206,000.00 under his insurance policy. In this subrogation action, Chubb Indemnity sought reimbursement from Ms. Stoyanovich, claiming she breached a duty of care in preventing loss or damage to the ring while it was in her possession. The trial court dismissed both counts, holding that any causes of action for damages arising out of an oral contract to marry are barred in Florida pursuant to Gill v. Shively, 320 So.2d 415 (Fla. 4th DCA 1975).

We reverse, finding that the trial court misread Gill, which expressly stated that section 771.01, Florida Statutes, “only bars actions for damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry, and does not affect the rights of parties relative to gifts passing between them.” Id. at 417 (emphasis added). Accordingly, section 771.01, Florida Statutes (2009), does not bar Chubb Indemnity’s claims for negligence and breach of bailment.

Reversed and remanded.

DAMOORGIAN, C.J., and SINGHAL, RAAG, Associate Judge, concur.


text:
    Tyson L. CHAFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4572.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing Denied Oct. 15, 2013.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Nancy Jack and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Tyson L. Chaffin appeals his convictions and sentences for second degree murder and tampering with evidence. He makes the following arguments on appeal: 1) the trial court erred in denying his motion for judgment of acquittal; 2) the trial court erred in denying his motion to suppress his pre-arrest statements; 3) the trial court gave an erroneous jury instruction on justified use of force; and 4) the State created fundamental error by submitting two separate incidents of tampering to the jury. We reverse the tampering conviction but affirm the second degree murder conviction.

Background

This is a particularly sad case involving a patricide that was allegedly committed in self-defense. On August 1, 2009, Chaffin (then 26 years old) fatally shot his father at their home. At the time of the fatal encounter, Chaffin’s father was in a drunken rage over the fact that Chaffin’s girlfriend threatened to call the police and inform them that the father was operating a marijuana grow house at the home. As a result of the threat, the father disassembled the grow house and kicked Chaffin out of the home. While Chaffin was in his bedroom gathering his belongings, his father, who was wearing a gun holstered to his hip, continuously yelled at Chaffin from outside the home, accusing Chaffin of ruining his life. Chaffin maintained that his father was acting aggressively and was ripping the siding off of the home. Allegedly fearing that his father was going to shoot him, Chaffin took a gun out of his bedroom closet, aimed it out of the window, and fatally shot his father in the head. Chaffin then put his father’s body in a wheelbarrow, wheeled it into the backyard, and buried it. He also burned his clothing and cleaned up the area where his father was shot. He claimed he covered up the shooting instead of calling the police out of fear that he would be arrested for the grow house activity.

About two weeks later, police received a tip that Chaffin killed his father and paid a visit to the home. There, they encountered Chaffin’s mother, who told the police that they needed to speak with Chaffin. The mother called Chaffin and he agreed to meet them at the police station. Upon arriving at the police station, Chaffin was brought to an interview room with a camcorder running and was immediately read his Miranda rights. Before and after he was read his rights, one of the interviewing detectives referred to the rights as a “formality.” Chaffin repeatedly acknowledged that he understood his rights and wished to speak to the detectives and read and signed the Miranda waiver form. After he signed the waiver, a detective again asked Chaffin if he understood his rights, to which Chaffin responded: “Uh, basically I have a right to an attorney, right?” The officers proceeded with questioning, and Chaffin confessed to killing his father and burying him in the backyard, maintaining that he did so because he was scared for his life and was sure that his father was going to pull his gun and shoot at him if given the opportunity. Chaffin later filed a motion to suppress his statements which the trial court denied.

Chaffin was charged by information with one count of first degree murder and one count of tampering with evidence. The information did not provide a factual basis for the tampering charge, and when asked by the court for clarification as to whether the charge went to concealing the grow house or burying the father’s body, the State represented that “it could be either one.” The case proceeded to a jury trial, where the primary issue for the jury to consider was whether Chaffin acted in self-defense. Chaffin moved for a judgment of acquittal on all counts, which the trial court denied. After considering all of the evidence, which included Chaffin’s confession and testimony, testimony from the investigating officers, and testimony from Chaffin’s mother and family friends regarding the father’s temperament and behavior, the jury found Chaffin guilty of the lesser included offense of second degree murder and of tampering with evidence. This appeal follows.

Analysis

Although we are only reversing Chaf-fin’s tampering conviction, we also write to set forth our reasoning for affirming the trial court’s denial of Chaffin’s motion for judgment of acquittal on the second degree murder conviction and his motion to suppress his confession. We affirm on the remaining issues raised by Chaffin without comment.

a) Second Degree Murder Conviction

Chaffin asserts that the trial court erred in denying his judgment of acquittal because the State failed to rebut his theory of self-defense and the evidence did not support a second degree murder conviction. After carefully reviewing the record, we hold that there was no error.

When reviewing a trial court’s decision on a motion for judgment of acquittal, the appellate court applies a de novo standard of review. Romero v. State, 901 So.2d 260, 264 (Fla. 4th DCA 2005). In Johnston v. State, 863 So.2d 271 (Fla.2003), the Florida Supreme Court reviewed the principles that govern a motion for judgment of acquittal:

Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements' of the crime beyond a reasonable doubt. “A motion for judgment of acquittal should be granted in a circumstantial evidence case if the [Sjtate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” “The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.” In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Id. at 283 (internal citations omitted).

i) Self-Defense

When the defendant claims self-defense in a murder case, the state is required to prove that the defendant did not act in self-defense beyond a reasonable doubt. Rasley v. State, 878 So.2d 473, 476-77 (Fla. 1st DCA 2004). “If a defendant establishes a prima facie case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief.” State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998). “Under Florida law, a person is justified in using deadly force in self-defense when he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm_” Michel v. State, 989 So.2d 679, 681 (Fla. 4th DCA 2008). “The law does not ascribe a subjective standard as to a defendant’s state of mind, but concerns a reasonably prudent person’s state of mind.” Reimel v. State, 532 So.2d 16, 18 (Fla. 5th DCA 1988). Further, “[t]he question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002).

Here, the State presented sufficient evidence to create a jury question regarding Chaffin’s self-defense claim. First, Chaffin’s version of the events was not entirely corroborated by the evidence as testimony of one of the investigating officers contradicted Chaffin’s story that the father was ripping the siding off of the Home right before he was shot. Second, the evidence created a fact issue as to whether a reasonable person in Chaffin’s shoes would have believed danger was imminent — during his videotaped confession Chaffin admitted that his father never stated he was going to shoot or kill him, and his father did not ever reach for his gun. Finally, Chaffin’s actions after the shooting consisted of concerted efforts to cover up his actions. He cleaned up the area where he shot his father, buried his father in the backyard, and burned any remaining evidence. These efforts run contrary to Chaffin’s self-defense argument, and created a jury issue. Bogart v. State, 114 So.3d 316, 318 (Fla. 4th DCA 2013) (facts that defendant moved victim’s body, destroyed evidence, and did not call 911 after killing were contrary to self-defense and suggested that defendant had a guilty conscience).

ii) Sufficiency of the Evidence

Likewise, the evidence presented by the State supported Chaffin’s conviction for second degree murder. Section 782.04(2), Florida Statutes (2009), provides “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree....” § 782.04(2), Fla. Stat. (2009).

“In the context of second-degree murder, an act is imminently dangerous to another and evinces a ‘depraved mind’ if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life.” Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011).

As we have explained, “[pjointing a loaded gun at the head of the victim and then firing has frequently been held to be an act ‘imminently dangerous to another and evincing a depraved mind regardless of human life.’ ” Gibbs v. State, 904 So.2d 432, 435 (Fla. 4th DCA 2005) (citing to a line of cases holding the same). Here, Chaffin pointed a loaded gun at his father’s head and fired. Additionally, evidence presented by the State established that Chaffin and his father had a complicated relationship which was fraught with conflict over the grow house. Accordingly, because the State established that Chaffin pulled and fired a gun at his father’s head and that he and his father had a relationship that may have sparked ill will in Chaffin’s mind, there was sufficient evidence to meet the depraved mind element of second degree murder.

b) Motion to Suppress

Chaffin also argues that the trial court erred in denying his motion to suppress because the interviewing detectives improperly minimized the significance of his Miranda rights and did not address his inquiry regarding his right to an attorney. After carefully reviewing the videotape of the interview, we affirm the trial court’s ruling.

“The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003).

i) Minimization of Miranda rights

We agree with Chaffin that the interviewing detectives tried to minimize the significance of his Miranda rights by referring to them as a “formality.” See Ross v. State, 45 So.3d 403, 428 (Fla.2010) (holding that police officer minimized and downplayed the significance of a suspect’s Miranda rights in part because he asserted they were only a matter of procedure). However, this in itself is not dispositive. The key inquiry when reviewing the admissibility of a post-Mirandized statement is whether “the waiver of the Miranda rights was voluntary, knowing, and intelligent and whether the statements made after the waiver were voluntary.” Id. at 418.

In Ross, the Florida Supreme court set forth a comprehensive review of the law surrounding Miranda rights. Id. at 419-24. It explained that not all statements given post -Miranda are voluntary, depending on the circumstances. Id. at 424. One factor which may negate the voluntariness of a statement is if the police downplayed the significance of the Miranda rights. Id. However, this is only a factor if the Miranda rights were tardily administered. Id. at 428 (whether police minimized and downplayed the significance of Miranda rights is factor to be considered “to ensure that a suspect who is provided with a tardy administration of the Miranda warnings truly understands the importance and the effect of the Miranda warnings in light of the problems faced when warnings are delivered midstream.”); see also Ramirez v. State, 739 So.2d 568, 574 (Fla.1999) (when police undertook two part strategy of delaying informing suspect of his Miranda rights and downplaying their significance when they were given, post-Miranda statements were not voluntary).

Here, there was no delay in the administration of Chaffin’s Miranda rights. Further, despite the detective’s comments, the videotape reflects that Chaffin understood and voluntarily waived his rights. He was read his rights in a normal cadence, acknowledged that he understood his rights several times, and appeared to have read over his rights before signing a form acknowledging his waiver. See Sliney v. State, 699 So.2d 662, 668 (Fla.1997) (evidence supported conclusion that defendant voluntarily waived right to remain silent and obtain counsel when officer read defendant his rights and asked defendant whether he understood each of this rights to which defendant responded affirmatively). Thus, we hold that Chaffin voluntarily waived his rights and the trial court correctly denied Chaffin’s motion to suppress on the minimization of Miranda issue.

ii) Inquiry Regarding Right to Counsel

Chaffin also argues that the trial court should have suppressed his statements because he inquired about his right to counsel but was ignored by the detectives. In support of his position, Chaffin relies almost exclusively on Almeida v. State, 737 So.2d 520 (Fla.1999). The facts in Almeida were as follows. The defendant was picked up by police and taken to headquarters where he was immediately read his Miranda rights and signed a waiver form. Id. at 522, 86 S.Ct. 1602. Several minutes later, he spontaneously confessed to committing an unrelated murder. Id. At that point, the interviewing officer commenced a formal recorded session, and after starting the tape, the following discussion transpired:

Q. All right. Prior to us going on this tape here, I read your Miranda rights to you, that is the form that I have here in front of you, is that correct? Did you understand all of these rights that I read to you?
A. Yes.
Q. Do you wish to speak to me now without an attorney present?
A. Well, what good is an attorney going to do?
Q. Okay, well you already spoke to me and you want to speak to me again on tape?
Q. We are, we are just going to talk to you as we talked to you before, that is all.
A. Oh, sure.

Id. (emphasis in original).

In determining whether the defendant was invoking his right to counsel when he asked what good an attorney would do, the supreme court first considered whether the defendant was in fact referring to his right to counsel. It held that he was because the question was posed “(1) at the very beginning of the taped interrogation session; (2) in the midst of a general discussion concerning his rights; and (3) in direct response to a police question concerning the right to counsel.” Id. at 523-24. It then considered “whether the utterance was a bona fide question which— under the normal circumstances — would call for an answer.” Id. at 524. Examining the recording of the interview, the court held that the defendant’s question was a genuine question as opposed to a rhetorical question. Id. It mainly based its- determination on the manner with which the question was posed: deliberately and with several pauses. Id.

Ultimately, the court reversed, holding “that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer- Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State.” Id. at 525.

Applying the analysis outlined in Almei-da, we hold that Chaffin was certainly referring to his right to counsel when he stated “Uh, basically I have a right to an attorney, right?” However, our review of the videotape leads us to conclude that he was not posing an unequivocal question which required an answer by the detectives. Unlike in Almeida, where the defendant paused and asked what good an attorney could do in a serious, deliberate manner, here Chaffin, in a very casual manner and without the voice inflection usually associated with a question, responded to detectives by reciting what he believed his rights to be. It is clear from the tape that Chaffin was assuring detectives that he understood his rights and was not asking a question he expected to be answered. Accordingly, we affirm on this issue.

c) Tampering With Evidence Conviction

Finally, we turn to Chaffin’s conviction for tampering with evidence. We reverse and remand for a new trial on this charge because the State presented the jury with two separate incidents of tampering in support of one charge.

Directly on point is our opinion in Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007). There, a defendant was charged with one count of escape via an information that did not include any factual specifics. Id. at 674. At trial, the state presented evidence that the defendant escaped from police custody on two separate occasions and argued, without objection by the defense, that the jury could convict the defendant on the escape count based on either of his escapes. Id. We held that this was fundamental error since it compromised the jury’s ability to render a unanimous verdict, reasoning: “The State’s actions make the unanimity of the jury’s verdict questionable, as some members of the jury could have determined that one incident constituted escape, while others on the jury could have determined that the other incident constituted escape, rather than agreeing unanimously that the same incident constituted escape.” Id. at 674-75.

The record reflects that the State argued to the jury that it could convict Chaf-fin for one charge of tampering based on one of two separate instances of tampering. This is evidenced by the State’s response when the court asked what the tampering with evidence charge went to: concealing the grow house or burying the body. The State responded: “Well, if you look at the Information, there was no motion for statement of particulars, it said destroy a thing or object, so it could be either one.” The State’s explanation to the jury in closing argument was no different, and it specifically referenced the opening of two separate and distinct investigations, one instigated by the girlfriend calling about the grow house and the other to investigate the killing:

Now was there an investigation pending when he buried his dad and destroy (sic) and the marijuana and the grow house and all that stuff? No, not yet. Was it about to be instituted? [His girlfriend] called the cops, right? And when a person murders someone, kills them, whether it’s justifiable or not, guess what’s about to be instituted? An investigation, okay?

Under the guidance of Perley, we hold that the “State’s actions made the unanimity of the jury’s verdict questionable as some members of the jury could have determined” that Chaffin’s role in covering up the grow house constituted tampering while others could have determined that burying his father constituted tampering. Id. at 674-75. Accordingly, we reverse Chaffin’s conviction for tampering and remand for a new trial on that charge.

Affirmed in Part; Reversed in Part and Remanded.

STEVENSON, J., and SINGHAL, RAAG, Associate Judge, concur.

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

      . See Reed v. State, 96 So.3d 1118 (Fla. 1st DCA 2012). There, Judge Wolf in a concurrence noted that effective Miranda warnings should not be rattled off in a rapid fire manner, but should be communicated at a normal cadence. Id. at 1118.


author: BERGER, J.

text:
    UCF ATHLETICS ASSOCIATION INC., et al., Appellant, v. Enock PLANCHER, as Personal, etc., Appellee.
    Nos. 5D11-4253, 5D12-454.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Certification Denied Sept. 6, 2013.

      Matthew J. Conigliaro, and Joshua D. Moore, of Carlton Fields, P.A., St. Peters-burg, and Wendy F. Lumish, of Carlton Fields, P.A., Miami, for Appellant.
    Stacy D. Blank, of Holland & Knight, Tampa, and Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Ap-pellee.
   BERGER, J.

Appellants, UCF Athletics Association Inc. and its insurer, Great American Assurance Company, appeal an award of attorney’s fees and costs made to Appellee, Enock Plancher, as Personal Representative of the Estate of Ereck Michael Plancher, II, Deceased, under the offer of judgment statute, following entry of final judgment in favor of Appellee. See § 768.79, Fla. Stat. (2011); Fla. R. Civ. P. 1.442. We reverse.

In the underlying action, Appellee filed a negligence suit against UCFAA after his son collapsed and died during football practice while participating in a series of conditioning drills. After a three-week trial, the jury found UCFAA liable and awarded Appellee damages in the amount of $10 million. Thereafter, the trial court entered final judgment against UCFAA, and UCFAA appealed. Appellee moved for attorney’s fees and costs under section 768.79, Florida Statutes, based on an unaccepted demand for judgment in the amount of $4.75 million. While the underlying appeal was pending, the trial court entered judgments against Appellants for attorney’s fees in the amount of $1,897,720.00 and costs in the amount of $524,931.22. The fee and costs awards were separately appealed and are now before this court.

In the companion case, we determined UCFAA was entitled to limited sovereign immunity, and ordered the judgment reduced to $200,000 in accordance with section 768.28(5), Florida Statutes. Accordingly, we now reverse the judgments awarding attorney’s fees and costs, finding Appellee is not entitled to such an award pursuant to section 768.79, Florida Statutes.

Section 768.79(6)(b) provides:

If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.
For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any pos-toffer settlement amounts by which the verdict was reduced.

(Emphasis added). Thus, Appellee can only recover attorney’s fees if the “judgment obtained” is at least $5,957,500, an amount 25% higher than the $4.75 million offer of judgment. § 768.79(6)(b), Fla. Stat. (2011). In light of our ruling in the companion case, the judgment cannot reach that threshold even though the jury awarded damages in the amount of $10 million.

It is the judgment obtained, not the verdict, that controls whether fees can be awarded in this case. See Perez v. Circuit City Stores, Inc., 721 So.2d 409, 411 (Fla. 3d DCA 1998) (“The amount of the judgment for damages awarded by a jury is a ‘verdict,’ ... not a ‘judgment.’ ”); Allstate Ins. Co. v. Sutton, 707 So.2d 760, 761 (Fla. 2d DCA 1998) (stating that for the purposes of a statute such as section 768.79, the damages that trigger the attorney’s fees portion are measured by the judgment rather than the jury verdict), receded from on different grounds by, Gov’t Emps. Ins. Co. v. King, 68 So.3d 267 (Fla. 2d DCA 2011) (en banc). For the purpose of the offer of judgment statute, the judgment obtained includes the net judgment for damages and any attorney’s fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the day of the offer. White v. Steak and Ale of Florida, Inc., 816 So.2d 546, 551 (Fla.2002). Accordingly, because Appellee can only obtain a net judgment from UCFAA in the amount of $200,000, he is not entitled to an award of fees and costs pursuant to section 768.79(6)(b), Florida Statutes.

The Florida Supreme Court has held that the language of section 768.79, as well as rule 1.442, which implements it, “must be strictly construed because [they] are in derogation of the common law rule that each party pay its own fees.” Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558, 563 (Fla. 1st DCA 2011) (quoting Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003)). Moreover, because an award under the offer of judgment statute serves as a penalty, the strict-construction rule must be applied “in favor of the one against whom the penalty is imposed,” and the statute must never be “extended by construction.” Id. (quoting Sarkis v. Allstate Ins. Co., 863 So.2d 210, 223 (Fla.2003)). Similarly, because under the common law an agent of the state could not be sued for damages, the statute waiving sovereign immunity must be strictly construed. Cauley v. City of Jacksonville, 403 So.2d 379, 381 (Fla.1981); Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla.1977).

A defendant entitled to sovereign immunity puts itself in jeopardy of having to pay attorney’s fees if it rejects a plaintiffs offer and the ultimate judgment is at least 25% greater than the offer. However, the attorney’s fees award is limited by sections 768.28(5) and (8), Florida Statutes, to 25% of the judgment. See Hellmann v. City of Orlando, 634 So.2d 245, 246 (Fla. 5th DCA 1994) (attorney fee award limited to 25% of the judgment under sovereign immunity waiver statute); City of Live Oak v. Harris, 702 So.2d 276 (Fla. 2d DCA 1997) (holding in action against governmental entity trial court cannot award attorney’s fees exceeding 25% of the final judgment). Furthermore, the total amount of the judgment, inclusive of attorney’s fees and costs, cannot exceed the statutory cap of $200,000. See § 768.28(5), Fla. Stat.; Pinellas County v. Bettis, 659 So.2d 1365, 1367 (Fla. 2d DCA 1995) (county’s liability for attorney’s fees based on rejection of plaintiffs offer of judgment was subject to statutory limitation on county’s tort liability).

UCFAA rejected Appellee’s offer for $4.75 million, based on its correct assertion that the sovereign immunity cap applied to this case. Had the trial court properly ruled as such, on the day the offer was made, the most Appellee would have been entitled to recover from UCFAA was $200,000, an amount much less than the offer Appellee made to settle the case. As such, UCFAA should not be penalized under section 768.79 for standing its ground as to its sovereign immunity defense by rejecting Appellee’s offer.

Accordingly, the judgments entered against Appellants awarding attorney’s fees in the amount of $1,897,720.00 and costs in the amount of $524,931.22 are reversed.

REVERSED.

TORPY, C.J., and LAWSON, J., concur.

      . 5D11-4253 and 5D12-454 have since been consolidated.

      . 5D11-2710

      . Appellee’s argument that the merits and costs judgments should be affirmed as to Great American because Great American did not assert entitlement to sovereign immunity in the trial court or in the appeal in the companion case has little merit. The action was not filed against Great American, it was filed against Appellant. Great American was joined in the action after Appellee prevailed below. See § 627.4136(1), Fla. Stat. (2011) (prohibiting joinder of liability insurer in a third party’s action until a settlement or verdict is reached against the insured). As a result, sovereign immunity attached to the judgment before Great American was added to the merits and costs judgment. § 627.4136(4), Fla. Stat. (2011) (a plaintiff may add "a liability insurer ... as a party defendant for the purpose[ ] of entering a final judgment_”).


author: TAYLOR, J.

text:
    STATE of Florida, Petitioner, v. William E. BYNES, Respondent.
    No. 4D13-1770.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Rehearing Denied Sept. 27, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for respondent.
   TAYLOR, J.

The State of Florida petitions for a writ of prohibition to prevent the trial court from resentencing respondent on certain counts following our reversal of the trial court’s order denying respondent’s motion to correct an illegal sentence. In reversing the order, we did not find the sentences on these counts to be illegal. We therefore grant the petition.

Respondent was found guilty of four counts of an amended nineteen-count information: Aggravated Assault on a Police Officer with a Motor Vehicle (Count 1), Resisting Arrest with Violence (Count 2), Fleeing or Attempting to Elude (Count 3), and Grand Theft of a Motor Vehicle (Count 7). Respondent was sentenced on all four counts as a violent career criminal (VCC). On direct appeal, we affirmed his convictions and sentences as a VCC. Bynes v. State (“Bynes I”), 854 So.2d 289, 293 (Fla. 4th DCA 2003) (holding that burglary of an unoccupied conveyance qualifies as a predicate offense and that the statute was not unconstitutionally over inclusive).

However, following the trial court’s summary denial of respondent’s Rule 3.800 motion to correct illegal sentence and denial of his motion for rehearing, we reversed, holding that respondent’s VCC sentences on Count 3 (aggravated fleeing and eluding) and Count 7 (grand theft) were illegal because they were not enumerated in the VCC statute or did not fall within the forcible felony provision. Bynes v. State (“Bynes II”), — So.3d -, 2012 WL 5500335, 37 Fla. L. Weekly D2637 (Fla. 4th DCA Nov. 14, 2012).

At a hearing on remand, defense counsel urged the court to review all four VCC sentences and reconsider whether the VCC sentences were necessary for the protection of the public. The trial court agreed it should resentence respondent on all four counts because we did not specifically state in our written opinion in Bynes II that the trial court should resentence only on Counts 3 and 7.

In its petition for a writ of prohibition, the state seeks to prevent the trial court on remand from resentencing respondent on Counts 1 and 2. The state argues that the trial court will be exceeding its jurisdiction and acting contrary to our mandate if it reconsiders respondent’s sentences on Counts 1 and 2, which are legal and uneon-tested. We agree.

Jurisdiction to issue a writ of prohibition lies under Article V, section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(3). Prohibition is appropriate to prevent a trial court from proceeding contrary to an appellate court’s mandate. In-PhyNet Contracting Servs., Inc. v. Soria, 82 So.3d 1049, 1051 (Fla. 4th DCA 2011), rev. denied, 81 So.3d 415 (Fla.2012).

In Bynes II, we reversed and remanded the trial court’s order summarily denying respondent’s Rule 3.800(a) motion because we concluded that the VCC sentences imposed on Counts 3 and 7 were illegal. We did not find, nor did respondent argue, that his sentences on Counts 1 and 2 were illegal. Indeed, respondent acknowledged in his Response to Order to Show Cause that his convictions on these offenses qualified him for VCC sentencing.

Thus, on remand, the trial court has authority to resentence respondent only on the “illegal” sentences imposed on Counts 3 and 7. See Pitts v. State, 935 So.2d 634, 635 (Fla. 2d DCA 2006) (“A motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence imposed on another count.”); Wilhelm v. State, 543 So.2d 434, 435 (Fla. 2d DCA 1989) (holding that a trial court, when correcting an illegal sentence on one count of an information, does not have authority to modify legal sentences that have been rendered on the other counts); Reynolds v. State, 116 So.3d 558 (Fla. 3d DCA 2013) (affirming trial court’s ruling that it lacked authority on remand to review valid and previously uncontested sentences on a motion to correct illegal sentence).

Petition granted.

DAMOORGIAN, C.J., and WARNER, J., concur.


text:
    Jeffery C. GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2001.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.

      Jeffery C. Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002) (holding that where the trial court has recently taken action, mandamus relief was not warranted).

WOLF, CLARK, and RAY, JJ., concur.


text:
    Phyllis STEINBERG, Petitioner, v. WINN-DIXIE STORES, INC., a Florida corporation, Equity One Realty & Management FL, Inc., a Florida corporation, and G & I VI South Florida Portfolio SPE LLC, a foreign limited liability company, Respondents.
    No. 4D13-619.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.

      Bard D. Rockenbach and Adam J. Richardson of Burlington and Rockenbach, P.A., West Palm Beach, and Alan C. Anc-hell of the Law Offices of Alan C. Anchell, P.A., Fort Lauderdale, for petitioner.
    Helen Ann Hauser of Restani, Dittmar & Hauser, P.A., Coral Gables for Appel-lees-G & I VI South Florida Portfolio SOE, LLC & Equity One Realty & Management FL, Inc.
   ON MOTION FOR REHEARING, MOTION FOR WRITTEN OPINION, AND MOTION FOR REHEARING EN BANC

TAYLOR, J.

We grant Petitioner’s Motion for Rehearing and Motion for Written Opinion, withdraw our order issued on June 7, 2013, and substitute the following written opinion in its place.

Petitioner, Phyllis Steinberg, seeks a writ of certiorari to quash the trial court’s order disqualifying her trial counsel. Because the disqualification order departs from the essential requirements of the law, we grant the petition.

Steinberg sued Winn-Dixie Stores, Inc., Equity One Realty & Management FL, Inc. (“Equity One”), and G & I VI South Florida Portfolio SPE LLC (“G & I”) for personal injuries after she tripped and fell near the entrance of a Winn-Dixie store. Equity One managed the shopping center where the store was located. G & I owned the shopping center.

According to the complaint, Steinberg tripped on a hole in the ground where a guardrail had been removed from a handicap access ramp. She suffered a broken tibia and shoulder from the fall and required complex surgery. Shortly after the fall, Steinberg’s attorney, Alan Anchell, and his investigator, Bruce Anchell, visited the site of the incident and spoke with a Winn Dixie manager. The manager made certain statements regarding the trip and fall.

Equity One and G & I noticed the deposition of Steinberg’s trial counsel. The trial judge denied Steinberg’s motion for a protective order and allowed her counsel’s deposition to be taken. At the deposition, Steinberg’s trial counsel testified that a few days after the incident, he spoke with the store manager, Reggie Rigaud, in the presence of his investigator. Rigaud said that about two weeks before the incident, he had removed the railing from the ramp because a customer complained that it was “wobbly.” He placed the removed railing back in the produce area of the store. He did not report the wobbly rail to the property manager. Counsel recalled Rigaud saying, “Damned if you do. Damned if you don’t.”

Rigaud later gave a conflicting account of this conversation in his deposition and denied making these statements. He testified that a customer had complained about the loose railing, but Rigaud denied personally removing it or knowing who removed it or when it was removed. He testified that he did not tell the shopping center owner or property manager about any problem with the railing. Rigaud denied telling anyone that he removed the railing or that he placed it in the produce area. He testified that the railing was placed outside by a dumpster.

Winn Dixie then moved to disqualify Steinberg’s trial counsel, arguing that he was a necessary witness on the subject of a disputed admission by Rigaud and that he was thus prohibited from representing Steinberg at trial by Rule Regulating the Florida Bar 4-3.7. Rule 4-3.7 provides, in relevant part: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”

Steinberg objected, arguing that Rule 4-3.7 did not apply to disqualify her trial counsel because he was not going to testify on her behalf; he would testify only if called by one of the defendants. Steinberg further argued that her trial counsel was not an essential witness because the investigator was present during the conversation between her counsel and the Winn-Dixie manager, and therefore the investigator could testify concerning the admission. Finally, Steinberg argued that her trial counsel’s anticipated testimony would not be adverse to her and she would waive any conflict should it arise.

The shopping center owner and property manager also deposed trial counsel’s investigator, Bruce Anchell. Anchell testified that he was present during trial counsel’s conversation with the manager and that the manager said he removed the railing. He took contemporaneous notes during the conversation.

Ultimately, a successor judge issued an order disqualifying trial counsel. Petitioner seeks a writ of certiorari to quash the trial court’s order.

Certiorari jurisdiction lies to review an order disqualifying counsel from representing a client at trial. See Ocean Club of Palm Beach Shores Condo. Ass’n v. Estate of Daly, 504 So.2d 1377, 1379 (Fla. 4th DCA 1987). “Disqualification of a party’s chosen attorney is an extraordinary remedy that should be resorted to only sparingly....” Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA 1991) (citing Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986); Pascucci v. Pascucci, 679 So.2d 1311, 1312 (Fla. 4th DCA 1996)). However, to warrant certiorari relief, the trial court’s order disqualifying counsel must constitute a departure from the essential requirements of law. See Kirrie v. Indian River Cnty.Code Enforcement Bd., 104 So.3d 1177, 1179 (Fla. 4th DCA 2012) (citing Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995)).

Under Rule Regulating the Florida Bar 4-3.7, Steinberg’s counsel would be barred from representing her only if he was likely to be (1) a necessary witness (2) on her behalf. Here, Steinberg does not intend to call her trial counsel as a witness on her behalf. Moreover, he is not a necessary witness. Essentially, the same facts can be elicited at trial from the testimony of the private investigator, who was present when the store manager was interviewed. A lawyer is not a necessary witness when there are other witnesses available to testify to the same information. Allstate Ins. Co. v. English, 588 So.2d 294, 295 (Fla. 2d DCA 1991) (citations omitted); see also Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So.2d 23, 23-24 (Fla. 3d DCA 1987).

Respondents G & I and Equity One argue that the trial court properly entered the disqualification order because they intend to call Steinberg’s attorney as a critical witness in their own behalf to establish that their co-defendant, Winn-Dixie, had the primary responsibility for any negligence — not G & I or Equity One. Respondents contend that trial counsel’s testimony will be adverse to his own client insofar as she is claiming negligence on their part.

In Arcara, we quashed an order of disqualification because the opposing party, rather than the client, intended to call the lawyer as a witness. 574 So.2d at 326. “The requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.” AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 680 (Fla. 2d DCA 2006); see also Devins v. Peitzer, 622 So.2d 558, 558 (Fla. 3d DCA 1993) (holding that defendant’s announced intention to call plaintiffs counsel as a witness is not a basis for disqualification).

A conflict requiring disqualification, however, could arise if an opposing party called trial counsel as a witness and counsel’s testimony was adverse to the client’s position. See Allstate, 588 So.2d at 295 (noting that, even if the opposing party had called counsel as their witness, there was no showing that the testimony would be “ ‘sufficiently adverse to the factual assertions or accounts of events offered on behalf of the client’ ” (quoting Ray v. Stuckey, 491 So.2d 1211, 1213 (Fla. 1st DCA 1986))). In this case, respondents have not shown that trial counsel’s testimony would be sufficiently adverse to Steinberg’s position. In any event, Stein-berg has agreed to waive any conflict to have her chosen counsel represent her. See R. Regulating Fla. Bar 4-1.7(b)(4) (“Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if ... each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.”).

Accordingly, we grant the petition for writ of certiorari and quash the order granting disqualification.

Petition Granted.

GROSS and MAY, JJ., concur.

      . The Rules Regulating the Florida Bar provide in relevant part as follows:
      Rule 4-3.7. Lawyer as Witness (a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client unless:
      (1)the testimony relates to an uncontested issue;
      (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
      (3) the testimony relates to the nature and value of legal services rendered in the case; or
      (4) disqualification of the lawyer would work substantial hardship on the client.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Carlos M. GONZALEZ, Jr., Appellee.
    No. 4D12-280.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Sept. 25, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Richard G. Lubin of Richard G. Lubin, P.A., West Palm Beach, and Steven H. Malone of Steven H. Malone, P.A., West Palm Beach, for appellee.
   GERBER, J.

The state appeals from the circuit court’s order granting the defendant’s motion to dismiss numerous drug trafficking-related charges under section 893.135(l)(c), Florida Statutes (2009). The state argues the court erred in finding that the state was limited to charging the defendant, a medical doctor, with illicit conduct by a prescribing practitioner under section 893.13(8), Florida Statutes (2009). We agree with the state’s argument and reverse.

The state’s information charged the defendant -with twenty-two counts. Twenty of those counts included charges for racketeering, conspiracy to commit racketeering, trafficking in oxycodone, and conspiracy to traffic in oxycodone. In each of those twenty counts, the state alleged that the defendant knowingly sold or delivered to a person, “by means of a prescription written in bad faith and not in the course of professional practice,” various controlled substances, contrary to sections 893.135(l)(c) and 893.05, Florida Statutes (2009). Section 893.135(l)(c), in pertinent part, provides:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 898.13:
(e)l. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromor-phone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 898.03(l)(b), (2)(a), (3)(c)3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs”.... If the quantity involved:
a. Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.
b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.
c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

§ 893.135(l)(c)l.c., Fla. Stat. (2009). Section 893.05(1), in pertinent part, provides:

A practitioner, in good faith and in the course of his or her professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance, or the practitioner may cause the same to be administered by a licensed nurse or an intern practitioner under his or her direction and supervision only....

§ 893.05(1), Fla. Stat. (2009).

The defendant moved to dismiss the twenty counts alleging violations of sections 893.135(l)(c) and 893.05. In the motion, the defendant raised two primary arguments: (1) section 893.135 does not specifically criminalize a practitioner’s illicit prescriptions of controlled substances; and (2) another law, section 893.13(8), Florida Statutes (2009), specifically addresses a prescribing practitioner’s alleged illicit conduct and, therefore, the state could not charge him with the more general crime of drug trafficking under section 893.135. Section 893.13(8), in pertinent part, provides:

(a) ... [A] prescribing practitioner may not:
1. Knowingly assist a patient [or] other person ... in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practice of the prescribing practitioner’s professional practice;
2. Employ a trick or scheme in the practice of the prescribing practitioner’s professional practice to assist a patient [or] other person ... in obtaining a controlled substance;
3. Knowingly write a prescription for a controlled substance for a fictitious person; or
4. Write a prescription for a controlled substance for a patient [or] other person ... if the sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary benefit for, the prescribing practitioner.
(c) A person who violates paragraph (a) commits a felony of the third degree ....
(d) Notwithstanding paragraph (c), if a prescribing practitioner has violated paragraph (a) and received $1,000 or more in payment for writing one or more prescriptions or, in the case of a prescription written for a controlled substance described in s. 893.135, has written one or more prescriptions for a quantity of a controlled substance which, individually or in the aggregate, meets the threshold for the offense of trafficking in a controlled substance under s. [893.135], the violation is reclassified as a felony of the second degree and ranked in level 4 of the Criminal Punishment Code.

§ 893.13(8), Fla. Stat. (2009).

The state’s response to the motion to dismiss raised two primary arguments: (1) section 893.135(l)’s introductory phrase, that its provisions apply “notwithstanding the provisions of s. 893.13,” plainly permits the state to charge prescribing practitioners under section 893.135 and not under section 893.13(8); and (2) section 893.13(8) does not restrict the state’s prosecution of prescribing practitioners, but rather provides the state with an alternative means to prosecute prescribing practitioners.

The circuit court entered an order granting the defendant’s motion to dismiss. The court based its ruling on three grounds:

(1)“The purpose of the phrase, ‘notwithstanding the provisions of section 893.13’ in section 893.135 was an attempt by the Legislature to ‘harmonize the two statutes.’ Staff analysis to the 1980 amendment to section 893.135, which added the ‘notwithstanding1 language, indicates that it was added in order to prevent offenders who possessed trafficking amounts of certain drugs from being prosecuted instead for simple possession under section 893.13, effectively allowing defendants to escape the harsher penalties for trafficking under section 893.135. Therefore, it is clear that the language was added in order to prevent the problem of duplication of penalties that existed with the proposed amendments.”
(2) “Section 893.135 was designed to address the problem of people selling, manufacturing, purchasing, possessing, delivering, buying, or bringing into the State of Florida an amount of controlled substances greater than the threshold proscribed by the Florida Legislature. The Information in this case alleges that the Defendant essentially wrote prescriptions in bad faith. This conduct is governed explicitly by section 893.13(8).”
(3) “[T]he State argues it has the choice to charge a defendant under section 893.13(8) or in the alternative, under section 893.135. However, this Court fails to conceive of a situation where the State would choose to charge the same offense under section 893.13 rather than 893.135 where the penalties for trafficking under section 893.135 are much more severe.”

(numerals added; internal citations, other quotations, and footnote omitted).

This appeal followed. The parties’ arguments effectively mirror those raised in the circuit court. Our review is de novo. See Knipp v. State, 67 So.3d 376, 378 (Fla. 4th DCA 2011) (a circuit court order granting a motion to dismiss is reviewed de novo); McGrill v. State, 82 So.3d 130, 131 (Fla. 4th DCA 2012) (a circuit court’s interpretation of a statute is reviewed de novo).

We conclude that the circuit court should have denied the defendant’s motion to dismiss. Our conclusion is based on three grounds.

First, the plain language of section 893.135(l)’s introductory phrase controls. Section 893.135(l)’s introductory phrase provides that the statute applies “notwithstanding the provisions of s. 893.13.” Thus, the state may charge a prescribing practitioner under section 893.135(1) notwithstanding the existence of section 893.13(8). Put another way, the existence of section 893.13(8) does not preclude the state from charging a prescribing practitioner under section 893.135(l)(c). See Therrien v. State, 914 So.2d 942, 945 (Fla.2005) (“Where the language of a statute is clear and unambiguous and conveys a definite meaning, we construe it accordingly, and need not resort to additional rules of construction.”).

Second, even if the plain language of section 893.135(l)’s introductory phrase did not control, the United States Supreme Court, our Florida Supreme Court, and this court all have held that when two statutes govern a defendant’s criminal conduct, a prosecutor has the discretion to decide whether and how to prosecute the defendant. See United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979) (although selectivity in the enforcement of criminal laws is subject to constitutional constraints such as the Equal Protection Clause, “there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion [the prosecutor] exercises when choosing one of two statutes with identical elements”); Fayerweather v. State, 332 So.2d 21, 22 (Fla.1976) (“It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender.”) (internal citations omitted); Seybel v. State, 693 So.2d 678, 679 (Fla. 4th DCA 1997) (“[U]n-der Florida’s constitution, the state attorney has the discretion in deciding whether and how to prosecute a defendant.”) (citation omitted). Applied here, the state has the discretion to prosecute the defendant under section 893.135(l)(c) — in order to impose that statute’s penalties of a first-degree felony with mandatory minimum prison sentences and fines — in lieu of section 893.13(8)’s penalties of either a second- or third-degree felony.

Third, denial of the motion to dismiss would be consistent with pre-section 893.13(8) precedent permitting the state to prosecute a prescribing practitioner under section 893.135(l)’s predecessor statute, section 893.13(l)(a). See, e.g., Cilento v. State, 377 So.2d 663, 666 (Fla.1979) (“Status as a physician does not in some way immunize one from charges of selling. Rather, whether the physician’s or other individual’s conduct amounts to selling or merely dispensing is a function of the particular facts of the case.... The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid.”) (citation omitted); State v. Vinson, 298 So.2d 505, 507 (Fla. 2d DCA 1974) (“[I]t seems reasonable to assume that by including the words ‘actual or constructive’ within its definition of delivery, the Legislature intended to encompass a situation where a doctor, by reason of [the doctor’s] right to issue prescriptions, does so in bad faith and thereby provides a user with the vehicle with which to obtain the drug [which the user] could not otherwise acquire.”).

The defendant nevertheless argues we should hold that section 893.18(8) is controlling over section 893.135(l)(c). He raises three grounds: (1) the rule of statutory construction that “a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms,” Adams v. Culver, 111 So.2d 665, 667 (Fla.1959); (2) a certain sentence from diento which, according to the defendant, anticipates the possibility of a different decision after the enactment of section 893.13(8); and (3) the second district’s rejection of a state argument in O’Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007), that section 893.135(l)’s introductory phrase negates the application of a different provision of section 893.13.

All three grounds are unpersuasive. We address each in turn.

Special vs. General

We recognize the rule of statutory construction that “a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.” Adams, 111 So.2d at 667. However, when this court was confronted with a case in which that rule of statutory construction conflicted with a prosecutor’s constitutional authority to decide whether and how to prosecute a defendant, we enforced the latter. See Seybel, 693 So.2d at 679-80 (“We need not reach [appellant’s argument that a special statute is controlling over a general statute], as appellant acknowledges that under Florida’s constitution, the state attorney has the discretion in deciding whether and how to prosecute a defendant.”) (citation omitted). We maintain that position.

diento’s Reasoning

Cilento’s reasoning ultimately refutes the defendant’s argument.

In Cilento, the state charged a medical doctor with selling or delivering a controlled substance in violation of section 893.135(l)(c)’s predecessor, section 893.13(l)(a), Florida Statutes (1975). 377 So.2d at 664. Similar to the information here, the information in Cilento charged, in pertinent part, that the doctor “did unlawfully and feloniously sell or deliver to (a named individual), by means of a prescription issued in bad faith and not in the course of professional practice, a controlled substance, to wit: methaqualone.... ” Id.

In a motion to transfer the case from circuit court to county court, the defendant contended that the information effectively charged no more than the misdemeanor crime of distributing or dispensing a controlled substance under then-section 893.13(2), now numbered as section 893.13(7)(a)l. Id. at 664-65. The circuit court denied the motion to transfer. Id. at 664. The defendant later changed his plea to nolo contendere, but reserved his right to appeal the circuit court’s ruling. Id.

On direct appeal to our supreme court, the supreme court affirmed. Id. at 666. In reaching its decision, the supreme court stated:

Section 893.13, Florida Statutes (1975), which defines “prohibited acts” under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance outside the course of his professional practice.

Cilento, 377 So.2d at 665-66.

The defendant relies on the supreme court’s above-quoted statement for the argument that, after the legislature added subsection 893.13(8) to section 893.13 in 2002, the statute “could not be clearer in specifically defining a crime and its punishment for prescriptions when unlawfully provided by practitioners.”

We disagree with this argument. While Cilento perhaps foreshadowed the legislature’s later creation of section 893.13(8), the coincidence of such a temporal relationship does not mean that the legislature intended to preclude the state from charging a prescribing practitioner under section 893.135(l)(c).

Moreover, the supreme court’s ultimate reasoning for its affirmance in Cilento refutes the defendant’s argument. The court reasoned:

Through his plea of nolo contendere, [the defendant] has conceded that he did in fact so sell or deliver quaaludes. It appears clear to us that such conduct constitutes a violation of 891.13(l)(a). The admitted facts do form an accurate basis for the charging of this felony. Status as a physician does not in some way immunize one from charges of selling. Rather, whether the physician’s or other individual’s conduct amounts to selling or merely dispensing is a function of the particular facts of the case. [The defendant] argues that this result is irrational in that it is susceptible to both felony and misdemeanor penalties, to be finally determined at the discretion of the prosecutor. The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid. Fayerweather v. State, 332 So.2d 21 (Fla.1976). [The defendant], as a physician, is capable of violating either or both of the provisions, 893.13(1) and 893.13(2).

Id. at 666 (emphasis added).

To apply diento’s reasoning here, it is a function of the particular facts of this case, and the state’s discretion, see Fayerweather, 332 So.2d at 22, whether the defendant’s conduct amounts to:

• the first-degree felony of selling or delivering a controlled substance under section 893.135(l)(c), or
• the second- or third-degree felony of illicit conduct by a prescribing practitioner under section 893.13(8), or
• the misdemeanor of distributing or dispensing a controlled substance in violation of chapter 893 under section 893.13(7)(a).

See Cilento, 377 So.2d at 666. The fact that the defendant’s alleged conduct might violate more than one of the foregoing provisions does not necessarily render any of them inapplicable. See id. The defendant is capable of violating any or all of the provisions. See id. Thus, the defendant’s status as a prescribing practitioner does not in some way immunize him from any of the charges. See id.

O’Hara’s Reasoning

O’Hara’s reasoning also ultimately refutes the defendant’s argument.

In O’Hara, the defendant (a layperson) was convicted of trafficking in hydroco-done under section 893.135(l)(c). 964 So.2d at 840. He appealed the trial court’s denial of his requested jury instruction that it was not illegal to possess hydroco-done if it had been prescribed. Id. The defendant argued, in pertinent part, that the first part of section 893.135’s introductory phrase of “Except as authorized in this chapter ... and notwithstanding the provisions of s. 893.13” made available to him the prescription defense provided in section 893.13(6), Florida Statutes (2004), which prohibits simple possession of a controlled substance. Id. at 840-41 (emphasis added). Section 893.13(6), in pertinent part, provides:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practi- timer while acting in the course of his or her professional practice ....

§ 893.13(6)(a), Fla. Stat. (2004) (emphasis added). The state contended that the second part of section 893.135’s introductory-phrase “Except as authorized in this chapter ... and notwithstanding the provisions of s. 893.13 ” precluded any reliance on section 893.13(6)’s prescription defense in trafficking cases. O’Hara, 964 So.2d at 843 (emphasis added).

The second district held that the defendant was entitled to the prescription defense instruction and, accordingly, reversed for a new trial. Id. at 840. Our sister court reasoned, in pertinent part:

The State invokes the oft-cited principle that when the language of a statute conveys a clear and definite meaning, courts will not resort to rules of statutory interpretation and construction. But this seemingly simple principle is subject to a number of qualifications. Under one of these, courts are admonished not to read statutory language in isolation. It must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part. Consistent with this principle, the doctrine of in pari materia requires us to construe statutes relating to the same subject matter together in order to harmonize them and to give effect to the Legislature’s intent. Whenever possible, we must give full force to all statutory provisions.
Applying these principles here, it is obvious that sections 893.13 and 893.135 are part of a statutory scheme addressing the possession of controlled substances, with the latter statute imposing more severe penalties for possessing larger, “trafficking,” amounts of the drugs....
[The legislative] history discloses that [section 893.135’s introductory phrase] was placed in the statute to address a narrow concern: that offenders who possessed trafficking amounts of certain drugs might be prosecuted instead for simple possession under section 893.13, and thus they would be permitted to escape the more severe penalties mandated under the trafficking statute. Nothing in the enactment itself or in the history of the bills that resulted in the new law suggests that the Legislature intended or even contemplated the expansive reading advocated by the State, such that the exceptions or defenses in section 893.13 having nothing to do with penalties also would be excluded from the trafficking statute.

Id. at 843-44 (emphasis added; internal citations omitted).

The second district’s reasoning emphasized above favors the state here. Unlike O’Hara, this case has nothing to do with the exceptions or defenses in section 893.13, and has everything to do with the different penalties under sections 893.13(8) and 893.135(l)(c). Thus, just as our sister court concluded that section 893.135’s introductory phrase operates to prevent offenders who possessed trafficking amounts of certain drugs from being prosecuted for simple possession under section 893.13, we conclude that section 893.135’s introductory phrase also operates to allow the state the discretion to prosecute prescribing practitioners under the second- or third-degree felony penalties of section 893.13(8) or the more severe penalties of a first-degree felony with mandatory minimum sentences and fines under section 893.135(l)(c).

We have considered the defendant’s other arguments and conclude without further discussion that they are without merit.

Based on the foregoing, we reverse the circuit court’s order granting the defendant’s motion to dismiss the charges. We remand for proceedings consistent with this opinion.

Reversed and remanded.

MAY and TAYLOR, JJ., concur.