author: CONNER, J.

text:
    Patrick James MELEHAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5326.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Larry A. Klein of Holland & Knight LLP, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Patrick Melehan appeals his conviction and sentence for manslaughter and burglary with an assault or battery after a trial by jury. He argues the trial court erred in four ways: (1) failing to grant a mistrial after improperly admitting deposition testimony of an eyewitness, (2) allowing improper testimony that the eyewitness was threatened by Melehan’s friends, (3) failing to grant a mistrial after an improper comment during opening statement by the State and after the arresting officer testified before the jury that Melehan did not make any statements when arrested, and (4) failing to grant a judgment of acquittal. The evidence presented during the trial presents a highly unusual factual scenario for appellate review. The State charged Melehan with the second degree murder of the victim (“C.L.”), but the jury found him guilty of manslaughter. C.L. died as the result of a thin, L-shaped rod, approximately five feet long, being impaled in his head while driving his truck. No witnesses testified as to how the rod came to be impaled into C.L.’s head. No witness testified seeing the rod before it was sticking out of C.L.’s head. No witness could explain where the rod came from.

The trial judge denied motions for mistrial on two different occasions when the State elicited inadmissible evidence. Instead of granting a mistrial, the trial judge gave curative instructions both times. The grounds asserted for mistrial were renewed in a post-trial motion for new trial. Having considered carefully the peculiar circumstances of this case, we determine that the trial judge abused her discretion in denying the motions for mistrial. Thus, we reverse and remand the case for a new trial.

Discussion of the Facts and the Trial

The victim (“C.L.”) drove his pickup truck to a residence in Jupiter to visit a friend. While driving to his friend’s house, C.L. passed in front of a house where Melehan was living with others. Melehan had several friends at his house that day. C.L. had ongoing problems with one of Meleharis friends, who was not at the house at that time. As C.L. drove past Meleharis house, a verbal confrontation arose between C.L. and some of Meleharis friends who were in the front yard. Mele-han was inside the house the first time C.L. drove past the house. C.L. made threats to shoot or kill some of them. C.L. then drove away from the house, but returned about fifteen minutes later and slowly drove by in front of the house again.

Having learned of the confrontation when C.L. passed by the first time, Mele-han was outside in the driveway of the house as C.L. approached the second time. Melehan was angry about C.L.’s confrontational behavior. Melehan and two of his friends approached C.L.’s truck, and a verbal confrontation between the three of them and C.L. ensued. C.L. started to drive away a second time, at which time Melehan and one of the other two friends ran to catch up to the truck. Melehan was seen striking the truck with his fist and moving toward the driver’s side door. Me-lehan was also seen jumping onto the running board on the driver’s side of the truck, reaching into the window, and punching at C.L. When Melehan jumped off, the truck began to drive in a circular motion through an intersection, at one point going through a yard, and eventually rolling to a stop straddling the edge of a street. After the truck stopped, C.L. was seen with a metal rod impaled into his head.

There was evidence the rod was approximately five feet long and 3/10 of an inch in diameter. The evidence showed the rod was bent in an “L” shape, with one leg being slightly longer than the other. The eyewitnesses who first saw the rod in C.L.’s head described that C.L. sat slumped in the driver’s seat with the truck running and the rod was protruding out of the driver’s window. The front windshield of the truck had to be removed by emergency responders, and the rod had to be cut by them before the driver’s door could be opened to remove C.L. from the vehicle.

The rod was blunt on both ends. One end went through the top of C.L.’s skull near the hair line and exited the back of the skull, but did not puncture through the skin on the back of the head. The defense expert testified the rod was bent before it entered C.L.’s skull. The defense expert also opined that given the force necessary to bend the rod, the composition of the steel, and the uniform smoothness of the curve in the rod, the rod was bent using a tool and not using one’s knee and two hands.

No witness testimony was presented at trial as to how C.L. came to be impaled by the metal rod. Although there was DNA evidence obtained from the rod, the DNA evidence did not link Melehan to the rod. C.L. died from the injury in the hospital shortly after the incident. He was not conscious at the scene and never regained consciousness due to massive brain injury.

Melehan was arrested two days after the incident and charged with second degree murder with a weapon and burglary with an assault or battery. Prior to his arrest, Melehan knew that the police wanted him to come in for questioning; however, he did not follow through with arrangements made to speak to the police.

Prior to trial, counsel for Melehan took a discovery deposition of A.S. A.S. was not only one of Melehan’s roommates at the time, but also an eyewitness to the incident. A.S. testified in the deposition that he saw Melehan pick up “something off the ground and in a javelin form throw it towards the car,” referring to C.L.’s truck. After A.S.’s deposition, but before trial, A.S. told the prosecutor he would invoke the Fifth Amendment if called to testify because he was concerned about being charged with perjury if he repeated his deposition testimony at trial.

At trial, a proffer of A.S.’s testimony was made by the State. During the proffer, A.S. did not invoke his Fifth Amendment privilege. Instead, he consistently and repeatedly stated he did not remember any details of the events surrounding the incident except that he saw Melehan slap C.L.’s truck as he was running beside it. When specifically asked if he saw Me-lehan throw an object toward the truck, A.S. testified that he didn’t remember. The State then sought leave to call A.S. to testify before the jury and use his deposition testimony if he claimed before the jury that he could not remember the event.

The defense anticipated A.S. would invoke the Fifth Amendment and the State would attempt to introduce his deposition testimony. Melehan’s trial counsel filed a memorandum of law in opposition to the use of A.S.’s testimony for substantive purposes. Trial counsel argued the deposition testimony could not be used for impeachment because A.S. was claiming a lack of memory; thus, there was no inconsistent statement. Trial counsel also argued that A.S.’s deposition testimony could not be used for substantive purposes because such use would violate Melehan’s right of confrontation, citing State v. Lopez, 974 So.2d 340 (Fla.2008) and Leighty v. State, 981 So.2d 484 (Fla. 4th DCA 2008). Trial counsel further argued that A.S.’s claim of lack of memory deprived Melehan of the opportunity to cross-examine A.S. in front of the jury on the statement that he saw Melehan pick something up and throw it at C.L.’s truck.

In ruling on the proffer, the trial judge allowed evidence of the deposition testimony to be presented to the jury, citing section 90.804(2)(a), Florida Statutes (2009), as authority. In front of the jury, A.S. again repeated that he did not remember details of the incident. The State asked if he recalled testifying in deposition that he saw Melehan pick something up and throw it like a javelin. A.S. acknowledged he made the statement in deposition, but claimed he did not recall the incident. Continuing to claim a lack of memory at trial, A.S. also admitted in front of the jury, under questioning by the State, that he previously testified in deposition that he saw Melehan punching C.L. through the driver’s window, and that Melehan admitted to him he knew law enforcement was looking for him after the incident. A.S. also testified, over Melehan’s objection, that he had been threatened prior to the trial by people who were now friends of Melehan and who had been former friends of A.S.

Prior to the conclusion of trial, Melehan filed a written motion for mistrial and a motion to strike A.S.’s deposition testimony in the alternative, arguing that A.S.’s deposition testimony was inadmissible for substantive purposes and again contending that the admission of the deposition testimony violated Melehan’s right of confrontation. The trial court acknowledged that there was precedent to support the defense argument that former testimony from a deposition could not be used for substantive purposes; however, none of those cases dealt with a witness who appeared before the jury. Likewise, regarding the Confrontation Clause argument, none of the case law cited by the defense involved a situation in which the witness was present at trial and subject to cross-examination. The trial court reasoned that since A.S. appeared before the jury, he was subject to cross-examination and the Confrontation Clause argument had no merit. Nonetheless, the trial court denied the motion for mistrial, but granted the motion to strike.

The trial court gave very specific instructions to the jury to disregard A.S.’s deposition testimony: 1) that he saw Mele-han run to the driver’s side door of the truck and hit C.L., 2) that he saw Melehan throw an object at the truck, and 3) that Melehan told him he knew the police were looking for him. The problem is that striking of the deposition testimony and giving a curative instruction to disregard the testimony came two days after A.S. testified.

During opening statements, the prosecutor told the jury “you will hear that arrangements were made for [Melehan] to come in and speak to the police but he never followed through.” Melehan moved for a mistrial, arguing this was a comment on his right to remain silent, but the motion was denied.

During direct examination of the detective who arrested Melehan, the detective explained that the arrest occurred on the side of a road. The following exchange occurred:

Q. Okay. Did you start asking Mr. Me-lehan any questions?
A. No.
Q. And in front of you did Mr. Melehan make any statements?
A. No.

No objection was made at that point, but shortly thereafter the following exchange occurred:

Q. What did you do?
A. We had eventually had to leave [the police station] to go to Wal-Mart to purchase a replacement set of clothes for Mr. Melehan so we could take the clothes that he was wearing for our investigation.
Q. Was that done?
A. Yes, it was.
Q. What did you do next?
A. Upon completion of everything in the holding area and after the clothes?
Q. Yes.
A. I left. The reason an interview was not done of Mr. Melehan at that time and Detective [_] and I—

At that point the defense objected, and there was a bench conference. Trial counsel moved for a mistrial on the basis that the State elicited testimony that was a direct comment on Melehan’s right to remain silent. The argument included not only the comment about “an interview,” but also the comment about “any statements” at the scene of the arrest. The State argued it was trying to demonstrate that the officers made a decision to not ask Melehan any questions at that point in the investigation. The trial judge observed the testimony about “an interview” appeared to be in the context of showing how the police conducted its investigation, and was not objectionable. However, the testimony about “any statements” at the arrest scene could readily be construed as a comment on Melehan’s right to remain silent. The trial judge denied the motion for mistrial, but gave a curative instruction reminding the jury that a defendant has an absolute right to remain silent and a negative inference should not be drawn from the right to remain silent.

After the State rested, Melehan moved for a judgment of acquittal as to the second degree murder charge, arguing that no eyewitness testified as to how the metal rod became impaled into C.L.’s head and there was insufficient evidence to convict Melehan beyond a reasonable doubt. The motion was denied.

AS.’s Deposition Testimony

The trial judge initially deemed A.S.’s deposition testimony to be admissible as former testimony as allowed by section 90.804(2)(a), Florida Statutes (2009). Upon reconsideration after further argument and a memorandum of law submitted with a written motion to strike, the trial judge recognized A.S.’s deposition testimony was not admissible and granted the motion to strike. Although the trial judge did not explicitly explain the reason for her change of position, we assume she recognized that Melehan correctly argued that because the discovery deposition testimony of A.S. was not a deposition to perpetuate testimony taken in accordance with Florida Rule of Criminal Procedure 3.190(i), it was not admissible as substantive evidence.

Beginning with State v. James, 402 So.2d 1169 (Fla.1981), later followed by Rodriguez v. State, 609 So.2d 493 (Fla.1992), and continuing with State v. Lopez, 974 So.2d 340, 350 (Fla.2008), our supreme court has consistently held that deposition testimony which does not comply with the requirements of Florida Rule of Criminal Procedure 3.190(i) cannot be used as substantive evidence. As stated by the supreme court:

Rule of Criminal Procedure 3.220(h), as adopted by this Court, allows discovery depositions to be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness but makes no provision for their use as substantive evidence. If it had been our intent to allow such use, the rule would so state. Rather, Rule of Criminal Procedure 3.190(j) [now 3.190(i) ] was enacted to assure that both parties have an opportunity and motive to fully develop deposition testimony before it can be used as substantive evidence in a criminal case.
The holding in State v. James that discovery depositions are not admissible as substantive evidence absent compliance with Rule 3.190© was in no way modified by the adoption of section 90.804(2)(a). In fact, the necessity of meeting the procedural requirements for perpetuating testimony before a deposition is admissible as substantive evidence is recognized in section 90.804(2)(a) by the express requirement that the deposition must be “taken in compliance with law.”

Rodriguez, 609 So.2d at 498-99 (citations omitted) (footnote omitted).

The State led the trial court into error by admitting evidence of A.S.’s deposition testimony as former testimony. Upon the renewed request by the defense for a mistrial or in the alternative to strike the testimony, the trial judge attempted to correct the error by striking the testimony. However, on appeal, Melehan asserts the trial court erred by denying the motion for mistrial.

We review the trial court’s ruling on the motion for mistrial for an abuse of discretion. Salazar v. State, 991 So.2d 364 (Fla.2008). As explained in Salazar:

“A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” England [v. State], 940 So.2d at 401-02; see Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997) (“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.”). Under the abuse of discretion standard, a trial court’s ruling will be upheld unless the “judicial action is arbitrary, fanciful, or unreasonable.... [Discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (second alteration in original) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)).

Id. at 372. We also note “[i]n this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” Salvatore v. State, 366 So.2d 745, 750 (Fla.1978).

In most instances, giving a curative instruction when erroneous information is given to a jury will obviate the necessity of a mistrial. Graham v. State, 479 So.2d 824, 825 (Fla. 2d DCA 1985). However, there are times when a curative instruction is not sufficient to “unring the bell,” and a new trial is required. Id. In this case, the two-day delay in giving the curative instruction for the jury to disregard A.S.’s deposition testimony vitiated Melehan’s ability to have a fair trial.

Two cases are instructive on the prejudicial effect of the delay in instructing the jury to ignore A.S.’s deposition testimony. In Tumblin v. State, 29 So.3d 1093 (Fla.2010), the State elicited testimony from a detective that Tumblin’s codefendant gave a confession identifying Tumblin as the shooter in a murder prosecution. The victim was shot in his shop before it opened, and no one else was in the shop except the victim, the defendant and his codefendant. In front of the jury, the detective testified that when he related the codefendant’s confession to fellow investigators, he told them he believed the codefendant would tell them the truth when they spoke to him. The defense immediately objected and moved for a mistrial.

The trial court sustained the objection and struck the comment. However, the trial court took the motion for mistrial under advisement over the weekend, and on the following Monday denied the motion and elected to give a curative instruction. The curative instruction made no specific reference to the improper testimony. The trial court simply instructed, “You are hereby instructed that the believability or credibility of all witnesses testifying in this case is within the exclusive province of the jury. Please disregard any suggestion to the contrary.” Tumblin, 29 So.3d at 1102 n. 7.

The supreme court commented in a footnote about the delay over a weekend before giving a curative instruction. The court found the curative measures did not erase the taint of the testimony and it was an abuse of discretion to deny the motion for mistrial. Id. The court grounded its conclusion that it was error to deny the motion for mistrial in part on the fact that codefendant gave the only eyewitness testimony that Tumblin was the shooter.

In Shabazz v. State, 928 So.2d 1267 (Fla. 4th DCA 2006), this court dealt with a second degree murder prosecution in which the eyewitness testimony presented conflicting evidence as to whether the defendant killed the victim in self-defense when a drug deal went bad. When the defendant was cross-examined, the State erred by asking the defendant to admit that his testimony at trial was the first time he told anyone his version of the events. Defense counsel immediately objected and moved for a mistrial, contending the prosecutor made an impermissible comment on Shabazz’s right to remain silent. The trial court overruled the objection and denied the motion for mistrial, but later offered to give a curative instruction. Shabazz declined the offer for a curative instruction. On appeal, the State contended Shabazz waived any argument that the denial of the motion for mistrial was error because the defense declined the offer of a curative instruction. We held the error was not waived and concluded the delay in offering to give a curative instruction diminished the sufficiency of the curative instruction.

As we determined in Shabazz, the delay in striking A.S.’s deposition testimony and giving a curative instruction substantially diminished the efficacy of the instruction. This is particularly true in light of the fact that there was no eyewitness testimony to explain how the rod became impaled into C.L.’s head. Similar to the situation in Tumblin, A.S.’s deposition testimony was the only eyewitness evidence that implicated Melehan (and no others) as throwing something like a javelin. We conclude, on the facts of this case, that the denial of the motion for mistrial regarding A.S.’s deposition testimony was an abuse of discretion by the trial court.

Comments on Right to Remain Silent

“It is clear that comments on silence are high risk errors.... ” State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986). Comments on silence create a substantial likelihood they will vitiate the defendant’s right to a fair trial. Id. A ruling on a motion for mistrial based on a testimonial comment on the defendant’s silence must be evaluated under an abuse of discretion standard of review. Espute v. State, 85 So.3d 532, 533 (Fla. 4th DCA 2012) (en banc).

We do not construe the prosecutor’s statement in opening that Melehan failed to follow through with arrangements to come in for questioning by the police to be a comment on his right to remain silent. His failure to come in was not portrayed in any context of Melehan avoiding custody or as evidence to support an inference of consciousness of guilt.

However, the testimony of the arresting officer that Melehan made no statement when arrested is a completely different matter. As the trial judge noted in ruling on the objection, it is immediately obvious that such testimony could be construed as a comment on his right to remain silent. Although it may be appropriate to ask an arresting officer if he or she decided to conduct an interview immediately after making an arrest to give information about how the investigation unfolded, here the State went further and specifically asked if Melehan made any statements. Eliciting such evidence violated Melehan’s Fifth Amendment right.

Threats to A.S.

Melehan argues the trial court improperly allowed testimony that A.S. had been threatened by friends of Melehan prior to testifying in front of the jury. Melehan further argues the State elicited such testimony to prove he committed the crime. However, the State argues the testimony was elicited to explain to the jury why A.S. remembered certain portions of the incident while testifying before the jury, but claimed a lack of memory on critical questions concerning Melehan’s involvement in the incident that he testified about in deposition.

The jury heard the following exchange during direct examination by the State:

Q. Okay. Do you remember, sir, telling Mr. Richardson, Mr. Weiss and myself that since this incident occurred, that you have been threatened?
A. Yes.
Q. Excuse me?
A. Yes.
Q. And these threats were from friends of Mr. Melehan; is that true?
A. I don’t remember.
Q. Do you know who was making these threats?
A. I — I guess.
Q. Yes. Do you remember who was making these threats?
A. Friends that were friends of mine and friends of Melehan’s.
Q. Who were these people?
A. Various different people.
Q. Who were those people, Mr. [S]?
A. I don’t remember. I don’t remember.
Q. Were they friends of Mr. [C.L.]?
A. I don’t remember.

We agree that such testimony does not show that Melehan was involved in generating the threats. Melehan contends that A.S.’s testimony clearly implicates Mele-han as being involved in making the threats. We do not agree such an implication is clear, particularly in view of the response, “friends that were friends of mine and friends of Melehan’s.” Moreover, it is quite conceivable that friends of Melehan could be posing threats against A.S. without Melehan being involved with or having requested such intimidation tactics.

In Madison v. State, 726 So.2d 835, 836 (Fla. 4th DCA 1999), we stated, “[e]vi-dence of threats made against witnesses is generally inadmissible unless the state can establish that the threats are attributable to the defendant.” We cited Koon v. State, 513 So.2d 1253 (Fla.1987) as authority for our statement. In Koon, the court said, “[i]t has been held that evidence of threats made against witnesses is inadmissible to prove guilt unless the threats are shown to be attributable to the defendant.” Id. at 1256 (emphasis added). However, the court then went on to say, “[t]he fact that a witness has been threatened with respect to his testimony may bear on his credibility regardless of who made the threat.” In Koon, our supreme court upheld the use of testimony that a third person made threats to a witness because the evidence was not being used solely to cast the defendant in a bad light.

In Lopez v. State, 716 So.2d 301 (Fla. 3d DCA 1998), the Third District, relying on Koon, agreed with other out-of-state jurisdictions in regards to the rule permitting explanations of prior inconsistent statements: “it is generally held that evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases for credibility rehabilitation purposes even if the threats or fear have not been linked to the defendant.” Lopez, 716 So.2d at 307 (citations omitted). In Lopez the evidence of threats against a witness was held admissible to explain the witness’s in-trial recantation of pre-trial statements. If it is appropriate to allow evidence of third-party threats to explain why a witness has recanted a pre-trial statement, we see no reason such evidence is inadmissible to explain why a witness has a partial lack of memory.

In this case, we are satisfied the State introduced testimony that A.S. was threatened by third persons to explain his claimed lapse of memory, rather than to attempt to cast Melehan in a bad light or to prove Melehan had guilty knowledge. Therefore, we find no error committed by the trial court by the admission of such evidence based on the way the evidence unfolded before the jury. We offer no opinion as to whether such evidence will be admissible on retrial because the admissibility of such evidence depends on what issues of credibility may be raised about A.S.’s testimony if he is called as a witness.

Denial of Motion for Judgment of Acquittal

As we have said repeatedly, there was no witness who testified at trial as to how a metal rod came to be impaled into C.L.’s head. Melehan argues that the circumstantial evidence on that issue was insufficient to prove that he is the one who caused the rod to be impaled in C.L.’s head and negate the possibility that someone else did it or it was an accident. Thus, he contends on appeal that the trial court erred by not granting his motion for judgment of acquittal during trial and post-trial on the charge of manslaughter. We disagree.

“In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence.” Richards v. State, 37 So.3d 925, 926 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). In a circumstantial evidence case, the State must present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Orme v. State, 677 So.2d 258, 262 (Fla.1996). The State must present evidence that conflicts with the defendant’s hypothesis of innocence, but the State is not required to completely disprove it. See State v. Law, 559 So.2d 187 (Fla.1989).

In this case, the State presented evidence from several witnesses that Melehan was the only person to reach into the driver’s side window and strike C.L. several times. There was evidence Melehan was angry at C.L. before he drove past his house a second time and that Melehan made comments that he was going to “get him,” referring to C.L. The State also presented testimony of witnesses that shortly after Melehan jumped off the running board by the driver’s window, the truck proceeded in a circular fashion and rolled to a stop, and the metal rod was discovered impaled in C.L.’s head. Mele-han was the last person to have any contact with C.L. before he was observed with a rod impaled in his head. There was evidence that Melehan fled the scene and later made statements that he had been in a fight, that he did something “real bad,” that he tried to punch C.L. through the truck window, and that he thought he killed somebody. There was sufficient evidence to allow the case to go to the jury on the charge of second degree murder, as well as manslaughter. Thus, we do not find any error in the denial of the motion for judgment of acquittal.

The Burglary Conviction

We have determined the trial court erred in not granting a motion for mistrial as to the charge resulting in a conviction for manslaughter based on the erroneous admission of A.S.’s deposition testimony and an ineffectual curative instruction. As to the charge of burglary, the analysis is different. Although it is true that it was error to allow evidence that A.S. testified in deposition that he saw Melehan punching C.L. through the driver’s window, there were multiple eyewitnesses who testified to the same thing. Thus, the erroneous admission of A.S.’s deposition testimony followed by an ineffectual curative instruction did not vitiate Melehan’s ability to have a fair trial as to the burglary charge. However, if the trial court had ruled correctly on the motions for mistrial during the trial, Melehan would be entitled to a new trial on both charges. Thus, we reverse for a new trial on the charge of burglary with an assault or battery, as well as the charge of manslaughter.

Reversed and remanded for a new trial.

MAY, C.J., and TUTER, JACK B., JR., Associate Judge, concur.

      . The evidence was conflicting as to how many circles the truck made before coming to a stop.

      . The defense expert testified the rod was an unusual size rebar. He testified most rebar comes in a minimum size of 3/8 inch, which is .375 inches.

      .At trial, the State called a total of thirty-three witnesses, several of whom were eyewitnesses to the events. Some of the eyewitnesses were friends of Melehan who were present during the incident. Other eyewitnesses were neighbors or persons driving through the neighborhood at the time who did not know either Melehan or C.L. Those eyewitnesses who saw the metal rod impaled in C.L.'s head offered no testimony as to how the rod became impaled in his head, and none of them saw the rod until after C.L.'s vehicle came to a complete stop.

      . Neither the State nor the defense anticipated A.S. would claim a lack of memory.

      . Section 90.804(2)(a), Florida Statutes provides:
      HEARSAY EXCEPTIONS. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

        (a) Former Testimony. — Testimony given as a witness ... in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

      . The defence made no argument for acquittal as to the burglary charge, recognizing there were no legally sufficient grounds for doing so.

      . We note in this case the trial judge gave a much more testimony-specific and detailed curative instruction than the trial judge in Tumblin.

      . In Lopez, the court outlined a procedure to be followed in admitting evidence regarding threats to a witness by a third-party. No issue was made in this appeal about the procedure used to introduce the testimony of threats to A.S.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Tameka V. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5317.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Tameka Johnson appeals the trial court’s order of modification of probation, extending her term of probation by two years, based on its finding that she willfully and substantially violated the terms of her probation by failing to prove inability to pay restitution, costs of supervision, and court costs by clear and convincing evidence. We reverse the order of the trial court for the reasons set forth by the Florida Supreme Court in Del Valle v. State, 80 So.3d 999 (Fla.2011).

In 2006, Johnson was charged by information with communication fraud in the amount of $300 or more. Johnson entered a plea of nolo contendere, was adjudicated guilty of the offense, and was placed on probation for a period of three years beginning on September 7, 2006. The probation order set out the following relevant conditions: payment of restitution in the amount of $2,388.87; cost of supervision in the amount of $40; court costs in the amount of $987; and 50 hours of community service.

In August 2009, after being on probation for three years, Johnson was charged by affidavit with three violations of her probation: (1) failure to pay cost of supervision; (2) failure to pay restitution; and (3) failure to pay court costs. After a final violation of probation hearing, the trial court found that Johnson proved inability to pay by a preponderance of the evidence but not by clear and convincing evidence. As a result of this finding, the court extended Johnson’s probation for an additional two years with additional fees for costs of prosecution and the public defender fee.

At the final violation of probation hearing, the following testimony was adduced. When Johnson’s probationary term began in September 2006, she was working part-time, earning about $400-$600 a month. She also received about $76 a month for child support. Johnson failed to make payments toward the court-ordered restitution, supervision, and court costs for the remainder of 2006. However, she paid $50 in February 2007, and another $50 in March 2007. When she made these two payments, Johnson was still earning $400 a month. Johnson testified that when she made these payments, she probably kept something away from a bill in order to try to at least pay something that she owed. In April 2007, Johnson left her mother’s residence because it was overcrowded. Johnson and five of her children then moved to an apartment, where she shared rent obligations of $1,150 per month with a friend; due to her financial limitations, she could only afford to pay her friend $400 each month. Thereafter, her friend moved out and Johnson became responsible for the entire rent payment. In February 2008, Johnson made a payment in the amount of $1,000, after receiving a tax refund for approximately $3,500; she used the rest of the refund money to pay past-due bills. Although she received a tax refund of a similar amount in 2009, she admitted that she did not contribute anything from that refund to her restitution. Johnson explained that ultimately she could not afford to allocate these funds to payments designated under the probation order because:

My house was in foreclosure, so, my rent was behind, my roommate had just moved out, my — the electricity was behind, my water was behind, I think around that time, my — my lights had even gotten cut off, so, all of that went toward bills that — that I owed and that was the reason that I wasn’t able to.

Johnson further testified:

I had a nephew who died of a brain tumor, so you know, everybody was trying to contribute to his funeral ... it was like everything was coming down at one time.

In August 2009, Johnson lost her part-time job and began receiving unemployment benefits in the amount of $888 a month. She attempted in good faith to stay current with rent and utility payments. Although unsuccessful, she diligently searched for employment using job search engines on the internet; however, her ability to search for job opportunities was severely limited by her lack of a driver’s license or a car. As a result, she was forced to make difficult decisions on a regular basis about where, and in what amount, to allocate her finances. As defense counsel noted:

[S]he has five people to support other than herself, she has no vehicle, she’s making basic payments on all of her bills, she’s behind on all of her bills. She did have a roommate which moved out on her, so, she’s now paying an entire amount of rent for her household.

At the time of the violations of probation, Johnson was unemployed and trying to make rent payments of $1,150 each month in addition to utility payments of approximately $320-$350 per month. She was no longer receiving child support payments despite the existence of a court order, and the $600 in food stamps she was receiving did not cover her family’s food expenses.

At the violation hearing, the State argued that it had satisfied its burden of establishing willful non-payment by showing that: (1) Johnson made cellular phone payments of $48 per month that could have gone toward restitution payments; and (2) Johnson made a lump sum payment of $1,000 in 2008 after receiving a tax refund but not in 2009 because she “spent her money on other things.”

After argument by both sides, the trial court addressed the burden of proof and made the following findings:

[I]t has been proven by a preponderance of the evidence that the probationer doesn’t have the present resources to pay restitution, but it hasn’t been proven to me by a clear and convincing evidence that she doesn’t have the ability to pay restitution or the costs of supervision because she could have paid something out of the $3,500 in 2009, so, I’m going to find that there has been a willful, substantial ... material violation of probation.

Thereafter, the trial court extended Johnson’s probation for two additional years and ordered her to pay all previous fees and costs plus a $100 cost of prosecution and a $50 public defender’s fee. This appeal followed.

Johnson argues the trial court committed fundamental error by shifting the burden of proof to Johnson to demonstrate inability to pay by clear and convincing evidence. The State responds that there was no error because it showed Johnson had an ability to pay and failed to do so, and thus, proved a willful and substantial violation of the terms of her probation.

A trial court’s decision that violation of probation is both willful and substantial is reviewed for an abuse of discretion. Kaduk v. State, 959 So.2d 817, 819 (Fla. 4th DCA 2007). “The Equal Protection and Due Process Clauses of the United States Constitution ensure that an indigent probationer is not incarcerated based solely upon inability to pay a monetary obligation.” Del Valle, 80 So.3d at 1005 (citing Bearden v. Georgia, 461 U.S. 660, 664, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); U.S. Const, amends. V, XIV). “Further, the Florida Constitution contains its own due process clause that parallels the language of the Fourteenth Amendment and states that ‘[n]o person shall be deprived of life, liberty or property without due process of law.’ ” Id. (quoting Art. I, § 9, Fla. Const.).

In Del Valle, the Florida Supreme Court decided two issues, which were in conflict between the Third District and the Second, Fourth, and Fifth Districts:

(1) [W]hether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer’s ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011),[] which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional.

Del Valle, 80 So.3d at 1002. In approving of the holdings of all of the district courts of appeal, except the Third District, the supreme court held:

[BJefore a trial court may properly revoke probation and incarcerate a probationer for failure to pay, it must inquire into the probationer’s ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so .... by the greater weight of the evidence^ and]
... [A]n automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process. Accordingly, the State must present sufficient evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial court’s finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State’s evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional.

Id. (emphasis added). As to the probationer’s . burden to prove inability to pay, the court explained:

Although the standard for proving a probation violation is the preponderance of the evidence, the defendant is required to meet a heightened burden of clear and convincing evidence to establish inability to pay. This imbalance in the scales of justice is even more significant considering the following: (1) when imposing restitution, the trial court no longer (as of 1995) considers the financial resources of the defendant and must impose restitution unless there are “clear and compelling reasons” not to do so; and (2) in a civil enforcement action where incarceration is not at stake, the probationer is held only to a preponderance of the evidence standard to demonstrate his or her financial resources. We further consider that the Legislature has not amended section 948.06(5) with respect to placing the burden on the probationer to prove inability to pay by clear and convincing evidence since adding the requirement in 1984 — at which time the financial resources of the defendant were a factor that the trial court was required to consider at the time that restitution was assessed and imposed.
... We conclude that imposing a burden of clear and convincing evidence on the probationer creates an impermissible risk that a person will be imprisoned simply because, through no fault of his or her own, he or she cannot pay the monetary obligation. Such an error is one of constitutional magnitude, “contrary to the fundamental fairness required by the Fourteenth Amendment” of the United States Constitution, [Bearden v. Georgia, 461 U.S. 660, 673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ], and in violation of the Florida Constitution. See art. I, § 11, Fla. Const.
... [T]he provision requiring the probationer to prove inability to pay by clear and convincing evidence is constitutionally infirm because it requires the defendant to bear a greater risk of an erroneous decision resulting in imprisonment for debt, despite an explicit protection in Florida’s Constitution against imprisonment for debt. See art. I, § 11, Fla. Const. This risk is constitutionally unacceptable.

Id. at 1013-15.

In light of the supreme court’s recent interpretation of section 948.06(5), it is clear that the trial court erroneously shifted the burden of proof to appellant to prove inability to pay by clear and convincing evidence. Because the trial court found that appellant had proven that she did not have the present resources to pay restitution, costs of supervision, and court costs by a preponderance of the evidence, we reverse the trial court’s order extending appellant’s probation by two years. We remand for entry of a new order, nunc pro tunc to the original order, finding that there was no willful violation of probation. Therefore, because the extension of probation was erroneous, any additional costs associated with the extension of probation was also erroneously imposed.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ., concur.

      . Communication fraud is a third degree felony. See § 817.034(4)(b)l, Fla. Stat. (2005).

      . Johnson successfully completed this condition.

      .Prior to April 2007, Johnson was living at her mother's house and paying $300 in rent.

      . The State’s first argument was specifically addressed and dismissed by the trial court: The State suggested that Johnson's cell phone was a “luxury item.” The trial court disagreed: “Okay, I'm having a hard time believing a cell phone nowadays is a luxury, especially when you’ve got five kids.”

      . As noted by the court, the 2008 version of section 948.06(5) at issue in Del Valle, and the case at bar, is identical to the current 2011 version of the statute.


author: PER CURIAM.

text:
    Diane ROSE, Appellant, v. Jeffrey H. ROSE, Appellee.
    No. 4D11-2150.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Kenneth A. Gordon of Brinkley Morgan, Fort Lauderdale, for appellant.
    Jeffrey H. Rose, Hollywood, pro se.
   PER CURIAM.

We affirm the trial court’s decision without discussion and without prejudice to seek a judgment on support arrearages owed to Former Wife.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Nathan S. KANER and Another Level Health, Inc., a Florida corporation, individually and on behalf of all others similarly situated, Appellants, v. ROBERT R. SCHIFFMAN, D.C., P.C., and Robert R. Schiffman, Appellees.
    No. 4D11-1507.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Daniel A. Bushell of Bushell Appellate Law, P.A, Boca Raton, and Phillip A. Bock of Bock & Hatch, LLC, Chicago, Illinois, for appellants.
    Mercer K. Clarke of Clarke Silverglate, P.A., Miami, and S. Greg Burge of Burr & Forman, LLP, Birmingham, Alabama, for appellees.
   PER CURIAM.

Nathan Kaner and his company filed a two-count class action complaint alleging common law conversion and violations of the Telephone Consumer Protection Act, 47 U.S.C § 227 (the “Act”). Kaner sought to be the class representative. The defendants furnished Kaner with an offer to “consent to judgment” including $2,500 (for five violations of the Act, each carrying a $500 statutory penalty, see 47 U.S.C. § 227(b)(3)(B)), compensable damages associated with the conversion of Kaner’s fax machine, an injunction prohibiting the defendants from engaging in statutory violations, taxable costs, and any other relief that the court determined to be appropriate to satisfy his claims under the complaint. Kaner did not respond to the offer to consent to judgment.

The defendants moved the court to enter the “consent judgment” in Kaner’s favor. Kaner objected and argued that the court should first rule on the issue of class certification. The court held a hearing. Kaner insisted that he did not want to settle the case on an individual basis; he pointed to his fiduciary duty to potential class members and insisted that he could not take money and agree to a dismissal of the case. He also asserted that the defendants’ offer was inadequate, in that it failed to offer treble damages that are available under the Act. A few hours after the hearing, Kaner filed a motion for class certification.

Several days after the hearing, the trial court granted the defendants’ motion for entry of a consent judgment; it did not resolve the class action issue except to note that the defendants had moved for entry of the consent judgment after Kaner could have moved for class certification but before he had done so. Ultimately, the trial court entered a final judgment over Kaner’s objection, concluding that the consent judgment had mooted Kaner’s claims; therefore requiring dismissal of the class action complaint.

The trial court erred in entering a judgment without adjudicating Kaner’s claim for treble damages, which was a part of the relief sought in the complaint. Treble damages are available under the Act “[i]f the court finds that the defendant willfully or knowingly violated [the Act].” 47 U.S.C. § 227(b)(3)(C). The defendants did not offer treble damages; the court could have imposed them only after an evidentiary hearing.

On remand, before entering another final judgment, the court shall also consider and rule on Kaner’s motion to certify the class, which he filed before the entry of the final judgment. See Jackson v. S. Auto Fin. Co., 988 So.2d 721, 722 (Fla. 4th DCA 2008) (in a class action, holding that a defendant’s unaccepted settlement offer for the full amount of the plaintiffs claim, “a practice which is known as ‘picking off a class representative,” did not moot the case); see also Weiss v. Regal Collections, 385 F.3d 337, 345-48 (3d Cir.2004) (in a class action where the named plaintiff had not yet moved for class certification, holding that the defendant’s offer of judgment did not moot the putative class action, where the plaintiff did not display undue delay in moving for class certification; the motion for class certification relates back to the filing of the class complaint).

Reversed and remanded.

POLEN, GROSS and LEVINE, JJ., concur.


text:
    CITIMORTGAGE, INC., Successor by Merger to ABN Amro Mortgage Group, Inc., Appellant, v. Matthew and Lisa CORN, et. al., Appellees.
    No. 4D11-1911.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Erin M. Berger of Kass Shuler, PA., Tampa, for appellant.
    No brief filed on behalf of appellees.
   PER CURIAM.

We reverse the order granting the third party bidder’s motion to confirm the foreclosure sale for the reasons stated in Citimortgage, Inc. v. Synuria, 86 So.3d 1237 (Fla. 4th DCA 2012).

MAY, C.J., DAMOORGIAN and Conner, JJ., concur.


author: LEVINE, J. HAZOURI, J.,

text:
    Olive GOHEAGAN, as personal representative of the estate of Molly Swaby, individually and as assignee of John Perkins, Appellant, v. AMERICAN VEHICLE INSURANCE COMPANY, a Florida for profit corporation, Appellee.
    No. 4D10-3781.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Bard D. Rockenbach and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Michael S. Smith of Lesser, Lesser, Landy & Smith, PLLC, West Palm Beach, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
    Harold R. Mardenborough, Jr., of Carr Allison, Tallahassee, for Amicus Curiae Florida Defense Lawyers Association.
   LEVINE, J.

Olive Goheagan, as personal representative of the estate of Molly Swaby, individually and as assignee of John Perkins, appeals a final summary judgment entered in favor of American Vehicle Insurance Company (“AVIC”) on Goheagan’s claim of bad faith in failing to protect its insured, Perkins, from an excess judgment. We find, as a matter of law, that the insurer AVIC did not act in bad faith. We therefore affirm.

On February 24, 2007, Perkins rear-ended the decedent, Swaby, while traveling at a high rate of speed. Perkins had bodily injury liability coverage under an AVIC policy in the amount of $10,000/$20, 000. Swaby was severely injured in the accident and remained hospitalized in a coma until her death on May 12, 2007.

Two days after the collision, on February 26, Perkins reported the accident to AVIC. AVIC opened a claims file and assigned the claim to adjuster Lee Ann Grieser. AVIC spoke to Perkins’s attorney on February 27. On February 28, Grieser sent a letter to Perkins advising him that the bodily injury claims for the accident may exceed his policy limits, and that AVIC would “make every attempt to settle all claims for bodily injury in accordance with [his] policy limits.” As of March 1, Grieser had determined that Perkins was the sole cause of the accident and intended to settle the claim for Perkins’s $10,000 policy limit.

Grieser attempted to contact Goheagan, Swaby’s mother, on February 28, March 1, March 21, March 27, and April 16. On February 28, Grieser was told by Swaby’s stepfather that Goheagan had retained an attorney. The stepfather gave Goheagan’s cell phone number to Grieser and told Grieser to call Goheagan. Later that day, Grieser called Goheagan’s home number and was told by a friend of Goheagan that Goheagan was not available. Grieser left her contact information with Goheagan’s friend.

On March 1, Grieser left Goheagan a voicemail message asking for Goheagan’s attorney’s information. On March 7, an AVIC property adjuster called Goheagan and received no answer or answering machine.

Grieser reached Goheagan on March 21 and asked for the name of Goheagan’s attorney. Goheagan told Grieser that they would talk later. Grieser called again on March 27. Goheagan initially told Grieser to speak to someone else. When Grieser asked Goheagan for the name of the attorney that the stepfather had informed her was hired regarding this accident, Goheag-an said she would call Grieser back. On April 16, Grieser called Goheagan and again Goheagan said it was not a convenient time to talk and that Grieser would have to call some other time. On April 19, Grieser learned that Goheagan had filed a wrongful death suit against Perkins. AVIC offered to tender Perkins’s $10,000 available coverage to Goheagan’s attorney on April 26, which was rejected. Goheag-an also rejected a second settlement offer dated June 7.

Subsequently, Goheagan’s wrongful death action against Perkins went to trial. Following a jury verdict, a final judgment was entered against Perkins in the amount of $2,792,893.65 on January 20, 2009. An additional cost judgment in the amount of $28,070 followed.

Goheagan filed the instant common law bad faith action against AVIC after the final judgment was entered against Perkins in her wrongful death suit. Goheagan alleged that AVIC breached its duty of good faith with regard to the interests of Perkins, in part, by failing to affirmatively initiate settlement negotiations with Swa-by, failing to actually tender the policy limits in a timely fashion, and failing to warn Perkins of the possibility of an excess judgment.

AVIC moved for summary judgment, arguing that no genuine issue of material fact existed as to whether AVIC fulfilled its duty of good faith toward Perkins.

Goheagan filed the affidavit and deposition of Mark Lemke in opposition to AVIC’s motion for summary judgment. In Lemke’s opinion, “[t]he claim should have immediately been recognized as one requiring tender of the $10,000 policy limits. Steps should have been taken to immediately tender the $10,000 policy limits to Molly Swaby. This did not happen.” Lemke also submitted that no ethical rules would have prohibited Grieser from tendering a check to Goheagan.

The trial court granted summary judgment in favor of AVIC. This appeal follows.

We apply a de novo standard of review to an order granting summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “The movant carries the burden of showing that no genuine issue of material fact exists, making summary judgment appropriate.” Jervis v. Tucker, 82 So.3d 126, 128 (Fla. 4th DCA 2012) (citation omitted). “If the evidence shows that an issue of material fact exists such that different reasonable inferences can be drawn, the issue should go to the jury as the finder of fact.” Id.

“[W]hen an insurer is handling claims against its insured, it ‘has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.’ ” Perera v. U.S. Fid. & Guar. Co., 35 So.3d 893, 898 (Fla.2010) (quoting Berges v. Infinity Ins. Co., 896 So.2d 665, 668 (Fla.2004)).

This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.

Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980) (citation omitted). Further, “[b]ad faith may be inferred from a delay in settlement negotiations which is willful and without reasonable cause.” Powell v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991). See also Berges, 896 So.2d at 680 (explaining that “whether an insurer has acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard”). In this case, we find that the evidence does not support the proposition that AVIC failed to settle the claim “if possible, where a reasonably prudent person ... would do so” nor does it demonstrate that the failure to settle was “willful and without reasonable cause.”

Section 624.155, Florida Statutes, requires an insurer to act in “good faith” and to act “fairly and honestly toward its insured and with due regard for her or his interests.” Although Goheagan alleged a common law cause of action for bad faith, we look to the obligation expressed in this statute for guidance, because it “is identical to the common law duty of good faith imposed on insurers in third-party claims.” Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1069 (Fla.2011) (Pariente, J., specially concurring); Macola v. Gov’t Emps. Ins. Co., 953 So.2d 451, 456 (Fla.2006) (“the same obligations of good faith that existed for insurers dealing with their insureds in the third-party context were extended by statute to the first-party context”); Farinas v. Fla. Farm Bureau Gen. Ins. Co., 850 So.2d 555, 559 (Fla. 4th DCA 2003). The common law duty “impose[s] upon the insurer the obligation of exercising good faith in negotiating for and in effecting a settlement of the claim against an insured.” Clauss v. Fortune Ins. Co., 523 So.2d 1177, 1178 (Fla. 5th DCA 1988). Grieser’s attempts to contact Goheagan to determine the name of Goheagan’s counsel five times would hardly appear to constitute the lack of diligence or care envisioned as an example of a bad faith claim. It is hard to see, from the facts in this case, how AVIC failed to act in good faith with due regard for the interests of its insured, Perkins.

Although the dissent postulates that AVIC could “have at least made a written offer and/or tender” of the liability limits to Swaby through Goheagan, the fact that AVIC refrained from doing either does not mean that AVIC has failed to meet its obligations. The facts of this case have AVIC literally repeatedly calling Goheagan to obtain the name of the attorney, and AVIC repeatedly being put off.

The focal point of a bad faith case is that the insurer puts its own interests ahead of the interests of its insured. “[T]he essence of an insurance bad faith claim is that the insurer acted in its own best interests, failed to properly and promptly defend the claim, and thereby exposed the insured to an excess judgment.” Maldonado v. First Liberty Ins. Corp., 546 F.Supp.2d 1347, 1353 (S.D.Fla.2008); see also Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852, 859 (1938). There is no evidence in this record which demonstrates that AVIC placed its interests above the interests of Perkins. Nor is there any evidence “of the insurer’s failure to properly or promptly defend the claim.” Macola, 953 So.2d at 458 (citation omitted).

At oral argument, counsel for Goheagan appeared to argue that AVIC should have sent a letter enclosing a check for the policy limits to Goheagan, despite the fact that AVIC knew of the existence of an attorney hired by Goheagan. According to Goheagan’s counsel, the insurer should have gone forward with this attempt, but not concluded the settlement. We reject this interpretation of what an insurer must do to meet its obligation to demonstrate that it is defending a claim in good faith.

To accept Goheagan’s theory of bad faith, AVIC would have had to tender a letter with a check that could not be cashed. Since Swaby’s stepfather informed AVIC that Goheagan had retained an attorney regarding this accident, Florida Administrative Code Rule 69B-220.201 applied to AVIC’s conduct. Pursuant to that rule, “[a]n adjuster shall not negotiate or effect settlement directly or indirectly with any third-party claimant represented by an attorney, if the adjuster has knowledge of such representation, except with the consent of the attorney.” Fla. Admin. Code R. 69B-220.201(3)(i).

The dissent notes the absence of case law permitting an insurer to rely on this rule as authority for its decision to refrain from making a written offer or tendering a check. But the plain language of the rule would appear to prohibit even the tendering of a check, since that could be construed as “negotiating” or “effecting” a settlement. “Negotiate” is defined as “To communicate with another party for the purpose of reaching an understanding”; “To bring about by discussion or bargaining”; or “To transfer (an instrument) by delivery or indorsement, whereby the transferee takes the instrument for value, in good faith.... ” Black’s Law Dictionary (9th ed. 2009). Although the dissent finds that “[i]t is unclear at what point an attorney had been retained” and that the attorney’s assistance “would not have precluded an offer,” we find that the appropriate inquiry under the rule is that AVIC “ha[d] knowledge of such representation” following Grieser’s initial conversation with the stepfather.

We also find that the affidavit and deposition of Mark Lemke are insufficient to defeat summary judgment. “[Statements which are framed in terms only of conclusions of law are not sufficient to either raise a genuine issue of material fact or prove the non-existence of a genuine issue of material fact.” Progressive Express Ins. Co. v. Camillo, 80 So.3d 394, 399 (Fla. 4th DCA 2012). Factual conclusions are also insufficient. See Buzzi v. Quality Serv. Station, Inc., 921 So.2d 14, 15 (Fla. 3d DCA 2006). In his affidavit, Lemke expressed his opinions that AVIC “did not adjust the underlying claim in good faith and breached the duty of good faith it owed its insured,” and that “[t]he claim should have immediately been recognized as one requiring tender of the $10,000 policy limits.” We consider these to be factual and legal conclusions. Lemke also opined that “[t]here were no ethical prohibitions that would have prevented [Grieser] from tendering a check.” This legal conclusion is refuted by Florida Administrative Code Rule 69B-220.201. To the extent Lemke’s deposition raised other disputed issues of fact as to what AVIC should have done differently, they are not material because there is no evidence in this record from which a reasonable juror could infer that AVIC failed to act with due regard for Perkins’s interests.

Although normally the question of whether an insurer acted in good faith is to be decided by a jury, there are instances where the evidence demonstrates that the insurer fulfilled all its legal obligations. Gutierrez, 386 So.2d at 785 (“The evidence presented in the present case demonstrates that Boston Old Colony fulfilled all these obligations.”). Where the insurer fulfills its obligations and there is “no sufficient evidence from which any reasonable jury could have concluded that there was bad faith on the part of the insurer,” then summary judgment should be granted for the insurer. Id.

For example, in Barnard v. Geico General Insurance Co., 2011 WL 2039560, at *3-4 (N.D.Fla. May 25, 2011), aff'd, 448 Fed.Appx. 940 (11th Cir.2011), summary judgment was granted for an insurer in part because “[i]t [was] clear that [the insurer] made every attempt to settle the claim for the policy limits, despite [the injured party’s attorney’s] inexplicable evasive behavior.” On appeal, the Eleventh Circuit affirmed, finding that “[n]o reasonable juror could find that [the insurer] acted in bad faith when [the attorney] made it impossible to engage in settlement discussion.” 448 Fed.Appx. at 944. Similarly, in the present case, AVIC aspired to “engage in settlement discussion,” a process which would begin with tendering the policy limits, but it was precluded from doing so before learning the name of the attorney, a task that Goheagan prevented.

Other courts, including Florida courts, have also granted summary judgment in favor of an insurer where there was no evidence from which a jury could find that the insurer acted in bad faith. See Aboy v. State Farm Mut. Auto. Ins. Co., 394 Fed.Appx. 655, 656-57 (11th Cir.2010) (affirming summary judgment for insurer because the insurer had no duty to verify the injured party’s injuries when the injured party refused to cooperate, and “acted immediately” once it learned of injuries’ severity by speaking with injured party’s attorneys); McGuire v. Nationwide Assurance Co., 2012 WL 712965, at *11 (M.D.Fla. Mar. 5, 2012) (“from the very beginning, [insurer] stood ready to tender the [policy] limit and attempted to tender it”); Boateng v. Geico Gen. Ins. Co., 2010 WL 4822601, at *5 (S.D.Fla. Nov. 22, 2010) (“there is no evidence” that insurer “sought to avoid settling Plaintiffs claims for the policy limits”); RLI Ins. Co. v. Scottsdale Ins. Co., 691 So.2d 1095, 1096 (Fla. 4th DCA 1997) (finding that facts showed “beyond any doubt that the primary insurer at no time missed an opportunity to settle which would have put it in a bad faith posture”); Clauss, 523 So.2d at 1178 (finding no bad faith as a matter of law where there was one month between initial demand for policy limits and notice of bad-faith failure to settle, and insurer “expressed its willingness to tender the policy limits, but desired verification”); Caldwell v. Allstate Ins. Co., 453 So.2d 1187, 1190 (Fla. 1st DCA 1984) (determining that insurer was not “guilty of the kind of conduct which has typified those cases in which the courts have found the existence of bad faith”).

In the present case, as noted by the dissent, “the trial court did not do a comprehensive evaluation of the” entire record. Nevertheless, the trial court correctly entered summary judgment, not because there was no one to make an offer to since Swaby was in a coma, but rather because there was no genuine issue of material fact as to whether AVIC acted in bad faith. See Dade Cnty. Sch. Bd., 731 So.2d at 644 (“the Appellate Court will make its own determination as to the correctness of the decision of the lower court, regardless of the reasons or theories assigned therefor”) (citation omitted).

“The claim for ‘bad faith’ failure to settle should be exactly that — only for situations in which the insurer truly is refusing in bad faith to settle, not when it is in fact attempting to settle the claim.” Gwynne A. Young & Johanna W. Clark, The Good Faith, Bad Faith, and Ugly Set-up of Insurance Claims Settlement, 85 Fla. Bar. J. 9, 14-15 (Feb.2011). In this case, the undisputed facts demonstrate no basis from which a reasonable jury could conclude that AVIC acted solely in its own interest. AVIC acted “properly [and] promptly” in continually contacting Goheagan in order to discover the name of the attorney retained by her, so that it could then contact the attorney. Macola, 953 So.2d at 458. We affirm the trial court’s grant of summary judgment on behalf of AVIC, based on the unrefuted evidence that AVIC acted in good faith in attempting to settle this case.

Affirmed.

POLEN, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent and would reverse the granting of the summary judgment on Goheagan’s claim of bad faith. An insurer’s duty toward its insured is best summarized by the Florida Supreme Court’s decision in Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla.1980):

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.... The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.

Id. at 785 (citations omitted). This duty of good faith has been reaffirmed in numerous cases decided since Boston Old Colony and as recently as in the Florida Supreme Court decision in Borges v. Infinity Insurance Co., 896 So.2d 665 (Fla.2004).

This statement in Boston Old Colony is a more complete definition of what the duties and obligations of the insurance company are toward its insured than is reflected in the majority opinion. The majority appears to accept a new standard as outlined in its reference to the article appearing in the Florida Bar Journal entitled The Good Faith, Bad Faith, and Ugly Set-up of Insurance Claims Settlement, 85 Fla. Bar. J. 9, 14-15 (Feb.2011), wherein it states that “the claim for bad faith failure to settle should be exactly that — only for situations in which an insurer truly is refusing in bad faith to settle, not when it is in fact attempting to settle the claim.” This would insulate insurers from a claim of bad faith by merely attempting to settle the claim no matter how anemic the attempts were. That is a new standard and not one established by our Florida Supreme Court.

What Boston Old Colony points out is that an insurer has a duty to use the same degree of care and diligence that a person of ordinary care and prudence should exercise in the management of its own business. In other words, faced with the prospect of paying the entire amount of the judgment, would AVIC have immediately tendered its limits and advised Mrs. Go-heagan that it was acknowledging liability and had only $10,000 worth of liability insurance available to cover the claim. Boston Old Colony also emphasizes the fact that the insured, in this case Mr. Perkins, pursuant to the insurance policy had surrendered to AVIC all control over the handling of the claim, including all decisions with regard to litigation and settlement. AVIC has a fiduciary duty to Mr. Perkins. It is up to AVIC to see to it that he was not exposed to a judgment in excess of his policy limits.

Mr. Perkins fulfilled all of his obligations to AVIC. He paid his premiums timely, reported the accident promptly, cooperated fully with AVIC in the investigation of the accident and the handling of the claim. The question remains for a jury to decide, did AVIC fulfill all of its obligations to Mr. Perkins.

In moving for summary judgment AVIC asserted that it acted fairly and honestly toward its insured with due regard for his interest but was prevented from entering into settlement negotiation or consummating a settlement for two reasons: (1) that Ms. Swaby was in a coma and there was no one to make the offer to; and (2) that because AVIC had been made aware of the fact that there was a lawyer involved, Florida Administrative Code 69 and 69b-220.201 prohibited them from communi-eating or negotiating a settlement with Ms. Swaby or her mother, Ms. Goheagan. In opposition to the motion, Goheagan filed the affidavit and deposition of Mark Lemke, an expert witness on insurance claim handling. He gave his opinion that AVIC breached its duty of good faith by failing to proactively adjust the claim and timely tender the policy limits. “The claim should have immediately been recognized as one requiring tender of the $10,000 policy limits. Steps should have been taken to immediately tender the $10,000 policy limits to Molly Swaby. This did not happen.” He opined that AVIC failed to recognize the urgency of tendering the check and there were no ethical prohibitions that would have prevented Grieser from tendering a check.

At the hearing on the motion for summary judgment, AVIC argued that the evidence of bad faith was insufficient as a matter of law. The trial court granted AVIC’s motion for summary judgment based upon AVIC’s first point that because Ms. Swaby was in a coma and no guardianship had been set up prior to her death there was no one to whom to make an offer. At the hearing on the motion for summary judgment the following colloquy occurred between the court and Goheag-an’s attorney, Mr. Smith:

MR. SMITH: ... In this case, Your Honor, the insured was drunk at 8:00 in the morning on a Saturday morning, .19 blood alcohol. He’s going about 60 miles an hour on Military Trail and he rear ends a line of cars that are lawfully stopped for a red light.
THE COURT: Mr. Smith, with all due respect, this has nothing to do with the underlying facts of the case. It has to do with the actions of the insurance company. Let’s stick to that.
MR. SMITH: Yes, Your Honor. And it’s our position, Your Honor, given those facts, which are undisputed, that there should have been an immediate tender of the policy limits.
THE COURT: To whom?
MR. SMITH: If I could — if you’ll bear with me, Judge, I will get to that.
On March 1st of '07, a few days after the accident, the insurance company had concluded this was a case to pay. They knew where the claimant was, and they knew she was in critical condition. Mr. Green [attorney for AVIC] pointed out to Your Honor that Ms. Goheagan is the mother of Ms. Swaby. I think the court needs to understand, I’m sure the court does understand, Ms. Swaby was in her 40s. Ms. Swaby was not a minor. Ms. Swaby was of age. The insurance company had no evidence that Ms. Goheag-an was empowered by way of a guardianship or otherwise to act on her behalf at that point.
Their argument, Your Honor, is that the adjuster code of ethics bars them from action. There is no mention in the adjuster’s log that she felt constrained because of the adjuster code of ethics. That code is not mentioned anywhere. And it’s significant, Your Honor, that the property damage adjuster from the same insurance company that was operating out of the same log had direct communication with Ms. Goheagan to settle the property damage claim. Ms. Goheagan, the mother, owned the car that her daughter was driving at the time. A reasonable jury could conclude that this argument of adjuster code of ethics is something that occurred after the fact because another employee of the same insurance company dealt with the mother on the property damage claim. They had a direct communication to the mother.
I asked the adjuster, Your Honor, in her deposition if Molly Swaby had an attorney. She says in her deposition, I’m prohibited from dealing with her. At Page 77 she says I don’t believe Molly Swaby ever had one because she was unable to retain one because she was in a coma. It’s our position, Your Honor, and it is our expert’s opinion that the adjuster certainly wasn’t prohibited from disclosing the policy limits. That never happened. They never said we only have $10,000 in coverage. The adjuster was not prohibited from expressing a desire to pay. That never happened. The adjuster never said we have limited coverage and I want to pay. The adjuster never sent any letters at all to Ms. Goheagan or Ms. Swaby that said anything. No letters were sent and the president of the company, when I deposed him, Judge, said yeah, she should have sent the letter. I think that in and of itself creates an issue of fact. There was no prohibition and our expert has testified that she could have tendered a check made payable to Molly Swaby and her attorney, identity unknown or somehow qualified the check so it couldn’t be negotiated and forwarded the check.
Your Honor, I’ve given the court the affidavit of Mark Lemke who’s been in the insurance business for over 30 years. It is not conclusory. He explains why American Vehicle did not adjust this claim properly. He explains that they should have immediately tendered the policy limits, and this did not happen. He explains why there were not prohibitions under the adjuster code of ethics that would have prevented a tender, that a tender should have occurred as an urgent matter, that the supervision of the claim fell below industry standards, that communications with the insured fell below industry standards and the insured was not adequately advised of the exposure and his liability for the exposure. They could have tendered the check.
THE COURT: With all due respect, Mr. Smith, you still didn’t answer my question. To whom would they have tendered?
MR. SMITH: They could have tendered the check to Molly Swaby, Your Honor.
THE COURT: In a coma who never recovered?
MR. SMITH: There’s a difference between tendering the check and her ability to cash the check.
THE COURT: The law doesn’t require a futile act, Mr. Smith. If they knew she was in a coma why would they tender the check to her?
MR. SMITH: They could have tendered the check, Your Honor, to Olive Goheag-an.
THE COURT: Who was not authorized to accept by your own admission.

“The standard of review of a summary judgment is de novo. In reviewing a summary judgment, this Court must consider all record evidence in a light most favorable to the non-moving party. If material facts are at issue and the slightest doubt exists, summary judgment must be reversed.” See Mills v. State Farm Mut. Auto. Ins. Co., 27 So.3d 95, 96 (Fla. 1st DCA 2010) (citations omitted).

“In Florida, the question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard.” Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla.2004) (citing State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63 (Fla.1995)). “Bad faith may be inferred from a delay in settlement negotiations which is willful and without reasonable cause.” Powell v. Prudential Prop. & Cas. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991).

Goheagan argues that there remained genuine issues of material fact which precluded summary judgment. She argues that the issue of whether an insurer acted in bad faith is decided by reviewing the steps taken by the insurer to offer to settle or tender, not the actions of the claimant. She asserts there is a dispute as to whether Goheagan’s retention of an attorney was an impediment to communication of a settlement offer and whether the fact that Swaby was in a coma prevented any possible settlement so there was no point in making the offer or tender. I agree.

In Powell, the court held:

Where liability is clear, and injuries so serious that a judgment in excess of the policy limits is likely, an insurer has an affirmative duty to initiate settlement negotiations. Id. at 14. See also Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359, 1366 (1977) (“duty to initiate settlement negotiations arises if carrier would initiate settlement negotiations on its own behalf were its potential liability equal to that of its insured”); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974) (where substantial injuries and potential liability of insured are obvious, failure to offer policy limits constitutes bad faith even where there is no assurance that action can be settled); Alt v. American Family Mut. Ins. Co., 71 Wis.2d 340, 237 N.W.2d 706, 713 (1976) (insurer has affirmative duty to investigate possibilities of settlement); Eastham v. Oregon Auto. Ins. Co., 273 Or. 600, 540 P.2d 364 (1975) (insurer may be found to have acted in bad faith for delaying an offer to settle). See generally 14 Couch on Insurance 2d § 51:17 (Rev. ed. 1982); J. Appleman, Insurance Law and Practice § 4711, at 383 (Rev. ed. 1979).

Powell, 584 So.2d at 14.

Clearly the trial court erred in granting summary judgment based on its assumption there could be no bad faith because Swaby was in a coma and therefore there was no one to whom to make an offer. See Berges, 896 So.2d at 675 (a guardian or personal representative who has not yet been appointed can negotiate a settlement on behalf of a claimant). Furthermore there is no case law to support AVIC’s argument that it could not have at least made a written offer and/or tender to Swa-by through her mother. It is unclear at what point an attorney had been retained. If in fact Goheagan had retained an attorney, the assistance of the attorney may have been necessary to finalize a settlement but would not have precluded an offer. With the catastrophic injuries, clear liability, and the limited available liability limits of $10,000, a jury could decide that there was not much to negotiate; and the representation by an attorney would not have been an impediment to at least make an offer to settle.

The enormous financial exposure to Mr. Perkins was a ticking time bomb. Suit could be filed at any time. Any delay in making an offer under the circumstances of this case even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith. See Gutierrez, 386 So.2d at 785 (“The question of failure to act in good faith with due regard for the interests of the insured is for the jury.”); see also Campbell v. Gov’t Ems. Ins. Co., 306 So.2d 525, 530-31 (Fla.1974) (“[Reasonable diligence and ordinary care [are] material in determining bad faith. Traditionally, reasonable diligence and ordinary care are considerations of fact-not of law.”).

The majority opinion cites to several federal district court cases outlining factual circumstances which warranted the granting of a summary judgment in bad faith cases. However, as this court noted in Byrd v. BT Foods Inc., 948 So.2d 921 (Fla. 4th DCA 2007), “federal cases [which] permit summary judgment based on Federal Rule of Civil Procedure 56 ... are of limited precedential value in Florida summary judgment cases. Florida places a higher burden on a party moving for summary judgment in state court, requiring the movant to: ‘[S]how conclusively that no material issues remain for trial.’ ” Id. at 923-24 (citation omitted). We also noted in Byrd that “[w]hen reviewing a ruling on a summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” Id. at 923. “Where credibility issues impact the determination of material facts, summary judgment is not appropriate.” Id.

The majority gives only superficial consideration to the affidavit and deposition of Goheagan’s expert, Mark Lemke, filed in opposition to AVIC’s motion for summary judgment. As an expert in handling insurance claims, he is exceptionally qualified to give opinions concerning the handling of a personal injury claim such as the one in this case. Additionally, the majority fails to address the fact the trial court did not do a comprehensive evaluation of the record which included depositions and affidavits but simply concluded that summary judgment should be granted based upon the fact that Molly Swaby was in a coma and there was no one to whom to make an offer to settle.

The majority is also incorrect in relying upon section 624.155, Florida Statutes, as the basis and standard for what constitutes bad faith. The complaint in this case was not based upon section 624.155 but upon a common law claim of bad faith. Section 624.155(8) makes it clear that:

The civil remedy specified in 624.155 does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to common law of this state. Any person may obtain a judgment under either the common-law remedy of bad faith or the statutory remedy, but shall not be entitled to a judgment under both remedies.

§ 624.155(8), Fla. Stat. (2007). It is clear based upon decisions by the Florida Supreme Court and the district courts of this state that “bad faith” must be considered in light of the totality of the circumstances and is generally considered a question for the jury.

By my dissent I would not hold as a matter of law that AVIC was guilty of bad faith. It may be that based upon the facts of this case a jury would conclude that AVIC acted reasonably and prudently in attempting to protect Mr. Perkins. However, there are disputed issues of the facts and issues of credibility that must be resolved and that cannot be done by way of a summary judgment. Therefore, I would reverse this granting of a summary judgment and remand for a jury trial.

      . After this phone call, Grieser indicated in her notes that she "did not discuss anything else ... as [Goheagan] is [represented].”

      . At the hearing on AVIC’s motion, the trial court asked counsel for Goheagan, "To whom would they have tendered?” Goheagan's counsel responded that the check could have been tendered to Swaby. The court questioned, "In a coma who never recovered?” Goheagan responded that there is a distinction between tendering a check and the recipient having the ability to cash the check. The court replied that the law does not require a futile act. When counsel suggested that AVIC could have tendered a check to Goheagan, the court answered, "Who was not authorized to accept by your own admission.” As explained more fully below, we disagree with the trial court’s reasoning in this regard. However, we affirm the entry of summary judgment for AVIC based on our independent review of the entire record. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

      . Even an insurer’s negligent conduct, alone, is insufficient to support a claim of bad faith. DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 (Fla. 4th DCA 1975).

      . Section 626.878, Florida Statutes (2007), provides that "[a]n adjuster shall subscribe to the code of ethics specified in the rules of the department. The rules shall ... ensure preservation of the rights of the claimant to participate in the adjustment of claims.”

      . The dissent argues that Lemke is "exceptionally qualified” to render his opinion although Lemke has never offered opinion testimony as an expert witness in court previously.

      . The evidence showed that AVIC did promptly recognize that the accident involved clear liability. The fact that liability was clear was the reason Grieser called Goheagan five times to try to obtain the name of the attorney.

      .The concern over potentially disingenuous bad faith claims "was debated in the majority and dissenting opinions in Berges, and it is far from over.” United Auto. Ins. Co. v. Estate of Levine ex rel. Howard, 87 So.3d 782 (Fla. 3d DCA 2011) (footnote omitted). One concern highlighted is "being unresponsive to the insurance companies’ attempts at communication.” McGuire, 2012 WL 712965, at *12.

      . (i) An adjuster shall not negotiate or effect settlement directly or indirectly with any third-party claimant represented by an attorney, if the adjuster has knowledge of such representation, except with the consent of the attorney. For purposes of this subsection the term "third-party claimant” does not include the insured or the insured’s resident relatives.

      (1) An adjuster shall not attempt to negotiate with or obtain any statement from a claimant or witness at a time that the claimant or witness is, or would reasonably be expected to be, in shock or serious mental or emotional distress as a result of physical, mental, or emotional trauma associated with a loss. The adjuster shall not conclude a settlement when the settlement would be disadvantageous to, or to the detriment of, a claimant who is in the traumatic or distressed state described above.


text:
    Joseph R. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1443.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Joseph R. Kelly, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Reeves v. State, 957 So.2d 625 (Fla.2007) (Criminal Punishment Code sentence may follow a Prison Releas-ee Reoffender sentence consecutively when the two sentences are for separate offenses arising out of the same criminal episode). See also § 775.082(9)(a)l.q., Fla. Stat. (including burglary of a dwelling as a PRR qualifying crime); Shiflet v. State, 50 So.3d 1153 (Fla. 4th DCA 2010).

MAY, C.J., WARNER and STEVENSON, JJ„ concur.


text:
    Charles PALAMARA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2036.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Charles Palamara, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gethers v. State, 838 So.2d 504 (Fla.2003), and Alphonso v. State, 20 So.3d 959 (Fla. 4th DCA 2009).

MAY, C.J., POLEN and LEVINE, JJ., concur.


text:
    Carl LAUDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2825.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carl Laude, MacClenny, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Laude’s Rule 3.850 motion. See Rodriguez v. State, 75 So.3d 391 (Fla. 4th DCA 2011); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

Affirmed.

WARNER, GROSS and LEVINE, JJ., concur.