author: SHEPHERD, J.

text:
    Nicolas FOLEY, Appellant, v. Clyde WILSON, Appellee.
    No. 3D12-3055.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.

      Coffey Burlington and Kimberly Freedman and David A. Freedman, Miami, for appellant.
    Ruben V. Chavez, Coral Gables; Alan Goldfarb, Miami, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   SHEPHERD, J.

This is an appeal of a trial court order dismissing a complaint filed by Nicolas Foley against Clyde Wilson for money damages amounting to one-half of the rental obligation on an apartment they shared, and one-half of the charges incurred on two credit cards used by them. The trial court dismissed the complaint for lack of subject matter jurisdiction. On de novo review, we reverse the decision of the trial court and remand with directions that the complaint be reinstated.

The pleading threshold to invoke the subject matter jurisdiction of the circuit court when, the complaint is one for money damages is not high. The requirement is merely that the amount claimed must be made “in good faith.” Haueter-Herranz v. Romero, 975 So.2d 511, 515 (Fla. 2d DCA 2008) (quoting Grunewald v. Warren, 655 So.2d 1227, 1229 (Fla. 1st DCA 1995)). The threshold routinely is satisfied in the circuit courts of this state with the general allegation that “This is an action for damages in excess of fifteen thousand ($15,000) dollars.... ” Foley made such an allegation here.

Wilson, nevertheless, asserts three grounds for dismissal: (1) the complaint, fairly read, seeks recompense solely for the last three months of the initial lease term ($6,450); (2) if the complaint is read to seek recovery for the renewal lease term (an additional $12,900), then the claim is barred jurisdictionally on its face by the Statute of Frauds; and (3) the amount of the claim for credit card charges being unstated, the jurisdictional threshold is unmet. Each ground is unavailing.

The allegation of the complaint relating to the rental claim reads'as follows:

2. Plaintiff and Defendant previously were co-tenants of a residential apartment in New York. See Lease, attached hereto as Ex. 1. At the request of Defendant, the Lease was extended for an additional term. See e-mail correspondence, attached hereto as Ex. 2. Defendant thereafter defaulted on his rental obligations as a co-tenant, leaving Plaintiff to pay the entirety of the rent for many months. Plaintiff paid in excess of his 50 percent share of this joint obligation.

We disagree with Wilson’s contention that the claim made by this paragraph of the complaint is limited to the last three months of the initial term of the lease. This paragraph of the complaint can be read fairly as a claim against Wilson for half of the rental obligation for both the initial and renewal terms of the lease, or $19,350, an amount in excess of the $15,000 limit to invoke the jurisdiction of the circuit court.

Wilson argues that an e-mail attachment to the complaint expressly contradicts our construction of paragraph 2 of the complaint and therefore is dispositive. We again disagree. First, we note the e-mail on which Wilson relies was written by him, not the plaintiff, Foley. Second, we believe the e-mail itself is ambiguous. We resolve these ambiguities against the defendant, Wilson. See Haueter-Herranz, 975 So.2d at 515 (“Any ambiguity with respect to satisfying the jurisdictional amount should be resolved in favor of the plaintiff.”) (citing Neumann v. Brigman, 475 So.2d 1247, 1249 (Fla. 2d DCA 1985)). Second, because the trial court expressly granted the motion to dismiss on the basis of subject matter jurisdiction and it is not clear beyond peradventure to this reviewing court that the Statute of Frauds is implicated by Foley’s rental obligation claim, we decline to consider this defense ab initio on the record before us.

As to Wilson’s third contention, that the complaint fails to satisfy the subject matter jurisdiction threshold because it fails to allege the amount of credit card debt being sought by Foley, Wilson misses the point. Subject matter jurisdiction does not depend on a preliminary determination of the amount the plaintiff may actually recover or the ultimate disposition of the lawsuit. Haueter-Herranz, 975 So.2d at 515 (quoting Grunewald, 655 So.2d at 1229). To the contrary, subject matter jurisdiction is satisfied at the initial pleading stage by a good faith assertion of the amount involved in the lawsuit. Haueter-Herranz, 975 So.2d at 515 (citing Grunewald, 655 So.2d at 1229). If it becomes apparent during the course of the lawsuit the amount in controversy is less than the jurisdictional amount, then the case can be dismissed or transferred to the county court. See Fla. R. Civ. P. 1.140(h)(2) (stating defense of lack of subject matter jurisdiction may be raised at any time). Foley’s general allegation that the action is one for recovery of an amount in excess of $15,000, in combination with the allegation he is owed an unspecified amount of recompense for credit card debt, is sufficient to meet the subject matter threshold at this stage of the case.

Reversed and remanded with directions to reinstate the complaint.

      . We express no opinion on any of the other grounds asserted by Wilson for dismissal of the complaint.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Cordero NEELY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1716.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    Rehearing Denied May 10, 2013.

      Robert Finlay, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, Miami, for appellee.
    Before ROTHENBERG, LAGOA, and FERNANDEZ, JJ.

      . Judge Rothenberg did not participate in oral argument.

   LAGOA, J.

Cordero Neely (“Neely”) appeals from his conviction and sentence. Neely was found guilty by a jury of first-degree murder, armed robbery, attempted armed robbery while wearing a mask, and armed carjacking. He was sentenced to life in prison on all four counts. On appeal, Neely raises three issues: (1) whether the trial court erred in denying Neely’s motion to suppress his post-arrest statement because he did not properly waive his Miranda rights; (2) whether the trial court abused its discretion in declining Neely’s request to instruct the jury on the “independent act” defense; and (3) whether the life incarceration of a juvenile without parole is cruel and unusual punishment. For the reasons expressed below, we affirm Neely’s convictions but remand for a new sentencing hearing in light of Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

I. FACTUAL AND PROCEDURAL HISTORY

During the early morning hours of January 30, 2005, Neely, a juvenile, and two of his co-defendants, Trevor Lyons (“Lyons”) and Jesus Perez (“Perez”), robbed a young couple at gunpoint. Neely, Lyons and Perez, along with their friend Daleon Brown (“Brown”), were driving home from a club when they observed the couple sitting in a park talking. After Perez and Lyons suggested that they rob the couple, Perez stopped the vehicle. Perez and Lyons then exited the vehicle with their faces covered and proceeded to rob the victims at gunpoint. During the course of the robbery, Perez handed his gun to Neely and Neely continued to hold the victims at gunpoint.

After taking items from the. victims, including car keys, the group returned to their vehicle. As they started to leave the scene, Perez discovered that they had obtained the victims’ car keys in the robbery and Perez decided that he wanted to take the car. The group then stopped, and Perez went to the victims’ car, opened the driver’s door and entered the car. As Perez tried to pull away, however, the male victim entered the car on the driver’s side and tried to stop him. A struggle ensued in the car between Perez and the victim. Neely and Lyons then exited their vehicle and came to Perez’s aid. They pointed their guns at the male victim and a shot was fired into the vehicle, killing the male victim and injuring Perez. Neely admitted ordering the victim to let Perez go, but stated that he did not fire into the car. Lyons, Neely and an injured Perez then ran back to their vehicle and the group drove away.

Neely subsequently was arrested and taken into custody. Following his arrest, Neely was interviewed by Sergeant Bill Williams (“Williams”). Williams testified that prior to commencing the interview he asked Neely whether there was anyone he could contact, such as a parent or guardian, to let them know that he had been arrested. Neely responded no and said that his mother had passed away, he did not know who his father was, and he had no siblings. Neely provided Williams with the phone number for a person named “Tray,” with whom he had been staying. Williams testified that he attempted to contact “Tray,” but the individual was uncooperative and failed to provide any information relating to Neely’s parent or guardian.

After attempting unsuccessfully to contact a parent or guardian on Neely’s behalf, Williams administered Miranda warnings to Neely both in written and verbal form. Neely affirmed each right, both verbally and in writing, and waived his rights in writing on a waiver form. Williams also asked Neely whether he was under the influence of drugs or alcohol or whether he was taking any medication, and Neely responded in the negative both verbally and in writing. Neely also acknowledged, both verbally and in writing, that he was able to read and write English and denied having any mental disorders. Williams testified that Neely was alert and coherent throughout this process and he never gave any indication that he did not understand his rights. Neely gave a statement, admitting his involvement in both the armed robbery and armed carjacking and detailing his co-defendants’ participation. The statement was videotaped and transcribed by a court reporter.

Neely moved to suppress the statement given to the police. The trial court denied that motion and the statement was admitted at trial. At trial, the trial court also denied Neely’s request for an “independent act” instruction. The jury found Neely guilty of first-degree murder, armed robbery, attempted armed robbery while wearing a mask, and armed carjacking.

Neely received four consecutive life sentences. This appeal timely followed.

II. ANALYSIS

A. Suppression of Post-Arrest Statement

Neely argues on appeal that his post-arrest statement should have been suppressed because he did not properly waive his Miranda rights. He claims that he lacked the requisite level of comprehension to knowingly and intelligently waive his rights. Neely also argues that his post-arrest statement should have been suppressed because the police failed to notify his parent, guardian or legal custodian. Neely contends that Williams was aware of his juvenile runaway status and involvement in the juvenile justice system and, therefore, should have attempted to contact someone involved with his cases, such as a probation officer or case manager.

The voluntariness of a juvenile’s confession is determined by an examination of the totality of the circumstances surrounding the confession. See Ramirez v. State, 739 So.2d 568 (Fla.1999). The relevant Ramirez factors to be applied in analyzing the voluntariness of a juvenile’s confession include: (1) the manner in which the Miranda rights were administered, including any cajoling or trickery; (2)the suspect’s age, experience, background and intelligence; (3) the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning; (4) the fact that the questioning took place in the station house; and (5) the fact that the interrogators did not secure a written waiver of Miranda rights at the outset. Id. at 576; see also McIntosh v. State, 37 So.3d 914, 916-17 (Fla. 3d DCA 2010); Brancaccio v. State, 773 So.2d 582, 583-84 (Fla. 4th DCA 2000).

The trial court properly denied Neely’s motion to suppress his post-arrest statement as his Miranda waiver was knowing, voluntary and intelligent. The record reflects that Neely understood English and readily answered questions. He had no trouble understanding the questions put to him during the interview and Williams testified that he was alert and coherent throughout the interview process. Williams administered Miranda warnings verbally to Neely as he followed along with his own written copy and Neely affirmed, both verbally and in writing, that he understood each right. He also executed a written Miranda waiver form.

At the suppression hearing, Neely presented evidence of low reading skills and attention deficit/hyperactivity disorder in support of his argument that he lacked the requisite level of comprehension to knowingly and intelligently waive Miranda. However, “[djiminished mental capacity does not in and of itself affect the admissibility of a confession, absent improper coercive police conduct.” McIntosh, 37 So.3d at 917.

Neely argues that the police’s failure to contact a parent, guardian or legal custodian constituted improper coercive police conduct. However, as the court made clear in Frances v. State, 857 So.2d 1002 (Fla. 5th DCA 2003):

There is no constitutional requirement that police notify a juvenile’s parents prior to questioning the juvenile. Likewise, there appears to be no affirmative obligation on the part of the police to extend an opportunity to a juvenile to speak with his parents prior to questioning where the juvenile does not request such opportunity.

Id. at 1003-04 (citations omitted).

We are aware that section 985.101(3), Florida Statutes (2010), requires police to attempt to notify a juvenile’s parent, guardian, or legal custodian upon taking the juvenile into custody. However, the failure to comply with this statutory requirement does not render a confession involuntary. See Ramirez, 739 So.2d at 577. While “[t]he fact that a juvenile’s confession was given before he had the opportunity to talk with his parents or an attorney is certainly a factor militating against its admissibility^] ... the existence of this fact does not preclude a finding of voluntariness depending upon all of the other circumstances surrounding the confession.” Doerr v. State, 383 So.2d 905, 907 (Fla.1980) (quoting Doerr v. State, 348 So.2d 938, 940-41 (Fla. 2d DCA 1977)). “[P]arental notification is merely one of several ‘totality of circumstances’ factors that the trial court must examine in weighing the admissibility of a juvenile confession.” McIntosh, 37 So.3d at 918.

Here, when asked by Williams if there was anyone he could contact on his behalf, Neely did not mention his foster parents, nor did he ever ask to speak to them. On the contrary, Neely responded that he had no immediate family Williams could contact and instead gave Williams a phone number for an individual named “Tray,” with whom Williams briefly spoke, but found to be uncooperative. Neely therefore fails to identify any improper or coercive conduct on the part of the police that would require the suppression of his confession.

Accordingly, we conclude that, given the totality of the circumstances, the trial court did not commit reversible error, and Neely’s post-arrest statement was not rendered involuntary because his foster parents were not present. The record reflects that the manner in which the police administered the Miranda warnings was proper and did not interfere with Neely’s understanding of his rights. Moreover, in ruling that Neely’s Miranda waiver and post-arrest statement were voluntary, the trial court properly took into consideration Neely’s age, experience, education, background, and intelligence, as well as the written waiver and videotaped interview.

B. Denial of “Independent Act” Instruction

Neely also argues on appeal that the trial court abused its discretion when it rejected his request for an “independent act” instruction because there was evidence to support his theory of defense. Our review of the record shows that the trial court did not abuse its discretion by refusing to give the jury instruction on “independent act” because the evidence did not support the instruction.

A defendant is entitled to have the jury instructed on the law applicable to his theory of defense. No instruction is necessary, however, where there is no evidence to support the theory. Ray v. State, 755 So.2d 604 (Fla.2000). The “independent act” doctrine “arises from circumstances where, after participating in a common plan or design, one co-felon does not participate in acts, committed by another co-felon, which fall outside of, and are foreign to, the common design of the original collaboration.” Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452, 453 (Fla. 3d DCA 1990)); see also Ray, 755 So.2d at 609; Fla. Std. Jury Instr. (Crim.) 3.6(l), Independent Act. However, when the defendant was a willing participant in the underlying felony and the murder resulted from forces that they set in motion, the “independent act” instruction is inappropriate. See Lovette v. State, 636 So.2d 1304 (Fla.1994); Perez v. State, 711 So.2d 1215 (Fla. 3d DCA 1998).

We find that the trial court correctly concluded that this was one continuous incident. The evidence showed, and Neely himself acknowledged in his statement, that the group did not flee the scene after the robbery, but rather, had only begun to leave the scene when Perez stated that he wanted to take the victims’ car. The group then waited as Perez entered the victims’ vehicle and began to drive away with it. When the male victim entered his vehicle and began to struggle with Perez, Neely held the gun on the male victim. Thus, it is undeniable that Neely participated in the acts which led to the victim’s death. Death was a reasonably foreseeable consequence of the acts in which Neely was a participant. Accordingly, we find that the trial court did not abuse its discretion in declining to instruct the jury on the “independent act” defense.

C. Life Incarceration of a Juvenile Without the Possibility of Parole

Neely received four consecutive life sentences for the following offenses: first degree murder, armed robbery, attempted armed robbery while wearing a mask and armed carjacking. Under Florida law, the offense of first degree murder is a capital felony, resulting in two possible sentences: death or life without parole. See § 775.082, Fla. Stat. (2008). In light of the recent decision by the United States Supreme Court in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), we reverse and remand for resen-tencing. In Miller, the Supreme Court held that mandatory life imprisonment without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. However, as this Court observed in Hernandez v. State, 117 So.3d 778, 782, 2013 WL 1136434:

Miller provides little guidance on how to proceed with resentencing juveniles convicted under mandatory sentencing schemes. Under Miller, while a sentence of life without parole remains constitutional in homicide cases, the sentencing court must be free to impose a lesser sentence when the defendant’s youth or the circumstances of the crime so indicate. Florida Statutes, however, do not currently provide for lesser sentences in first-degree murder cases. Miller has thus opened a breach in Florida’s sentencing statutes.

Given this uncertainty, this Court prudently adopted in Hernandez the following approach articulated by our sister court, the First District, in Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012):

Under Miller, a sentence of life without the possibility of parole remains a constitutionally permissible sentencing option. A discourse by this Court on other sentencing options is premature.... The better course calls for this Court to exercise restraint and for the parties to make their case before the trial court, where testimony may be taken, evidence presented, and argument made on all material issues to include the potential range of sentencing options.

Hernandez, 117 So.3d at 784 (quoting Washington, 103 So.3d at 920).

Because Miller did not categorically bar a life sentence without parole for a juvenile, this decision does not preclude the trial court from again imposing a life term without possibility of parole should the trial court upon reconsideration deem such sentence justified. See Washington, 103 So.3d at 920. However, “the trial court must conduct an individualized examination of mitigating circumstances in considering the fairness of imposing such a sentence.” Id.

III. CONCLUSION

For the foregoing reasons, we affirm Neely’s convictions but vacate the sentences and remand for resentencing.

Affirmed in part; reversed and remanded in part.

      . Following oral argument, the Court stayed the case pending the United States Supreme Court’s decision in Miller.

      . In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Supreme Court held that the Eighth Amendment prohibits the death penalty for juveniles.


author: SUAREZ, J.

text:
    Niel PAUL, Petitioner, v. Timothy RYAN, Director Miami-Dade Department of Corrections and Rehabilitation and the State of Florida, Respondents.
    No. 3D13-982.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    Carlos J. Martinez, Public Defender, and Daniel J. Tibbitt, Assistant Public Defender, for petitioner.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for the State of Florida, respondent.

Niel Paul seeks a writ of habeas corpus to remedy his detention without bond. At the hearing on the bond motion, the trial court failed to determine whether Paul’s failure to appear was willful. See Williams v. State, 59 So.3d 387 (Fla.2011). As such, we grant Niel Paul’s petition for writ of habeas corpus, quash the order below and remand to the trial court only to the extent that we direct the trial court to set an expedited bond hearing for the purpose of determining whether the defendant is entitled to reasonable bond. The trial court’s determination shall include, but is not limited to, Paul’s willfulness in failing to appear on his scheduled trial date.

Petition granted; case remanded for an expedited bond hearing.

      . The uncontested evidence at the bond hearing indicated that Paul’s failure to appear was not willful. The trial court did, however, make the necessary findings that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” Art. I, § 14, Fla. Const.; § 907.04 l(4)(c) 7, Florida Statutes (2010).


text:
    Barry BERK, et al., Appellants, v. Honey BERK, Appellee.
    No. 3D12-3216.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    Sinclair, Louis, Heath, Nussbaum & Za-vertnik and Marshall Dore Louis, Miami, for appellants.
    Weinberg, Wheeler, Hudgins, Gunn & Dial and Joshua S. Winegar and S. Alan Stanley; Penn B. Chabrow, Miami, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   SHEPHERD, J.

Barry Berk and Peggy Berk appeal an order denying their motion to dismiss and to compel arbitration. The trial court denied the motion on the ground there exist five other cases, brought by Honey Berk against her brother and sister, Barry and Peggy Berk, in the same probate division as the case before us, all of which the court found were “inextricably intertwined.” The case before us is indisputably based upon an Operating Agreement to which Honey is a signatory. The other five cases are not, and there is no evidence of waiver by Barry or Peggy of the concededly valid arbitration clause in the Operating Agreement.

Reversed and remanded with directions to the trial court to grant Barry and Peggy Berk’s motion to compel arbitration. See Apartment Inv. & Mgmt. Co. v. Flamingo/S. Beach 1 Condo. Ass’n, 84 So.3d 1090 (Fla.2012).

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    Jose and Aracelli MENDOZA, Appellants, v. CHASE HOME FINANCE, LLC, Appellee.
    No. 3D12-1881.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    De Armas, Millich & Rice, PL, and Shaun E. Rice, and Elizabeth DeArmas, for appellants.
    Choice Legal Group, P.A. and William David Newman, Jr., and Karene L. Tygen-hof, Fort Lauderdale, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   On Confession of Error

SCHWARTZ, Senior Judge.

The defendants appeal from an order denying their Florida Rule of Civil Procedure 1.540(b) motion to vacate a final judgment of foreclosure and the ensuing sale and certificate of title. The basis of the appeal is that the defendant-mortgagors did not receive notice of the non-jury trial which resulted in the judgment and orders in question. Upon consideration of an appropriate confession of error by the mortgagee, and our own review of the record, we must concur that the rule 1.540(b) motion should have been granted on the ground raised below. Accordingly, the final judgment of foreclosure entered on May 26, 2011, the certificate of sale issued July 11, 2011, and the certificates of disbursement and title issued December 7 and 9, 2011 and November 14, 2012, are vacated and this cause is remanded for further proceedings.

Vacated and remanded.

      . The trial judge based his ruling on the established fact that there was no cognizable defense to the foreclosure action so that the same result would have occurred in any event. While we both agree with this conclusion arid are sympathetic with the considerations which drove it, the law is clear that, in the absence of an appropriate notice of trial, none of these factors make any difference. See Goudie v. Garcia, 584 So.2d 100 (Fla. 3d DCA 1991); Shlishey the Best, Inc. v. Citifinancial Equity Servs., Inc., 14 So.3d 1271 (Fla. 2d DCA 2009).


author: SALTER, J.

text:
    Leonor Sarmiento CAMPEROS, Appellant, v. Tomas Andres Vazquez ESTRELLA, Appellee.
    No. 3D12-1749.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    Devine Goodman Rasco & Wells, and Robert J. Becerra, Miami, for appellant.
    Daniel H. Forman, Miami; Williams & Connolly, and Peter J. Kahn and Jonathan M. Landy (Washington), as Pro Hac Vice, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Leonor Sarmiento Camperos (Sarmien-to) appeals a non-final order denying her motion to dismiss a circuit court lawsuit against her on grounds of forum non con-veniens. We reverse and remand the case so that the trial court may articulate its findings on each of the “Kinney factors” determinative of such motions.

A trial court’s order denying a motion to dismiss on grounds of forum non conveniens is subject to reversal and remand as insufficient where, as here, there is neither (1) “meaningful analysis” in the order, nor (2) a transcript reflecting “an adequate analysis of the Kinney factors during the hearing itself....” ABA Capital Mkts. Corp. v. Provincial De Reaseguros C.A., 101 So.3d 385, 388 (Fla. 3d DCA 2012) (citation omitted).

We find no merit in the argument by the plaintiff/appellee that this Court’s summary opinion in the separate appeal brought by a co-defendant in the underlying circuit court action (also denying a motion to dismiss for forum non conve-niens) binds the trial court or this Court regarding Sarmiento’s motion. We authorize, but do not direct, the trial court to allow supplemental briefing (including an evidentiary hearing, if considered appropriate by the trial court) regarding the widely-publicized developments in Venezuela during the pendency of this appeal. We express no opinion regarding those developments or the trial court’s discretion to consider them.

Reversed and remanded for further proceedings consistent with this opinion.

      . It should be noted at the outset that the circuit judge who heard the motion to dismiss in May 2012 was transferred to a different division of the court. The order under review was entered by the successor judge eight months later. The delay in the submission and entry of the order below is not attributable to either judge.

      . Kinney Sys., Inc. v. Cont'l Ins. Co., 674 So.2d 86 (Fla.1996) (codified in Fla. R. Civ. P. 1.061).

      . de la Rosa v. Estrella, 109 So.3d 868 (Fla. 3d DCA 2013).


author: PER CURIAM.

text:
    Givanni Torrell PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-289.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.
    Givanni Torrell Parks, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. Givanni Torrell Parks filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and his motion was denied on September 19, 2012. The denial order was served on Parks by mail on September 21, 2012. Parks had fifteen days under Rule 3.850(h), plus three days for mailing under Rule 3.070, or until October 9, 2012, to file a motion for rehearing. He filed his motion on October 10, 2012. The motion for rehearing was denied on January 7, 2013, and Parks filed his notice of appeal on January 25, 2013. Because his motion for rehearing was not timely filed, it did not delay rendition of the underlying order and this Court is without jurisdiction to consider this appeal. Fla. R.Crim. P. 3.850(h); see also Craft v. State, 23 So.3d 1255 (Fla. 3d DCA 2009); Reid v. Cooper, 955 So.2d 31, 32 (Fla. 3d DCA 2007)(recognizing that an untimely motion for rehearing is a nullity and does not toll the time in which to file an appeal).

Dismissed.

      . An inmate's document is deemed "filed” when he or she places it in the hands of prison officials. See Haag v. State, 591 So.2d 614 (Fla.1992).


text:
    Andrew TAGLIAMONTE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-1001.
    District Court of Appeal of Florida, Third District.
    April 19, 2013.

      Gennaro Cariglio Jr., Miami, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nikole Hiciano, Assistant Attorney General, Miami, for respondent.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SHEPHERD, J.

Andrew Tagliamonte petitions for a Writ of Habeas Corpus, alleging the trial court abused its discretion by sua sponte modifying the conditions of his pretrial release bond. We agree and grant the petition.

On February 28, 2013, Andrew Tagliam-onte was arrested for attempting to sell oxycodone to an informant. Andrew Ta-gliamonte also offered to sell the informant cannabis which he claimed to have in his home. This led the officers to search Andrew Tagliamonte’s home, which he shared with his wife and their three-year-old son. Officers found cannabis in the refrigerator and both Mr. and Mrs. Tagliamonte were arrested.

The State filed various cases against the Tagliamontes. Case No. F13-4914 charged Andrew Tagliamonte with first-degree drug trafficking, arising from the February 28, 2013, attempted sale of oxy-codone. Case No. F13-4982 charged Andrew Tagliamonte with first-degree drug trafficking, arising from a December 2012 sale of oxycodone. Case No. F13-4983 charged Andrew Tagliamonte with one count of possession/intent to sell cannabis and one count of child neglect, arising from the cannabis found in the refrigerator. Case No. F13-4896 charged Marisa Tagliamonte with possession/intent to sell cannabis, arising from the cannabis found in the refrigerator. Apparently, the first appearance/bond hearing on all cases was held on March 1, 2013, at which time bond was set and an order entered directing Andrew Tagliamonte to stay away from Marisa Tagliamonte.

Subsequently, the State dismissed the charges against Marisa Tagliamonte. Andrew Tagliamonte moved to modify the conditions of his release, asking the court to remove the order to stay away from his wife. The trial court acceded to Andrew Tagliamonte’s request, but, based on the charge of child neglect, sua sponte entered an order that he stay away from his minor son. In so doing, the trial court abused its discretion.

Florida Rule of Criminal Procedure 3.131(d)(2) authorizes the State to apply for modification of pretrial release conditions, but only on “showing good cause and with at least 3 hours’ notice to the attorney for the defendant.” A trial court is without authority sua sponte to modify a previously set pretrial release bond. See Cameron v. State, 127 So.3d 549, 550, 2012 WL 5349405, *1 (Fla. 4th DCA 2012) (granting a writ of habeas corpus where trial court sua sponte “added significant and substantial conditions” to defendant’s release bond); Simmons v. State, 915 So.2d 732 (Fla. 2d DCA 2005) (holding trial court may not increase bond on grounds not raised by the State without prior notice to defendant); Griffin v. McRay, 890 So.2d 341 (Fla. 3d DCA 2004) (granting habeas corpus, stating State did not move to modify pretrial release conditions and did not establish increased bail was warranted by information not available to the magistrate setting initial pretrial release conditions); Bowers v. Jenne, 710 So.2d 681, 681 (Fla. 4th DCA 1998) (stating “trial court impermissibly increased the bond on its own motion, without adequate prior notice to the [defendant]”).

We sympathize with the court’s concern for the welfare of the minor child under the circumstances of this case. However, as the State acknowledges, any issue of child endangerment should be referred to the Department of Children and Families. The petition, therefore, is granted, without prejudice to the State taking appropriate steps to refer the matter to the Department.

This opinion shall take effect immediately notwithstanding the time for filing a motion for rehearing.

Petition granted.


text:
    LOS SUENOS CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D11-3276.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied June 19, 2013.
    Mager Lawyers, LLC, and Scott A. Mager, Fort Lauderdale, for appellant.
    Hinshaw & Culbertson, LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins. Corp., 112 So.3d 541 (Fla. 3d DCA 2013).


author: FERNANDEZ, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Gladys ZUNJIC, Appellee.
    No. 3D12-1286.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Hinshaw & Culbertson, and Maureen G. Pearcy and Paul R. Wallace, Coral Gables, for appellant.
    Mintz Truppman, and Timothy H. Crutchfield, Miami, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

Citizens Property Insurance Corporation appeals the trial court’s order granting appellee Gladys Zunjic’s motion to compel appraisal and order denying without prejudice Citizens’ motion for summary judgment. Recognizing that our holding in Citizens Prop. Ins. Corp. v. Casar, 104 So.3d 384 (Fla. 3d DCA 2013), is directly on point, we reverse, as there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy.

Citizens issued a residential homeowners’ policy to Zunjic. “Section 1— Conditions,” subsection 6(b), of the policy contained the following appraisal clause:

Appraisal. If you and we fail to agree on the amount of loss, either may request an appraisal of the loss by presenting the other party with a written request for appraisal of the amount of loss. If the other party agrees in writing to participate in appraisal, then appraisal shall proceed pursuant to terms of a written agreement between the parties.

(emphasis added). Under the previous standard appraisal clause used for years by Citizens, if there was a disagreement over the amount of the loss and all conditions precedent were met, the party was entitled to demand appraisal. The new appraisal clause at issue contained substantially different language.

Zunjic filed a claim for damaged tile on her property for which Citizens issued to her a $28,341.39 payment. Zunjic disagreed with the award and requested appraisal. Citizens acknowledged receipt of her request and wrote to Zunjic stating that it previously provided a proposed appraisal agreement to Zunjic. Citizens wrote: “If you do not agree with the elements of the [appraisal agreement drafted by Citizens], please revise and submit for our review”. Then, twice in April 2011 and twice in June 2011, Citizens wrote to Zunjic regarding the proposed appraisal agreement, requesting that Zunjic review and sign the agreement or provide Citizens with her revisions. Zunjic never responded.

Instead, Zunjic filed a complaint seeking declaratory relief and to compel appraisal. Citizens moved to dismiss the count seeking to compel appraisal as improper under Florida law.

Zunjic then moved to compel appraisal. Citizens, in turn, sought summary judgment, contending that the hew appraisal policy language mandated, as a condition precedent to appraisal, that the parties agree in writing to the appraisal terms. Alternatively, Citizens requested an evi-dentiary hearing to determine whether appraisal was ripe.

The court subsequently ordered the parties to appraisal. The court recognized that it had not yet ruled on whether the conditions precedent to appraisal were met and that issue would be addressed at a future hearing. The court denied Citizens’ summary judgment motion without prejudice and denied Citizens’ motion to dismiss Zunjic’s petition to compel appraisal.

We agree with Citizens that appraisal is improper at this time. The new appraisal clause requires, as a condition precedent, that the parties enter into a written agreement setting forth the terms of the appraisal. The only evidence before the trial court is that no such agreement exists. Consequently, appraisal is improper at this time. We conclude that this case is directly on point with Citizens Prop. Ins. Corp. v. Casar, 104 So.3d 384 (Fla. 3d DCA 2013), which requires a written agreement between the parties before appraisal can occur.

Florida law does not require an insurer to participate in appraisal absent a written agreement between the two parties. See Casar, 104 So.3d at 385. What is appraised and whether a party can be compelled to appraisal depend on the contract provisions. Id. at 385-86 (citing Gibney v. Pillifant, 32 So.3d 784, 785 (Fla. 2d DCA 2010)) (“Absent an ambiguity, the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls.”) (citations omitted).

Here, Citizens complied with the appraisal provisions of the policy. Citizens forwarded Zunjic a copy of the Agreement for Appraisal, and repeatedly reminded Zunjic that she enter into the proposed agreement or provide requested revisions. Zunjic never agreed to the terms, thus, appraisal could not take place. The trial court thus had no basis to compel Citizens to appraisal. Therefore, we conclude that appraisal is improper at this time, and we reverse the trial court’s order compelling Citizens to appraisal.

Reversed and remanded.


author: LAGOA, J. SCHWARTZ, Senior Judge

text:
    Phillip S. DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-206.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Rehearing Denied June 11, 2013.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Michael W. Mervine, Assistant Attorney General, Miami, for appel-lee.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Phillip Davis (“Davis”) appeals his judgment of conviction and sentence. Davis raises several issues on appeal regarding his conviction and sentence. We affirm as to both the conviction and sentence, but write to address the issue of vindictive sentencing raised by Davis. For the reasons set forth below, we find no merit to Davis’s argument and affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Davis was charged with one count each of organized fraud, aggravated white-collar crime, and third-degree grand theft; two counts of second-degree grand theft; and twenty-five counts of money laundering. Prior to the commencement of trial, the trial court inquired about the status of plea negotiations between the State and Davis. The following exchange occurred between the trial court, counsel and Davis:

[STATE]: Judge the State has offered a plea to a single count of aggravated white collar crime, which is count two of the information. First degree felony, level nine open to the Court. The guidelines on that would score out to bottom of 48 month and on top of 30 years.
[DEFENSE COUNSEL]: And Judge, that’s the first I’ve heard of this plea offer.
THE COURT: Okay.
[DEFENSE COUNSEL]: The plea that was given to me before was, basically, an open plea to the Court. There was no discussion or reference by the State to nolle prose [sic] of any particular counts.
THE COURT: All right. Well now you know. Mr. Davis’s plea offer was four years to 30 years with a plea straight up or open to the Court with no promises. All I say to that is, thank you.
THE COURT: Okay.... So why don’t you speak to your client[ ] about that plea. I don’t know anything about the case, so I would have to hear extensively from the lawyers before impose [sic] a sentence.
[DEFENSE COUNSEL]: Judge, I—
THE COURT: But they would know that the bottom is four years.
[DEFENSE COUNSEL]: Judge, I can tell you this, at least from my discussions with Mr. Davis, he’s not interested in any pleas that would have the bottom of the guidelines of state imprisonment. We had discussed in generalities based upon what the State had told me before.
THE COURT: All right. So let me just colloquy him on that.
Mr. Davis, raise your right hand, please. (Thereupon, Mr. Phil Davis was duly sworn and testified under oath as follows:)
THE COURT: Okay. You’ve heard the number, you heard the plea. The State’s new plea offer this morning in essence, a guideline plea straight up to the Court with the possibility of a sentence four years to 30 years. Are you interested in pleading guilty within that — knowing that your sentencing would be anywhere between that range?
[THE DEFENDANT]: It could be 30 years.
THE COURT: Okay.
[THE DEFENDANT]: Could be as high as 30 years or as low as four years.
THE COURT: That’s right.
[THE DEFENDANT]: Straight up to the Court. No, ma’am.
THE COURT: Okay.
THE COURT: Well, let me ask you this. Would ... you take four? Bottom of the guidelines?
[THE DEFENDANT]: No, Your Hon- or.
THE COURT: All right. Because I consider four right now. Okay. So I don’t know anything about the case, but it is a guideline in the sentence, so all right. Very well.

The trial court then proceeded to try the case. The jury convicted Davis of one count of organized scheme to defraud $50,000 or more, one count of aggravated white-collar crime, two counts of grand theft of more than $20,000 but less than $100,000, and five counts of money laundering. At sentencing, the State recommended to the trial court a sentence of twenty years imprisonment. Davis’s counsel asked that the trial court sentence Davis to probation, not to exceed fifteen years, with one year of community control. After hearing from various family members and other character witnesses who appeared on behalf of Davis and reviewing the pre-sentence investigation reports, the trial court imposed a sentence of twenty years in state prison, followed by ten years of probation, for which restitution was ordered as a special condition in the amount of $82,825.30. This appeal ensued.

II. ANALYSIS

Davis argues that the sentence imposed on him was vindictive. He contends that a presumption of vindictiveness arose in this case because of the trial court’s plea discussion with him, and because of the great disparity between the plea offer and the twenty-year sentence eventually imposed.

The Supreme Court of Florida addressed the issue of judicial plea bargaining and vindictiveness in State v. Warner, 762 So.2d 507 (Fla.2000). In Warner, the court refused to proscribe judicial participation in the plea bargaining process, fashioning instead several restrictions designed to limit judicial involvement so as “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Id. at 513. To this end, the court stated that trial courts must not initiate plea dialogues. Id. However, they may, at their discretion, participate in such discussions upon the request of a party. Id.

Once involved, Warner states that “the trial court may actively discuss potential sentences and comment on proposed plea agreements!, and] [t]he judge may state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense.” Id. at 514. “The question for the court’s consideration is: ‘Knowing what you know today, what do you think the sentence would be if the defendant pled guilty, as charged?’” Id. To further avoid the potential for coercion, the court also stated that “a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial,” and required that a record be made of all plea discussions involving the court. Id.

The Supreme Court of Florida addressed the issue of vindictiveness again in Wilson v. State, 845 So.2d 142 (Fla.2003). In Wilson, the court stated that Warner did not mandate a presumption of vindictiveness in all cases where a higher sentence was imposed after the judge had participated in the plea discussions. Id. at 152. Rather, the court concluded that “a totality of the circumstances review [was] the more appropriate analysis to employ to determine whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.” Id. at 156. The court explained that:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of Warmer; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

845 So.2d at 156 (internal citations and footnote omitted).

In Bell v. State, 847 So.2d 558 (Fla. 3d DCA 2003), this Coui't concluded that the defendant failed to establish vindictiveness despite a significant disparity between the State’s plea offer and the sentence eventually imposed by the trial court. In Bell, the trial court inquired as to the status of plea negotiations. The State explained that it extended an offer of 364 days in jail followed by four years of probation and 200 hours of community service. The defendant stated that he was unwilling to accept the State’s offer. The trial court then indicated that it would be willing to eliminate the community service hours, but would not otherwise alter the State’s terms. The defendant reiterated that he would not accept the plea. The case proceeded to trial, and after hearing all of the evidence in the ease, including the victim’s testimony, the defendant was sentenced to twenty years.

In rejecting the defendant’s argument that the trial court’s plea discussion and the disparity between the State’s plea offer and the subsequent twenty year sentence established vindictiveness, this Court in Bell stated:

In this case, the State had made a plea offer which was pending. Upon inquiring about the status of the plea negotiation, the defendant explained to the court why he was unwilling to accept the state’s offer. The court then indicated the one modification that it would entertain, the elimination of the community service hours. This was permissible under State v. Warner, 762 So.2d 507, 514 (Fla.2000). The court refrained from becoming an advocate for the State’s plea offer. The court did not imply or state that there would be any future adverse consequences from failure to accept the plea offer. See Wilson v. State, 845 So.2d at 158. Upon the defendant’s rejection of the offer, the court proceeded with the pending matters and preparation for trial.

Id. at 564. Moreover, in Bell the trial court’s remarks at sentencing made clear that the sentence imposed was based upon the evidence presented at trial, in particular “the severe impact on the victim and that this serious crime could have been even worse had the victim not escaped.” Id.

Here, like in Bell, the trial court inquired about the status of the plea negotiation, and defense counsel explained to the trial court why Davis was unwilling to accept the State’s offer, i.e., Davis was unwilling to consider any offer that “would have the bottom of the guidelines of state imprisonment.” The trial court then engaged in a colloquy with Davis in which the judge asked Davis whether he would be willing to accept the State’s plea offer and Davis expressed concern about the potential of being sentenced to thirty years under the guidelines. The trial court then asked Davis whether he would be willing to accept four years, the minimum sentence under the guidelines. See generally Vondervor v. State, 847 So.2d 610, 614 (Fla. 5th DCA 2003) (“Prior to trial, a judge may ask the attorneys if a plea offer has been extended, and may ask the defendant if he is aware of a pending plea offer without violating Warner ’s restrictions.”). The trial court expressed her willingness to consider four years given her knowledge of the case at that point. This is permissible under Warner. See Warner, 762 So.2d at 514 (“The judge may state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense.”).

Furthermore, the trial court did not depart from its role as an impartial arbiter. The trial court did not in any way urge the defendant to accept the plea, or imply or state that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial. Indeed, unlike the trial court in Bell, the trial court here did not even suggest an alternative plea it would entertain. Cf. Charles v. State, 816 So.2d 731, 733-34 (Fla. 3d DCA 2002) (reversing sentence as vindictive where judge made plea offer to defendant, which defendant rejected, and judge made statements on the record indicating that defendant “made the biggest mistake of his life” in rejecting plea offer and “the Court’s disposition of this matter would have been even more lenient if, in fact, [defendant] had acknowledged [ ] responsibility and had entered a guilty plea to the charges”).

While there was a significant disparity between the offer and the sentence eventually imposed by the trial court, the judge made clear the reason for this at the sentencing hearing. At the time of the plea discussion, the trial court had not yet heard any testimony or evidence concerning Davis’s scheme to defraud. See Warner, 762 So.2d at 514 (“A judge’s preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge’s sentencing discretion.”). The trial court explained at the sentencing hearing that the harsher sentence was based on testimony and evidence adduced at trial which led the court to believe that the scheme at issue was sophisticated in nature, involving great planning and premeditation. Such remarks indicate a valid and permissible explanation for the increase in sentence that is unrelated to Davis’s choice to exercise his right to a trial.

Accordingly, we affirm Davis’s convictions and sentence.

AFFIRMED.

LOGUE, J., concurs.

SCHWARTZ, Senior Judge

(dissenting in part).

In my judgment, the circumstánces of this case, in which the trial court (a) not only participated in the plea negotiations conducted before trial, but itself and on its own motion offered the defendant a bottom-of-the-guidelines four-year sentence if he agreed, as he did not, to plead guilty, and (b) imposed a twenty-year sentence after he was found guilty by the jury, with no satisfactory reason for the discrepancy, present a near-classic case of what the law terms “vindictive sentencing.” See State v. Warner, 762 So.2d 507 (Fla.2000); Wilson v. State, 845 So.2d 142 (Fla.2003); Dominguez v. State, 863 So.2d 407 (Fla. 3d DCA 2003); Wilson v. State, 951 So.2d 1039 (Fla. 3d DCA 2007). The defendant should therefore be resentenced by another judge.

I agree with affirmance of the conviction.

      .
      THE COURT: This case — we didn't do a lot of pretrial motions or litigation, so I really didn’t know the scheme or the evidence....

      .
      THE COURT: ... I paid very close attention to the evidence presented in this case. I took copious notes. I listened to your testimony very carefully, Mr. Davis....

      I believe that this scheme that you both designed was simple but done with great planning and premeditation, and, therefore, sophisticated. I say that because it entailed forming corporations, bank accounts, enlisting an individual to serve as the president of one manning [sic] corporation, and that takes time and effort....

      . The pertinent colloquy is as follows:
      THE COURT: So 13.8 years, .875 years to 85 years. What plea is offered from the Plaintiff?
      MR. TENBROOK (Prosecutor): Judge the State has offered a plea to a single count of aggravated white collar crime, which is count two of the information. First degree felony, level nine open to the Court. The guidelines on that would score out to bottom of 48 month [sic] and on top of 30 years.
      MR. BARRAR (Defense Counsel): And Judge, that's the first I’ve heard of this plea offer.
      THE COURT: Okay.
      MR. BARRAR: The plea that was given to me before was, basically, an open plea to the court. There was no discussion or reference by the State to nolle prose of any particular counts.
      THE COURT: All right. Well now you know. Mr. Davis's plea offer was four years to 30 years with a plea straight up or open to the Court with no promises. All I say to that is, thank you. [A]nd then for Ms. Headley?
      MR. TENBROOK: Same plea, Your Honor.
      THE COURT: Okay. Same numbers, right. So why don't you speak to your clients about that plea. I don't know anything about the case, so I would have to hear extensively from the lawyers before [sic] impose a sentence.
      MR. BARRAR: Judge, I—
      THE COURT: But they would know that the bottom is four years.
      MR. BARRAR: Judge, I can tell you this, at least from my discussions with Mr. Davis, he's not interested in any pleas that would have the bottom of the guidelines of state imprisonment. We had discussed in generalities based upon what the State had told me before.
      THE COURT: All right. So let me just colloquy him on that.... Okay. You’ve heard the number, you heard the plea. The State’s new plea offer this morning in essence, a guideline [sic] plea straight up to the Court with the possibility of a sentence four years to 30 years. Are you interested in pleading guilty within that — knowing that your sentencing would be anywhere between that range?
      THE DEFENDANT: It could be 30 years.
      THE COURT: Okay.
      THE DEFENDANT: Could be as high as 30 years or as low as four years.
      THE COURT: That’s right.
      THE DEFENDANT: Straight up to the Court. No, ma’am.
      THE COURT: Okay. Ms. Headley [co-defendant], what about you? ... Are you willing to plead guilty to one count of aggravated white collar crime in exchange for a sentence anywhere from four to 30 years.
      THE DEFENDANT: No, ma’am.
      THE COURT: Well, let me ask you this. Would either of you take four? Bottom of the guidelines? Ms. Headley?

      THE DEFENDANT: I didn’t do anything wrong. Why should I?
      THE COURT: Okay. Mr. Davis, would you take four?

      THE DEFENDANT: No, Your Honor.
      (Supp. R. vol. 1, 24-27) (Emphasis added).

      . Notwithstanding its acceptance by the majority, one cannot help but be skeptical of the trial court's indication at sentencing that, when her offer was made prior to trial, she was unaware of the factual circumstances of the case. The appellant is and was a well-known figure in the community, who was a former circuit judge, and whose alleged participation in the present alleged scheme was not only a subject of broad notoriety but exquisitely detailed in the charging documents. In any event, it is hard to understand why the exact circumstances of the crime, an unfortunately not extraordinary embezzlement from a publicly supported agency, could have led to a five-fold increase in the appropriate sentence. That this was not a sufficient reason for the extraordinary departure is demonstrated by the fact that the appellant’s co-defendant, an equal participant in the alleged scheme, was also offered the four-year sentence but was sentenced only to ten years after the verdict.
      Even most tellingly, although the trial judge herself said at the beginning of the colloquy that "I don’t know anything about the case, so I would have to hear extensively form the lawyers before [sic] impose a sentence,” the fact is still that she actually made the four-year offer at the end of the proceeding without hearing anything more about the circumstances of the case. It is hard to imagine a more persuasive indication of the fact that the twenty-year sentence was imposed not because of the circumstances revealed by the trial, but by the defendant’s decision to require one.

      . I do not suggest that the trial judge was "actually” vindictive in the sense that she was personally out to get Mr. Davis. The pertinent inquiry is not whether this was the case, but whether the law considers, as I would hold it does, the chain of events revealed by the record to amount to "a vindictive sentencing under the law.” See Frazier v. State, 467 So.2d 447, 449 n. 4 (Fla. 3d DCA 1985) ("[T]he expression ‘vindictiveness’ is simply a term of art which expresses the legal effect of a given objective course of action, and does not imply any personal or subjective animosity between the court (or a prosecutor) and the defendant.”). Accord Cambridge v. State, 884 So.2d 535, 537-38 (Fla. 2d DCA 2004); Nairn v. State, 837 So.2d 519, 520 (Fla. 3d DCA 2003); Harris v. State, 845 So.2d 329, 331 (Fla. 2d DCA 2003).


text:
    Ronnie RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2988.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Rehearing Denied July 2, 2013.
    Eugene F. Zenobi, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, and Philip L. Reizenstein, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SHEPHERD, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

We affirm the convictions without further discussion and affirm the sentence without prejudice to the appellant Ronnie Rodriguez filing a rule 3.800(a) motion to correct sentence with the trial court. The issue was not properly preserved, and this Court does not have the sentencing transcript.


author: CIKLIN, J.

text:
    Luckenson DATUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3650.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Dec. 10, 2013.

      Carey Haughwout, Public Defender, and Richard Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Luckenson Datus appeals his convictions for burglary of a dwelling and resisting arrest without violence. We conclude that defense counsel’s relevance objection to certain testimony only preserved for appeal a claim concerning the relevance of certain testimony and did not preserve any type of argument as to unfair prejudice. As for the testimony’s relevance, we find that it was not relevant, but that its admission was ultimately harmless.

During the jury trial, an officer testified that she was looking for a suspect involved in a recent burglary in a Delray Beach neighborhood. When some nearby landscapers indicated that the suspect went east, she looked in that direction and saw the back of the suspect’s head going over a fence. The officer yelled for the suspect to stop, but he did not. The officer then pursued the suspect on foot and came upon a fence which she attempted to climb over. The officer fell and injured her leg, causing her to end her pursuit of the suspect.

At that point, the prosecutor asked the officer, “How badly were you injured?” The officer replied, “At the time, I didn’t realize it but I was actually out of work for six months.” Defense counsel then objected, stating, “Relevance,” as the reasoning. The trial court overruled the objection and the officer then simply restated that she was out of work for six months as a result of her fall. The officer’s testimony then moved on to other topics.

On appeal, Datus argues that the officer’s testimony about the extent of her injury was irrelevant and created improper sympathy for the officer. The state argues that the testimony was relevant or harmless, and that any argument about improper sympathy was not preserved by defense counsel’s bare relevance objection below.

Testimony which evokes sympathy for a victim may be inadmissible on the ground that its probative value is substantially outweighed by the risk of unfair prejudice. § 90.403, Fla. Stat. (2012); see also State v. Gerry, 855 So.2d 157, 159 (Fla. 5th DCA 2003) (“The unfair prejudice that section 90.403 attempts to eliminate relates to evidence that inflames the jury or appeals improperly to the jury’s emotions.” (citations and quotation marks omitted)). However, an objection on relevance grounds only will not preserve an argument of unfair prejudice on appeal. See Andrews v. State, 82 So.3d 979, 982 n. 2 (Fla. 1st DCA 2011) (“Appellant failed to object at trial on undue prejudice grounds pursuant to section 90.403, Florida Statutes .... As a result, he waived any possible undue prejudice argument on appeal.” (citing Mitchell v. State, 734 So.2d 450, 452 (Fla. 4th DCA 1999))); Johnson v. State, 40 So.3d 883, 887 n. 2 (Fla. 4th DCA 2010) (finding that because defense counsel “specifically argued that the probative value of [the evidence at issue] was outweighed by the danger of unfair prejudice” the issue was “thus preserved] ... for appeal and obligated] the trial court to apply the section 90.403 balancing test” (citation omitted)). The burden is on the party attempting to exclude evidence on the basis that it is unfairly prejudicial. See Gerry, 855 So.2d at 159.

We are not unmindful of the quandary that occurs during a fast-paced jury trial when the need to lodge a specific objection collides with the prohibition against speaking objections. As stated in Michaels v. State, 773 So.2d 1230 (Fla. 3d DCA 2000):

[S]peaking objections are improper, as they constitute nothing less than unauthorized communications with the jury. Such objections characteristically consist of impermissible editorials or comments .... They are distinguishable from legitimate objections which simply state legal grounds that arguably preclude the introduction of the evidence at issue. Where an objection requires more than a simple statement of such legal grounds, experienced trial lawyers know they need to seek a side bar conference or ask the court to excuse the jury so that more thorough arguments can be made.

Id. at 1231.

Indeed, in a concurring opinion, Justice Barbara Pariente addressed this natural “tension”:

When it comes to a perceived error at trial, we have urged lawyers to not only object but to also apprise the trial court of the specific nature and grounds upon which the objection is based. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982), and its progeny. As the Court has often stated, “[t]o preserve error for appellate review, the general rule requires that a contemporaneous, specific objection occur at the time of the alleged error.” Overton v. State, 976 So.2d 536, 547 (Fla.2007) (citing F.B. v. State, 852 So.2d 226, 229 (Fla.2003), and Steinhorst, 412 So.2d at 338). However, this requirement, which is necessary to preserve the issue for appellate review, is not always easy to apply in the real world of courtrooms. Judges frown on speaking objections and often both lawyers and trial judges do not want the jury to hear the argument on the objection because of a legitimate concern that a discussion in front of the jury may only highlight the error. Yet, a properly articulated specific objection is necessary not only for appellate preservation but to assist the trial court in making a proper ruling as well. Therefore, to address the tension between the need for a specific objection and the desire to shield the jury from the argument, often either the trial judge or the lawyer will ask that the objection be heard at sidebar.

Salazar v. State, 991 So.2d 364, 380-81 (Fla.2008) (Pariente, J., specially concurring) (footnote omitted).

Counsel is well-advised to seek guidance from the trial court as to the method preferred by the presiding judge when making an “inflammatory” or “unfair prejudice” objection pursuant to section 90.403. Alternatively, as suggested by Justice Pariente, an attorney may request a bench conference to preserve an objection outside the ears of the jury.

With respect to the issue which was preserved on appeal — the relevance of the officer’s testimony about the extent of her injury during the chase — we find no reversible error. The admission of evidence or testimony over a relevance objection is reviewed for a clear abuse of discretion. Vargas v. State, 101 So.3d 1269, 1270 (Fla. 4th DCA 2012) (citation omitted). “Relevant evidence is that which tends to prove or disprove a material fact.” Guerrero v. State, 125 So.3d 811, 2013 WL 950033 (Fla. 4th DCA Mar.13, 2013) (citation and quotation marks omitted).

As to the officer’s brief testimony that her leg injury resulted in a six-month period of convalescence, we find this testimony not to be relevant. The extent of the officer’s injury did not tend to prove or disprove a material fact in issue. See § 90.401, Fla. Stat. (2012) (“Relevant evidence is evidence tending to prove or disprove a material fact.”). More specifically, the extent of the officer’s injury did not relate to any element of the charges which the state had the burden to prove.

However, we conclude that the admission of this testimony was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating that an error is harmless if “there is no reasonable possibility that the error contributed to the conviction” (citation omitted)). The actual testimony at issue was brief and did not become a feature of the trial. While the burglary victim could not identify Datus in court, the effect of the testimony concerning the officer’s injury was inconsequential.

Affirmed.

TAYLOR, J., and ROBINSON, MICHAEL A., Associate Judge, concur.

      . Defense counsel concedes this point in his reply brief.