author: ALTENBERND, Judge.

text:
    Leo Richard BERUBE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4385.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2014.

      James Marion Moorman, Public Defender, and -Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

ALTENBERND, Judge.

Upon remand from the Florida Supreme Court, we reconsider Leo Richard Be-rube’s conviction for second-degree murder in light of the subsequent decision in Daniels v. State, 121 So.3d 409 (Fla.2013). Because the giving of the erroneous instruction on the lesser-included offense of manslaughter by act unquestionably did not pertain to a disputed element of that offense, we conclude that Mr. Berube has not established that the error in the instruction was harmful. Having failed to establish this first prong of a fundamental error analysis, he is not entitled to any relief. Thus, we once again affirm the judgment and sentence on appeal.

L THE PRIOR PROCEEDINGS IN THIS CASE

In 2006, Mr. Berube was convicted of first-degree murder for the strangulation of a prostitute with whom he admitted having a sexual encounter on the evening of her death in 2003. He appealed his judgment and sentence of life imprisonment to this court.

In Mr. Berube’s first appeal, this court wrote a lengthy opinion detailing the facts of the case. Berube v. State, 5 So.3d 734 (Fla. 2d DCA 2009) (Berube I). To avoid repetition, we rely on that recitation of the facts and provide supplemental factual information only as needed in this opinion. In Berube I, this court held that the evidence was sufficient to support a prima facie case of premeditated murder. Id. at 745. However, we reversed and remanded for a new trial.

The new trial was required because the trial court erroneously admitted some Williams rule evidence. Id. at 736. Pri- or to trial, the State had sought leave to introduce into evidence two prior instances of alleged rape by Mr. Berube and an unsolved murder for which Mr. Berube was a suspect. Id. at 739. The trial court denied the State’s request to admit evidence of the unsolved murder — a homicide that occurred shortly after the victim had engaged in sexual intercourse with Mr. Berube. But the trial court granted the State’s request to admit evidence of the two instances of alleged rape. Thereafter, that evidence was admitted during the trial. In Berube I, we held that the trial court erred in admitting this evidence and that the error required a new trial. Id. at 745.

In the second trial, Mr. Berube was convicted of second-degree murder. On appeal, he argued that the instruction concerning intent given on the next-lesser offense of manslaughter was fundamentally erroneous for the reasons discussed in the First District’s opinion in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). This court concluded that the instruction did not constitute fundamental error. Berube v. State, 84 So.3d 436, 436 (Fla. 2d DCA 2012) (Berube II).

On review, the supreme court quashed our decision in Berube II and remanded the case for reconsideration in light of the supreme court’s decision in Daniels, 121 So.3d 409. See Berube v. State, 137 So.3d 1019 (Fla.2014).

II. THE STANDARD OF REVIEW

This case is very similar to Nieves v. State, 144 So.3d 649 (Fla. 2d DCA 2014). Likewise it is similar to Griffin v. State, 128 So.3d 88, 90 (Fla. 2d DCA 2013) (“Because there was no dispute regarding the element of intent, the erroneous jury instruction on the intent element of the lesser included offense of manslaughter did not constitute fundamental error.”), review granted, 143 So.3d 918 (Fla.2014). We reach a similar outcome for similar reasons.

That said, we have considered what legal standard should be applied to our reconsideration. It seems that the supreme court, in its reliance on dicta from Pena v. State, 901 So.2d 781, 787 (Fla.2005), in both State v. Montgomery, 39 So.3d 252, 259 (Fla.2010) (Montgomery II), and Daniels, 121 So.3d at 415 & n. 5, implies that this error — an error in the instruction for a lesser-included offense that is one step removed from the conviction — should be treated as a “per se” error for which this court should conduct no examination of the record to determine harmfulness. We do not believe that is the supreme court’s intent. Thus, we describe with some care the standard of review and the analysis that we have used to decide this case on remand. In section III, we explain why we believe the dicta from Pena should not govern the question of whether this erroneous instruction entitles Mr. Berube to a third trial.

Under the shift in the analysis for fundamental error that was announced in Reed v. State, 837 So.2d 366, 369-70 (Fla.2002), the defendant has the burden of persuasion on direct appeal to establish two requirements. First, the defendant must show that an unpreserved error is harmful or prejudicial. If that is demonstrated, the defendant must then establish that the error reaches the level of a fundamental error. As we read Montgomery II, Daniels, and Haygood v. State, 109 So.3d 735 (Fla.2013), it is clear that the supreme court has already determined the second requirement as a matter of law; an error in the instruction on intent for the offense of manslaughter in the case of a conviction for second-degree murder reaches the level of a fundamental error if that error is actually harmful. Thus, to prevail in this appeal, Mr. Berube is required to establish only that the error was harmful or prejudicial. See Reed, 837 So.2d at 370; see also Haygood, 109 So.3d at 741 (“[Fjundamen-tal error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.”).

In the context of this issue, the key question seems to be: Putting the elements of second-degree murder aside and assuming that the jury gave serious consideration to the lesser offense of manslaughter, has Mr. Berube demonstrated there was a dispute either of fact or of the jury’s application of fact to law that involved the instruction explaining the intent required where the offense of manslaughter is committed by act? At least in the usual case, to establish this burden the defendant must show that, the issue of intent was “a material element that [was] disputed at trial.” Daniels, 121 So.3d at 418. We believe that the defendant can either show that this element of intent was an issue in dispute in the case on appeal or that, in a new trial with correct instructions, it would become an issue in dispute.

Because harmfulness is the first prong of the fundamental error analysis, if ' the defendant establishes both prongs of the fundamental error test, we do not need to further subject the fundamental error to any of the tests for harmfulness or harmlessness used in cases of preserved error; such a consideration simply would be redundant. The fact that the error occurred in the next-lesser offense, making it one step removed from the offense of conviction, does not invoke any concept of per se reversible error when the error is unpre-served. Instead, it is a circumstance that gives Mr. Berube the right to require this court to consider in this decision-making process, as a matter of logic, that the jury might have given serious consideration to this lesser offense during deliberations. The fact that it is one step removed contributes to the decision to categorize the error as one reaching the level of a fundamental error; it does not alter the requirement that Mr. Berube first establish that the error was harmful.

Although we believe that the law requires Mr. Berube to demonstrate from the record a reasonable probability of such harm before this court is authorized to declare that the error is fundamental, in this case we have carefully reviewed the record and conclude beyond a reasonable doubt that the giving of this instruction was not harmful. Accordingly, we conclude that the error in the manslaughter by act instruction is not a fundamental error in this case.

III. PENA’S RELIANCE ON ABREAU IN A POST -REED FUNDAMENTAL ERROR ANALYSIS

In order to understand our concern with the portion of Pena that is cited in Montgomery II and Daniels, it is necessary to review a little legal history. In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the supreme court held:

Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine [v. State, 262 So.2d 655 (Fla.1972),] continues to have vitality, and reviewing courts may properly find such error to be harmless.

This holding occurred in the context of a preserved error. The trial court had completely omitted the requested instruction. Because the error did not involve the next immediate lesser-included offense, the supreme court quashed the district court’s reversal, and the district court affirmed the judgment on remand. See Abreau v. State, 365 So.2d 201 (Fla. 3d DCA 1978). Likewise, in Rojas v. State, 552 So.2d 914, 916 & n. 1 (Fla.1989), the court applied Abreau where the mandatory instruction of justifiable and excusable homicide was not given and the error was preserved.

The “per se reversible” error described in Abreau is an error that is not tested for harmlessness or harmfulness. Essentially, it is an error for which the extent or degree of the resulting harm cannot be determined from the record. Accordingly, the party on appeal with the burden to prove that such an error is harmful or harmless can never do so from the record. Because the State is the party with that burden in a direct criminal appeal, per se errors result in a reversal against the State without any review of the record for harm. See, e.g., Hazuri v. State, 91 So.3d 836, 846-47 (Fla.2012). Thus, after Abreau, the total omission of an instruction on the next-lesser offense always required a reversal of a judgment and a new trial so long as the issue was preserved.

In 2005, the supreme court considered two unpreserved issues for potential fundamental errors in Pena, 901 So.2d 781. It held that the omission of an instruction concerning the age of the defendant for an offense that required the defendant to be eighteen years of age or older and the omission of that same allegation from the indictment were not fundamental errors when the defendant was twenty-eight years old and his age was not a matter of dispute. Id. at 785-86. Concerning the omission of an instruction on excusable and justifiable homicide, the court determined that the error occurred in an instruction for a lesser offense that was more than two steps removed from the conviction. As a result, the supreme court correctly did not regard the error as fundamental. Id. at 787.

But in its reasoning in Pena, the supreme court referred back to Abreau and Rojas. It stated:

The lesser offense of manslaughter was three steps removed from the conviction of first-degree murder. Thus, because the lesser offense in this case was more than two steps removed from the conviction of first-degree murder, under Rojas. and Abreau, the district court properly conducted a harmless error analysis.

Pena, 901 So.2d at 787. It further explained:

If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense. However, when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.

Id. The holding in Pena seems completely correct, but the above-quoted analysis, which is dicta, appears to be flawed. Pena involved an unpreserved error. Thus, Abreau and Rojas applied at most by comparison or analogy in Pena. As we explain next, this dicta in Pena did not take into account the new approach adopted for fundamental error in Reed.

In State v. Clark, 614 So.2d 453, 454 (Fla.1992), receded from in Reed, 837 So.2d at 370 n. 3, the supreme court held that an unpreserved error involving the use of a deposition at trial where the defendant had not had the opportunity of confrontation at the taking of the deposition was a fundamental error. It then proceeded to decide that the test for harmless error established in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), should apply to fundamental error, concluding that the State had not established that the reading of the deposition was harmless. Clark, 614 So.2d at 454-55. Although Clark involved a case in which the trial court was reversed, its reasoning led to cases where the district courts affirmed matters of fundamental error because they were “harmless.” See, e.g., Mincey v. State, 684 So.2d 236, 238-39 (Fla. 1st DCA 1996); Sigmon v. State, 622 So.2d 57, 59-60 (Fla. 1st DCA 1993).

Clark quickly engendered issues relating to the review of fundamental errors that would be treated as per se errors if these errors had been preserved. In State v. Lucas, 645 So.2d 425, 426-27 (Fla.1994), the supreme court wrote a short opinion in which it answered the following certified question in the affirmative without any qualification:

When a defendant has been convicted of either manslaughter or a greater offense not more than one step removed, does failure to explain justifiable'and excusable homicide as part of the manslaughter instruction always constitute both “fundamental” and per se reversible error, which may be raised for the first time on appeal and may not be subjected to a harmless-error analysis, regardless of whether the evidence could support a finding of either justifiable or excusable homicide?

Id. at 426.

Simply put, the concept of a fundamental per se error, which required reversal in the absence of any demonstration of harm, did not pass the test of time. The supreme court receded from Clark in Reed. There, the court held:

Furthermore, we take this occasion to clarify that fundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental.

Reed, 887 So.2d at 370 (footnote omitted).

Although this sentence can perhaps be read to suggest that fundamental error

is inherently harmful, that does not seem to be the supreme court’s intent. Instead, in Reed, the supreme court shifted the analysis of fundamental error. Before deciding whether an error rises to the level described in one of the various definitions of this rare error, the reviewing court should first determine whether the error was harmful. Because the error is unpre-served, the defendant does not receive the benefit of the harmless error analysis established in DiGuilio. Rather, in the case of fundamental error on direct appeal, the defendant has the initial burden of persuasion to show that there is a reasonable probability that the error was harmful or “prejudicial.” § 924.051(l)(a), Fla. Stat. (2002); Sampson v. State, 903 So.2d 1055, 1056-57 (Fla. 2d DCA 2005). If it is, the defendant must then’show that the error is fundamental. This new analysis is demonstrated, for example, in State v. Weaver, 957 So.2d 586, 589 (Fla.2007) (disapproving Vega v. State, 900 So.2d 572 (Fla. 2d DCA 2004)). See also Martinez v. State, 981 So.2d 449, 455-57 (Fla.2008); Sampson, 903 So.2d at 1056-57.

Thus, returning to the dicta in Pena, the district court in that case was not actually required to perform a traditional harmless error analysis under Abreau. For an un-preserved error concerning the omission of the justifiable or excusable homicide instruction, the defendant had to demonstrate that the error was prejudicial. Because the affected lesser offense was more than one step removed, the defendant was unable to demonstrate prejudice. See Pena, 901 So.2d at 784-85.

Although this rather technical misstatement in dicta was certainly of no import in Pena, the language was picked up in both Montgomery II and Daniels. In Montgomery II, the court states:

Second-degree murder as a lesser included offense is one step removed from first-degree murder, and manslaughter as a lesser included offense is two steps removed from first-degree murder. In Pena, we concluded that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena, 901 So,2d at 787. We explained that '
the significance of the two-steps-removed requirement is more than merely a matter of number or degree.
A jury must be given a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.
Id. at 787. The lesser included offense of manslaughter is just one step removed from second-degree murder. Because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena, fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.

39 So.3d at 259.

It is likely that the defendant in Montgomery II demonstrated that the un-preserved error was prejudicial, i.e., that the faulty instruction pertained to an element disputed at trial, but that fact is not emphasized in the opinion. The above-quoted language appears to extend the dicta of Pena to become a holding that applies not only to the omission of an entire instruction on a lesser-included offense or a critical exception to an offense, but also to an unpreserved error in the description of one element of such an offense. This discussion is repeated in Daniels, 121 So.3d at 415 & n. 5.

We do not believe that the supreme court actually intends for this court to use an analysis that declares the erroneous instruction to be a fundamental error subject to automatic reversal as a per se error merely because the instruction contained a bad element and is the instruction for the next-lesser offense. As explained above, we believe that Reed applies and requires a defendant to make a showing by a reasonable probability that the error in the lesser instruction was prejudicial to him. Because the supreme court has already determined that this particular error fulfills the second requirement for fundamental error, Mr. Berube is only required to establish this first requirement. If we have misunderstood the supreme court’s mandate, then we are in conflict with Montgomery II and Daniels.

IV. DETERMINING WHETHER THE ERROR WAS HARMFUL IN THIS CASE

In this case, the victim was strangled with a lamp cord while she was naked on a bed in a motel room. Shortly after the homicide, the police investigated the scene. In addition to the woman’s body and the lamp cord, the police found a knife, a broken lamp shade, and a pair of glasses on the bed. The glasses ultimately were determined to be Mr. Berube’s glasses.

There was blood on the wall above the bed, on the lamp (the cord of which was used to strangle the victim), and on the exterior door jamb to the bathroom. Mr. Berube’s DNA matched the blood on the wall, the lamp, and some of the blood on the door jamb. His DNA was also found under the victim’s fingernails. A witness in an adjoining motel room had heard a loud bang on the wall and believed that he had seen a man matching Mr. Berube’s description leaving the room a short time after he heard the noise.

The medical examiner testified at length about the cause of death and opined that the strangulation process would have taken at least two to three minutes. The victim had five separate ligature marks on her neck, indicating that the cord was either wrapped five times around her neck or was tightened in five separate locations at five separate times during the strangulation. The victim’s hyoid bone was fractured, and she had other bruises on her body and fingernail marks near the ligature marks.

On cross-examination, Mr. Berube’s attorney did not significantly challenge the medical examiner’s opinion as to the cause of death or the condition of the victim’s body. Instead, he relied upon this evidence to create a theory of innocence for his client. He suggested that the husband had killed his wife after Mr. Berube left the room.

As described in Berube I, Mr. Berube had a sexual encounter with the victim shortly before her death. In an unusual twist of events, the victim’s husband was hiding in the bathroom of the motel room during this sexual encounter. In his video-recorded interview, Mr. Berube claimed that the victim had performed oral sex on him while he was sitting in a chair near the door. He fled when confronted by her knife-wielding husband. Mr. Berube’s claim was that he left his glasses in the room because he left in a hurry. He surmised that his blood was on the walls as a result of the confrontation he had with the victim’s husband. He claimed the victim was fully clothed and sitting on the bed when he fled. He theorized that it was the victim’s husband who removed her clothing and strangled her on the bed. This theory was supported to some extent by evidence that the husband and wife had a turbulent marriage affected by their mutual addiction to cocaine.

In closing argument, Mr. Berube’s attorney argued that strangulation was a long process and that his client could not have killed the victim during the short time between the struggle that created the bang on the wall and the time the witness saw the man hurrying from the motel room. His theory was that the husband had strangled the victim in an argument occurring after Mr. Berube left the room. As he succinctly explained near the close of his argument:

And I suggest to you the reasonable doubt in this case arises from the conflict in the evidence. The conflict in the evidence is obviously [the victim’s husband] or Leo Berube. So if you look at [the victim’s husband’s] story and you look at Leo Berube’s story as told in the core of the video where he says he left and he ran and he fell and he broke his leg, you will see that there is plenty of doubt when compared to the Hintons, the next door neighbors, that say there was a thud and there was a short period of time before Leo Berube walked out of that room. From that conflict of evidence, based on the reasonable doubt that arises from that, you should find that Leo Berube is not guilty.

In Berube I, the opinion discusses Mr. Berube’s theory that the victim could have died of erotic asphyxiation rather than from a conscious purpose to cause her death. 5 So.3d at 743-44. As that opinion notes, there, was no evidence to support this theory at the trial. Id. Although this argument was made to the judge for purposes of a motion for judgment of acquittal, Mr. Berube’s attorney never argued this theory to the jury or suggested that the jury could reach any outcome in this case based on an accidental death. Id. at 742-44. In short, whether Mr. Berube intended to kill the victim was not in dispute and was not pertinent or material to what the jury needed to convict Mr. Be-rube of either second-degree murder or manslaughter. See Nieves, 144 So.3d at 651 (“Where the defendant concedes the facts of the crime, arguing only that it was committed by somebody else, no [ ] dispute [regarding intent] arises.”).

In this case, the jury received a correct instruction on manslaughter by culpable negligencé. Even if Mr. Berube had abandoned his story in the recorded statement — that he was a customer of a fully-clothed prostitute performing oral sex on him while he sat in a chair — and had chosen instead to argue that he had negligently strangled this woman while performing consensual acts of erotic asphyxiation with a lamp cord around her neck while lying on a bed, this version would have involved the manslaughter by culpable negligence instruction and not the manslaughter by act instruction. Cf. Haygood, 109 So.3d at 741-42 (holding that faulty manslaughter by act instruction was fundamental error even though correct instruction for manslaughter by culpable negligence was given where intent to kill was a disputed issue at trial and evidence that defendant beat the victim supported manslaughter by act but not manslaughter by culpable negligence).

Moreover, the erroneous manslaughter instruction given in this case explained that the State must prove “Leo Richard Berube intentionally caused the death of [the victim].” The irrefutable physical evidence in this case was that the person who killed the victim strangled her with a lamp cord for a period of minutes while she struggled violently to survive. If anything, the error in the instruction, by including the concept of an intentional cause of death, increased the likelihood that a jury might consider the possibility of returning a verdict of manslaughter instead of second-degree murder, which does not require an intent to kill.

If this case were remanded for a third trial, the jury would be instructed on manslaughter with the current instruction. That instruction would explain that the State must prove that “Leo Richard Be-rube intentionally committed an act or acts that caused the death of [the victim].” Under the evidence in this case, we cannot conceive of any new argument that Mr. Berube’s attorney might make based on this instruction that was not already made in the second trial. We remain convinced beyond a reasonable doubt that the error in the manslaughter instruction was harmless in this ease and that the erroneous instruction did not pertain to a disputed element of the lesser-included offense of manslaughter by act.

Affirmed.

SILBERMAN and WALLACE, JJ„ Concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . We have selected the test of "reasonable probability,” recognizing that the precise burden placed on the defendant in this context may be open to debate. In a typical harmless error analysis in a criminal appeal, the State must show there is no "reasonable possibility” of harm. See Mendoza v. State, 87 So.3d 644, 660-61 (Fla.2011) ("The test for harmless error is whether there is a reasonable possibility that the error affected the verdict.”) (quoting Mendoza v. State, 700 So.2d 670, 678 (Fla.1997))). In a postconviction proceeding, the defendant must show a "reasonable probability” that the error affected the outcome. See Kilgore v. State, 55 So.3d 487, 504 (Fla.2010) ("Therefore, Kil-gore has failed to demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine our confidence in the verdict.”). Likewise, "reasonable probability" is a test often used in civil cases. See Chrysler v. Dep't of Prof'l Regulation, 627 So.2d 31, 34-35 (Fla. 1st DCA 1993) ("An error is harmful where there is a reasonable probability a different result would have been reached but for the error committed.”). The "reasonable probability” test seems the appropriate test to fulfill the narrow function served by fundamental error.

      . See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

      . As explained in more detail later in this opinion, in Reed, 837 So.2d at 370 n. 3, the supreme court receded from Clark to the extent that Clark held that fundamental error could be harmless error.

      . The supreme court does not appear to have ever overruled or narrowed its holding in Lucas.

        . The shift announced in Reed can be compared to the shift announced in Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995), which altered the analysis used in certiorari review. Because attorneys and judges often struggled with the type of error that constituted a departure from the essential requirements of the law, Parkway Bank treated the requirement of an irreparable harm as an initial jurisdictional test. Id. at 649. In that way, many certiorari proceedings could be resolved on this relatively easy issue without need to reach the much harder question of whether an error is a departure from the essential requirements of law. Similarly, in Reed, the court focused on the need for an error first to be harmful. This often eliminates the need to decide whether the error is fundamental under the various definitions of fundamental error described infra at footnote 7.

      . With modest success, Florida courts have employed numerous definitions to describe such a "fundamental” error. It can be an error going to the "heart of the judicial process,” Martinez v. State, 933 So.2d 1155, 1159 (Fla. 3d DCA 2006), or to the "heart .of the case,” Cruz v. State, 554 So.2d 586, 587 (Fla. 3d DCA 1989). It can be an error going to the "foundation” of the case or merely to the "merits” of the case. See Abdool v. State, 53 So.3d 208, 220 (Fla.2010) (quoting Bailey v. State, 998 So.2d 545, 554 (Fla.2008)); see also Daniels, 121 So.3d at 417 ("To justify not imposing the contemporaneous objection rule, 'the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991))).
      From a functional perspective, such an error is one that requires correction even in the absence of an objection to protect "the public’s confidence in our system of justice.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1033 (Fla.2000) (Pariente, J., concurring) (quoting Hagan v. Sun Bank of Mid-Florida, 666 So.2d 580, 584 (Fla. 2d DCA 1996))). It seems obvious that the public’s confidence in our system of justice would be severely eroded if we allowed juries to return verdicts of guilt for major felonies when the jury was not given a correct description of the elements of the offense. When the evidence demonstrates that a jury reasonably could have given serious consideration to the next-lesser offense, an error in that instruction may equally erode the public’s confidence in its courts.

      . The court went on to explain in Daniels that "[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error.” Daniels, 121 So.3d at 417-18. It therefore held, in accordance with Reed, 837 So.2d 366, and Delva, 575 So.2d 643, that "a defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial,” and that element is both pertinent and material to what the jury must consider to convict the defendant. Daniels, 121 So.3dat418. In other words, fundamental error is not based on a per se rule, but requires a showing of actual harm or prejudice to the defendant.
      The court further explained that its conclusion in Montgomery was based on this rule. Daniels, 121 So.3d at 418. But it did so without reconciling the conflicting per se rule from Pena, which it quoted without qualification. See Daniels, 121 So.3d at 415 & n. 5.

      . Mr. Berube's version of events evolved during his interview, but this was the version that was most helpful to him at the time of trial.


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. John Craig Anthony DANIELS, Appellee.
    No. 2D13-3824.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State appeals the downward departure sentence imposed on John Craig Anthony Daniels after he entered an open plea of nolo contendere to one count each of criminal mischief, burglary of a structure, resisting arrest 'without violence, and possession of drug paraphernalia. Daniels was sentenced to time served for each count, except for burglary of a structure, for which he received a sentence of 42 months’ prison. His sentencing scoresheet indicated the lowest permissible sentence was 53.1 months’ prison. The State argues, and Daniels concedes, that the trial court improperly imposed a downward departure sentence, based on an alleged “legitimate, uncoerced plea bargain,” since the State was not a party to any plea bargain with Daniels. See § 921.0026(2)(a), Fla. Stat. (2011); State v. Laperreri, 710 So.2d 119, 120 (Fla. 2d DCA 1998). We agree.

Because the trial court did not provide a valid ground for departure, we reverse Daniels’ sentence and remand for further proceedings. See Jackson v. State, 64 So.3d 90, 93 (Fla.2011). On remand, Daniels is not precluded from filing a motion to withdraw his plea if there is a valid basis for him to do so. See State v. Isom, 36 So.3d 936, 937 (Fla. 2d DCA 2010).

Reversed and remanded.

SILBERMAN and VILLANTI, JJ., Concur.


author: MORRIS, Judge.

text:
    2245 VENETIAN COURT BUILDING 4, INC., and San Marino Properties, LLC., Appellants, v. William and Margaret HARRISON as trustees of the Margaret Harrison Living Trust, Bateman and Martin Developments Inc., a Florida corporation; Arthur Bateman, an individual, and Daniel Martin, an individual, Appellees.
    No. 2D14-1208.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2014.

      Jon D. Parrish and Kirt R. Posthuma of Parrish & Yarnell,' P.A., Naples, for Appellants.
    Guy Harrison of Etcheverry Harrison LLP, Fort Lauderdale, for Appellees William and Margaret Harrison.
    No appearance for Appellees Bateman and Martin Developments Inc., Arthur Bateman, and Daniel Martin.
   MORRIS, Judge.

2245 Venetian Court Building 4, Inc., and San Marino Properties, LLC, (Venetian) appeal a postjudgment discovery order requiring them to produce various financial and organizational documents. We hold that the requested documents were relevant in the context of the post-judgment proceedings and that the trial court did not err in requiring their production. We therefore affirm.

In 2012, William and Margaret Harrison, as trustees of the Margaret Harrison-Living Trust, obtained a default judgment against two individuals: Arthur Bateman and Daniel Martin. After unsuccessfully attempting to recover on their judgment against Bateman, the Harrisons issued subpoenas duces tecum to Venetian in aid of execution of their judgment. These subpoenas were based on the Harri-sons’ review of various public records which reflected that:

• Bateman was a registered agent or president of various Venetian-related corporations and partnerships between 2004 and 2018;.
• Bateman also executed the mortgage for a property owned by one of the Venetian corporations, and as of 2012, he was still listed on property tax records as the owner of that same property;
• A separate entity, San Marino Properties, LLC, was created in 2010, and that entity shared a managing member, Mr. Dana Bessette, with other Venetian-related corporations (in 2012, Bessette Ust-ed himself as president of 2245 Venetian Court Building 4, Inc.);
• In 2012, Mr. Bessette provided the same mailing address for both 2245 Venetian Court Building 4, Inc., and San Marino Properties, LLC.

Venetian objected to the subpoenas and filed motions to quash. The Harrisons filed a memorandum in opposition to the motions to quash and attached the public records they relied on in serving their subpoenas. Ultimately, the trial court denied Venetian’s motions.

I. Relevance

We review the trial court’s order for abuse of discretion. See Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189,194 (Fla.2003).

Venetian first argues that the requested documents are not relevant as Venetian was a nonparty to the proceedings underlying the deficiency judgment and the subpoenas do not limit the requests for documents to items relating solely to Bate-man, the judgment debtor. Venetian also points out that the requests are not related to any claim for malfeasance.

Relevance is indeed the “polestar” in a discovery request. See McDonald’s Rests. of Fla., Inc. v. Doe, 87 So.3d 791, 793 (Fla. 2d DCA 2012). However, this court has repeatedly noted the distinction between prejudgment and post-judgment discovery. In the prejudgment context, “a party is entitled only to the opponent’s financial records that pertain to the pending action.” Regions Bank v. MDG Frank Helmerich, LLC, 118 So.3d 968, 969 (Fla. 2d DCA 2013). “But in postjudgment discovery, the dispute in the original civil action has been resolved [and, therefore] [t]he matters relevant for discovery [are those] that will enable the judgment creditor to collect the debt.” Id.; see also Gen. Elec. Capital Corp. v. Nunziata, 124 So.3d 940, 943 (Fla. 2d DCA 2013) (“In the context of postjudgment discovery, matters relevant to the subject matter of the pending action or which would lead to the discovery of admissible evidence, per [Florida] Rule [of Civil Procedure] 1.280(b)(1), would encompass matters identifying or leading to the discovery of assets available for execution .... ” (alteration in original) (internal quotation omitted)). This means that in a post-judgment discovery context, “the creditor has the right to discover any assets the debtor might have that could be subject to levy or execution to satisfy the judgment, or assets that the debtor might have recently transferred.” MDG Frank Helme-rich, LLC, 118 So.3d at 970 (emphasis added).

Venetian argues that the broad postjudgment discovery rule does not apply here and that the Harrisons are merely on a “fishing expedition.” But while we agree that generally “discovery in aid of execution cannot be used to pry into the assets and business of persons other than the judgment debtor,” we have also held that a nonparty may be subject to post-judgment discovery where the “judgment creditor can provide a good reason and close link between the unrelated entity and the judgment debtor.” Gen. Elec. Capital Corp., 124 So.3d at 942.

In General Electric Capital Corp., we granted certiorari and quashed an order permitting discovery against a nonparty. Id. at 943. Our decision was based on the facts that no judgment had been entered against the nonparty, the relationship between the nonparty and the judgment debtor had been remote even when in existence, and there was no relationship between the nonparty and the judgment debtor at the time of the discovery request. Id. at 942. Thus we concluded that the judgment creditor had “not laid the proper predicate” for the discovery requests. Id. at 943.

Here, we conclude that the Harri-sons have established more than just a remote link between Bateman and Venetian. The public records relied upon by the Harrisons revealed that subsequent to Bateman’s default, Venetian engaged in at least one name change and the appointment of new corporate officers to one of the Venetian entities. The records also revealed that Mr. Bessette was affiliated with at least three Venetian entities and that he provided the same mailing address for both 2245 Venetian Court Building 4, Inc., and San Marino Properties, LLC. Although the link between Bateman and San Marino Properties, LLC, is not as strong as the link between Bateman and the other Venetian entities, judgment creditors are allowed “broad discovery into [a] debtor’s finances ... even if the discovery concerns property jointly owned with others,” particularly where “there are indications that the debtor might have individual assets or might have recently transferred assets that would otherwise be available for levy.” Jim Appley’s Tru- Arc, Inc. v. Liquid Extraction Sys. Ltd. P’ship, 526 So.2d 177, 179 (Fla. 2d DCA 1988).

Venetian points out that the Harrisons did not bring a separate claim for fraudulent transfer, but we do not think that fact is dispositive. As we noted in General Electric Capital Corp., the requesting party must establish the proper predicate for purposes of serving discovery on a nonparty. 124 So.3d at 943. However, we did not go so far as to require a claim for malfeasance against the nonjudgment debtor in the pleadings. Rather, we determined that the requesting party must only provide a “good reason and close link” between the nonparty and judgment debt- or. Id. at 942. We reject Venetian’s attempts to apply prejudgment discovery case law to this issue, and we conclude that the Harrisons established a “good reason and close link” between Bateman and Venetian, thereby entitling them to discovery of the requested documents. However, this does not end our analysis because Venetian raises alternative arguments relating to a constitutional right to privacy and the lack of an evidentiary hearing that we must address.

II. Constitutional Right to Privacy

Venetian contends that Article I, section 23 of the Florida Constitution provides a right of privacy that applies to financial records in the absence of a relevant and compelling reason to compel disclosure. Venetian also contends that it may assert this right on behalf of its shareholders, officers, and directors.

We note that ordinarily, corporations cannot raise the privacy rights of third parties unless they (the corporations) meet the third-party standing test enunciated in Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla.2002). However, even in the absence of third-party standing, where a corporation objects to a discovery request on the basis of relevancy, a “trial court can consider the constitutional rights of third parties who would be substantially affected by the outcome of the litigation.” Id. at 945.

There is no issue of third-party standing here. Rather, the issue is one of relevancy. Clearly, the documents requested were relevant to the Harrisons’ attempt to discover any assets that Bateman had or that he had recently transferred in aid of execution of their judgment against him, especially where the Harrisons proffered a “good reason and close link” between Bateman and Venetian. Gen. Elec. Capital Corp., 124 So.3d at 942. The case law on which Venetian relies is factually distinguishable. Thus we conclude that the discovery request here was not barred by any privacy interest of Venetian’s shareholders, officers, and directors.

III. Lack of an Evidentiary Hearing

Lastly, Venetian argues that the Harrisons were required to prove the relevancy of the requested documents at an evidentiary hearing. Venetian asserts that the trial court erred by relying on the Harrisons’ counsel’s unsworn statements and the documents they provided relating to Bateman’s link to Venetian.

We acknowledge that this court, as well as other Florida courts, have suggested that evidentiary hearings are necessary to determine the relevancy issue. See, e.g., Rowe v. Rodriguez-Schmidt, 89 So.3d 1101,1103-04 (Fla. 2d DCA 2012); Spry v. Prof'l Emp’r Plans, 985 So.2d 1187, 1188-89 (Fla. 1st DCA 2008). However, those cases involved the personal right to privacy which, as we have already explained, is not what is at issue here. Further, where relevancy is readily apparent — as it is in this case — at least one Florida court holds that an evidentiary hearing is not necessary. See Elsner v. E-Commerce Coffee Club, 126 So.3d 1261, 1264 (Fla. 4th DCA 2013) (rejecting the argument that “a trial court must always conduct an evidentiary hearing before it may order financial discovery from a party” and holding that where the requested financial information was relevant to the issues as framed by the pleadings, trial court did not depart from the essential requirements of the law in ordering disclosure). We therefore hold that under the facts of this ease, the trial court’s failure to conduct an evidentia-ry hearing prior to ordering the disclosure of the requested documents does not constitute reversible error.

IV. Conclusion

Because the relevancy of the requested documents to the Harrisons’ attempt to execute on their judgment is readily apparent, the trial court did not err in overruling Venetian’s objections and requiring the disclosure of the documents. We therefore affirm.

LaROSE and KHOUZAM, JJ., Concur.

      . The judgment was based on a promissory-note on which Arthur Bateman defaulted in 2008.

      . At least one federal case is instructive on the issue of what can constitute a close link between a nonparty and a judgment debtor. In Trustees of the North Florida Operating Engineers Health & Welfare Fund v. Lane Crane Service, Inc., 148 F.R.D. 662 (M.D.Fla.1993), the court held that the judgment creditor was entitled, pursuant to. Federal Rule of Civil Procedure 69(a), to seek discovery from a nonparty on the basis of an alter ego theory. The court relied on the following facts: (1) the judgment debtor became defunct within one month of the formation of the new company; (2) the son of the principal of the debtor company was the sole owner of the new company; (3) the debtor company and the new company utilized the same address; (4) the debtor company and the new company engaged in the same kind of business; and (5) the new company employed some of the debt- or company’s former employees. Id. at 664. The court held that while any one of those factors, standing alone, might not be sufficient to make the requisite showing, the combination of those factors provided a basis for the creditor’s allegation of an alter ego relationship sufficient to justify the requested discovery. Id. In so holding, the court opined that creditors "can hardly be expected to make the prima facie showing required to implead [the nonparties in supplementary proceedings] before having access to discovery which would allow them to determine if such a showing can be made." Id.

      Here it is the combination of factors that leads us to conclude that a "close link” has been established: timing of the corporate name change and appointment of new officers shortly following Bateman’s default, the fact that the two Venetian entities involved in this appeal share the same address, the fact that the Venetian entities share corporate officers, and the fact that Bateman was still involved either as an owner or officer with several of the Venetian entities even after the judgment was obtained.

      . Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So.2d 955 (Fla. 3d DCA 1991), Bradstreet v. Taraschi, 529 So.2d 809, 810 (Fla. 5th DCA 1988), and Palmer v. Servís, 393 So.2d 653 (Fla. 5th DCA 1981), are prejudgment discovery cases which require more narrowly tailored discovery requests and which do not involve the same considerations as postjudgment discovery cases (i.e., enabling the judgment creditor to locate assets in aid of execution of judgment). S.W. Fla. Paradise Prop., Inc. v. Segelke, 111 So.3d 268, 270 (Fla. 2d DCA 2013), was a postjudgment discovery case, but it involved a judgment against a corporation and a request for the corporation’s president and registered agent to produce his personal financial, business and property records, along with records which disclosed the “extent and nature of financial interest, property!)] and property rights” owned by him both individually and jointly; see also Walter v. Page, 638 So.2d 1030 (Fla. 2d DCA 1994) (similar). That is different from the instant case because Article I, section 23 clearly affords a right of privacy to natural persons. See Rowe v. Rodriguez-Schmidt, 89 So.3d 1101, 1103 (Fla. 2d DCA 2012).

      . The fact that Eisner involved a request for personal financial documents and was a prejudgment discovery case does not make its holding any less applicable on this particular issue. In fact, given that postjudgment discovery is broader in nature and that corporations cannot ordinarily assert a privacy right, Eisner’s holding makes even more sense in a case such as this one where a judgment creditor is seeking information from a nonparty who has a close link to the judgment debtor.


author: DAVIS, Chief Judge.

text:
    Mae Rose MOODY, Appellant, v. Gregory DORSETT, Victoria Dixon, and Victoria Dixon by and on behalf of her minor child, Dontavious Williams, Appellees.
    No. 2D13-1010.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for Appellant.
    Philip Judd Slotnick of Burnett, P.A., Lakeland, for Appellee Gregory Dorsett.
    No appearance for remaining Appellees.
   DAVIS, Chief Judge.

This case arises out of an automobile accident in which Gregory Dorsett was injured and Mae Rose Moody was determined to be negligent. Following trial, the jury returned a verdict against Ms. Moody in the amount of $11,237.86 for Mr. Dor-sett’s personal injuries. Prior to trial Mr. Dorsett’s insurance carrier paid him $5484.96 in personal injury protection (PIP) coverage proceeds. On appeal, Ms. Moody challenges the trial court’s denial of her request to apply this amount as a setoff to the jury’s verdict. For the reasons set forth below, we reverse and remand.

During the course of the trial, counsel for Ms. Moody brought to the trial court’s attention a misunderstanding between himself and counsel for Mr. Dorsett regarding whether the setoff procedure was an evidentiary matter for the jury to determine or a matter to be addressed by the court postverdict. Counsel for Mr. Dorsett advised the court that there was no dispute as to the amount of the PIP setoff but that he was not stipulating to the matter being handled posttrial. The trial court ruled that “it should be postver-dict,” and Mr. Dorsett objected to the ruling. The trial court overruled the objection, and the trial continued with Ms. Moody relying on the trial court’s ruling and not presenting any evidence of the PIP payments.

Following trial and after entry of the jury’s verdict, Ms. Moody moved for application of the PIP setoff pursuant to the trial court’s earlier ruling, and Mr. Dorsett again objected, citing for the first time the Florida Supreme Court’s decision in Caruso v. Baumle, 880 So.2d 540 (Fla.2004). In Caruso, the supreme court concluded that unless there is a stipulation otherwise, the defense must present evidence to the jury of the amount of PIP payments the plaintiff has received so that the jury can then reduce the verdict by the setoff. Counsel for Mr. Dorsett argued that because he never stipulated to the matter being handled postverdict, Caruso required that the trial court deny Ms. Moody’s motion seeking setoff. The trial court agreed and entered the final judgment reflecting the jury’s award with no setoff. On appeal, Ms. Moody maintains that this was error.

We agree with Mr. Dorsett that because there was no stated stipulation given by Mr. Dorsett’s counsel below to allow the parties to forgo the jury’s determination of the setoff, Caruso should apply to the instant case. However, based on other circumstances found in this case, we nevertheless must reverse the trial court’s postverdict denial of the setoff.

Initially, we note that there is nothing in the record to suggest that the parties discussed this specific issue with the trial c.ourt prior to trial. The conversation at trial between the trial court and the attorneys suggests that based on the practice in that circuit both the court and Ms. Moody’s attorney assumed that the post-verdict procedure would be followed. And when the issue was first brought to the trial court’s attention, Mr. Dorsett’s counsel did not argue the application of Caruso within his general objection to using that procedure. At that time, the trial court erroneously overruled that objection, thereby failing to follow Caruso and instead choosing to follow the circuit’s post-verdict procedure. Albeit incorrect, this led to Ms. Moody’s counsel proceeding to closing argument without presenting any evidence of the PIP payments in reliance on the trial court’s ruling. When the trial court then corrected its ruling postverdict and denied the setoff, Ms. Moody already had relied on the ruling to her detriment.

Based on the facts of this case, we conclude that Ms. Moody reasonably relied on the trial court’s erroneous midtrial ruling and cannot be penalized for doing so. See John Hancock Mut. Life Ins. Co. v. Zalay, 522 So.2d 944, 946 (Fla. 2d DCA 1988) (“A party cannot be penalized for good faith reliance on a trial court’s ruling.”). The prejudice in the instant case was compounded by the trial court’s subsequent attempts to correct the error. Had the trial court initially required a jury determination of the setoff amount, Ms. Moody would have presented the evidence before closing her case. And had the trial court not attempted, to correct the error before rendering .the judgment, simply allowing the erroneous posttrial setoff procedure to occur, an appeal by Mr. Dorsett would have, at best, resulted in a remand for a retrial on the setoff issue. The results of such an appeal would not have allowed Mr. Dorsett a double recovery from the verdict and the PIP amount. Cf. Wallace v. Allstate Indem. Co., 920 So.2d 50, 53 (Fla. 5th DCA 2005) (“To simply eliminate the [posttrial] [setoff] would allow a double recovery contrary to law.... [Such a] resolution does not work ... where the insurer wishes to pursue its [setoff], even though a retrial of damages is required.”).

Similarly, a reversal in this case affords Ms. Moody no more relief than that available to Mr. Dorsett on appeal had the trial court not belatedly attempted to remedy its original error. But an affir-mance under these circumstances would provide a double recovery to Mr. Dorsett and an injury to Ms. Moody that exists only because of the trial court’s attempts to correct its error.

Where a ruling is subsequently found to be erroneous, litigants must be granted an opportunity to present their case under the corrected ruling.... “A party who relies on a favorable trial court ruling should not be placed at risk of being worse off than had the ruling been unfavorable in the first instance.”

John Hancock Mut., 522 So.2d at 946 (quoting Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 527 So.2d 211, 215 (Fla. 3d DCA 1987), disapproved, 537 So.2d 561 (Fla.1988)). Accordingly, we reverse. We note that on remand the parties may agree to offset the verdict by the unchallenged amount of $5484.96, failing which a new trial solely on that issue must be held.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.

      . The trial court's decision apparently was based on local practice and in consideration of the agreement that the amount of the setoff was not in dispute. Furthermore, the trial court noted that the verdict form prepared by Mr. Dorsett’s counsel failed to provide for a determination of the setoff despite his obvious plans to object to the postverdict determination. From our reading of the record, it is clear that Mr. Dorsett’s counsel anticipated the trial court’s following the posttrial procedure. A pretrial order required the plaintiff to prepare the jury instructions. These instructions prepared by Mr. Dorsett’s counsel prior to trial do not include any reference to the setoff procedure. And despite his lack of stipulation, it is clear that Mr. Dorsett’s counsel was aware that a posttrial procedure was a customary practice in the circuit. Yet instead of offering the case law to the trial court in a manner that would have allowed for the proper procedure to be utilized, Mr. Dorsett’s counsel made no attempt to submit the issue to the jury, thereby allowing the trial court to commit the error and precluding admission of the wholly undisputed evidence of the setoff amount until it was too late to correct the exclusion and allow for a jury determination.

      . We note that the Florida Supreme Court's disapproval of the holding in Arky, Freed was based on the application of the principle to facts and policy in that specific case that are not similar to those found in the instant case. Accordingly, the general proposition from Arky, Freed relied on in John Hancock Mutual remains valid and applicable to these facts.


author: SILBERMAN, Judge.

text:
    CITIBANK, N.A., Appellant, v. Seymour KONIGSBERG and Mortgage Electronic Registration Systems, Incorporated, as Nominee for Beazer Mortgage Corporation, Appellees.
    No. 2D13-3586.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.
    Christen Spake and Benjamin B. Brown of Quarles & Brady LLP, Naples, for Appellant.
    No appearance for Appellees.
   SILBERMAN, Judge.

Citibank, N.A., appeals an order of dismissal without prejudice in its action to reestablish a lost promissory note and to foreclose a mortgage against Seymour Ko-nigsberg. Because there was record activity to avoid dismissal under Florida Rule of Civil Procedure 1.420(e), the trial court erred in dismissing the action for lack of prosecution. Thus, we reverse and remand for further proceedings.

Citibank correctly contends that the trial court erred in dismissing the action for failure to prosecute when record activity occurred within sixty days of service of the notice of lack of prosecution. The issue of whether record activity has occurred within the meaning of rule 1.420(e) is subject to de novo review because “it involves the construction of a procedural rule.” Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 371-72 (Fla. 4th DCA 2011).

In the 2005 amendment to rule 1.420(e), the Florida Supreme Court shortened the twelve-month period of record inactivity to ten months and provided for the filing of a notice of lack of prosecution. Chemrock Corp. v. Tampa Electric Co., 71 So.3d 786, 792 (Fla.2011). A notice requirement and a sixty-day grace period were added to allow the party to engage in record activity so as to avoid a dismissal for lack of prosecution. Id. The rule defines record activity as the “filing of pleadings, order of court, or otherwise.” Fla. R. Civ. P. 1.420(e); see also Chemrock Corp., 71 So.3d at 792. Dismissal can also be avoided based on a stay order or if a party shows good cause in writing as provided in the rule. See Fla. R. Civ. P. 1.420(e); Chemrock Corp., 71 So.3d at 792.

The test for record activity during the ten-month period and during the sixty-day grace period is a bright-line rule “under which any filing of record is sufficient to preclude dismissal.” Chemrock Corp., 71 So.3d at 792. The bright-line rule “is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active.” Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005). Under the bright-line rule, the trial court usually will need only a cursory review of the record because “there is either activity on the face of the record or there is not.” Id.

Here, the clerk served a notice of lack of prosecution ón May 14, 2012. Within the sixty-day grace period provided for in rule 1.420(e), Citibank filed a notice of lead counsel that directed all parties “to forward further pleadings, motions, correspondence and other papers to the lead counsel.” That notice constituted record activity under the bright-line rule to avoid dismissal for lack of prosecution. See Fla. R. Civ. P. 1.420(e) (defining record activity as the “filing of pleadings, order of the court, or otherwise”); Chemrock, 71 So.3d at 792 (stating that “any filing of record is sufficient to preclude dismissal”); Norman v. Darville, 964 So.2d 864, 865 (Fla. 2d DCA 2007) (determining that a filed change of address constituted record activity to preclude dismissal for lack of prosecution); Weston TC LLLP, 66 So.3d at 371 (determining that a filed notice of absence constituted record activity to preclude dismissal under rule 1.420(e)).

Because there was record activity in this case during the sixty-day grace period, the trial court erred in dismissing the case for lack of prosecution under rule 1.420(e). Therefore, we reverse the order of dismissal and remand for further proceedings. Based on the existence of record activity, the remaining two reasons that Citibank argues for reversal are moot.

Reversed and remanded.

WALLACE and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Lee Antwan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5996.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2014.

      Nancy A. Daniels, Public Defender, and Luke Newman of Luke Newman, P.A., Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica and Samuel B. Steinberg, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his judgment and sentence for first-degree murder and attempted armed robbery. We affirm the first-degree murder conviction and sentence without comment. However, we agree with Appellant that the trial court committed sentencing errors relating to his attempted robbery conviction. Accordingly, we reverse and remand on that count alone.

Appellant raises two sentencing errors, both of which were properly preserved by a timely Rule 3.800(b)(2) motion. Appellant first contends that his fifteen-year sentence for attempted robbery is illegal because the trial court improperly classified the crime as a second-degree felony instead of a third-degree felony. The State properly concedes that Appellant was convicted of attempted robbery without a weapon, which is a third-degree felony. See § 812.13(2)(c), Fla. Stat. (2009); § 777.04(4)(d), Fla. Stat. (2009). The maximum permissible punishment for a third-degree felony is five years. § 775.082(3)(d), Fla. Stat. (2009). Therefore, the trial court erred in sentencing Appellant above the maximum punishment for a third-degree felony. Consistent with Appellant’s argument and the State’s concession, the judgment should be corrected to reflect that Appellant was found guilty of attempted robbery without a weapon, a third-degree felony, and Appellant should be resentenced accordingly.

Appellant next contends that the trial court erred by failing to utilize a guidelines scoresheet during sentencing. The State properly concedes that a score-sheet should have been prepared and used when sentencing Appellant for attempted robbery, a noncapital offense. Fla. R. Crim. P. 3.704(d)(5). However, the State argues, and we agree, that the use of a scoresheet was not necessary when sen-tenting Appellant for the capital offense of first-degree murder. Worthington v. State, 501 So.2d 75, 75 (Fla. 5th DCA 1987). On remand, Appellant should be resentenced for attempted robbery based upon a properly calculated scoresheet.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS, C.J., BENTON and RAY, JJ., concur.


text:
    Sandra Ellen COOK, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-4674, 1D13-4675.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2014.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s judgments and sentences. However, upon the state’s proper concession of error, we remand case number 1D13^4674 to the trial court to strike the imposition of $100 for Sheriffs Office Investigative Cost. This cost was neither , requested by the appropriate agency nor specifically orally imposed. See Ogden v. State, 117 So.3d 479 (Fla. 1st DCA 2013). Appellant need not be present for the entry of the corrected judgment and sentence.

•AFFIRMED and REMANDED for correction.

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


text:
    Judy HANCOCK, Petitioner, v. SUWANNEE COUNTY SCHOOL BOARD and Florida School Board Insurance, Respondent.
    No. 1D14-0954.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2014.

      Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for' Petitioner.
    M. Kemmerly Thomas and Marissa S. Pyle of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Respondent.
   PER CURIAM.

This workers’ compensation case involves a physician’s imposition of a $1500 fee as a pre-condition to allowing the performance of an independent medical examination (IME) to be videotaped, which Claimant was unwilling to pay, resulting in cancellation of the examination. The Judge of Compensation Claims (JCC) concluded he lacked jurisdiction to determine the reasonableness of the fee, but ordered Claimant to pay half of the physician’s cancellation fee and ruled she “shall be responsible for any additional physician fees or charges resulting from the presence of her videographer” at the IME. We treat Claimant’s petition for writ of certiorari as an appeal of a nonfinal order adjudicating jurisdiction, and conclude that the JCC had jurisdiction to decide the reasonableness or appropriateness of the fee.

The essential facts in this case are undisputed. The Employer/Carrier (E/C) properly scheduled an afternoon IME for Claimant; the morning of the appointment, Claimant’s attorney for the first time told the doctor that Claimant would be accompanied by a videographer. The doctor declined to conduct the IME in the presence of a videographer without an additional advance payment of $1500. The payment not yet resolved by the time of the exam, Claimant arrived with a videog-rapher, only to be turned away by the doctor. The doctor billed the E/C a cancellation fee (“no-show fee”) of $600 for the missed exam.

Section 440.13(5)(d), Florida Statutes (2012), requires an injured employee to reimburse the E/C half of the no-show fee if the employee “fails to appear for the [IME] scheduled by the employer or carrier without good cause.” Upon the E/C’s motion to “tax costs” against Claimant, the JCC found Claimant’s announcement regarding the videographer was untimely, and accordingly, the JCC ordered Claimant to pay the E/C $300, as one half of the doctor’s no-show fee. But the JCC also found he had no jurisdiction to “address the reasonableness of the $1,500.00 charge” (and also that Claimant had no standing to challenge this charge). Nevertheless, the JCC also directed that Claimant, who at the hearing declared her intention to have a videographer present at any future IME, “shall be responsible for any additional physician fees” assessed by the E/C’s examiner because of the videogra-pher.

The reasonableness or propriety of the $1500 charge — which the physician required to be pre-paid if he was to perform the IME — underlies the determination of whether Claimant “fail[ed] to appear for the IME ... without good cause.” Thus, as a foundational matter, we must address the JCC’s declaration that he had no jurisdiction to determine the appropriateness of this charge. Consequently, we review the order as an appealable nonfinal order adjudicating jurisdiction, under Florida Rule of Appellate Procedure 9.180(b)(1)(A). Accordingly, we limit our ruling to this jurisdictional question. See Stanberry v. Escambia Cnty., 813 So.2d 278, 279 (Fla. 1st DCA 2002) (explaining review of nonfinal order is limited to only appealable portions of such order); see also Consultants & Designers v. Brown, 677 So.2d 915, 917 (Fla. 1st DCA 1996) (concluding rule permitting appeal of nonfinal order adjudicating compensability “contemplates that only the ruling on the issue of compensability may be challenged on interlocutory appeal”).

There is no question that Claimant is entitled have a videographer at the IME. See Thompson v. Awnclean USA Inc., 849 So.2d 1129 (Fla. 1st DCA 2003). And there is no dispute that Claimant is responsible for paying the charges assessed by her videographer. The dispute in this case is who is responsible for paying the additional $1500 charge assessed by the doctor simply because Claimant will have a videographer present during the IME. The JCC determined that Claimant was responsible for the additional doctor-imposed charges, but he disclaimed any jurisdiction to determine the reasonableness or appropriateness of the charge in this case. This was error.

The JCC had jurisdiction to determine whether the doctor’s requirement of a $1500 advance payment for the presence of a videographer at the IME was reasonable or appropriate under the law. If that charge was unreasonable or not allowable under the law, the JCC may well have erred in (a) concluding that Claimant “fail[ed] to appear ... without good cause” and (b) ruling that Claimant “shall be responsible for any additional physician fees or charges resulting from the presence of her videographer” at a future IME.

An IME is part of the discovery process in workers’ compensation proceedings. A physician undertaking the role as an IME is not at liberty to demand that payment be made on his or her terms, but is instead regulated by statutorily mandated reimbursement standards. See § 440.13(12)(d), Fla. Stat. (2012); see also Florida Workers’ Compensation Health Care Provider Reimbursement Manual, 2008 Edition, § VII F.2. & I.2., at 20-22 (“Reimbursement for an IME shall include the review of applicable paper and non-paper medical records; an examination of the injured employee; and a written report”; “Reimbursement for supplies and materials not incidental to a service or procedure shall be ... limited to an amount not to exceed twenty percent (20%) above the actual documented cost based on submission of documentation that substantiates the provider’s cost, including applicable manufacturer’s shipping and handling.”). A JCC is empowered to preserve and enforce order in workers’ compensation proceedings, and may compel discovery and “do all things conformable to law” in carrying out such duties. § 440.33(1), Fla. Stat. (2012). Accordingly, the JCC may enter protective orders or other orders setting the parameters of discovery under the Workers’ Compensation Law; such duties would by all appearances, given the circumstances of this ease, require the JCC to resolve the dispute of whether the doctor’s $1500 advance-payment-only video fee was appropriate or chargeable in the first instance.

This court has concluded that a JCC is required to exclude the medical opinions of a purported IME physician who refuses to be bound by the proper legal billing process for such services under the Workers’ Compensation Law, as such physician does not qualify as an IME, see City of Riviera Beach v. Napier, 791 So.2d 1160, 1161 (Fla. 1st DCA 2001); it follows that a JCC should not require an individual to attend a physical examination to be conducted by a physician who is not qualified to serve as a witness in the case. Because the record before us contains no foundational information as to how the doctor arrived at the additional video fees, or how such services, vel non, were billed or documented, we cannot and do not reach the ultimate issue as to whether such cost is permissible or reasonable under the Workers’ Compensation Law. Further, in light of the undeveloped nature of these essential facts and the JCC’s incorrect conclusion that he had no jurisdiction to determine the propriety of the fee at issue, we cannot yet determine which party, if any, is financially responsible for the extra video fee, nor can we yet determine whether the JCC properly ordered Claimant to pay half of the no-show fee.

For the foregoing reasons, we reverse the appealed order because it improperly concludes the JCC had no jurisdiction to determine whether the doctor’s video fee at issue is permissible, and remand for additional proceedings for the JCC to determine the propriety and reasonableness of the doctor’s additional, in-advance, video fee. After determining the appropriateness of the fee, the JCC shall then determine (a) whether Claimant should be assessed half of the doctor’s no-show fee under section 440.13(5)(d), and (b) which party, if any, is responsible for payment of the doctor’s videographer fee at any future IME.

REVERSED and REMANDED for further proceedings consistent with this opinion. •

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.

       The manual is adopted by reference in Florida Administrative Code Rule 69L-7.020 and is available online at http://www.myfloridacfo. com/Division/W C/pdf/2008HCPRM.pdf.


text:
    Antraveius BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3331.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2014.
    Rehearing Denied Nov. 6, 2014.
    Antraveius Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

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


author: FENSOM, JAMES B., OSTERHAUS, J.,

text:
    James H. TIPLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4408.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2014.
    Michael Ufferman, Tallahassee for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee for Appellee.
   FENSOM, JAMES B.,

Associate Judge.

Appellant James H. Tipler appeals an order denying his motion to withdraw plea after sentencing. Because Appellant was denied the assistance of counsel during a critical stage of the proceeding, we reverse.

I.

Appellant was charged with (1) conduct or participation in an enterprise through a pattern of racketeering activity (RICO); (2) use or investment of proceeds from a pattern of racketeering activity; and (3) two counts of practicing law while disbarred or suspended. On June 7, 2013, pursuant to his negotiated nolo contendré plea, Appellant was adjudicated guilty on one count of racketeering and one count of practicing law while disbarred, and sentenced to eighty months incarceration, followed by eight years probation.

On July 2nd, Appellant presented a pro se motion to withdraw plea to prison officials for mailing, which was filed by the Clerk of Court on July 8th. In the motion, Appellant asserted that his trial counsel gave him misadvice regarding the correctional institution in which he would be incarcerated. Appellant explicitly stated that he was not assisted by counsel in preparation of the motion, and requested permission to amend his motion once he regained such assistance.

On July 3rd, Appellant’s trial counsel from the Law Office of Taylor & Taylor, P.A. (collectively “Taylor”) filed a motion to withdraw as counsel of record. The trial court granted Taylor’s motion the day it was filed. More than a month later, on August 6th, the trial court denied Appellant’s motion to withdraw plea without holding a hearing or appointing counsel. Appellant timely appealed.

II.

Constitutional issues are reviewed by appellate courts using a two-step approach: “deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” See Joe v. State, 66 So.3d 423, 425 (Fla. 4th DCA 2011) (quoting Connor v. State, 803 So.2d 598, 605 (Fla.2001)).

Once a plea has been formally accepted and a sentence rendered, a defendant has thirty days to file a motion to withdraw the plea. See Fla. R. Crim. P. 3.170(Z). Florida law recognizes that a 3.170(Z) motion is a “critical stage” of a proceeding, entitling the defendant to the Sixth Amendment right to representation and assistance of counsel. See Pagan v. State, 110 So.3d 3, 5 (Fla. 2d DCA 2012).

Because Appellant was completely denied representation and assistance with regard to his motion to withdraw plea, reversal is required. See Stephens v. State, 141 So.3d 701, 702 (Fla. 4th DCA 2014) (reversing summary denial of a motion to withdraw plea because the appellant’s counsel withdrew prior to the court’s ruling on the motion). See also Jones v. State, 74 So.3d 118, 123 n. 5 (Fla. 1st DCA 2011); Schriber v. State, 959 So.2d 1254, 1257 (Fla. 4th DCA 2007) (“[T]he thirty-day window provided in Rule 3.170(Z) is a critical stage of the criminal proceedings and it would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.”).

The State asserts that any error was harmless because Appellant’s allegations were conclusively refuted by the record. See Nelfrard v. State, 34 So.3d 221, 223-24 (Fla. 4th DCA 2010). However, Nelfrard is founded on Sheppard v. State, in which the Florida Supreme Court provided a narrow exception to the bright-line rule against hybrid representation. 17 So.3d 275, 287 (Fla.2009). Here, Appellant was effectively unrepresented, and therefore Sheppard and Nelfrard are inapplicable. See Stephens, 141 So.3d at 702.

We do not address the merits of Appellant’s motion. Instead, we simply find that Appellant should have been given the opportunity to be assisted by counsel before its merits were considered. See id. Accordingly, we hold that because Appellant was not represented during the preparation or consideration of his pro se motion to withdraw plea after sentencing, he was denied his constitutional right to assistance of counsel at this critical stage of the proceeding. See Taylor v. State, 87 So.3d 749, 758 (Fla.2012) (“The Sixth Amendment of the United States Constitution guarantees the right to effective assistance of counsel at all critical stages of a criminal prosecution.”), reh’g denied (May 7, 2012); Wofford v. State, 819 So.2d 891, 892 (Fla. 1st DCA 2002) (“[Djenial of the Sixth Amendment right to counsel is per se reversible error.”).

III.

For these reasons', the trial court’s order denying Appellant’s motion to withdraw plea is REVERSED and REMANDED for the trial court to appoint counsel to assist Appellant in drafting his motion.

VAN NORTWICK, J., concurs.

OSTERHAUS, J., dissents with opinion.

OSTERHAUS, J.,

dissenting.

I respectfully dissent and would not remand this case because the record conclusively refutes the allegations in Mr. Ti-pler’s motion to withdraw plea. See Johnson v. State, 22 So.3d 840, 845 (Fla. 1st DCA 2009) (finding harmless error in the trial court’s summary denial of a motion to withdraw plea because the motion’s allegation was conclusively refuted by the record); Gumbs v. State, 143 So.3d 1160, 1164 (Fla. 4th DCA 2014) (noting that if the record did not conclusively refute a defendant’s allegations, then he was entitled to an evidentiary hearing).

Mr..Tipler sought to withdraw his plea after he was sentenced because allegedly the State broke a promise and one of his attorneys misadvised him regarding his chances of serving the sentence at the correctional institution of his choice. The motion reckoned his plea involuntary because he had “a promise extracted from the State, as a critical part of the plea agreement, ... not to oppose placement at the prison of Defendant’s choosing” near Panama City. As it turned out, however, the Department of Corrections (DOC) did not place Mr. Tipler at the institution of his choice, but at an institution near Pensacola. Mr. Tipler’s motion asserted that the State created an “expectation of placement that was false and fraudulent.” And he blamed one of his trial attorneys (he claimed to have three retained lawyers) for mistaken advice because it was “impossible” for him to be placed at his preferred institution.

The transcript of the plea hearing refutes Mr. Tipler’s allegations of coercion and mistaken advice regarding his placement. His placement was addressed at the plea hearing where defense counsel specifically asked the court to recommend a placement near Panama City: “The State is not going to oppose our requesting a designation recommendation to [DOC] that he be placed in Panama City Correctional Institution. Understanding that’s simply a recommendation.” (Emphasis added). Later at the hearing, the State requested that the Court specifically ask Mr. Tipler “if there’s anyone ... who made threats or promises to him, other than what he’s heard here in court on these recommendations, that caused him to enter this plea, first; and secondly, if the Defendant is satisfied with advice and representation of his counsel.” In turn, the Court confirmed with Mr. Tipler himself that he wasn’t coerced or promised anything, and that he was satisfied with his attorney. Only then did the Court recommend a placement, without State opposition, as follows: “The Court recommends that the Defendant be allowed to serve any incarceration at the Florida [DOC] in Panama City ... Bay Correctional Institute.” (Emphasis added). Through all of this, no one — not defense counsel, the State, the trial court, or Mr. Tipler himself — referred to either a promise or an expectation of a specific placement, but only to a “recommended” placement.

Under these circumstances, I think the trial court’s decision not to hold a hearing was a harmless error because the record conclusively refutes Mr. Tipler’s allegations of coercion and mistaken advice regarding his placement. I would affirm.

      . This deference does not fully apply where, as here, “the findings are based on evidence other than live testimony, since such evidence is as available to the appellate court as it was to the trial court.” See Joe v. State, 66 So.3d 423, 425 (Fla. 4th DCA 2011) (quoting Parker v. State, 873 So.2d 270, 279 (Fla.2004)) (internal quotation marks omitted).

      . Although Appellant had counsel of record (Taylor) when he drafted his pro se motion, Appellant explicitly stated that he was not assisted in its preparation. Further, while Appellant was technically represented up until the day thát he handed the motion to withdraw plea to the prison officials, he was not represented by the time the motion was officially filed, considered, or summarily denied by the court. The trial court must have been aware of this fact, as the Order Denying Motion to Withdraw Plea of Convenience was only served upon Appellant, individually.

      . As noted by the Fourth District:
      Had [the defendant's] counsel not withdrawn, our analysis would be different.
      Under such a scenario, so long as the motion alleged an adversarial relationship between [the defendant] and his counsel, the trial court would have been required to “hold a limited hearing” to determine whether “an adversarial relationship between counsel and the defendant has arisen” and thus whether [the defendant] was entitled to new, conflict-free counsel.

        Stephens, 141 So.3d at 702 n. 1 (citing Sheppard, 17 So.3d at 287; Nelfrard, 34 So.3d at 223).

      . Mr. Tipler's pro se motion to withdraw plea motion further conceded that he understood the nature of the trial court's action at the plea hearing: "Defendant heard that the Court’s recommendation was just that.”


text:
    Robert J. MORRIS, Petitioner, v. John E. MORRIS, III, Respondent.
    No. 1D14-1349.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2014.
    George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, and Cary A. Hardee, II of Hardee Law Firm, PL, Madison, for Petitioner.
    Bryan Duke of Messer Caparello P.A., Tallahassee, for Respondent.
   PER CURIAM.

The petitioner has failed to demonstrate irreparable harm. We, therefore, dismiss the petition.

WOLF, ROWE, and OSTERHAUS, JJ., concur.


author: TAYLOR, J.

text:
    J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2941.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

J.R., a child, appeals the trial court’s order finding him guilty of possession of marijuana, after denying his motion . to suppress. We reverse, because the evidence was obtained as a result of an unlawful stop and detention for truancy.

J.R. was arrested and charged with possession of marijuana, less than twenty grams. He filed a motion to suppress the marijuana that the officer seized from his pocket after frisking him and the statements the officer obtained after taking him into custody. At the hearing on the motion to suppress, a West Palm Beach police officer testified that while patrolling in his vehicle on a school day around 8:15 in the morning, he observed J.R. at 47th Street and Broadway walking away from his bus stop with another juvenile.

The officer knew J.R. because of previous encounters with him. He knew that J.R., a fifteen-year old, attended school and that his bus stop was at 50th Street and Manning, five blocks away. The officer watched J.R. with his binoculars and saw him walk up to a residence that he knew was not J.R.’s. Because the officer’s view was obstructed, he could not see whether J.R. entered the residence, but he saw his companion wait on the street until J.R. joined him a few moments later. The two then continued walking east.

The officer stopped J.R. at 47th and Spruce. J.R., a minor, was holding a package of cigars. The officer asked him “why he had left the bus stop prior to the bus arriving.” He testified that J.R. told him. that he was walking towards the bus stop, but the officer stated that this was inconsistent with what he observed. The officer explained:

I initiated the stop based upon what I believe was truancy and I took the cigars from him and I patted him down for my protection. And I saw — I felt in his pocket what I bélieved to be a knife, an open — a closed buck knife. And when I pulled it from his pocket I saw that it was a knife and I had also grabbed with my fingers what I would say is a nickel bag of marijuana or a small half gram bag of marijuana in a zip lock.

The officer took J.R. into custody and placed him in the back of his patrol car. J.R. asked the officer if he was under arrest, whether the officer was taking him home or to the Juvenile Assessment Center, and why he stopped him. The officer explained that he saw him walking up to a house away from the bus stop and he did not know what he was doing. J.R. responded that he bought weed at the house. He added that he and his friend were going to smoke the marijuana instead of going to school.

On cross-examination, the officer testified that J.R.’s bus usually shows up around 8:15 a.m., which was the time he saw J.R. walking away from the bus stop. He acknowledged that he did not know whether the bus came before or after he stopped J.R. because he was busy following J.R. He also acknowledged that there were other bus stops in the area. Although the officer was not sure of the exact time when school started, he conceded that school could have started at 9:30 a.m.

J.R. argued that the evidence and his statements should be suppressed because there was no reasonable basis to stop him for truancy when he was not yet “absent” from school. In addition, he argued that there was no justification for the pat down that led to discovery of the marijuana. The .trial court denied J.R.’s motion to suppress. After trial, the court found J.R. guilty of possession of marijuana, less than twenty grams, withheld adjudication of delinquency, and placed, him on probation. J.R. appealed.

“The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court’s factual findings but review legal conclusions de novo.” State v. E.W., 82 So.3d 150, 151 (Fla. 4th DCA 2012).

Section 984.13(l)(a), Florida Statutes (2013), states in relevant part:

(1) A child may be taken into custody:
(b) By a law enforcement officer when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site,

(emphasis added).

In this case, the officer initiated a stop of a juvenile for truancy without reasonable grounds to believe that the child was absent from school. Although the officer may have believed that J.R. was planning to miss school based on his observations of J.R.’s movements and location before school started, section 984.13 does not authorize an officer to preemptively -detain a child who may be plotting to skip school later. Here, the officer detained the juvenile for truancy well over an hour before school was scheduled to start. J.R. could not have been “absent” from school before it began or was scheduled to begin. Moreover, merely missing the bus could not be considered truancy where, as in this case, the officer did not know whether J.R. had already missed the bus, or whether he could have taken a bus at one of the multiple bus stops in the area or relied on some other means of getting to school that day.

The state relies on K.A.C. v. State, 707 So.2d 1175 (Fla. 3d DCA Í998) to argue that a law enforcement officer may take custody of a child if the officer has reasonable suspicion that the child is simply planning on being truant. However, the state’s reliance on K.A.C. is misplaced. There, the Third District concluded that police officers had a well-founded suspicion that K.A.C. was truant “when they observed him walking away from the school while all of the other children were walking toward school.” Id. at 1176-77. Although the state argues an inference can be drawn that school had not yet started because children were walking towards school at the time, the opinion does not ' specify the time of day when K.A.C. was stopped or reveal whether school was already in session.

Because the officer in this case did not possess the requisite reasonable grounds to believe that J.R. was truant when he stopped and detained him, and did not describe any circumstances or behavior on the part of J.R. to justify the pat down, the trial court should have suppressed the marijuana and incriminating statements resulting from the unlawful search and seizure as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that all evidence obtained from an illegal search and seizure was “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police).

Accordingly, we reverse the denial of the motion to suppress and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and MAY, JJ., concur.


text:
    Keith MILLER and Gretchen Miller, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 4D13-3576.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Jeffrey Begens of Law Offices of Jeffrey Begens, P.A., Palm Beach Gardens, for appellants.
    Jason F. Joseph of Gladstone Law Group, P.A., Boca Raton, for appellee.
   PER CURIAM.

Keith and Gretchen Miller appeal a final judgment of foreclosure awarding attorney’s fees to the Bank of New York Mellon. We reverse because the attorney’s fees award was not supported by expert testimony. See Diwakar v. Montecito Palm Beach Condo. Ass’n, 143 So.3d 958, 960 (Fla. 4th DCA 2014) (“An award of attorney’s fees must be supported by expert evidence.”) (citation omitted). Testimony from only the lawyer claiming the fees is “clearly inadequate.” Mullane v. Lorenz, 372 So.2d 168, 168 (Fla. 4th DCA 1979). Although “[w]e have ... previously questioned the judicially-created requirement of independent expert witness testimony in establishing the reasonableness of attorney’s fees,” “it remains etched in our case law.” Robin Roshkind, P.A. v. Machiela, 45 So.3d 480, 481 (Fla. 4th DCA 2010). See also Sea World of Fla., Inc. v. Ace Am. Ins. Cos., 28 So.3d 158, 160 (Fla. 5th DCA 2010); Palmetto Fed. Sav. & Loan Ass’n v. Day, 512 So.2d 332 (Fla. 3d DCA 1987). Accordingly, we reverse the attorney’s fees award and remand for a further hearing. See Mullane, 372 So.2d at 168; Palmetto, 512 So.3d at 332-33. We affirm the other issues raised without discussion.

Affirmed in part, reversed in part, and remanded.

GERBER, LEVINE and KLINGENSMITH, JJ., concur.