author: CIKLIN, J.

text:
    PEMBROKE LAKES MALL LTD., a Florida Corporation; and Millard Mall Services, LLC, a Florida Corporation, Appellants, v. June McGRUDER, Appellee.
    No. 4D11-4005.
    District Court of Appeal of Florida, . Fourth District.
    Feb. 26, 2014.
    Rehearing Denied April 11, 2014.

      Edward G. Guedes and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, and Andrew S. Connell, Jr. of Litchfield Cavo, LLP, Fort Lauderdale, for appellants.
    Bard D. Rockenbach and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, and Dallas A. Robinson of Kanner & Pintaluga, P.A., Delray Beach, for appellee.
   CIKLIN, J.

Pembroke Lakes Mall Ltd. (“Pembroke Lakes”), and Millard Mall Services, LLC (“Millard”), appeal the final judgment awarding June McGruder $269,049.50 following a slip and fall accident. Pembroke Lakes and Millard raise four issues: (1) the trial court erred by denying a motion for directed verdict, (2) the trial court erred by determining section 768.0755, Florida Statutes (2010) did not apply retroactively, (3) the trial court abused its discretion by denying a motion for mistrial, and (4) the trial court abused its discretion by denying a post-verdict motion to conduct juror interviews. McGruder cross-appeals, arguing the trial court erred by refusing to hold Pembroke Lakes jointly and severally liable for the negligence the jury attributed to Millard. We conclude the trial court properly denied the Mall’s motion for directed verdict and the court did not abuse its discretion by denying the motion for mistrial following McGruder’s improper arguments. We also affirm the trial court’s decision to not apply section 768.0755 retroactively, and we certify conflict with the Third District on that issue. We reverse on the issues of the juror interviews and the cross-appeal, and remand for the court to allow Pembroke Lakes and Millard to conduct interviews of the jurors.

Facts

In 2008, June McGruder went to a shopping mall to purchase clothing. The mall was owned by Pembroke Lakes, which contracted with Millard to clean and maintain the premises. As McGruder walked through the mall, she slipped and fell on a clear, slippery substance on the floor. McGruder sustained injuries resulting from the fall and received medical treatment for the injuries.

In 2010, McGruder sued Pembroke Lakes and Millard for negligence in failing to warn McGruder of the spill, allowing the spill to remain on the floor, and failing to have a proper maintenance and clean-up plan in place to prevent spills from remaining on the floor. Before trial, Pembroke Lakes and Millard moved for a determination that section 768.0755, Florida Statutes (2010), applied retroactively and would be the operative statute for the trial. The court denied the motion, and determined that the statute in effect at the time of the accident, section 768.0710, Florida Statutes (2008), would apply in the trial.

The case proceeded to trial in 2011. During voir dire, the trial court asked each prospective juror: “Have you or any member of your family ever participated in a lawsuit as a party or a witness or in some other capacity?” The court clarified that the potential jurors did not need to disclose divorces. Four prospective jurors who eventually served on the jury, Angel, Rhonda, Jorge, and Audrey, answered they had not participated in a lawsuit.

At the conclusion of trial, the jury returned a verdict finding Pembroke Lakes and Millard negligent for the accident, and finding that McGruder was not comparatively negligent. The jury awarded McGruder $269,049.50 for past medical expenses, future medical expenses, and pain and suffering. The jury then assigned fifty percent liability each to Pembroke Lakes and Millard.

Pembroke Lakes and Millard filed a post-verdict motion seeking to avoid a judgment in favor of McGruder on several grounds. Pembroke Lakes and Millard argued their motion for directed verdict should have been granted because McGru-der failed to show that Pembroke Lakes and Millard had actual or constructive knowledge of the spill or that Pembroke Lakes and Millard breached their duties of care under either sections 768.0710 or 768.0755. Pembroke Lakes and Millard also argued their motion to have section 768.0755 apply retroactively and their motion for mistrial should have been granted. Pembroke Lakes and Millard also moved to conduct juror interviews on the grounds that certain jurors had failed to disclose their involvement in previous litigation. Pembroke Lakes and Millard provided Broward County Clerk of Court records which indicated juror Angel failed to disclose four eviction and small claims cases during the ten years before the McGruder trial, Rhonda failed to disclose she was the defendant in a civil case in 1991, Jorge failed to disclose two personal injury protection matters, a mortgage foreclosure case, and a domestic violence case during the ten years before trial, and Audrey failed to disclose that she was the defendant in a civil case in 2008 and a small claims case in 1998.

The trial court denied Pembroke Lakes and Millard’s post-verdict motion without a hearing.

McGruder moved to have Pembroke Lakes be held jointly and severally liable for the negligence attributed to Millard. McGruder argued Pembroke Lakes owed a non-delegable duty of care to McGruder, and that Pembroke Lakes could not reduce its liability by contracting with Millard to perform mall maintenance. The court denied the motion and split the verdict evenly in the judgment, obligating Pembroke Lakes and Millard to pay McGruder $134,524.75 each.

Pembroke Lakes appeals the denial of its post-verdict motion. We affirm the trial court’s decisions regarding the directed verdict and the mistrial without discussion.

Retroactive Application of Section 768.0755

We first address the issue of whether section 768.0755, Florida Statutes (2010), applies retroactively. Whether a new statute applies retroactively is a pure question of law, subject to de novo review. Smiley v. State, 966 So.2d 330, 333 (Fla.2007).

We begin with an overview of slip and fall cases in Florida. “All premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 320 (Fla.2001) (citation omitted). Before 2001, Florida law required a person who slipped and fell on a transitory foreign substance to prove that the premises owner had actual or constructive knowledge of the dangerous condition to successfully assert a cause of action against the owner. Id. (citation omitted). In 2001, after a thorough discussion of the problems associated with requiring a plaintiff to prove the owner’s knowledge and the approaches taken by foreign jurisdictions, the Florida Supreme Court held:

[T]he existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebut-table presumption that the premises owner did not maintain the premises in a reasonably safe condition.
Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.

Owens, 802 So.2d at 331.

In 2002, apparently in response to Owens, the Florida Legislature enacted section 768.0710, Florida Statutes (2002), establishing the “Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.” The statute in effect at the time McGruder slipped and fell provided:

(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

§ 768.0710, Fla. Stat. (2008).

Thus, the legislature removed the burden-shifting aspects of the Owens decision, and returned the pre-Owens rule providing that the plaintiff had the burden of proving the premises owner was negligent. Nonetheless, the legislature maintained the Florida Supreme Court’s decision to remove the owner’s actual or constructive knowledge as “a required element of proof to this claim.” See § 768.0710(2)(b), Fla. Stat. (2008).

Another and substantial revision was enacted in 2010. The legislature repealed section 768.0710 and replaced it with section 768.0755, Florida Statutes (2010) and therein provided an effective date of July 1, 2010. In revising the law and repealing section 768.0710, the legislature did not state the new statute should apply retroactively. Section 768.0755 is entitled “Premises liability for transitory foreign substances in a business establishment” and provides:

(1)If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

§ 768.0755, Fla. Stat. (2010).

The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older 2002 statute expressly stated actual or constructive notice was not “a required element of proof to this claim,” but the new 2010 statute expressly stated the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.

With that overview, we turn now to whether section 768.0755 applies retroactively. In Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d DCA 2013), the Third District recently analyzed this issue and determined that the section applies retroactively. While we agree with the way the Kenz court framed the issue, we disagree with the court’s conclusion.

The Florida Supreme Court has set a two-prong test for determining whether a statute applies retroactively: “ ‘First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.’ ” Fla. Ins. Guar. Ass’n v. Devon Neighbor hood Ass’n, 67 So.3d 187, 195 (Fla.2011) (quoting Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 877 (Fla.2010)). As to the first prong, legislative intent, the legislature gave no indication in section 768.0755 that the statute was to be applied retroactively.

Even in the absence of legislative indication that a statute should apply retroactively, procedural and remedial statutes “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994) (citation omitted). The general rule against retroactive application of statutes does not apply to procedural or remedial changes. See Smiley, 966 So.2d at 334 (citing City of Lakeland v. Catinella, 129 So.2d 133, 136 (Fla.1961)); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995) (“The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.” (citations omitted)).

Thus, the issue is whether section 768.0755 is procedural or substantive. “[Substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352,1358 (Fla.1994) (citation omitted).

The retroactive application of statutes also implicates constitutional concerns. See Laforet, 658 So.2d at 61 (“[T]his Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.” (citations omitted)). An accrued cause of action constitutes a vested property right, and a statute cannot be applied retroactively in a way that eliminates a party’s vested property right. See Am. Optical Corp. v. Spiewak, 73 So.3d 120,125-26 (Fla.2011).

In American Optical, the Florida Supreme Court assessed the constitutionality of retroactive application of a law that required plaintiffs to show particular manifestations of harm caused by asbestos exposure in order to successfully assert an asbestos-related cause of action. Id. at 130. The Court found that the requirement of certain physical impairments was a change from the common law, which only required “changes in the lung evidencing asbestos-related disease.” Id. at 127.

The American Optical Court concluded the asbestos statute could not be applied retroactively because there were plaintiffs who had accrued causes of action that would be “completely abolish[ed]” if the statute were applied retroactively. Id. at 133. The Court noted that “statutes that operate to abolish or abrogate a preexisting right, defense, or cause of action cannot be applied retroactively.” Id. (citing Wiley v. Roof, 641 So.2d 66, 68-69 (Fla.1994)). The Court decided that application of the asbestos law to plaintiffs who had an already accrued cause of action was “impermissible because it violates the due process clause of the Florida Constitution.” Id.

In Kenz, the Third District thoroughly analyzed these principles and concluded:

[S]ection 768.0755 [the new 2010 statute] does not operate to alter a prima facie case for a negligence claim. Here, a plaintiff who has an accrued cause of action under section 768.0710 [the older 2002 statute] because of an injury due to a transitory foreign substance or object in a business establishment, continues to have the same cause of action under 768.0755 — unlike the claims discussed in American Optical, the cause of action continues to exist. Actual or constructive knowledge is not a “new” required element of a prima facie case under section 768.0755; rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty.

Kenz, 116 So.3d at 466.

Respectfully, we disagree with the Kenz court’s conclusion because the 2010 statute, section 768.0755, reinserts the pre-Owens knowledge element into slip and fall claims. See Kelso v. Big Lots Stores, Inc., No. 8:09-cv-01286-T-EAK-TGW, 2010 WL 2889882, at *2 (M.D.Fla. July 21, 2010) (“[Section 768.0755] adds a new element to the claim, creating a new legal obligation and attaching new legal consequences to events that took place before the statute’s enactment; therefore, the plaintiffs substantive rights are affected.”). A comparison of the language used in revising the statutes compels this result. Section 768.0710(2)(b), the 2002 statute, states “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim,” while section 768.0755(1), the newer statute, states “the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition.”

The shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof. See Castellanos v. Target Corp., No. 10-62456-CIV, 2011 WL 5178334, at *3 (S.D.Fla. Oct. 14, 2011). Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing “the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,” without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.

We also respectfully disagree with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiffs cause of action. Slip and fall plaintiffs who could successfully assert a cause of action under the 2002 statute even without the owner having knowledge of the spill would be completely unable to pursue their causes of action if the 2010 statute was applied retroactively. If these plaintiffs were injured before the effective date of the statute, the imposition of section 768.0755 would result in a wholesale abolition of their accrued causes of action. That type of impediment to a preexisting cause of action is constitutionally impermissible. See Am. Optical, 73 So.3d at 133.

For these reasons, we affirm the trial court’s decision to apply the 2002 statute (section 768.0710) rather than the 2010 law (section 768.0755), and certify conflict with the Third District’s Kenz decision.

Motion to Conduct Juror Interviews

We next address the trial court’s denial of the motion to conduct post-verdict juror interviews. “The standard of review for an order on a motion for juror interviews is abuse of discretion.” Sterling v. Feldbaum, 980 So.2d 596, 598 (Fla. 4th DCA 2008) (citation omitted).

This Court has recently addressed the requirements for a post-verdict jury interview:

Post-trial juror interviews should be rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected. However, where there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview. Allegations in the motion for interview cannot be bottomed on mere conclusory statements based on speculation and surmise that, if interrogated, the jurors might have something to say that would be material to whether or not the court should award a new trial.

Rodgers v. After Seh. Programs, Inc., 78 So.3d 42, 45 (Fla. 4th DCA 2012) (citations, alterations, and quotation marks omitted).

Where, as here, the basis of a request for post-trial interviews is the jurors’ alleged nondisclosure of information during voir dire, “the motion should demonstrate entitlement to a new trial under the three-part test” of De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995). Id. The De La Rosa test requires the moving party to show:

(1) The concealed information was relevant and material to jury service in the case;
(2) The juror concealed the information during questioning; and
(3) The failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Id. (citation omitted).

Pembroke Lakes and Millard primarily rely on this court’s decision in Sterling. In that case, the trial court provided the prospective jurors with a questionnaire that asked, among other things, whether the jurors or their immediate family members had any currently pending litigation or any litigation matters in the past. Sterling, 980 So.2d at 598. Two of the subsequently challenged jurors answered “no,” and the other challenged juror disclosed only that he had been involved in a suit that settled and that his brother had been involved in a criminal case. Id. After the jury rendered a verdict in favor of the defendant, the plaintiff moved to conduct post-verdict juror interviews based on the three jurors’ alleged nondisclosure of prior litigation. Id. The first juror was involved in three or four civil actions, the second juror had a federal tax lien filed against her, and the third juror had a civil collection judgment. Id. The plaintiffs motion was supported by “Westlaw printouts and information from the Broward County Court Clerk’s website about the three jurors.” Id. The trial court denied the motion to interview jurors on two grounds: (1) the Westlaw and clerk’s website information did not sufficiently indicate the jurors were the same people listed in the records, and (2) the prior lawsuits were too remote in time and substance to be material. Id.

On appeal, we reversed the denial of the motion for juror interviews. Id. at 599. We wrote “Westlaw and Broward docket search results may provide reasonable grounds to believe that juror misconduct has occurred.” Id. (citing Roberts v. Teja-da, 814 So.2d 334, 336-37 (Fla.2002) (noting that Miami-Dade official public records index, jury pool information, and “Autotrak” computerized background check supported motion for juror interviews)).

In a later case, we clarified that the trial court could properly deny a motion to interview jurors and motion for new trial if, taking the moving party’s allegations as true, the alleged nondisclosure would not satisfy the De La Rosa test. Rodgers, 78 So.3d at 45. In Rodgers, we concluded the juror’s failure to disclose the information was due to the moving party’s own failures to properly craft its questions during voir dire; thus, the moving party failed the third prong of the De La Rosa test and juror interviews were unnecessary. Id.

Applying these principles to the instant case, we must conclude that the trial court abused its discretion by denying the motion to interview the jurors. “Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono, 112 So.3d 620, 624 (Fla. 4th DCA 2013).

McGruder argues the court was not required to grant the motion for interviews because, even taking Pembroke Lakes’ and Mallard’s allegations as true, the allegations did not “demonstrate entitlement to a new trial under the three-part test of De La Rosa v. Zequeira.” See Rodgers, 78 So.3d at 45. As previously set forth, the first prong of the De La Rosa test is whether the nondisclosure is relevant and material to the instant case.

A juror’s nondisclosure of pri- or litigation is relevant, but it is not necessarily material. See Roberts, 814 So.2d at 341 (citation omitted); Parra v. Cruz, 59 So.3d 211, 213 (Fla. 3d DCA 2011) (“The respondents rely on the misplaced notion that any prior litigation history coming to light after trial is grounds for a new trial.”). Courts evaluate materiality based on the “circumstances of each case” using the following test: “Nondisclosure is considered material if it is substantial and important so that if the facts were known, the [moving party] may have been influenced to peremptorily challenge the juror from the jury.” Roberts, 814 So.2d at 341 (citations omitted). In applying this test, courts consider several factors: Remoteness in time from the undisclosed litigation, the character and extensiveness of the prior litigation (and similarity to the instant case litigation), and the juror’s posture in the litigation. Id. at 342-43 (citations omitted); see also Duong v. Ziadie, 125 So.3d 225, 228 (Fla. 4th DCA 2013).

Here, the prior litigation was potentially material to this slip and fall litigation. At least one of the jurors, Jorge, was involved in a personal injury protection lawsuit and may have participated in other litigation that was relevant and material to the instant case. Finally, with the exception of Rhonda, the jurors’ undisclosed litigation occurred within four years of the trial.

While McGruder is correct in asserting that the record is unclear regarding the level of the jurors’ involvement in their respective cases and whether these jurors were the same people listed in the records, this court has specifically found that county clerk records are an acceptable basis to support a motion to interview jurors. See Sterling, 980 So.2d at 599. Further, in situations such as this, juror interviews provide an important purpose which upholds and protects the sanctity of voir dire:

[T]he court’s analysis of the De La Rosa factors ... requires the court to weigh all the facts in the case. The court cannot properly assess the requirements when the parties dispute the juror’s in volvement in the litigation uncovered in the records search. We thus reverse the denial of new trial and remand for a juror interview and for the court to conduct a hearing on the motion for new trial in compliance with the principles announced in Roberts.

Hillsboro Mgmt., 112 So.3d at 624-25 (emphasis added); but see Rodgers, 78 So.3d at 46 (“As to the juror with a common name, there was insufficient proof that she was the same person who was involved in all of the prior civil cases.” (citation omitted)).

The second prong of the De La Rosa test concerns juror concealment of the information sought during jury selection. The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth. Wiggins v. Sadow, 925 So.2d 1152, 1155 (Fla. 4th DCA 2006). The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. See Taylor v. Magana, 911 So.2d 1263, 1270 (Fla. 4th DCA 2005). The nondisclosure need not be intentional to constitute concealment. Id. at 1268-69 (citation omitted).

Here, the concealment prong was met because the court unambiguously asked the challenged jurors whether they or their families were involved in or had been involved in any litigation apart from divorces, and all four categorically answered that they had not.

Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party. If a juror mentions involvement in litigation and the complaining party does not ask follow-up questions, the party cannot then obtain a new trial because of undisclosed information relating to the litigation. See Rodgers, 78 So.3d at 45; Taylor, 911 So.2d at 1268. However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. See Taylor, 911 So.2d at 1270. Significantly, the due diligence prong does not require the complaining party to perform its records check before the verdict is returned. See Roberts, 814 So.2d at 344.

Here, the jurors categorically answered that they had not been involved in prior litigation, in response to a clear question posed by the court. The parties were entitled to rely on the sacrosanct underpinnings of voir dire. The jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes or Millard.

We must also note the trial court’s denial of the motion to conduct juror interviews without holding a hearing on the issue. The rule governing juror interviews provides: “After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview.” Fla. R. Civ. P. 1.431(h). Florida courts have interpreted this rule to require the court to hold a hearing before denying the motion to interview jurors, at least if the motion is facially valid. See State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So.3d 52, 55 n. 1 (Fla. 2d DCA 2011) (“Florida Rule of Civil Procedure 1.431(h) requires that the trial court hold a hearing before granting or denying a motion for juror interviews.”).

Accordingly, we reverse the trial court’s decision to deny the motion to interview the challenged jurors, with the exception of juror Rhonda. After the interviews are conducted, the trial court can properly apply the De La Rosa test to determine whether a new trial is required due to the undisclosed litigation history. See Sterling, 980 So.2d at 599.

Cross-Appeal

Finally, we address McGruder’s claim that the trial court erred by refusing to hold Pembroke Lakes liable for the negligence attributed to Millard.

Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees. Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 876 (Fla. 2d DCA 2010) (citation omitted). The premises owner cannot “avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the [premises] to others.” Id.

When an owner owes a non-dele-gable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner is jointly and severally liable for the negligence attributed to the contracted party. See U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So.2d 268, 269-71 (Fla. 3d DCA 1995) (holding hotel owner jointly and severally liable for portion of negligence attributed to company contracted by hotel to provide security); see also Armiger, 48 So.3d at 875 (“[W]hen a business owner is subject to a nondelegable duty, the potential responsibility of an independent contractor is not relevant to the analysis of the business owner’s liability ... [T]he party subject to the nondelega-ble duty is directly liable for the breach of that duty, and the assignment of liability based on the tortious acts of another is not a consideration.”).

Pembroke Lakes raises numerous arguments in opposition to imposing liability against it for the negligence attributed to Millard. We reject each argument and discuss the following three: (1) McGruder failed to plead a breach of non-delegable duty, (2) the jury made no findings regarding agency, and (3) the jury instructions and verdict form directed the jury to apportion liability between Pembroke Lakes and Millard.

McGruder’s amended complaint sufficiently pleaded a claim for breach of non-delegable duty against Pembroke Lakes. See Armiger, 48 So.3d at 876. In Armiger, the plaintiff slipped and fell in a puddle on the defendant’s business premises. Id. at 867. The plaintiff sued the defendant, alleging the owner was negligent and breached its duty to maintain the premises in a reasonably safe condition, the puddle existed for sufficient time that the owner should have known of it, the owner failed to ensure the area where the plaintiff slipped was free of standing water, the owner permitted a slippery substance to remain in the area where the plaintiff slipped, and the owner failed to timely inspect and clean the grandstand area. Id. In an amended complaint, the plaintiff added claims against an independent contractor hired by the owner to clean and maintain the business premises, and the amended complaint’s claims against the owner “remained essentially the same.” Id.

The Second District concluded that “[i]n light of the nondelegable duty of care imposed ... by section 768.0710(1),” the plaintiffs amended complaint “alleged all of the elements necessary to plead a cause of action for breach of [the owner’s] non-delegable duty of care, and further amendment to the complaint may have been helpful but was not necessary” to plead a breach of non-delegable duty. Id. at 876. Similar to Armiger, McGruder’s amended complaint alleged all of the elements necessary to plead a cause of action for breach of Pembroke Lakes’ non-delegable duty of care.

Pembroke Lakes’ argument that a finding of agency is required to impose liability against a premises owner for a breach of a non-delegable duty is incorrect. Pembroke Lakes, like many parties and some courts, erroneously conflates the concepts of non-delegable duty and vicarious liability. See id. at 874. Vicarious liability is a form of indirect liability in which a party, who may have not been negligent, can be held hable for the acts of another party. Id. In contrast, a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition. See id. at 874-75. To establish a breach of a non-delegable duty, the plaintiff need not prove an agency relationship because such a relationship is not relevant to the question of whether the owner is directly liable to the plaintiff. Regardless of whether the owner contracts with a party to clean and maintain the business premises, the owner is still directly hable to an injured invitee if reasonable efforts are not made to maintain the premises in a safe condition.

Finally, we address Pembroke Lakes’ argument that imposing liability against it for the negligence attributed to Millard would be improper because the jury instructions and verdict form directed the jury to apportion the negligence between Pembroke Lakes and Millard. This argument fails because although Pembroke Lakes is directly hable to McGruder for the negligence attributed to Millard, Millard is not necessarily liable to McGruder for the negligence attributed to Pembroke Lakes. Thus, it was proper to have the jury assign neghgence to Pembroke Lakes and Millard.

Conclusion

We affirm the trial court’s decision to apply section 768.0710 rather than section 768.0755, and we certify conflict with the Third District’s decision in Kenz. On remand, after the jurors are interviewed, the court should apply the De La Rosa test to determine whether a new trial is required. If a new trial is not required, or if McGru-der succeeds in a new trial, the court should impose liability against Pembroke Lakes for the negligence attributed to Millard. We affirm the other issues raised by Pembroke Lakes without comment.

Affirmed in part, reversed in part, and remanded; conflict certified.

STEVENSON and LEVINE, JJ., concur.

      . Sections 768.0710 and 768.0755 relate to premises liability tort actions arising from slip and falls due to foreign transitory substances in business establishments. Section 768.0710(2)(b), Florida Statutes (2008), states ‘‘[ajctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” Section 768.0755(1), Florida Statutes (2010), added a requirement that the “injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”

      . We list the jurors’ first names only.

      . "[A] remedial statute is one which confers or. changes a remedy; a remedy is the means employed in enforcing a right or in redressing an injury.” St. John's Village I, Ltd. v. Dep’t of State, Div. of Corps., 497 So.2d 990, 993 (Fla. 5th DCA 1986) (citation omitted).

      . Rhonda’s prior litigation consisted of one suit from 1991, and this person was a defendant rather than a plaintiff. If the motion had only raised Rhonda's litigation history, we would have found that the trial court did not abuse its discretion by denying the motion. See Duong, 125 So.3d at 228.

      . "Honesty is the heart of the jury-selection process in an adversarial system; indeed, 'voir dire’ means ‘to speak the truth.’ ” Fields v. Brown, 503 F.3d 755, 772 (9th Cir.2007).

      . We repeat our observation that "[t]he time may have come to rethink how the courts handle juror non-disclosure so as to prevent so much litigation over the issue and so many retrials of cases to the detriment of the entire judicial system.” Hillsboro Mgmt., 112 So.3d at 625.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Gary M. BIVENS, Edward Loper, Leonard Mizio, and John Sauco, Appellants, v. RIVER HAVEN, INC., a Florida corporation; Charlotte County, a Political Subdivision of the State of Florida; Colonial Bank, N.A.; John Milowe; Gloria Bello; Marie Cinelli; Leonce Gaudet and Mary Gaudet; Loper Greene Development Corporation, a dissolved Florida corporation; Donald Barnes and Kay Barnes; Marjorie Barnes; Larry Jones and Sarah Jones; Donald Denninger and Florence Denninger; Vernon Bragg and Virginia Bragg; William Shay and Sarah Hildebrand; V. Frank Desguin, Property Appraiser; and Vickie Potts, Tax Collector; and Any Unknown Parties Claiming an Interest in the Property, Appellees.
    No. 2D13-1834.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2014.
    Jay J. Bartlett of Smolker Bartlett Schlosser Loeb & Hinds, P.A., Tampa, for Appellants.
    Michael R. Whitt and Mark A. Trank of Becker & Poliakoff, P.A., Fort Myers, for Appellee River Haven, Inc., a Florida corporation.
    Robert J. Gill of Adams and Reese LLP, Sarasota, for Appellee Charlotte County, a Political Subdivision of the State of Florida.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

We review the trial court’s order denying the Appellants’ motion for apportionment of proceeds resulting from an eminent domain proceeding. The parties agree that the Appellants had an equitable interest in the land taken and that the trial court erred in finding that they are not entitled to compensation. The parties also agree that the trial court had the authority to order the distribution, despite its finding to the contrary. We therefore reverse and remand with directions for the court to determine the value of the interest lost and to order the appropriate portion of the funds distributed. This determination may be based on the evidence already presented or, if necessary, the trial court may take additional evidence.

Reversed and remanded for proceedings consistent with this opinion.

WALLACE and CRENSHAW, JJ., Concur.

      . Additionally, the parties agree that the order contains a misstatement of fact: the order states that River Haven residents "pay a monthly rent” to occupy their lots, but the parties agree that the monthly fee is for maintenance rather than rent.


author: DAMOORGIAN, C.J.

text:
    Harry SARGEANT, III, Mustafa Abu-Naba’a, and International Oil Trading Company, LLC, a Florida corporation, Appellants, v. Mohammad Anwar Farid AL-SALEH, Appellee.
    No. 4D13-1447.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Rehearing Denied May 5, 2014.

      Raoul G. Cantero, David P. Draigh and Laura M. Reich, of White & Case LLP, Miami, Charles W. Throckmorton of Kor-yak Tropin & Throckmorton, P.A., Coral Gables, and Christopher M. Rise of Foley & Lardner LLP, Tallahassee, for appellants.
    Edward H. Davis, Jr., Edward M. Mullins and Rodrigo S. Da Silva of Astigarra-ga Davis Mullins & Grossman, P.A., Miami, Louis M. Silber of Silber & Davis, West Palm Beach, Michael D. Kibler and Jonathan M. Weiss of Simpson Thatcher & Bartlett, LLP, and Barry R. Ostrager and Rachel S. Weiss of Simpson Thatcher & Bartlett, LLP, New York, for appellee Mohammad Anwar Farid Al-Saleh.
   DAMOORGIAN, C.J.

Harry Sargeant, III, Mustafa Abu-Naba’a, and International Oil Trading Company, LLC (“the debtors”) appeal the trial court’s non-final order granting Mohammad Anwar Farid Al-Saleh’s (“the creditor”) motion to compel the debtors to turn over stock certificates evincing their ownership interest in several foreign entities. We reverse the trial court’s ruling because the court lacked jurisdiction to compel the turnover of property located outside the State of Florida.

This case arises from the creditor’s suit against the debtors for breach of an agreement to ship oil across Jordan for use by the United States military in Iraq. Following a jury verdict of $28.8 million, the trial court entered judgment against the debtors and we affirmed. Sargeant v. Al-Saleh, 120 So.3d 86, 87-88 (Fla. 4th DCA 2013).

The creditor filed a motion for proceedings supplementary to execution pursuant to section 56.29, Florida Statutes (2012). The motion sought to compel the debtors to “turn over all stock certificates and similar documents memorializing their ownership interest in any corporation.” The debtors opposed the motion, arguing that the stock certificates concerned assets located abroad — in the Bahamas, the Netherlands, Jordan, the Isle of Man, and the Dominican Republic — and therefore, the trial court lacked jurisdiction to compel the turnover. Without conducting an evi-dentiary hearing, the trial court entered an order compelling the debtors to turn over the stock certificates to their counsel. This appeal follows.

On appeal, the debtors maintain that the trial court lacked jurisdiction to compel the turnover of the stock certificates. They argue that Chapter 56, Florida Statutes, does not apply extraterrito-rially and that in order to execute the judgment against their foreign assets, the creditor must proceed under the laws of the foreign jurisdictions where the stock certificates are held. The creditor counters that the trial court had the authority to compel the turnover of the stock certificates by virtue of its in personam jurisdiction over the debtors. We disagree and reverse.

While we recognize that the trial court has discretion in supplementary proceedings brought pursuant to section 56.29, Florida Statutes, see Donan v. Dolce Vita Sa, Inc., 992 So.2d 859, 861 (Fla. 4th DCA 2008), this case presents issues of law, which we review de novo, see Sanchez v. Renda Broad. Corp., 127 So.3d 627, 628 (Fla. 5th DCA 2013).

Section 56.29(5) provides that “[t]he judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.” § 56.29(5), Fla. Stat. (2012). Section 56.29(9) further provides that “[t]he court may enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution.” § 56.29(9), Fla. Stat. However, Florida courts do not have in rem or quasi in rem jurisdiction over foreign property. See Paciocco v. Young, Stem & Tannenbaum, P.A., 481 So.2d 39, 39 (Fla. 3d DCA 1985) (“A Florida trial court has no in rem jurisdiction over notes secured by mortgages on real property located in a foreign state....”); see also Rodriguez v. Smith, 673 So.2d 559, 560 (Fla. 3d DCA 1996) (order requiring Miami police officer to retrieve petitioner’s personal property from the City of Philadelphia Police Department was not enforceable because the City of Philadelphia Police Department is outside the trial court’s jurisdiction).

The creditor’s argument that the trial court had jurisdiction to order the debtors to turn over the stock certificates is primarily based on two cases, both of which we find distinguishable. First, the creditor cites to General Electric Capital Corp. v. Advance Petroleum, Inc., 660 So.2d 1139 (Fla. 3d DCA 1995). There, the Third District noted that:

[i]t has long been established in this and other jurisdictions that a court which has obtained in personam jurisdiction over a defendant may order that defendant to act on property that is outside of the court’s jurisdiction, provided that the court does not directly affect the title to the property while it remains in the foreign jurisdiction.

Id. at 1142. We find that this case is distinguishable from General Electric Capital Corp. because the creditor in General Electric Capital Corp. had a perfected lien on the property that the trial court ordered the debtor to return to the State of Florida. See id. at 1141^43.

Additionally, we are not persuaded by the creditor’s reliance on Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533, 883 N.Y.S.2d 763, 911 N.E.2d 825 (2009). In Koehler, the Court of Appeals of New York considered “whether a court sitting in New York may order a bank over which it has personal jurisdiction to deliver stock certificates owned by a judgment debtor ... to a judgment creditor, pursuant to CPLR article 52, when those stock certificates are located outside New York.” Id., 883 N.Y.S.2d 763, 911 N.E.2d at 827. The court answered this question in the affirmative, noting that “CPLR article 52 contains no express territorial limitation barring the entry of a turnover order that requires a garnishee to transfer money or property into New York from another state or country.” Id., 883 N.Y.S.2d 763, 911 N.E.2d at 829-31. We find Koehler distinguishable because the trial court in Koehler had personal jurisdiction over the bank holding the foreign assets. Furthermore, unlike Koehler, the order in this case is governed by section 56.29, Florida Statutes. Though we recognize that section 56.29 does not contain any express territorial limitation on the court’s ability to order a judgment debtor to transfer money or property into the State of Florida, we find that the Koehler decision turned on a broad reading of the applicable New York statute and we decline to follow it here.

From a policy standpoint, we agree with the Koehler dissent. We are not aware of any Florida statute or case that expressly permits the action taken by the court in Koehler or by the trial court in this case. Furthermore, we are concerned about the practical implications of permitting Florida trial courts to order judgment debtors to turn over assets located outside the state. First, there may be competing claims to the foreign assets and we believe “that claims against a single asset should be decided in a single, forum — and ... that that forum should be, as it traditionally has been, a court of the jurisdiction in which the asset is located.” Koehler, 883 N.Y.S.2d 763, 911 N.E.2d at 831 (Smith, J., dissenting). Second, we emphasize that allowing trial courts to compel judgment debtors to bring out-of-state assets into Florida would effectively eviscerate the domestication of foreign judgment statutes. See §§ 55.501-09, Fla. Stat. (2013) (detailing the procedure for recording foreign judgments so that they will be extended full faith and credit by the Florida courts); see also New York State Comm’r of Taxation & Fin. v. Hayward, 902 So.2d 309, 310 (Fla. 4th DCA 2005) (citing Michael v. Valley Trucking Co., 832 So.2d 213, 215 (Fla. 4th DCA 2002)) (“a properly recorded foreign judgment has the same effect as a judgment of a court of the State of Florida”).

In light of these policy considerations and the absence of controlling case law, we find that the trial court did not have the authority to order the debtors to turn the foreign stock certificates over to their counsel.

Reversed.

GROSS and TAYLOR, JJ., concur.

      . The record does not refute the debtors' claim that the stock certificates are located outside of this jurisdiction.

      . "Article 52 authorizes a judgment creditor to file a motion against a judgment debtor to compel turnover of assets or, when the property sought is not in the possession of the judgment debtor himself, to commence a special proceeding against a garnishee who holds the assets.” Koehler, 883 N.Y.S.2d 763, 911 N.E.2d at 828.


author: PER CURIAM.

text:
    Dominek D. GRANT, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-2218, 4D12-2219.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Rehearing Denied April 25, 2014.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In a violation of probation hearing, the trial court found that the appellant had violated his probation by failing to pay restitution, as well as “by using false information to obtain driver’s license and unauthorized possession of driver’s license-false driver’s license ID cards.” The state concedes that it did not offer evidence of appellant’s ability to pay restitution. Thus, the court could not violate his probation on that ground. Del Valle v. State, 80 So.3d 999, 1011-13 (Fla.2011). As to the second ground, the affidavit charging the violation charged the appellant with using false information to obtain a driver’s license. It did not charge him with unauthorized possession. Therefore, the court erred in finding a violation of probation for an offense not charged. Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003); Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000).

Nevertheless, the defendant’s probation could properly have been revoked based on using false information to obtain a driver’s license, behavior that was charged in the affidavits. See, e.g., Kiess v. State, 642 So.2d 1141, 1142 (Fla. 4th DCA 1994) (“Although the trial court could not find a violation of probation based solely on either contact with his stepchildren or the hearsay account of the physical contact incident, the single violation established of battery on a law enforcement officer is substantial enough to warrant revocation.”); Cherisma v. State, 789 So.2d 1247, 1247 (Fla. 4th DCA 2001) (finding trial court erred in finding appellant guilty of one count of amended violation of probation affidavit, but affirming because “the other armed robbery violation is more than substantial enough to warrant revocation”). As such, we affirm the court’s order revoking the probation.

We remand, however, not only to strike the finding of a violation for failure to pay restitution and unauthorized possession of a driver’s license, but to conform the written order of violation of probation to the oral pronouncement. “It is well settled that the written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge.”' Harrington v. State, 570 So.2d 1140, 1142 (Fla. 4th DCA 1990). Where the two are inconsistent, the inconsistent portions of the written order must be stricken. Id. The written order in this case included findings of failure to pay the costs of supervision and court costs, as well as failure to complete community service hours and the theft abatement course, none of which were orally pronounced by the court.

Affirmed, but remanded to strike portions of the order of revocation in accordance with this opinion.

WARNER, GROSS and CONNER, JJ., concur.


text:
    Michael MUSIC, Appellant, v. Catherine MUSIC, Appellee.
    No. 2D13-1548.
    District Court of Appeal of Florida, Second District.
    March 7, 2014.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    John Paul Berke, Dean Burnetti, and Walter C. Thomas, Jr., of Burnetti, Thomas & Berke, P.A., Lakeland, for Appellee.
   PER CURIAM.

We have reviewed the record before the trial court and conclude that there was insufficient evidence to support the permanent injunction for protection against domestic violence entered against Michael Music. Therefore, we reverse and remand with instructions to vacate the injunction.

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.


author: SCHIFF, LOUIS H., Associate Judge.

text:
    Roger Allan FINCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2784.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   SCHIFF, LOUIS H., Associate Judge.

Roger Allan Fincher appeals his conviction and sentence for lewd molestation by a person 18 years of age or older on a child under 12 years of age. Appellant contends that the trial court erred in admitting both (1) the testimony of Williams rule witnesses; and (2) child hearsay testimony. We find that neither issue constitutes reversible error; as such, we affirm.

Facts and Procedural Posture

Appellant was charged with lewd molestation based on events that occurred on January 6, 2010, at a Walmart in Fort Pierce. Prior to trial, the State filed notice of intent to introduce similar fact evidence, pursuant to section 90.404(2)(b), Florida Statute (2010). During the Williams rule hearing, the 11-year-old victim, K.H., testified she was shopping with her mother at Walmart when she separated from her. During this separation, K.H. alleged that a white male bumped into her, placed one hand on her shoulder while the other hand inappropriately touched her. The man exclaimed that he was “sorry” and ran off. K.H. did not know the man who touched her and had never seen him before. Upon his arrest, appellant admitted to accidentally bumping into a girl in the cards aisle at Walmart because he wasn’t paying attention.

The State presented two Williams rule victims. J.K., ten years old at the time of the incident, testified that on December 20, 2009, she was shopping in a Walmart in Brevard County, Florida when a man bumped into her. The man touched her shoulder and grabbed her in the same manner K.H. was touched.

The other victim testified to an incident which occurred at a Kmart in North Carolina in 2000. The victim, then eight years old, was shopping with her babysitter and her babysitter’s husband when she was separated from them. During this separation, appellant inappropriately touched her over her clothing.

Appellant objected to the admission of the Williams rule evidence, arguing the evidence was irrelevant and the prejudicial effect outweighed the probative value.

The trial court allowed the evidence, determining that it was relevant to establish intent and absence of mistake.

Williams Rule Evidence

Appellant argues the trial court committed reversible error by allowing the State to introduce Williams rule testimony. He contends the testimony failed to satisfy the predicate that the charged and collateral crimes have a signature feature or be so unusual that they implicate the defendant as the perpetrator of the charged crime. However, we need not decide whether the crimes contained a significant feature so as to allow the collateral crime to establish identity, because there is no issue of identity in this case. See Tannihill v. State, 912 So.2d 2, 8 (Fla. 4th DCA 2005) (collateral crime evidence not used to establish identity where appellant conceded he was present at scene of crime, but was admissible to “refute appellant’s theory of defense that he was merely an innocent bystander”).

The trial court relied on section 90.404(2)(b)(l), which addresses the admissibility of Williams rule evidence in child molestation cases:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defen-dánt’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b)(l), (2010).

When the legislature enacted this statute, the purpose was to alter or overrule “the application of existing case law and to simplify the rules of admissibility in child molestation cases.” McLean v. State, 934 So.2d 1248 (Fla.2006).

In McLean, the Florida Supreme Court delineated the steps a court must consider in determining whether collateral crime evidence should be admitted under section 90.404(2)(b). Id. The trial court must determine whether the prior, collateral acts were proven by clear and convincing evidence. Id. at 1256. The trial court must also ensure that the prejudicial effect substantially outweighs the probative value of the collateral crimes evidence. Id. at 1257.

When the trial court assesses whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the Florida Supreme Court requires courts to evaluate:

1) The similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed;
2) The closeness in time of the prior acts to the act charged;
3) The frequency of the prior acts; and
4) The presence or lack of intervening circumstances.

Id. at 1262.

The Court further explained the “required showing of similarity must be made on a case-by-case basis.” Id. at 1258. The degree of similarity necessary between crimes is determined based on the purpose for which the crime is introduced. Id. at 1255. “[I]n cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required ‘identifiable points of similarity' between the collateral act and charged crime that ‘have some special character or be so unusual as to point to the defendant.’” Id. (quoting Drake v. State, 400 So.2d 1217, 1219 (Fla.1981)). When collateral crime evidence is introduced to establish absence of mistake or accident, the requirement is of “substantial similarity.” Id. at 1255 (quoting Robertson v. State, 829 So.2d 901, 909 (Fla.2002)).

In this case, appellant admitted to bumping into and inappropriately touching K.H. Contrary to appellant’s argument, identity was not at issue. The trial court determined the State proved the prior, collateral acts occurred by clear and convincing evidence, the incidents were “substantially similar”, and were relevant to the issue of whether appellant’s inappropriate touching of the victim was a mistake or intentional. As such, we will not disturb the trial court’s finding.

Child Hearsay Testimony

The victims’ hearsay statements to their parents were admitted in the State’s case. Both parents’ testimony was similar, with each indicating that their child told them they were touched in their “private area” in the same manner.

Appellant argues the trial court reversibly erred by admitting child hearsay statements, arguing the testimony was unreliable because (1) the statements were vague; (2) were not made spontaneously; and (8) were elicited by questioning from their parents.

In State v. Townsend, 635 So.2d 949, 954 (Fla.1994), the Florida Supreme Court outlined the standard for admitting child hearsay statements under section 90.803(23), Florida Statutes, the ehild-sex-ual-abuse-hearsay exception. For a child hearsay statement to be admitted, the statement must meet two stringent reliability requirements: “(1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.” Id. (Emphasis in original). Additionally, the child must either testify at trial or be unavailable. Id. (emphasis in original).

Section 90.803(23)(a), Florida Statutes (2010), provides a non-exhaustive list of factors for the trial court to consider in determining the reliability of the child’s out of court statement. Such factors include, “the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim_” § 90.803(23)(a)l.; Townsend, 635 So.2d at 957.

Other factors the court may take into consideration are the spontaneity of the child’s statement, whether the statement was elicited in response to questions by the child’s parent, the motives of the child to fabricate the story, and the vagueness of the accusations. Townsend, 635 So.2d at 957-58. Upon determining the reliability and trustworthiness of the child’s statement, the court must then make specific findings of fact on the record. § 90.803(23)(a)(2)(c), Fla. Stat. (2010).

In the instant case, the record reveals the trial court complied with the statute and the Supreme Court’s directive in Townsend by making detailed findings of fact regarding the time, content, and circumstances surrounding the child hearsay statements.

The court further addressed the individual statements made and the circumstances under which they were made. See N.W. v. M.W., 41 So.3d 383, 384 (Fla. 2d DCA 2010) (holding the trial court erred by failing to address the individual statements the child abuse victim made). The court acknowledged the time lapse between the incident and the dissemination of what occurred to each child’s respective parent, ultimately concluding the statements were spontaneous.

We agree with the State that the record provides no support for appellant’s argument that the child hearsay statements were vague and not made spontaneously. While the full extent of the statements was prompted by their parents’ questioning, neither parent had any motive to fabricate such a story. Furthermore, due to the young age of the victims and the nature of the crime perpetrated against them, it is not surprising they were not immediately forthcoming. As a result, the trial court did not abuse its discretion by admitting the child hearsay testimony and we accordingly affirm.

Affirmed.

MAY and CIKLIN, JJ., concur.

      . See Williams v. State, 110 So.2d 654 (Fla.1959), and codified by section 90.404(2)(b), Florida Statutes (2001).


text:
    Jose B. GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2844.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Jose B. Garcia, Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jose Bernard Garcia appeals the summary denial of his rule 3.850 motion. See Fla. R. Crim. P. 3.850. Because two interrelated claims are not refuted by the record, we reverse in part, but affirm the remaining grounds without comment.

Garcia entered a negotiated plea in six separate cases. The combined sentence totaled forty years and included a provision that Garcia would be given a six-day furlough. Upon timely return, per the plea agreement, his sentences would be mitigated to concurrent five-year sentences for a total of five years imprisonment. When Garcia did not appear at the predetermined mitigation hearing, the forty-year sentence was not reduced.

Garcia alleges that on the day he was to turn himself in, he overslept due to a power outage. He did not have his own transportation and relied upon a public bus to take him to the courthouse where he arrived between 11:00-11:30 a.m. His hearing was at 8:30 a.m. Garcia thereafter attempted to turn himself in to the county jail where he was told it could not accept him because they had no record of a warrant issued for his arrest. Garcia informed counsel of such.

In this postconviction motion, the claims which merit discussion are Garcia’s assertions that counsel was ineffective in not moving to withdraw his plea and in failing to move for a court hearing to determine whether his failure to appear was willful. Had counsel sought a hearing on the matter, the court would have determined whether Garcia willfully failed to appear (which would have justified the forty-year sentence); or, if the court determined the failure to appear was not willful, he would have received the benefit of the plea bargain (five-year sentence). Garcia correctly points out that his counsel’s failure to file a motion to withdraw the plea, the issue was not preserved for direct appeal. See Fla. R. Crim. P. 3.170(0.

In Clemons v. State, 111 So.2d 1169, 1170 (Fla. 4th DCA 2001), this Court reversed the summary denial of a rule 3.850 motion where the defendant contended that he was entitled to the terms of his original plea agreement. During a furlough, he was arrested on a new charge, which violated the terms of his plea. Id. He complained that he was not given a chance to explain the circumstances of his arrest and that the trial court made no findings as to why he should not be sentenced according to the original terms of the agreement. Id. Where no findings were made by the court, we reversed for record attachments refuting the claim or an evidentiary hearing on the matter. Id.; see also Garcia v. State, 10 So.3d 687, 688-89 (Fla. 2d DCA 2009) (“A claim that a defendant did not willfully fail to meet the conditions necessary for mitigation of his sentence is cognizable in the postconviction context even if the defendant entered a plea.”). “[Wjhere timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Robinson v. State, 946 So.2d 565, 567 (Fla. 2d DCA 2006) (quoting Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)) (internal quotation marks omitted).

Because the record on appeal does not show that the trial court made a finding that Garcia’s failure to appear was willful, which would have justified the additional thirty-five years in prison, and his claims of ineffectiveness are not refuted by the record, we reverse and remand for the court to hold an evidentiary hearing on his claims or to attach portions of the record refuting them.

Reversed and remanded.

TAYLOR, MAY and CONNER, JJ„ concur.

      . Underscoring this point is that on direct appeal of his judgment and sentence, the Public Defender’s Office filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), brief where it argued that Garcia would potentially be entitled to postconviction relief under Robinson v. State, 946 So.2d 565, 566 (Fla. 2d DCA 2006).


author: TAYLOR, J.

text:
    SEAN DUPREE, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 4D11-4789.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Rehearing Denied May 14, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant was found guilty by jury of false imprisonment (a lesser included offense of kidnapping), battery (a lesser included offense of aggravated battery), aggravated assault (as charged), and battery (as charged). As to the jury verdict on false imprisonment, the jury found by way of a special interrogatory that the defendant actually possessed a firearm during the commission of the offense. We affirm the defendant’s convictions, but reverse the order of restitution and remand for further proceedings.

On appeal, the defendant argues that the special interrogatory verdict form was fundamentally erroneous because it did not inform the jury that proof beyond a reasonable doubt was required for the jury to make the finding that he possessed a firearm during the commission of the offense. However, our court has repeatedly rejected the argument that the firearm interrogatory improperly allows the jury to find the existence of the weapon enhancement element on a burden of proof less than the “beyond a reasonable doubt” standard. See Tukes v. State, 115 So.3d 1014, 1015 n. 1 (Fla. 4th DCA 2013); State v. Jacobs, 8 So.3d 448, 449 (Fla. 4th DCA 2009); Huger v. State, 941 So.2d 1182, 1185 (Fla. 4th DCA 2006).

As we explained in Tukes, “Standard Jury Instruction 3.7 sufficed to inform the jury that a material allegation made in an information must be proven beyond a reasonable doubt.” 115 So.3d at 1015 n. 1. “This instruction tells the jury to apply the same burden of proof to all aspects of the case which the state is required to prove. Considering the instructions as a whole, they are not error, let alone fundamental error.” Ruger, 941 So.3d at 1185. Accordingly, we affirm on this issue.

The defendant also argues that the trial court lacked jurisdiction to order restitution after he filed his notice of appeal. We agree and the state concedes this point. See, e.g., Marro v. State, 803 So.2d 906, 906-907 (Fla. 4th DCA 2002); Brayley v. State, 93 So.3d 1233, 1234 (Fla. 2d DCA 2012). However, because the trial court reserved jurisdiction to impose restitution, on remand the trial court may conduct another hearing and again enter an order imposing restitution. Marro, 803 So.2d at 907.

Affirmed in part, Reversed in part, and Remanded.

MAY and FORST, JJ., concur.


text:
    S.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2425.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CONCESSION OF ERROR

PER CURIAM.

A juvenile appeals his disposition order and sentence. The State concedes that the trial court fundamentally erred in revoking the juvenile’s probation in Case Number 10-2213DL because no formal affidavit/petition of violation of probation was filed in that case. See Saintiler v. State, 109 So.3d 303, 304 (Fla. 4th DCA 2013); see also Johnston v. State, 684 So.2d 262, 263 (Fla. 4th DCA 1996) (holding that an order revoking probation should be vacated if no formal charge of violation of probation has been filed, and that this issue may be raised for the first time on appeal as fundamental error). We thus reverse and remand for the reinstatement of the withheld adjudication and disposition of probation in Case Number 10-2213DL only. We affirm in all other respects.

Affirmed in part, Reversed in part, and Remanded with instructions.

WARNER, FORST and KLINGENSMITH, JJ„ concur.


text:
    C.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2540.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

C.C. (“Defendant”) appeals a final order reinstating his probation following a finding of violations of its terms. The record reflects that the trial court found Defendant committed all five of the alleged violations. For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the State must prove it by the greater weight of the evidence. See Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007). We review trial court decisions on violations of probation under an abuse of discretion standard. Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999). Based on our review of the instant record, we find the evidence was insufficient to show that Defendant substantially and willfully violated the following alleged conditions of his probation: (1) failure to attend school; (2) failure to reside in his mother’s home; and (3) failure to cooperate fully and maintain contact with his probation officer. The evidence was legally sufficient to establish the remaining two violations — possession of marijuana and violation of curfew.

Accordingly, we affirm in part, reverse in part, and remand for the lower court to consider whether the same sentence would be imposed based on the two proven violations and to enter a written order specifying the same. Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011). Lastly, we are not persuaded by Defendant’s contention that the lower court failed to hold an adequate Richardson hearing.

Affirmed in part, reversed in part and remanded.

STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


text:
    Linda PEDROZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4581.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Rehearing Denied May 2, 2014.
    Linda Pedroza, Ocala, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013).

STEVENSON, MAY and CIKLIN, JJ., concur.


author: MAY, J.

text:
    Curtis T. JONES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-1159, 4D12-1160.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied April 25, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

In consolidated cases, the defendant appeals an order revoking his probation, and his conviction and sentence on new crimes that served as the basis for the probation revocation. He argues that his trial counsel was patently ineffective in abandoning his request for a jury instruction on the justifiable use of non-deadly force against a law enforcement officer during his arrest. We disagree and affirm.

While on probation, the State charged the defendant with resisting an officer with violence, battery on a law enforcement officer, possession of burglary tools, and two counts of attempted burglary of a conveyance. His probation officer filed an affidavit of violation of probation for these offenses and for other technical violations.

The testimony at trial revealed that law enforcement apprehended the defendant after witnessing him lifting door handles of cars parked along a roadway. As the defendant fled the scene with officers in pursuit, a canine officer tracked the defendant with his canine. The canine alerted the officer to the defendant’s location. The canine officer announced his presence and that of the canine, and ordered the defendant to surrender. Instead of surrendering, the defendant jumped out of the bushes and began to flee. The canine officer then released the canine to take the defendant into custody.

The canine bit the defendant in the take down. The defendant hit the canine in the head and muzzle, and continued to do so even though the officer commanded the defendant to stop fighting and put his hands out. As the officer grabbed the canine’s harness, the defendant kicked the officer in the knee, causing him to fall over the canine. The defendant continued to kick and throw punches after the officer fell. A second officer was able to restrain the defendant and take him into custody.

The defense claimed that the defendant’s actions were either involuntary due to the pain of the dog bite or made in self-defense. Defense counsel moved for a judgment of acquittal on that basis. The court denied the motion.

During the charge conference, defense counsel requested an instruction on the justifiable use of non-deadly force as to the battery and resisting an officer with violence charges. The State objected to the instruction because it is applicable only when law enforcement uses excessive force, which did not occur.

The court then explained to the defendant that his defense counsel was requesting an instruction for the affirmative defense of self-defense, which meant that the defendant was admitting to striking the officer. Defense counsel disagreed, and the following colloquy ensued:

The Court: Self-defense by definition is an admission that you did the act, but you are saying I had a reason to do it.
Defense Counsel: Well, I guess the problem is because obviously, it was characterized as involuntary self-defense during the trial.
The Court: Well, then you are not entitled to the instruction. So I’ll give the instruction, but I need to make sure that-you know, jurors are pretty smart. And I think the jurors understand what self-defense is.
Defense Counsel: Okay.
The Court: So I need to make sure [the defendant] understands that what—
Defense Counsel: All right. You’re right. Judge. I’ll withdraw my request. That’s fine. We’re not going to ask for the self-defense.... And the Judge is right. It was characterized as involuntary self-defense. So I think we should not put that instruction. Do you understand?
The Defendant: Yes, sir.

In closing, defense counsel argued that there was reasonable doubt regarding the resisting an officer with violence charge, and questioned the State’s proof that the defendant knowingly and willfully resisted arrest. He argued that the defendant’s injuries were consistent with someone protecting themselves from a dog attack rather than intentionally hitting the officer.

The jury found the defendant guilty of resisting an officer with violence and battery on a law enforcement officer, but acquitted him of the other charges. The court found the defendant had violated his probation based on the new convictions and sentenced him.

On appeal, the defendant argues that his trial counsel rendered ineffective assistance when he withdrew his request for the instruction on justifiable use of non-deadly force. The State responds that the trial court correctly advised that such an instruction meant that the defendant was admitting that he struck the officer, and when the defense chose not to make that admission, defense counsel correctly withdrew the request. The State further argues that such an instruction is warranted only when law enforcement uses excessive force, which did not occur here. We agree with the State and affirm.

“An ineffective assistance of counsel claim is a mixed question of law and fact and is therefore subject to de novo review.” Bowman v. State, 748 So.2d 1082,1083-84 (Fla. 4th DCA 2000).

As explained by the Florida Supreme Court in Maxwell v. Wainwright, two requirements must be satisfied in order to establish an ineffective assistance of counsel claim:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

490. So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668, 690,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Such claims are usually reserved for post-conviction relief, and can be addressed on direct appeal only “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.” Aversano v. State, 966 So.2d 493, 495 (Fla. 4th DCA 2007) (quoting McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004)). This is a case in which the alleged error could be gleaned from the face of the record if one existed. Our review, however, reveals no such error.

“When a defendant is charged with resisting an arrest or battery on a law enforcement officer, a court may instruct the jury on the accused’s justifiable use of force only if the evidence establishes that the police used excessive force.” Caldwell v. State, 803 So.2d 839, 840 (Fla. 2d DCA 2001). Courts have consistently held that an instruction on the justifiable use of non-deadly force is unwarranted where there is no evidence that law enforcement used excessive force. See, e.g., id. (justifiable use of non-deadly force instruction unwarranted where defendant continued to fight officers as they attempted to subdue him); Hamilton v. State, 458 So.2d 863 (Fla. 4th DCA 1984) (instruction unwarranted where pleadings and evidence failed to support the defense). In each of these cases, the defendants lashed out at law enforcement during and after their apprehension.

Here, the canine officer made the defendant aware of his and the canine’s presence, and, instead of surrendering, the defendant jumped out of the bushes and ran. The canine officer then deployed the canine to apprehend him. The defendant hit the canine, and began kicking, throwing punches, and flailing his arms and legs. There was no indication that the officer used any force after the canine apprehended the defendant. Simply put, there was no evidence of excessive force on the part of law enforcement. An instruction on the justifiable use of non-deadly force was therefore unwarranted.

The defendant relies on Wright v. State, 705 So.2d 102 (Fla. 4th DCA 1998) to argue that the instruction should have been requested and given because the evidence supported alternative theories of defense that were not irreconcilable. We disagree; the cases are factually distinguishable. Unlike the officer in Wright, who was accused of beating the defendant during the arrest, giving rise to a suggestion of excessive force, here the officer warned the defendant to surrender before deploying the canine and used no other force to apprehend him. The evidence in this case did not show excessive force by law enforcement. Therefore, the instruction was unwarranted.

Because the instruction was unwarranted, counsel was not ineffective in withdrawing his request for the instruction. Defense counsel’s decision to withdraw the requested instruction was also supported by his unwillingness to admit that the defendant intentionally struck the officer, an admission generally required to support the affirmative defense of self-defense. See Keyes v. State, 804 So.2d 378, 875 (Fla. 4th DCA 2001). We therefore affirm.

Affirmed.

STEVENSON and GERBER, JJ„ concur.


text:
    Isaac Lee LAKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3132.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Isaac Lakes appeals his convictions for aggravated assault with a deadly weapon, child abuse, false imprisonment, burglary of a dwelling, and possession of a firearm by a convicted felon. Lakes argues the trial court erred by allowing the state to question Lakes regarding his ability to comport his testimony to that of the other witnesses who testified at Lakes’ trial. We disagree and hold that the state may properly question a defendant regarding the defendant’s ability to tailor his or her testimony to the testimony of other witnesses at trial.

Facts

During the trial proceedings below, several persons testified that they witnessed Lakes commit the charged crimes. Lakes elected to testify. Lakes admitted that portions of the witnesses’ testimony were true, denied other portions, and testified that some of the criminal acts occurred but that other persons were the perpetrators.

During cross-examination, the state asked Lakes a series of questions regarding Lakes’ ability to see and hear the other witnesses testify and the state insinuated that Lakes had the ability to tailor his testimony to fit the testimony of the other witnesses. Lakes’ attorney objected, arguing the state’s questions violated Lakes’ constitutional rights to see and hear the witnesses testify against him. The trial court overruled the objection.

At the conclusion of trial, the jury found Lakes guilty of all charges and the court adjudicated and sentenced him.

Analysis

Lakes contends the trial court erred by allowing the state to question him regarding his presence in the courtroom during the other witnesses’ testimony and allowing the state to imply that Lakes was tailoring his testimony. The standard of review for the trial court’s decisions regarding the scope and control of cross-examination is abuse of discretion. See Medina v. State, 466 So.2d 1046,1050 (Fla.1985) (citation omitted).

In Mendoza v. State, 98 So.3d 441 (Fla. 1st DCA 2012), the First District confronted a similar issue. In that case, the state questioned the defendant about the defendant’s presence during the other witnesses’ testimony and whether that gave the defendant “an advantage over the other witnesses.” Id. at 442. The First District held “that a prosecutor may question a defendant on cross-examination about the possibility of tailoring his testimony based on his presence in the courtroom during the testimony of other witnesses.” Id. at 444.

As the First District discussed, the United States Supreme Court decision in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) provides guidance for these situations. In that case, the prosecutor argued during summation:

‘You know, ladies and gentlemen, unlike all the other witnesses in this case the defendant has a benefit ... he gets to sit here and listen to the testimony of all the other witnesses before he testifies .... That gives you a big advantage, doesn’t it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence? ... He used everything to his advantage.”

Id. at 64,120 S.Ct. 1119.

Agard petitioned for habeas corpus in federal court claiming, among other things, that the prosecutor’s comments violated his Fifth and Sixth Amendment rights to be present at trial, to confront his accusers, and that the comments violated his Fourteenth Amendment right to due process. Id. at 64-65, 120 S.Ct. 1119. Writing for the majority, Justice Scalia rejected Agard’s arguments because “when a defendant takes the stand, his credibility may be impeached and his testimony assailed like that of any other witness.” Id. at 69, 120 S.Ct. 1119 (citation and quotation marks omitted). The Court concluded, “Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate — and indeed, given the inability to sequester the defendant, sometimes essential — to the central function of the trial, which is to discover the truth.” Id. at 78,120 S.Ct. 1119.

The Court rejected Agard’s argument that the prosecutor’s arguments were an impermissible comment on the defendant’s right to remain silent. Id. at 68-69, 120 S.Ct. 1119. The Court distinguished comments that suggest a defendant’s silence implies guilt, which may not be made, and comments on the defendant’s credibility as a witness, which are permissible. Id. at 69,120 S.Ct. 1119.

The majority made note of the dissent’s suggestion “that the comments were impermissible here because they were made, not during cross-examination, but at summation, leaving the defense no opportunity to reply.” Id. at 71-72, 120 S.Ct. 1119. The majority then stated “this is not a constitutionally significant distinction,” suggesting that the prosecutor’s comments would have been permissible in cross-examination as well as during summation. Id. at 72, 120 S.Ct. 1119 (citation omitted). Further, Justice Ginsburg, writing for the dissent, acknowledged that “on cross-examination, a prosecutor would be free to challenge a defendant’s overall credibility by pointing out that the defendant had the opportunity to tailor his testimony in general, even if the prosecutor could point to no facts suggesting that the defendant had actually engaged in tailoring.” Id. at 78, 120 S.Ct. 1119 (Ginsburg, J., dissenting) (citation omitted).

As the First District also noted in Mendoza, some foreign state courts have determined that a prosecutor may not suggest the defendant altered his testimony after hearing the other witnesses testify. Mendoza, 93 So.3d at 444 nn. 2-3 (citations omitted). Based on the persuasive decisions of Agard and Mendoza, however, we conclude that such cross-examination is proper. Accordingly, the trial court properly overruled Lakes’ objections to the state’s line of questioning in this case.

Even if this were error, it would be harmless. See State v. DiGuilio, 491 So.2d 1129,1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” (citation omitted)). As the Mendoza court noted, “the jury could see that [the defendant] had been present for the entire trial and could use its own judgment in weighing his testimony.” Mendoza, 93 So.3d at 445. Similarly, the jury in this case was capable of determining that Lakes could tailor his testimony to that of the other witnesses regardless of whether the state commented on it. Viewing the prosecutor’s statement in light of the entire record, we conclude that if the comments constituted error, the error was harmless beyond a reasonable doubt.

Finally, Lakes also suggests that the prosecutor improperly asked Lakes whether he had the ability to “manufacture [his] story” at trial based on the testimony of the other witnesses. Lakes’ counsel objected before the state finished the question and Lakes did not answer the question. The state rephrased its question to ask whether Lakes had the ability to “make [his] story fit the set of facts that are uncontroverted” by the other witnesses. We find that the latter question was proper, and we conclude that any error arising from the state’s use of the word “manufacture” in the unanswered question was harmless.

Affirmed.

STEVENSON and KLINGENSMITH, JJ., concur.


text:
    A TO Z PROPERTIES, INC., Appellant, v. FAIRWAY PALMS II CONDOMINIUM ASSOC., INC., Appellee.
    No. 4D13-1267.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied April 25, 2014.

      Vello Veski, Palm City, for appellant.
    John S. Yudin of Guy Yudin & Foster, LLP, Stuart, for appellee.
   TAYLOR, J.

A to Z Properties, Inc., appeals a circuit court order finding it liable to Fairway Palms II Condominium Association (“Association”) for $16,291.61 in unpaid assessments on a condominium unit that appellant acquired by a tax deed. Because the unpaid assessments did not survive the issuance of the tax deed, we reverse.

In October 2010, appellant purchased a condominium unit for $21,100 at a tax sale. The Association is responsible for management of the condominium where the unit is located. At the time the tax deed was issued to appellant, the prior owners of the unit owed the Association $16,291.61 in unpaid assessments.

About two weeks after buying the unit at the tax sale, appellant sold the unit to Rafael Charre-Sanchez (“Sanchez”) for $30,000. In February 2011, the Association recorded a claim of lien on the unit for the unpaid assessments. The Association later filed suit against appellant and Sanchez. In the Second Amended Complaint, the Association brought a count against Sanchez for foreclosure of the lien and a count against both appellant and Sanchez to recover a money judgment for the unpaid assessments.

Appellant and the Association each moved for partial summary judgment on the issue of whether appellant and Sanchez were liable for the unpaid assessments that accrued on the unit prior to their ownership. The parties stipulated to the material facts.

After hearing argument from the parties, the trial court entered its Order on Plaintiffs Motion for Partial Summary Judgment, finding that appellant was liable to the Association for the $16,291.61 in unpaid assessments on the condominium unit. The trial court ruled that appellant was liable for the unpaid assessments under section 718.116(l)(a), Florida Statutes. The trial court rejected appellant’s argument that section 197.552, Florida Statutes, extinguished the unpaid assessments. Later, the trial court denied appellant’s motion for rehearing, prompting this appeal.

On appeal, appellant argues that, pursuant to section 197.552, the unpaid assessments did not survive the issuance of the tax deed. Appellant maintains that the provisions of Chapter 197 concerning tax collections control over the provisions of Chapter 718 concerning the collection of condominium assessments.

In response, the Association argues that liability for unpaid assessments under section 718.116(l)(a) does not attach until one becomes a “unit owner,” and that section 197.552 does not have any effect on the liability imposed by section 718.116(1)(a).

“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

Chapter 197 of the Florida Statutes governs tax collections, sales, and liens. Section 197.552 states in relevant part: “Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed .... ” § 197.552, Fla. Stat. (2010).

Section 197.573, in turn, addresses the survival of restrictions and covenants after a tax sale. Generally, when a deed in the chain of title contains restrictions and covenants running with the land, the restrictions and covenants shall survive and be enforceable after the issuance of a tax deed. See § 197.573(1), Fla. Stat. (2010). However, while section 197.573 applies to the “usual restrictions and convenants” limiting the use of the property, “this section shall not protect covenants creating any debt or lien against or upon the property ... or requiring the grantee to expend money for any purpose.... ” § 197.573(2), Fla. Stat. (2010). “Thus, under sections 197.552 and 197.573(2), neither covenants governing assessments nor liens for unpaid assessments survive the issuance of a tax deed.” Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass’n, Inc., 124 So.3d 302, 305 (Fla. 2d DCA 2013).

Section 718.116(l)(a), by contrast, addresses liability for assessments on condominiums and provides in pertinent part:

A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title. ...

§ 718.116(l)(a), Fla. Stat. (2010) (emphasis added).

Recently, both the Second and Fifth Districts addressed the interplay between Chapter 197 and statutory provisions regarding liability for unpaid assessments. Our sister courts held that an owner of property acquired by tax deed is not liable to an association for unpaid assessments that accrued prior to the issuance of the tax deed. See Lunohah Invs., LLC v. Gaskell, — So.3d —, 2013 WL 6816627, 39 Fla. L. Weekly D41 (Fla. 5th DCA 2013); Cricket Props., 124 So.3d at 307. Although these cases involved liability for assessments under a statute governing homeowners associations, see § 720.3085(2), Fla. Stat., their reasoning applies equally to liability for assessments on a condominium unit. Section 718.116(1)(a) contains language that is identical in all relevant respects to the language of section 720.3085(2).

Although section 718.116(l)(a) imposes liability for unpaid assessments on a unit owner of property acquired by “transfer of title,” it is well-settled that acquisition of title by tax deed does not represent a transfer of title but instead constitutes the commencement of a “new, original and paramount” title. See Cricket Props., 124 So.3d at 306. Therefore, section 718.116(1)(a) does not save liens for unpaid assessments from extinguishment under Chapter 197 when unit owners acquire title by tax deed. See id. at 307. Instead, unit owners “who acquire title by transfer, rather than by tax deed, remain liable for unpaid assessments.” Id.

Moreover, “[u]nder basic statutory principles, when two statutes embrace the same subject and produce contradictory results, we are compelled to construe the statutes so that the specific statute is given effect and the general statute is given effect only to the extent that it does not contradict the specific statute.” Lunohah Invs., — So.3d at —, 39 Fla. L. Weekly at D41. Thus, sections 197.552 and 197.573(2) control over section 718.116(l)(a), because they are “the more specific statutes as to the key issue, and any conflict must be resolved in their favor.” Cricket Props., 124 So.3d at 307.

In the present case, we follow the well-reasoned opinions of our sister courts on this issue. As the Fifth District explained: “Sections 197.552 and 197.573(2) extinguish any covenant that creates a lien or requires a grantee to ‘expend money for any purpose’ for debts that precede the issuance of the tax deed. Both the lien and the grantee’s liability for the preexisting debt are extinguished upon issuance of the deed.” Lunohah Invs., — So.3d at —, 39 Fla. L. Weekly at D41 (emphasis removed).

Accordingly, we reverse the order on appeal and remand with directions for the trial court to enter summary judgment in favor of appellant and to conduct further proceedings consistent with our ruling.

Reversed and Remanded.

DAMOORGIAN, C.J., and LEVINE, J„ concur.