text:
    Roderick V. HAYGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3539.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Roderick V. Haygood, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Roderick V. Haygood appeals the denial of his motion for post-conviction relief. In his motion, Haygood raised six claims, three of which were summarily denied. In one of the claims summarily denied, claim two, Haygood argued defense counsel rendered ineffective assistance for failing to object to that part of the prosecutor’s closing argument where the prosecutor said:

You notice that when defense counsel was addressing you, he never once disputed the fact that this stuff right here came from that man; not once. Because there is no disputing it.

Haygood argues that this comment may be understood as a comment on his failure to testify. In summarily denying relief on this ground, the trial court held that the statement was “not necessarily objectionable” and when read in context “was relatively minor.” The trial court did not attach a transcript of closing arguments to its order.

A defendant has the constitutional right to decline to testify against himself in a criminal proceeding. See U.S. Const, amend. V; art. I, § 9, Fla. Const. Therefore, “[a]ny comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged.” State v. Marshall, 476 So.2d 150, 153 (Fla.1985); see also Fla. R. Crim. P. 3.250 (prosecuting attorney prohibited from commenting on the defendant’s failure to testify on his or her behalf). The “fairly susceptible” test is a “very liberal rule.” Dessaure v. State, 891 So.2d 455 (Fla.2004). Defense counsel’s failure to object to an improper comment by the prosecution may serve as a basis for a post-conviction claim. Darling v. State, 966 So.2d 366, 385 (Fla.2007) (holding the defendant had stated an arguable basis for finding counsel deficient for failing to object to improper prosecutorial comments). Rule 3.850, Florida Rules of Criminal Procedure, provides that when a claim is denied without benefit of an evi-dentiary hearing and when the denial is not predicated on legal insufficiency of the claim, the trial court is to attach to its order that portion of the files and records that conclusively show a movant is not entitled to relief. As noted, the lower court did not attach any portion of the record conclusively demonstrating that Haygood was not entitled to relief on that part of claim two noted above.

Therefore, we reverse the summary denial of claim two and remand for the trial court to either attach records refuting it or to evaluate that portion of the claim at an evidentiary hearing. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”).

AFFIRMED in part, REVERSED in part, and REMANDED.

BENTON and PADOVANO, JJ., and SENTERFITT, ELIZABETH, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Annmarie BALCH, Appellant, v. HSBC BANK, USA, N.A., Appellee.
    No. 5D12-4175.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      AnnMarie Balch, Palm City, pro se.
    David S. Ehrlich and Michael A. Rodriguez, of Blank Rome, LLP, Boca Raton, for Appellee.
   PER CURIAM.

This is an appeal of an order prohibiting a non-party, Sherman Balch, from filing any further pro se pleadings or documents unless signed by an attorney. We treat the Notice of Appeal as a Petition for Writ of Certiorari and deny the Petition.

Petitioner, AnnMarie Balch, was named as a defendant in a mortgage foreclosure action. Sherman Balch was not a signatory to the subject note and mortgage, and he was not named as a defendant in the suit. Nevertheless, Sherman Balch filed numerous pleadings jointly with AnnMarie Balch. One of the pleadings Sherman Balch jointly filed was entitled, “Defendant(s), Sherman Balch’s and AnnMarie Baleh’s Answer and Affirmative Defenses to Plaintiffs Complaint and Counterclaims.” That pleading is rambling and disjointed and appears to accuse Respondent, HSBC Bank USA, N.A., of, among other things, fraud, deceit, and extortion. It also appears to attempt to plead a counterclaim for damages.

Respondent filed a Motion to Strike this and other pleadings and documents, arguing that Sherman Balch was not a party to the suit and had no standing to file anything in the lawsuit. A hearing was held on the Motion to Strike, and the trial court rendered an order, dated December 23, 2009, stating that the court heard argument from counsel and defendants. In that order, the court granted the Motion to Strike and further ordered that all references to the non-party, Sherman Balch, be stricken from the pleadings. The order also provided that Sherman Balch was prohibited from submitting further filings without leave of court.

In direct violation of that order, Sherman Balch subsequently filed (jointly with AnnMarie Balch) a Motion to Dismiss, asserting lack of subject matter jurisdiction. The trial court rendered an order denying that Motion. In that order, the trial court found that Sherman Balch had ignored the prior order prohibiting him from filing any further pleadings or documents without leave of court. The order further provides that Sherman Balch is prohibited from filing “any paper in this case unless the paper is signed by an attorney who is a member of the Florida Bar” and that any further violation of this order could subject Sherman Balch to contempt of court proceedings. That order is now being appealed by AnnMarie Balch, who is attempting to assert the rights of the non-party, Sherman Balch, to continue to participate in the lawsuit and to have the order reversed.

The order submitted for review is a non-fínal and non-appealable order. See Favreau v. Favreau, 940 So.2d 1188, 1189 (Fla. 5th DCA 2006). Because the non-final order is not appealable, we will treat the Notice of Appeal as a Petition for Writ of Certiorari. Id.

When a pro se litigant files frivolous law suits or pleadings in a lawsuit, the court has the authority to restrain such a litigant from abusing the legal system and prevent him from abusing, annoying, or harassing those against whom such suits or pleadings have been filed. In Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303 (Fla. 5th DCA 1983), for example, this court held that “when one person, by his activities, upsets the normal procedure of the court so as to interfere with the causes of other litigants, it is necessary to exercise restraint upon that person, ie., requirement that pleadings be accompanied by an attorney’s signature—a restraint which does not amount to a complete denial of access.” Id. at 304 (citing Shotkin v. Cohen, 163 So.2d 330 (Fla. 3d DCA 1964)).

In Shotkin, the court was confronted with a pro se litigant who filed pleadings containing irrelevant and scandalous allegations, including material that the court found would subject a member of the bar to possible disciplinary action had an attorney been responsible for such filings. The Third District Court prohibited the pro se litigant from any further pro se filings and explained that when such a litigant

upsets and interferes with the normal procedures of a court that will have approximately 1,000 matters filed before it this year, it becomes necessary to exercise restraint upon such person. This is so because the remainder of the litigants should not have their causes interfered with due to the unreasonable amount of time and effort which must be given in an attempt to make some intelligent understanding out of the voluminous so-called pleadings and briefs [filed by Bernard M. Shotkin], in order that as to them “justice shall be administered without * * * delay.”

163 So.2d at 332 (quoting Art. I, § 21, Fla. Const.). Other courts have followed Platel and Shotkin in holding that a pro se litigant who files frivolous pleadings be prohibited from any further filings unless signed by a licensed attorney. See, e.g., Gladstone v. Smith, 729 So.2d 1002 (Fla. 4th DCA 1999); Kreager v. Glickman, 519 So.2d 666 (Fla. 4th DCA 1988).

Petitioner, AnnMarie Balch, complains that Sherman Balch did not have proper notice and an opportunity to be heard. A hearing was held on the Respondent’s Motion to Strike and, although the Petitioner has not provided this court with a transcript of that hearing, the order emanating therefrom specifically states that the trial court “heard argument of counsel and Defendant(s).” That order provides in pertinent part that, in addition to striking numerous pleadings filed by Sherman Balch, “[w]ith regard to ... Defendants), Sherman Balch’s and AnnMarie Balch’s Answer and Affirmative Defenses to Plaintiffs Complaint and CounterClaims, all references to Sherman Balch are hereby stricken ....” Not only does the order indicate that the defendants were present and heard by the court, the order rendered after that hearing specifically prohibited Sherman Balch “from submitting any further filings to this court having to do with this case without leave of court.” In complete disregard of that order, Sherman Balch continued to file pleadings jointly with AnnMarie Balch and that is when the court included the prohibition of any further filings unless signed by a member of the bar. Under these facts and circumstances, we reject the argument of lack of notice and opportunity to be heard.

The courts have consistently held that pro se litigants should be treated no differently or more leniently than litigants represented by counsel. See Millen v. Milieu, 122 So.3d 496, 497 (Fla. 3d DCA 2013) (“We first note, ‘[i]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.’ ” (quoting Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992))); Anderson v. Sch. Bd. of Seminole Cnty., 830 So.2d 952, 953 (Fla. 5th DCA 2002) (“Pro se litigants, however, should not be treated differently from litigants in similar situations who are represented by counsel and are charged with knowledge of those rights.” (citing Kohn)); Stueber v. Gallagher, 812 So.2d 454, 457 (Fla. 5th DCA 2002) (“In Florida, pro se litigants are bound by the same rules that apply to counsel.” (citing Kohn))-, Gladstone, 729 So.2d at 1004 (“A pro se litigant should not be held to a lesser standard than a reasonably competent attorney because applying a lesser standard would only encourage continued frivolous litigation.” (citing Kohn)). In Kohn, the court held that “it is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney” and that “a party’s self-representation does not relieve the party of the obligation to comply with any appropriate rules of civil procedure.” 611 So.2d at 539^10. The court in Kohn further noted, citing numerous cases from other jurisdictions, that “[cjourts around the country have likewise recognized that once a party chooses to represent himself he cannot expect favored treatment from the court.” 611 So.2d at 540 n. 1. Sherman Balch is no exception, and his pro se status gives him no right to flagrantly violate prior court orders and inject himself in a lawsuit in which he has no standing.

Accordingly, we treat the Notice of Appeal as a Petition for Writ of Certiorari and deny the Petition.

PETITION DENIED.

SAWAYA, LAWSON, and WALLIS, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Billie Jean PACE, M.D., Respondent.
    No. 5D12-4957.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      Dale T. Gobel and Michael V. Hammond, of Gobel Flakes. LLC, Orlando, for Petitioner.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Respondent.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company [“State Farm”] petitions for a writ of certiorari to review an order of the trial court limiting the testimony of its forensic accounting expert, Robert Morrison [“Morrison”].

This petition arises out of a June 2010 car crash between plaintiff, Dr. Billie Jean Pace [“Pace”], and defendant, Todd Sham-laty, in Casselberry. Pace claimed that the defendant negligently drove his car so that it rear-ended her car and caused her injury. In her suit, Pace claimed that she:

suffered bodily injury including a permanent injury to the body as a whole, pain and suffering of both a physical and mental nature, disability, physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life, aggravation of an existing condition, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money and loss of ability to lead and enjoy a normal life. The losses are either permanent or continuing and Plaintiff will suffer the losses in the future.

Pace is a medical doctor practicing in Altamonte Springs, Florida, under the group name of Altamonte Women’s Center [“AWC”]. Her practice is organized as a corporation in which she and one other physician are essentially partners. Pace’s primary damages claims below are claims for lost income and loss of ability to earn income. Pace testified in her deposition that since her accident, she is unable to do more than two procedures a day, unless it is an emergency. The naive reader might assume that a damage claim so specific arising in the context of a small medical practice operating as a corporation would be simplicity itself to document and to calculate and for the defense to discover and critique. But that conclusion would be wrong. What should have been simple has become a protracted and pointless discovery nightmare. The problems run the gamut from misidentified witnesses, redacted documents, scheduling disputes, corporate representatives with little or no knowledge of the relevant facts and documents, through incomplete and delayed disclosure of relevant documents.

On October 10, 2012, the trial court held a hearing on several outstanding motions. At that hearing, the trial court ordered that the deposition of the person at AWC with the most knowledge about the documents referenced in the report of Frederick Raffa [“Raffa”], Pace’s expert, must take place before Raffa’s deposition. The judge also ordered that the designated person must produce all of the documents requested by State Farm.

THE COURT: What I’m saying is items that exist need to be produced and simply because she handed them to her accountant or put them in her neighbor’s garage doesn’t mean she can’t produce them. They need to be produced. She has access and control over them and they’re readily available to her, then she can produce them.

Defense counsel confirmed:

I just want to make sure I’ve got Your Honor’s ruling correct. We’re entitled to the documents. We’re entitled to a deposition with the person with the most knowledge. We’re entitled to that deposition before Raffa. We’re entitled to that deposition before Mr. Febo.

THE COURT: That’s correct.

State Farm received Pace’s witness list and evidence schedule related to the upcoming trial on October 2, 2012. That witness list identified Mr. Febo as Pace’s accountant. However, when State Farm deposed Mr. Febo on October 11, he disclosed that he is not Pace’s personal accountant, but rather is the accountant for AWC and a related business entity.

On October 12, 2012, State Farm’s counsel received two disks from Mr. Febo containing about 1,400 pages of documents. Pace also produced AWC’s files. However, State Farm claimed that those Quick-Books files were password protected and could not be accessed.

On October 18, 2012, State Farm received Pace’s amended witness list and evidence schedule related to the upcoming trial of this case. That witness list again identified Mr. Febo as Pace’s accountant.

On October 19, 2012, State Farm’s counsel sent a letter to Pace’s counsel, advising him that their forensic expert, Morrison, did not yet have any opinions because Pace had not produced the documentation he needed to form those opinions.

On October 22, 2012, Pace’s counsel deposed Morrison. However, Morrison had formed no opinion because he still did not have complete copies of Pace’s personal tax returns or any of the requested documents from AWC, including evidence of the number of surgical procedures performed by Pace.

On October 23, 2012, State Farm again took the deposition of the person at AWC with the most knowledge about the documents referenced in Raffa’s expert report. Again Pace provided Maureen Henson [“Henson”] — the same person who previously had no knowledge about the designated areas of inquiry — as the person with the most knowledge. She produced no documents, relying on documents produced by accountant Febo on October 12, 2012.

During the course of the discussion about the produced disks, Henson disclosed that AWC maintains surgery notebooks that detail all of the procedures performed by both doctors employed by AWC. Henson identified these “surgery notebooks,” as containing the patient, procedure, insurance, and payment information for the surgeries performed by Pace at the hospital or the surgery center. However, the supporting documentation regarding the lost income claim summaries, including specifically the “surgery notebooks,” were not included.

On October 29, 2012, Pace served her second amended witness list and evidence schedule. That witness list identified Duerr as Pace’s personal accountant. On November 2, 2012, Raffa issued his amended expert report.

On November 8, 2012, State Farm deposed the person at Florida Hospital with the most knowledge about the number of procedures that Pace had performed there for the time period relevant to this case. On the same day, State Farm deposed Duerr, Pace’s personal accountant. State Farm claims that, as of the date of those depositions, it, for the first time, had available some of the documents that its forensic expert, Morrison, needed to formulate his opinions in response to Raffa’s now amended expert report.

Four days later, on November 12, 2012, Pace filed a motion to strike Morrison because he had no opinions as of the date of his October 22, 2012, deposition. On November 14, 2012, State Farm filed its response to the motion to strike, in which it explained that Morrison had no opinions as of the date of his scheduled deposition because Pace and AWC had refused to produce the information needed to analyze Pace’s wage claims, and, thereby, formulate his opinions and rebut the opinions of Raffa. On November 26, 2012, the trial court ruled on Pace’s motion to strike, ruling that Morrison’s testimony at trial would be limited to the testimony provided in his October 22, 2012, deposition. State Farm contends in its petition that this ruling has the practical effect of striking its only witness retained to rebut Raffa’s opinions regarding Pace’s claims for lost income and loss of ability to earn income— and this will cause it irreparable harm irremediable on appeal.

On the face of it, given all the foregoing, the trial court’s limitation on the testimony of Morrison is surprising. However, even if we were confident that the trial court had erred by limiting the testimony of Morrison, we conclude that we lack certio-rari jurisdiction. We recently reaffirmed in Bill Kasper Construction v. Morrison, 98 So.3d 1061 (Fla. 5th DCA 2012), that an interlocutory order of the trial court striking an expert witness is not amenable to certiorari review because it is the sort of trial error that usually does not cause irreparable harm, and can be remedied on appeal.

State Farm contends that Kasper is not controlling here because, unlike in Kasper, where the aggrieved party could proffer the stricken testimony, in this case, State Farm may not do this because it has not been given the discovery it requires for Morrison to formulate an opinion for State Farm to proffer. We disagree. If, on direct appeal, this Court concludes that the trial court erred in prohibiting Morrison from testifying about any opinions formulated after October 22, the harm is evident, with or without a proffer, and State Farm will be entitled to a remedy, unless Pace can show the error was harmless. Kasper, 93 So.3d at 1064 (Torpy, J., concurring). What’s more, this case is similar to Kasper in that State Farm finally obtained significant discovery necessary for Morrison to formulate an opinion after October 22, and there is no reason to expect that State Farm will not eventually receive, through discovery, whatever facts are relevant to Pace’s loss of income claim. This should allow a more than adequate proffer. Even if the trial court does not alter its interlocutory ruling and Morrison is not allowed to testify to any opinions formed after October 22, State Farm can show what Morrison’s opinion would have been had he been allowed to testify.

PETITION for WRIT of CERTIORARI DENIED.

GRIFFIN, SAWAYA and EVANDER, JJ., concur.

      . Maybe not so pointless, given the order at issue.


author: COHEN, J.

text:
    KEUM SAN YI, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-656.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      William R. Ponall of Snure & Ponall, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Keum San Yi appeals from the judgment and sentence entered after a jury found him guilty of three counts of lewd or lascivious molestation as well as one count of misdemeanor battery, a lesser-included offense of the sexual battery offense with which he was charged. We reverse and remand for a new trial.

A number of errors that occurred during the course of the trial compel reversal. First and foremost, the trial court erred in instructing the jury on the crime of lewd or lascivious molestation. In pertinent part, the trial court instructed the jury that the State must prove that Yi touched the buttocks, breasts, or genitalia of the victim, or the clothes covering the buttocks, breasts, or genitalia of the victim. However, at the time of the trial, the standard jury instruction on lewd or lascivious molestation provided that the State must prove that the defendant “intentionally touched in a lewd or lascivious man-net” the buttocks, breasts, or genitalia of the victim, or the clothes covering the buttocks, breasts, or genitalia of the victim. In re Standard Jury Instructions in Criminal Cases-Report No. 2008-02, 998 So.2d 1138, 1139 (Fla.2008) (emphasis added). Inexplicably, the trial court deviated from the standard jury instruction by omitting the element that required the State to prove that Yi touched the victim “in a lewd or lascivious manner.” Thus, the State was not required to prove that any touching was done with a lewd or lascivious intent. We conclude that the omission of an essential element of the offense constituted fundamental error in this case. Cf. Shaw v. State, 118 So.3d 302, 305 (Fla. 3d DCA 2013) (holding that trial court’s failure to instruct jury that offense of lewd or lascivious molestation required that defendant acted in a lewd or lascivious manner required reversal).

While conceding that the jury instruction given was erroneous, the State argues that affirmance is nevertheless appropriate because the omitted portion of the instruction did not involve a contested element of the offense, citing Battle v. State, 911 So.2d 85 (Fla.2005), and Garzón v. State, 939 So.2d 278 (Fla. 4th DCA 2006). We reject the State’s position that the defense did not contest the nature of any touching. While Yi acknowledged that, as the victim’s adoptive father, he hugged and had other physical contact with her, he expressly denied any improper touching. Yi argued that any touching that occurred was simply the result of joking, playing, tickling, or hugging. Both sides explicitly argued about the nature of the touching in question. Thus, it is clear that a contested issue at trial was whether the touching was done in a lewd or lascivious manner.

Next, Yi argues that the trial court erred in permitting a deputy to offer his personal opinion on the victim’s credibility. We agree. During the State’s direct examination of Deputy Watko, the following exchange took place:

[THE STATE]: How long did you work with sex crimes in the past when you were in that unit?
[THE DEPUTY]: Three years.
[THE STATE]: And how many interviews would you have approximately with the victims of sex crimes?
[THE DEPUTY]: Hundreds, dozens. Hundreds.
[THE STATE]: Out of those dozens of [sic] hundreds of interviews, out of some of them, did you determine in your own investigations that perhaps the witness doesn’t match up and didn’t believe them?
[DEFENSE COUNSEL]: Your honor, I’m going to object to any of her credibility .... I think he’s trying to bolster this officer’s opinion of her credibility.
THE COURT: Overruled.
[THE DEPUTY]: Yes. You — there are times just based on the way someone’s answering questions, their answers will become inconsistent sometimes, and none — I had received none of those indicators with [the victim].
[THE STATE]: In fact, there were no inconsistencies or red flags that jumped out to you at all?
[THE DEPUTY]: None whatsoever.

The trial court allowed the deputy to express his opinion about the credibility of the State’s principal witness in a case where the victim’s credibility was critical. This constitutes an invasion of the province of the jury to determine a witness’s credibility. Seibert v. State, 928 So.2d 460, 472 (Fla.2006). Further, “ ‘[i]t is especially harmful for a police witness to give his opinion of a witnesses’ [sic] credibility because of the great weight afforded an officer’s testimony.’ ” Id. (quoting Page v. State, 738 So.2d 1079, 1081 (Fla. 4th DCA 1999)). This error requires reversal on all counts.

Since we are reversing and remanding this case for a new trial, we deem it appropriate to address additional issues raised by Yi in the hope that these errors are not repeated upon retrial. During closing argument, the State made the following argument: “This is a case in which you’ve heard testimony from the only person that was basically there. You only had one person who testified that was there[:] [the alleged victim].” In our view, the State’s argument is susceptible of being viewed as a comment on Yi’s exercise of his right to remain silent. It suggests that there were two people in the room who knew what happened, and only one of them testified at trial. The argument was improper. See Hill v. State, 980 So.2d 1195, 1198-99 (Fla. 3d DCA 2008). Likewise, the State’s comments denigrating Yi’s theory of the defense, calling it absurd and suggesting that defense counsel was grasping at straws, were improper arguments that must not be repeated. See Henry v. State, 743 So.2d 52 (Fla. 5th DCA 1999) (holding prosecutor made improper closing argument by calling defendant’s version of events as the “most ridiculous defense” that prosecutor had ever heard).

The last issue raised is the standard used by the trial court at the hearing on Yi’s motion to suppress. The trial court correctly applied the law as it existed at the time of the hearing. The trial court relied upon State v. Johnson, 695 So.2d 771 (Fla. 5th DCA 1997), in viewing the evidence in the light most favorable to the prosecution. However, subsequently, in Wheeler v. State, 87 So.3d 5 (Fla. 5th DCA 2012) (en banc), we receded from Johnson and held that the trial court must weigh the evidence based upon the totality of the circumstances, without any favoritism towards the prosecution. In the event that the State attempts to offer the substance of any statements obtained from Yi, including the investigating detective’s reproduction of the picture drawn by Yi during his interrogation, the court should reconsider the motion to suppress utilizing the new standard.

Accordingly, we reverse for a new trial and remand on all four counts.

REVERSED for new trial; REMANDED.

TORPY, C.J., and SAWAYA, J„ concur.

      . Apparently, the assistant state attorney prepared the jury instructions in this case. Notwithstanding, the trial court has a duty to ensure that the jury is properly instructed, and that duty cannot be abdicated.

      . In 2013, the Florida Supreme Court amended this standard jury instruction; however, those amendments are not relevant to the instant appeal.

      .The jury was also instructed on the definition of the words "lewd” and "lascivious.” We reject the State's argument that the jury inferred from the inclusion of those definitions that the State also had to prove that Yi touched the victim in a lewd or lascivious manner.

      . Because we are reversing for a new trial on other grounds, we need not decide whether the issue was preserved by a timely objection.


author: PALMER, J.

text:
    Taurean K. WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3662.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Taurean K. Wilkerson, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Taurean Wilkerson (defendant) appeals the final orders entered by the trial court denying his claims for post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

The State properly concedes that the trial court erred in summarily denying grounds one and three of the defendant’s motions, which alleged ineffective assistance of counsel for failing to advise him of potential double jeopardy issues. The trial court summarily denied these claims, concluding that the defendant waived any double jeopardy violations by entering into a negotiated plea agreement on those charges.

The trial court was correct in recognizing that Florida case law provides that a negotiated plea agreement can serve as a basis for waiver of a double jeopardy claim. However, such case law applies to double jeopardy claims raised on direct appeal, not collateral appeal. See Novaton v. State, 634 So.2d 607 (Fla.1994); Melvin v. State, 645 So.2d 448 (Fla.1994); Farrar v. State, 42 So.3d 265 (Fla. 5th DCA 2010). For double jeopardy claims raised in a collateral rule 3.850 matter, the fact that the defendant entered into a negotiated plea agreement does not preclude him from seeking review of an ineffective assistance of counsel claim which is based on the contention that defense counsel failed to advise him, before he entered his plea, that there were potential double jeopardy issues. See Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004); Weitz v. State, 795 So.2d 1021, 1022 (Fla. 2d DCA 2001); Hubbard v. State, 662 So.2d 746 (Fla. 1st DCA 1995).

Accordingly, the trial court’s summary denial of grounds one and three is reversed, and this matter is remanded for the trial court to either support its summary denial with record excerpts conclusively establishing that the defendant is not entitled to receive any relief or to conduct an evidentiary hearing on the claims.

AFFIRMED in part; REVERSED in part; REMANDED.

EVANDER and BERGER, JJ., concur.

      . The defendant’s claims for relief not discussed in this opinion are without merit.


author: PER CURIAM. COHEN, J.,

text:
    Marcus W. HODGES, Appellant, v. Laura A. HODGES, Appellee.
    No. 5D12-4424.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Stephanie A. Sussman of Bledsoe, Jacobson, Schmidt, Wright & Wilkinson, Jacksonville, for Appellee.
   PER CURIAM.

Appellant challenges several aspects of a final judgment in this dissolution of marriage case. We affirm in part and reverse in part.

The parties agree that the trial court erred in calculating child support by basing the calculation on gross income amounts. Based on the child support guidelines worksheet attached to the final judgment, the correct amount of child support is $140.65 per month.

We agree with Appellant that the trial court erred in ordering him to provide life insurance to secure his child support obligation. First, the requirement is not supported by sufficient factual findings. Lay-eni v. Layeni, 843 So.2d 295, 300 (Fla. 5th DCA 2003). Second, the court erroneously ordered Appellant to procure insurance in an amount exceeding the obligation. Foster v. Foster, 83 So.3d 747, 748 (Fla. 5th DCA 2011). Finally, the court erroneously ordered Appellant to list Appellee as the beneficiary. Alpha v. Alpha, 885 So.2d 1023,1034 (Fla. 5th DCA 2004).

The final issue that we address is the trial court’s order directing the partition of the marital home. This was the only significant asset available for distribution. The trial court distributed it to Appellant with the proviso that Appellant must pay Appellee her equity in the home within six months, failing which the property must be sold. Appellant challenges the order to sell the property because neither party had requested partition. See, e.g., Watson v. Watson, 646 So.2d 297, 297 (Fla. 5th DCA 1994) (trial court without authority to order partition of property in absence of plea by either party). Accordingly, we reverse the order to the extent that it requires sale of the property. On remand, the trial court may revisit the distribution scheme. Alternatively, Appellee may move to enforce the directive to pay Appel-lee’s equity, in which case the trial court may order the sale of the property as a mechanism to enforce that aspect of the order, if requested in a motion.

In all other respects, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

COHEN, J., concurs specially with opinion in which TORPY, C.J., concurs.

COHEN, J.,

concurring specially.

I concur with the majority opinion and write only to suggest that, in niy view, a specific pleading for partition of the marital home should not be required for a trial court to dispose of that home. Given the equitable distribution statute, section 61.075, Florida Statutes (2013), and the fact that, in many cases, the marital home is the only asset of significant value, the requirement is outdated and unnecessary. See Riley v. Edwards-Riley, 963 So.2d 829, 830-31 (Fla. 3d DCA 2007) (holding that the equitable distribution statute renders it “no longer necessary to seek partition as part of a dissolution action to divide or distribute a parcel of property owned by a husband and a wife,” and noting that section 61.075(4) “expressly provides that a final judgment of dissolution of marriage which distributes assets ‘shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition’ ” (quoting § 61.075(4), Fla. Stat. (2005))). In situations where a trial court is likely to order the sale or other distribution of the marital home, the parties have been unable to resolve the issue of ownership of the homestead and accompanying debt and are in need of the trial court’s intervention. No one is surprised when the court does so as part of the equitable distribution scheme.

TORPY, C.J., concurs.


text:
    Algie SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1128.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Algie Scott, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Algie Scott (defendant) appeals the final order entered by the trial court denying his motion seeking post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The defendant raises several claims of reversible error; however, only one claim possesses merit. Concluding that the trial court erred in summarily denying claim one without attaching documents to support the ruling, we reverse.

The defendant argues that the trial court reversibly erred in summarily denying ground one of his post-conviction motion without attaching to its order portions of the record which support the ruling. See Fla. R.Crim. P. 3.850(d). In ground one, the defendant alleged that his defense counsel was ineffective for failing to object to the State’s use of his prior petit theft conviction while seeking habitual-offender sentencing. The trial court summarily denied this claim, writing:

On Ground One, the Defendant asserts Ineffective Assistance of Counsel for failure to object to the use of Felony Petit Theft as an underlying offense supporting the justification of a habitual offender sentence enhancement. However, a review of both the digital recording of his March 30, 2010 sentencing as well as the Defendant’s criminal file actually show that prior convictions other than Petit Theft were used. Therefore, Ground One is summarily denied.

The trial court did not attach any portion of the record to support this ruling. The State properly concedes error.

Accordingly, we affirm the trial court’s denial of relief on all grounds except ground one. As for ground one, we reverse the trial court’s summary denial and remand this cause for either an evidentiary hearing or for the attachment of records that conclusively refute the claim. See Stokes v. State, 107 So.3d 510, 511 (Fla. 5th DCA2013).

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN and WALLIS, JJ., concur.


text:
    William Hardy MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1207.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    William Hardy Moore, Crawfordville, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 11-000237-CFMA, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER, COHEN, JJ., concur.


text:
    Jarvis D. COLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2364.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Jarvis D. Coleman, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jarvis D. Coleman (defendant) filed a petition with this court seeking a writ of habeas corpus, claiming manifest injustice associated with his second-degree murder conviction. Determining that a manifest injustice has occurred in this case, we grant the petition.

The defendant was convicted of second-degree murder and sentenced to a term of life in prison. He filed a direct appeal, and we affirmed his conviction and sentence. See Coleman v. State, 8 So.3d 1148 (Fla. 5th DCA 2009).

The defendant then filed a petition in this court seeking a writ of habeas corpus, alleging ineffective assistance of appellate counsel. The petition alleged that the defendant’s appellate counsel was ineffective for failing to challenge the trial court’s error in overruling the defendant’s objection to the issuance of the then-standard jury instruction on manslaughter; that instruction erroneously included an element of intent. The petition stated that appellate counsel should have filed a supplemental brief addressing the First District’s case of Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), because the opinion was released while the defendant’s direct appeal was pending. The Montgomery court held that the State was not required to prove an intent to kill in order to establish the crime of manslaughter, and that the issuance of an instruction suggesting otherwise constituted fundamental error where the defendant was convicted of second-degree murder. That petition was denied.

Soon thereafter, in Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011), we held that appellate counsel was ineffective for failing to bring to this court’s attention the Montgomery decision while the defendant’s direct appeal was pending because the defendant’s appeal was in the appellate pipeline at the time Montgomery was released. We discussed that, although appellate counsel is not required to anticipate changes in the law, counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of a defendant’s direct appeal. Id. at 334.

Here, the defendant filed a second habeas corpus petition, asserting a claim of manifest injustice regarding our denial of his first habeas corpus petition. He again contends that his appellate counsel was ineffective for failing to file a supplemental brief during his direct appeal alerting this court to the Montgomery decision, citing to Lopez.

Normally, under the doctrine of law of the case, our court would deny a successive petition in circumstances where the issue raised therein has already been rejected by the court in a previous proceeding. See Mediate v. State, 108 So.3d 703 (Fla. 5th DCA 2013). However, “appellate courts have ‘the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.’ ” State v. Akins, 69 So.3d 261 (Fla. 2011) (citing Muehleman v. State, 3 So.3d 1149,1165 (Fla.2009)). We conclude that manifest injustice would result if relief were not granted in this case.

Although the defendant’s appellate counsel filed the initial brief prior to the issuance of Montgomery, counsel had time to file a supplemental brief referencing Montgomery, and counsel had the duty to do so. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (discussing that appellate counsel should be aware of changes in the law and should have filed a supplemental brief during the pendency of an appeal where brief was filed before the law change, but the law change occurred prior to completion of the appeal). The issuance of this court’s decision in Lopez, coupled with the procedural history of the defendant’s case, establishes that a manifest injustice has occurred which requires remediation.

Accordingly, we grant the defendant’s petition in which he requested that, in the interest of justice and judicial economy, a new trial be ordered.

PETITION GRANTED.

SAWAYA, PALMER and ORFINGER, JJ., concur.

      . The issue of appellate counsel’s ineffectiveness is appropriately raised in a petition for writ of habeas corpus. Marshall v. Crosby, 911 So.2d 1129 (Fla.2005).


text:
    Brandon STAPLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3036.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Brandon Stapler, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. CF12-00186, in the Circuit Court in and for St. Johns County, Florida. See Fla. RApp. P. 9.141(c)(6)(D)..

PETITION GRANTED.

GRIFFIN, EVANDER and WALLIS, JJ., concur.


text:
    Jose Alfredo CORONADO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3562.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Jose Alfredo Coronado, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Coronado’s petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 24, 2013 order denying his motion for postconviction relief, in Case Nos. 2009-CF-509 and 2009-CF-516, in the Circuit Court in and for Sumter County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, COHEN and WALLIS, JJ., concur.


text:
    Chris FOSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3632.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Chris Foster, Perry, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2012-CF-2103-A, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, BERGER and WALLIS, JJ., concur.


text:
    Steven CHARLOSTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3802.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Steven Charlostin, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2013-CF-001505-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, BERGER, PALMER JJ., concur.


text:
    Richard BISER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3816.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Michael A. Graves, Public Defender, and Alan Russell Fanter, Brooksville, Assistant Public Defender, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgments and sentences in Case Nos. 2012-CF-002411, 2012-CF-002412, 2012-CF-002416, 2012-CF-002430, 2012-CF-002431, and 2010-CF-001021, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, LAWSON, COHEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Luther T. McKIVER, Appellee.
    No. 5D13-439.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State appeals the trial court order granting Appellee’s Motion for Post Conviction Relief under rule 3.850, Florida Rules of Criminal Procedure. As the Florida Supreme Court has held:

[T]wo requirements must be satisfied for ineffective assistance of counsel claims to be successful under the Strickland[] standard: First, a defendant must show that counsel’s actions or omissions were deficient; and second, the deficiency established must further be shown to have so affected the proceeding that confidence in the outcome is undermined.

Johnston v. State, 70 So.3d 472, 477 (Fla. 2011) (citing Schoenwetter v. State, 46 So.3d 535, 545-46 (Fla.2010)). We conclude that Appellee failed to meet his burden of establishing either prong under Strickland and therefore vacate the order under review and order that the judgment and sentence be reinstated.

Order vacated; Judgment and Sentence Reinstated.

SAWAYA, LAWSON, and WALLIS, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Jeremy Rashad FLORENCE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-468.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jeremy Rashad Florence appeals from his judgments and sentences, entered following a jury trial, on charges of attempted first-degree murder with a firearm, attempted robbery with a firearm, aggravated battery with a firearm and aggravated assault with a firearm. The jury also returned special findings that Florence actually possessed and discharged a firearm during commission of the crimes. Florence argues that the trial court “committed fundamental error and denied appellant his state and federal constitutional rights to due process by instructing the jury on the uncharged offense of attempted felony murder.” Finding no error, we affirm.

It is well settled in Florida that when the information charges first-degree murder, the State may pursue either a theory of premeditation or felony murder, or both, and that both theories need not be charged in order to receive a jury instruction on both. See, e.g., Parker v. State, 904 So.2d 370, 382-83 (Fla.2005) (“It is well established that an indictment which charges premeditated murder permits the State to prosecute under both the premeditated and felony murder theories.”) (citation omitted); Woodel v. State, 804 So.2d 316, 322 (Fla.2001) (“[W]e have repeatedly rejected claims that it is error for a trial court to allow the State to pursue a felony-murder theory when the indictment gave no notice of the theory.”) (quoting Gudinas v. State, 693 So.2d 953, 964 (Fla.1997)); Kearse v. State, 662 So.2d 677, 682 (Fla. 1995) (“The State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.”) (citations omitted). The same has been held in attempted first-degree murder cases. See Dempsey v. State, 72 So.3d 258, 260-61 (Fla. 4th DCA 2011); White v. State, 973 So.2d 638, 641 (Fla. 4th DCA 2008). In this case, the evidence was sufficient to sustain a conviction under either theory, and trial court did .not err when it instructed the jury on both.

Although we affirm the judgments and sentences, both parties agree that the judgment needs to be corrected to reflect that the offense of attempted robbery with a firearm is a second-degree felony. The judgment erroneously identifies the offense as a life felony. This correction does not impact Florence’s sentence on the charge, and Florence need not be present for the correction.

AFFIRMED; REMANDED FOR CORRECTION OF JUDGMENT.

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


text:
    James Patrick BONIFAY, Appellant, v. STATE of Florida, Appellee.
    No. ID12-2859.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2013.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Virginia Chester Harris and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012); Gri,-dine v. State, 89 So.3d 909 (Fla. 1st DCA 2011).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Courtney JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4174.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.

      Terry P. Roberts, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Courtney Jones appeals his life sentences for first-degree murder and armed robbery with discharge of a firearm, claiming that the four references to his prior convictions during his trial require a new trial despite the curative instruction that was given. We agree, and reverse and remand for a new trial.

During trial, testimony adduced by the State informed the jury on four different occasions that Jones had a prior felony record. The statements included: a witness’s testimony that he met Jones while they were incarcerated together at the Spring Hill Road, Department of Corrections; a videotaped interrogation played to the jury, over objection, where Jones stated he was on probation and mentioned he had other uncharged and charged crimes; and two references by an investigator who testified that Jones was a convicted felon and would be possibly charged with possession of a firearm by a convicted felon.

Jones objected to each reference, but strategically declined a curative instruction on the first reference as being “sort of like putting the fire out with gasoline.” He moved for mistrial based on all the references to prior crimes, but the motions were denied. The cumulative references apparently had an impact on the jury, which during deliberations asked whether “[Jones] was on probation when he turned himself in. What for? (What offense(s). [sic].” This prompted the trial judge to attempt to cure the jury’s consideration of the improper references by giving an extemporaneous instruction to disregard any implication that Jones had been convicted of crimes in the past. Ultimately, Jones was found guilty and sentenced to two concurrent life sentences. Jones’s theory of defense was that another man had committed the murder.

We recognize that mistrial is a drastic remedy to be granted only when an error is so prejudicial as to vitiate the entire trial, and only when necessary to ensure the defendant receives a fair trial. See Salazar v. State, 991 So.2d 364, 372 (Fla.2008); Power v. State, 605 So.2d 856, 861 (Fla.1992). In this case, we believe both conditions have been met.

Here, the multiple improper references to Jones’s prior convictions and the jury’s question about them establish that Jones was severely prejudiced in his defense. See Everett v. State, 124 So.3d 938 (Fla. 1st DCA 2013) (unobjected to multiple references that the defendant moved and did not comply with registration requirements in a failure to report case was presumptively harmful and constituted fundamental error); Gardner v. State, 54 So.3d 1024 (Fla. 1st DCA 2011) (comment that “he was selling drugs” improperly implied prior crimes); Ward v. State, 559 So.2d 450 (Fla. 1st DCA 1990) (reversing for new trial where witness stated defendant had been in prison and released).

The trial judge’s curative instruction in response to the jury’s question during their deliberations could not ameliorate the cumulative and obvious impact of the improper references. See, e.g., Cztibak v. State, 570 So.2d 925 (Fla.1990) (inadvertent admission of collateral crimes warranted reversal where witness stated defendant was escaped convict; curative instruction could not have overcome the error). Indeed, “improper admission of evidence concerning a defendant’s prior criminal history is frequently too prejudicial for the jury to disregard, regardless of any curative instruction given by the trial court. When any curative instruction would be insufficient, the trial court should grant a mistrial.” Brooks v. State, 868 So.2d 643, 645 (Fla. 2d DCA 2004) (citing Henderson v. State, 789 So.2d 1016, 1018 (Fla. 2d DCA 2000)). See also Daw-kins v. State, 605 So.2d 1329, 1329-30 (Fla. 2d DCA 1992) (question suggesting felony conviction, coupled with assertion that defendant was a convicted felon during closing argument, required mistrial); Banos v. State, 521 So.2d 302, 303 (Fla. 3d DCA 1988) (jurors made inquiry to the judge during their deliberations, making clear they “were subjected to an extraneous influence in their deliberations, which we hold was fundamentally improper. The law is well settled that where jurors consider matters not in evidence, to the prejudice of a defendant, a new trial is mandated.”) Based on applicable precedents, reversal is required.

REVERSED and REMANDED.

BENTON, RAY, and MAKAR, JJ., concur.


author: MARSTILLER, J. ROWE, J.,

text:
    Donna CHILDERS, Appellant, v. CLAY COUNTY BOARD OF COUNTY COMMISSIONERS/SCIBAL ASSOCIATES, Appellees.
    No. 1D13-1072.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.

      Holley N. Akers and John J. Rahaim, II, of Rahaim Moore, P.A., Jacksonville, for Appellant.
    Kimberly G. Matthews of Saalfield, Shad, Stokes, Inclan, Stoudemire & Stone, P.A., Jacksonville, for Appellees.
   MARSTILLER, J.

In this workers’ compensation appeal, Claimant challenges a final order denying her two petitions for benefits (“PFB”) as barred by the statute of limitations. Claimant’s last date of service for medical treatment related to her compensable injury was April 28, 2011. The PFBs, filed on June 13, 2012, and October 15, 2012, were outside the two-year limitations period. See § 440.19(1), Fla. Stat. (2007); § 440.19(2), Fla. Stat. (2007) (“[pjayment of any indemnity benefits or the furnishing of remedial treatment ... shall toll the limitations period ... for 1 year from the date of such payment.”). In its initial response to the June 13, 2012, PFB, the Employer/Carrier (“E/C”) asserted the statute of limitations defense. However, the E/C failed to assert the defense in its initial response to the October 15, 2012, PFB, waiting, instead until the January 24, 2013, hearing before the JCC.

Section 440.19(4), Florida Statutes (2007), provides that, “the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.” (Emphasis added.) The E/C timely asserted the statute of limitations defense against the June 13, 2012, PFB, in which Claimant sought authorization for continued medical treatment, and Claimant failed to establish that the E/C should be estopped from raising the defense. See Deere v. Sarasota County Sch. Bd., 880 So.2d 825, 826 (Fla. 1st DCA 2004) (setting out the elements for estoppel). Accordingly, the JCC correctly denied the June 13, 2012, PFB as time-barred.

However, because the E/C failed to raise the defense in its initial response to the October 15, 2012, PFB, it waived the defense relative to the claim therein for impairment benefits. See Certain v. Big Johnson Concrete Pumping, Inc., 34 So.3d 149, 151 (Fla. 1st DCA 2010). Citing Palmer v. McKesson Corporation, 7 So.3d 561 (Fla. 1st DCA 2009), the E/C argues that it perfected the defense by raising it in response to the June 12, 2012, PFB, and therefore, did not need to assert the defense when initially answering the October 15, 2012, PFB. Palmer simply does not stand for that proposition. Indeed, there was no argument in Palmer that the employer/carrier failed to raise the statute of limitations defense. Rather, the claimant in that case had filed three PFBs, and the employer/carrier filed individual denials based on the statute of limitations. Palmer, 7 So.3d at 562. We stated that to establish a prima facie case that limitations period had run, the employer/carrier only had to show the first petition was untimely. Id. at 563. Nothing we said in Palmer affects the operation of section 440.19(4) or has any bearing on the outcome of this case. Claimant’s October 15, 2012, PFB is not time-barred because the E/C did not raise the defense until the hearing. The JCC erred in ruling otherwise.

Based on the foregoing, we AFFIRM that portion of the JCC’s order denying Claimant’s June 13, 2012, PFB as barred by the statute of limitations. However, we REVERSE that portion of the order denying Claimant’s October 15, 2012, PFB, and REMAND for further proceedings.

VAN NORTWICK, J., concurs and ROWE, J., concurs with opinion.

ROWE, J.,

concurring.

The majority properly resolves this case by applying the plain language of section 440.19(4), Florida Statutes, concluding that the employer/carrier waived the statute of limitations defense by failing to raise the defense in its initial response to the PFB at issue. As a consequence of the stringent pleading requirement imposed by the statute, an employer/carrier must remain ever vigilant to avoid the harsh results of failing to raise the statute of limitations each time it initially responds to a newly-filed PFB.

Workers’ compensation cases, by their very nature, involve multiple claims over an extended period of time. The claimant in this case sustained a compensable injury to her right shoulder on August 2, 2007.

The employer/carrier provided the claimant with indemnity and medical benefits related to the compensable injury. The employer/carrier made the last indemnity payment to the claimant on March 2, 2011, and last furnished the claimant with remedial care on April 28, 2011. It is undisputed that the claimant filed two PFB’s outside of the two-year limitations period. The employer/carrier raised a statute of limitations defense in its initial response to the first PFB, but failed to reference the statute of limitations in its initial response to the second PFB. Consequently, under the authority of section 440.19(4), the second PFB is not time-barred. See Certain v. Big Johnson Concrete Pumping, Inc., 34 So.3d 149,151 (Fla. 1st DCA 2010).

Previously, this Court has held that the limitations period under section 440.19, once expired, cannot be revived by the furnishing of remedial care. See Medpart-ners/Diagnostic Clinic Med. Group P.A. v. Zenith Ins. Co., 23 So.3d 202, 204 (Fla. 1st DCA 2009) (holding that use of word “toll” in section 440.19(2) requires that there must be some viable period to extend or prolong). The question here, however, is not one of reviving an expired limitations period as in Medpartners, but rather one of the right to maintain an otherwise viable statute of limitations defense that was not properly advanced in the initial response as required by statute. The plain language of section 440.19(4) provides that the limitations period is not a bar “unless the carrier advances the defense of a statute of limitations in its initial response to the [PFB].” (Emphasis added.)

The pleading requirement of section 440.19(4) is petition-specific. The result here is that the employer/carrier successfully raised a statute of limitations defense with regard to the first PFB filed by the claimant after the limitations period had run, but based on failure to comply with the pleading requirement of section 440.19(4), the employer/carrier could not rely on the same defense with regal'd to a subsequently-filed PFB. The risk, of course, is that section 440.19 will cease to function as a true limitations period. Instead, a claimant whose PFB has been barred on statute of limitations grounds may continue to file PFB’s hopeful that an employer/carrier will let its guard down and fail to raise the defense in its initial response to every subsequently-filed PFB. Such “gotcha” tactics appear inconsistent with the concept of a self-executing system of workers’ compensation. The remedy, however, lies with the Legislature and not with this Court. probate proceedings related to her deceased mother’s estate as result of fraud, misrepresentation, coercion, or overreaching, and thus overturning of agreement was unwarranted; daughter was ably represented by counsel experienced in probate law, who submitted for her review and correction several drafts of agreement over course of mediation, daughter was actively involved in negotiating provisions and conditions of agreement, which ultimately reflected her requests, and while at one point during day-long mediation, daughter might have asked if she could have taken agreement home over the weekend to review it, record showed only that, at end of day, she read and signed agreement without requesting additional time. West’s F.S.A. § 733.815.


author: SWANSON, J.

text:
    Tamra E. PIERCE, Appellant, v. Linda Marie PIERCE in re Estate of Cecilie Redlinger Pierce, Deceased, Appellee.
    No. 1D13-1546.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.

      Michael R. Rollo of Michael R. Rollo, P.A., Pensacola, for Appellant.
    Linda M. Pierce, pro se, Appellee.
   SWANSON, J.

Appellant, Tamra E. Pierce, brings this appeal from the trial court’s Order Granting Petition for Administration of Estate, challenging an earlier, non-final, order denying her motion to enforce a mediated settlement agreement. For the following reasons, we reverse.

Appellant and appellee, Linda Pierce, are sisters who have been embroiled in a bitter will contest since the death of their mother. In an effort to resolve their disputes, they sought mediation, with their respective lawyers in attendance, and reached a settlement agreement on July 24, 2009. Unfortunately, within hours of executing the agreement, appellee apparently doubted the wisdom of her decision. Six days later, on July 30, 2009, she filed a motion to vacate the settlement agreement, claiming she was coerced into signing it after the mediator allegedly denied her request to take the agreement home over the weekend in order to study it. On September 17, 2009, appellant responded by filing a motion to enforce the settlement agreement. After a lengthy hearing, with much testimony from the parties involved in the mediation process, a predecessor judge entered the order now under review.

In that order, the trial judge found ap-pellee had, in fact, requested additional time to review the agreement but, “this additional time was not provided, not because of any nefarious dealings or subterfuge but rather due to the fact that the final signing by the parties came at the end of a prolonged Friday mediation session.” (Emphasis added.) The judge continued:

The Court believes that the request for additional time to review was not given the priority or emphasis it should have because Ms. Linda Pierce was fatigued and emotionally distraught from the extensive mediation efforts. However, it is clear that Ms. Linda Pierce, after taking one night to reflect and review the terms of the Agreement, immediately went to the office of the mediator on Saturday morning and hand delivered a note requesting that the Agreement be rescinded. Ms. Linda Pierce also met with her attorney early the next Monday morning and instructed him to file a Motion to Vacate the Settlement Agreement. When Mr. Cummings suggested he could not file such a motion as it would put him in a position of a conflict of interest, Ms. Linda Pierce asked him to draft the Motion, which she then filed pro se.

Based on these findings, the judge ruled he could not find that appellee had “freely, knowingly and intelligently entered into the agreement.” We conclude the foregoing findings are not supported by competent substantial evidence, and fall short of the standard for setting aside a mediated settlement agreement.

It is well established that “mediation and settlement of family law disputes is highly favored in Florida law.” Griffith v. Griffith, 860 So.2d 1069, 1073 (Fla. 1st DCA 2003). The Florida Probate Code has embraced this preference in section 733.815, Florida Statutes, which provides that “interested persons may agree among themselves to alter interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract .... ” (Emphasis added.) While much of the decisional law we cite on mediated settlement agreements arises from family law cases, we consider the rules expressed in those opinions to be applicable to a mediated settlement agreement arising in probate proceedings. Thus, as a general rule, “[t]he standard for disregarding a settlement agreement between parties is high” and “ ‘the fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement.’ ” Griffith, 860 So.2d at 1073 (quoting Casto v. Casto, 508 So.2d 330, 334 (Fla.1987)). Put succinctly, “[t]he inquiry on a motion to set aside an agreement reached through mediation is limited to whether there was fraud, misrepresentation in discovery, or coercion.” Crupi v. Crupi, 784 So.2d 611, 612 (Fla. 5th DCA 2001). See also Griffith, 860 So.2d at 1072. Furthermore, it has been acknowledged that entering into a settlement agreement may be emotionally stressful, but “emotion is not grounds to set aside an otherwise duly-executed property settlement agreement.” Hahn v. Hahn, 465 So.2d 1352, 1354 (Fla. 5th DCA 1985) (observing that while “[t]he wife did testify, without specifics, that she was “emotionally abused” at the time she signed the agreement, [ ] courts have recognized that it is normal for parties in a dissolution proceeding to be emotionally upset”). See also O’Connor v. O’Connor, 435 So.2d 344, 345 (Fla. 1st DCA 1983) (holding a property settlement agreement made “in good faith and free from fraud, deceit, duress, coercion or overreaching should be upheld by the court.”); Bailey v. Bailey, 300 So.2d 294, 295 (Fla. 4th DCA 1974). In other words, where “the evidence establishes nothing more than that, upon reflection, [the party to the agreement] felt the terms of the agreement were not in her best interest!,] ‘[b]uyer’s remorse’ is not a sufficient basis for overturning a settlement agreement freely and voluntarily entered into.” Tanner v. Tanner, 975 So.2d 1190, 1191 (Fla. 1st DCA 2008) (citing, generally, Casto).

This record is devoid of evidence that appellee signed the agreement as a result of fraud, misrepresentation, coercion, or overreaching. Appellee was ably represented by counsel experienced in probate law, who submitted for her review and correction several drafts of the agreement over the course of the mediation. The evidence clearly establishes that ap-pellee was actively involved in negotiating the provisions and conditions of the agreement, which ultimately reflected most of her requests. While at one point during the day-long mediation, appellee might have asked if she could have taken the agreement home over the weekend to review it, the record shows only that, at the end of the day, she read and signed the settlement agreement without requesting additional time. That appellee may have been fatigued and distressed by the labor, and later suffered second thoughts, these facts, without more, do not provide grounds for setting aside an otherwise valid agreement.

For the reasons stated, the order setting aside the mediated settlement agreement is REVERSED, and the cause is REMANDED for further proceedings consistent with this opinion.

WETHERELL and OSTERHAUS, JJ., concur.

       In Pierce v. Pierce, 46 So.3d 606 (Fla. 1st DCA 2010), rev. denied, 64 So.3d 1261 (Fla.2011) (table), we dismissed a direct appeal of this order for lack of jurisdiction since it was a non-appealable, non-final order. Review is now proper pursuant to Florida Rule of Appellate Procedure 9.170(e).


text:
    Doris MADSON, Former Wife, Appellant, v. Torben S. MADSON, Former Husband, Appellee.
    No. 1D11-6111.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Ileana Haedo, Gainesville and Mary Catherine Bonner, Fort Lauderdale, for Appellant.
    Torben S. Madson, II, pro se, Appellee.
   PER CURIAM.

Doris Madson, the Former Wife, appeals the Final Judgment of Dissolution of Marriage and raises several issues, only one of which merits discussion. The Former Wife argues that the trial court erred by classifying her Coca-Cola shares as marital assets. We agree and, therefore, reverse the Final Judgment solely as to this issue and remand with instruction to reclassify the Coca-Cola shares as nonmari-tal assets. In all other respects, we affirm the Final Judgment.

At trial, the Former Wife’s son testified that he had purchased Coca-Cola shares for the Former Wife as a gift. The Former Wife testified that the Coca-Cola shares were a gift from her son, and she neither purchased additional shares nor reinvested the original ones. In its equitable distribution scheme, the trial court classified the Coca-Cola shares as marital assets and distributed them to the Former Wife. This appeal followed.

A trial court “shall set apart to each spouse that spouse’s nonmarital assets,” which include “[a]ssets acquired separately by either party by noninterspousal gift.” § 61.075(1), (6)(b), Fla. Stat. (2010); see also McKee v. Mick, 120 So.3d 162, 163-64 (Fla. 1st DCA 2013) (finding that the trial court erred by classifying a vehicle as marital property and distributing it to the wife where the husband testified that the car used to belong to his mother, who transferred title to him); Tradler v. Tradler, 100 So.3d 735, 743 (Fla. 2d DCA 2012) (reversing and remanding the final judgment for the trial court to reclassify certain checks as nonmarital assets where the husband received them as gifts from his mother, kept them in his name only, and never commingled the funds in a joint account); Capozza v. Capozza, 917 So.2d 365, 368 (Fla. 5th DCA 2005) (remanding “for a revised scheme of distribution deleting from the schedule of marital assets the twenty shares ... which is to be considered the separate asset of [the husband],” who had received them as a gift from his father).

In light of the testimonies of the Former Wife and her son, the trial court erred by classifying the Coca-Cola shares as marital assets because the Former Wife had received the shares as a gift from her son and did not commingle them with marital assets. See § 61.075(1), (6)(b), Fla. Stat.; McKee, 120 So.3d at 163-64; Tradler, 100 So.3d at 743; Capozza, 917 So.2d at 368.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

LEWIS, C.J., BENTON and SWANSON, JJ„ concur.


text:
    Floyd BOARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5488.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

We reverse the trial court’s order of restitution and appellant’s judgment and sentence. Appellee has correctly conceded that the trial court was divested of jurisdiction of the underlying charges when the state filed its third amended information by which all that remained to be tried were three first-degree misdemeanors. See Art. V, § 20(c)(3) & (4), Fla. Const.; §§ 26.012(2)(d) & 34.01(l)(a), Fla. Stat. (2011). See also Oglesby v. State, 911 So.2d 1288, 1288 (Fla. 1st DCA 2005) (citing Glass v. State, 832 So.2d 837 (Fla. 5th DCA 2002), and Woods v. State, 556 So.2d 493 (Fla. 1st DCA 1990)); accord Pinkard v. State, 852 So.2d 377 (Fla. 5th DCA 2003). The issue of subject matter jurisdiction is one of fundamental error that may be addressed for the first time on appeal. Oglesby, 911 So.2d at 1288 (citing Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986)).

REVERSED.

WETHERELL and OSTERHAUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Carlos STEPHENS, Appellee.
    No. ID13-0448.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellant.
    Luke Newman, Tallahassee, for Appel-lee.
   PER CURIAM.

The State seeks review of the trial court’s downward departure sentence arguing that the downward departure sentence given Carlos Stephens, appellee, is contrary to section 921.0026(1), Florida Statutes (2011) (“A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure.”).

Although below the State argued in opposition to the appellee’s motion for a downward departure sentence, the State did not enter an objection to the downward departure sentence. When the State has failed to enter an objection, general or otherwise, to a downward departure sentence, Florida courts have found the issue unpreserved for appellate review. See State v. Swilley, 73 So.3d 822, 822-23 (Fla. 5th DCA 2011) (finding assertion of error in downward departure sentence was not preserved for appellate review where the State never objected to imposition of the downward departure sentence); see also Douglas v. State, 913 So.2d 1234, 1237 (Fla. 3d DCA 2005) (appellate court declined to review claim of error in downward departure sentence because issue was unpreserved when the State neither objected to downward departure at sentencing, nor filed a Rule 3.800(b) motion to correct sentence).

Accordingly, we find any error here was not preserved for appellate review and AFFIRM.

VAN NORTWICK, and MARSTILLER, JJ., concur, ROWE, J„ concurs in result.