text:
    Fidel LEYVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-395.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.

      Fidel Leyva, Bowling Green, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s untimely postconviction motion. The order referred appellant to prison officials for disciplinary proceedings for having filed a frivolous collateral criminal proceeding. § 944.279(1), Fla. Stat. (2011). The untimely motion raised, in the trial court’s words, many “vacuous, pseudo-legal arguments.” We agree entirely with the trial court’s assessment, and because this appeal is likewise devoid of any arguable merit, we refer appellant to prison officials for disciplinary proceedings.

In 2005, a jury convicted appellant of attempted sexual battery on a child under twelve. This court affirmed this conviction on appeal, but found that a lewd and lascivious conduct conviction violated double jeopardy and remanded the case for resen-tencing. Leyva v. State, 925 So.2d 393 (Fla. 4th DCA 2006), opinion corrected on denial of rehearing, 929 So.2d 1210 (Fla. 4th DCA 2006). This court affirmed following resentencing. Leyva v. State, 975 So.2d 1151 (Fla. 4th DCA 2008) (mandate issued March 24, 2008).

In July 2011, appellant filed this untimely postconviction motion. Fla. R.Crim. P. 3.850(b). The motion raised many nonsensical arguments and claimed that his sentence was “void” and a “fraud.” For example, he contends that he was charged with violating revenue laws and that his case should have been submitted for arbitration under the Uniform Arbitration Act. He contends that he was denied his Seventh Amendment right to a civil trial and that he could not be charged because the victim did not bring a civil case against him first. He contends that he was charged with criminal contempt, not a felony, and complains that he was not given access to a Mexican consulate.

The trial court properly denied this motion as untimely and referred appellant to prison officials for having filed a frivolous and/or malicious collateral criminal proceeding. The court recommended that all gain time be forfeited.

On appeal, appellant argues that his claims are “well-founded” on both state and federal law. He complains that his motion was filed under Florida Rule of Civil Procedure 1.540 and that the court should not have treated it as a Rule 3.850 motion. Finally, he contends that his motion was not frivolous because an “attempt” is a violation of revenue laws.

The motion, and this appeal, are devoid of arguable merit and frivolous. Prisoners who file frivolous collateral proceedings such as these seriously impact the court system’s ability to redress valid claims. The trial court acted appropriately and within its discretion in referring appellant to prison officials under section 944.279(1), Florida Statutes.

Frivolous filings should be sanctioned in some form, whether by the court or referral to prison officials under section 944.279(1). Only when sanctions for frivolous filing are virtually automatic will prisoners “stop and think” before inundating the courts with frivolous pleadings. See Spencer v. Fla. Dep’t of Corr., 823 So.2d 752, 756 (Fla.2002).

We are aware that, in some circumstances, the party referred to prison officials claims not to have prepared the frivolous filing. See Marc v. State, 46 So.3d 1045 (Fla. 4th DCA 2010), rev. denied, 59 So.3d 108 (Fla.2011). While this generally would not excuse the movant’s frivolous filing, as he or she is ultimately responsible for what is presented to the court, we believe that section 944.279 authorizes prison officials to investigate and impose sanctions on prisoners who prepare frivolous filings on behalf of others.

Accordingly, we direct the Clerk of this court to forward a certified copy of this opinion to the appropriate facility for disciplinary proceedings.

Affirmed. Appellant referred for disciplinary proceedings.

MAY, C.J., GROSS and GERBER, JJ., concur.

      . A claim alleging a violation of the Vienna Convention cannot be raised in a postconviction motion. Lugo v. State, 2 So.3d 1, 17 (Fla.2008). In any event, appellant did not establish a violation or resulting prejudice.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Deryl L. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-59.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.
    Deryl L. Brooks, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 661 So.2d 1193, 1197 (Fla.1995); see also Blakley v. State, 746 So.2d 1182 (Fla. 4th DCA 1999) (“It is clear from Davis that departure sentences imposed without compliance with the guidelines statutes do not constitute an illegal sentence.”).

MAY, C.J., WARNER and CIKLIN, JJ., concur.


text:
    Vernon CARTER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-4687, 4D11-4688.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.

      Vernon Carter, Miami, pro se.
    No appearance required for appellee.
   On Order to Show Cause

PER CURIAM.

In these two cases, which we have consolidated for purposes of this opinion, we previously affirmed the summary denial of appellant’s untimely and successive motions for postconviction relief. We issued an order to show cause as to why this court should not impose the sanction of no longer accepting appellant’s pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999). We have considered appellant’s response which presents no legitimate excuse for his ongoing abuse of the postconviction process. We therefore impose the sanction of no longer accepting appellant’s pro se filings.

Appellant carjacked and kidnapped a •sixty-nine-year-old man with diabetes whose leg and several fingers had been amputated. In 2002, a jury convicted appellant of kidnapping, carjacking, attempted strong-arm robbery, and battery upon a person sixty-five years of age or older. He is serving life in prison for the kidnapping and thirty years for the carjacking.

Appellant has filed numerous postcon-viction challenges, appeals, and petitions directed at this case. He has initiated at least eighteen cases in this court alone. This court has twice warned appellant, in case numbers 4D07-2174 and 4D11-3703, that his frivolous filing may result in sanctions.

In case number 4D11-4687, appellant appeals another untimely and successive postconviction motion that he filed in this case. He claims that the information allegedly contains incorrect language as to the kidnapping charge. The information tracks the language of the statute and is clearly sufficient. See § 787.01(l)(a), Fla. Stat. (2001).

In case number 4D11-4688, appellant appeals the denial of a Rule 3.800(a) motion. He claims that his score-sheet was incorrectly calculated and that no presentence investigation was prepared. Appellant was sentenced under the Criminal Punishment Code and received sentences within the statutory maximum. Any scoresheet error is harmless. Brooks v. State, 969 So.2d 238, 242 (Fla.2007). Even if a presentence investigation was required in this case, something that appellant has not shown, the trial court’s failure to consider a presentence investigation does not result in an “illegal sentence” under Rule 3.800(a). See Moore v. State, 768 So.2d 1140, 1142 (Fla. 1st DCA 2000).

Appellant’s abuse of postconviction relief procedures interferes with the court system’s ability to consider the claims of other litigants and damages the postcon-viction remedy for others. See McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010), rev. denied, 75 So.3d 1245 (Fla.2011). The clerk of this court is directed to no longer accept appellant Vernon Carter’s pro se filings unless the filing is signed by a member in good standing of The Florida Bar.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Suave Hakeem LURRY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-5200, 4D11-3323.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, 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.
   PER CURIAM.

Affirmed. We remand, however, for correction of -the written order to reflect the two, rather than four, grounds specified for violation.

WARNER, STEVENSON, JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    Wilber BHERVIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1189.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2012.
    Wilber Bherviz, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely motion for postconviction relief. Appellant claims that the Rule 3.850 time limit was tolled while his petition for belated appeal from his conviction and sentence was pending. The petition for belated appeal was ultimately denied on the merits by this court. The petition did not toll the two-year time limit for seeking postconviction relief. Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006).

Appellant’s proper course would have been to timely file his postconviction motion and advise the trial court of his pending petition for belated appeal. The trial court then could have abated the proceedings until a ruling was entered on the petition for belated appeal.

Appellant attempts to reargue his claim that counsel failed to file a notice of appeal. This claim was denied on the merits after an evidentiary hearing in the belated appeal proceedings. Appellant’s attempt at rearguing this claim in the postconviction motion is an abuse of judicial resources.

Affirmed.

WARNER, DAMOORGIAN and CIKLIN, JJ„ concur.


text:
    Karen GOTTLIEB, Appellant, v. Frederic R. GOTTLIEB, Appellee.
    Nos. 4D12-1038, 4D12-2274, 4D12-2402.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2012.
    Melody Ridgley Fortunato of Fortunato & Associates, P.A., Fort Lauderdale, for appellant.
    Carin M. Porras and Gordon C. Brydger of Brydger & Porras, LLP, Fort Lauder-dale, for appellee.
   PER CURIAM.

The circuit court entered a final judgment on pending post-judgment issues and an amended final money judgment during the pendency of an interlocutory appeal. The appellant has moved to determine appellate jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(f). We reverse the final judgments because the circuit court lacked jurisdiction to render final orders while an appeal from a non-final order in the same case is pending.

Florida Rule of Appellate Procedure 9.130(f) is controlling and provides: “In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.” See also Garcia-Lawson v. Lawson, 82 So.3d 137, 137 (Fla. 4th DCA 2012) (“The circuit court entered a final judgment of dissolution of marriage while two frivolous interlocutory appeals were pending, and before this court sua sponte dismissed the appeals. We reverse the final judgment because the circuit court did not have jurisdiction to render a final order disposing of the case.”).

In case number 4D11-2442, appellant Benjamin Gottlieb seeks review of the Order on Benjamin Gottlieb’s Second Amended Motion for Temporary Attorney’s Fees and Costs and Motion for Attorney’s Fees and Costs, and Former Husband’s Motion to Dismiss. Such an order is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), which provides that lower courts may review nonfinal orders that determine the “right to immediate monetary relief ... in family law matters.” Appellee contends that the order is a final order because the order fully disposed of the issue before the court-that of the entitlement of appellant Benjamin Gottlieb to an award of attorney’s fees. Although the order disposed of that issue, Benjamin Gottlieb remained a party defendant in the underlying suit and the court did not dispose of the entire cause as to Benjamin.

In the instant case, the circuit court entered the Final Judgment on Pending Post-Judgment Issues and the Amended Final Money Judgment, as well as an order on attorney’s fees. The non-final appeal, filed July 1, 2011, is still pending. Accordingly, the circuit court lacked the jurisdiction to enter the final judgments. See Garciar-Lawson; Fla. R.App. P. 9.130(f).

We reverse the Final Judgment on Pending Post-Judgment Issues, the Amended Final Money Judgment and the order on attorney’s fees. We remand the case to the circuit court. Our reversal is without prejudice to the circuit court reentering the same final judgments after the conclusion of the interlocutory appeal.

Reversed and remanded.

WARNER, POLEN and STEVENSON, JJ., concur.

      . Benjamin Gottlieb is the parties’ son.


text:
    Daniel DELMONICO, Appellant, v. Tony CRESPO and Donovan Marine, Inc., a Louisiana corporation, Appellees.
    No. 4D11-1523.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2012.

      Ismael Diaz of the Law Office of Ismael Diaz, P.L., Coral Gables, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    A. Rodger Traynor Jr. of Akerman Sen-terfitt, Miami, for appellee Donovan Marine, Inc.
   PER CURIAM.

Daniel Delmonico appeals a final order awarding attorney’s fees and costs to Donovan Marine, Inc. (“DMI”). DMI cross-appeals. Of the issues raised on appeal and cross-appeal, we find that two have merit. We find that the trial court abused its discretion in failing to make specific findings as to the number of hours reasonably expended and in awarding nontaxable costs as a sanction under section 768.79, Florida Statutes (2011). As to these issues, we reverse. We find the other issues raised on appeal and cross-appeal lack merit and affirm those issues without discussion.

By way of background, Delmonico filed a complaint against Crespo and his employer, DMI, alleging that Crespo made defamatory statements and that DMI was vicariously liable. Crespo admitted to making the statements and ultimately settled. The case went to trial against DMI, and the jury found in favor of DMI, concluding that Delmonico was not damaged by the defamation. DMI then served a motion for attorney’s fees under the offer of judgment statute, section 768.79. The trial court denied the motion for attorney’s fees, and this court reversed in Donovan Marine, Inc. v. Delmonico, 40 So.3d 69 (Fla. 4th DCA 2010).

In its amended motion for attorney’s fees, DMI sought $988,981.50 for 2,381.7 hours of attorney and paralegal time incurred by Akerman Senterfitt in its representation of DMI. In addition, DMI sought $75,533.23 for routine expense items including postage, photocopies, telephone tolls, facsimiles, FedEx, couriers, Westlaw and Lexis computerized research, hotel during trial, working meals, parking fees, mileage, CPA forensic accounting fees, and jury selection consultant fees.

After an evidentiary hearing, the trial court found that “the reasonable number of attorney (including paralegals) hours expended to be between 1800 to 1900 hours for an award of $830,250.00 in attorney fees.” As to the request for $75,533.23 in expenses, the trial court found that many of these expenses constituted normal overhead. Other expenses, such as unnecessary hotel bills were “under no circumstances ... recoverable].” Nevertheless, reasoning that section 768 is a form of sanction, the court allowed “a portion of expenses to [be] recovered for a total of $25,000.00, to compensate (in part) for items such as the jury selection consultant, CPA damage expenses, etc.” This appeal and cross-appeal follow.

Delmonico asserts that the trial court abused its discretion by awarding attorney’s fees without making specific findings as to the number of hours reasonably expended. An order awarding attorney’s fees is “fundamentally erroneous on its face” when the trial court fails “to make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985)." Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063, 1065 (Fla. 2d DCA 2004). “The court must identify the precise hourly rate as well as the amount of hours reasonably expended.” Highlands Carpentry Serv., Inc. v. Connone, 873 So.2d 611, 613 (Fla. 2d DCA 2004). In Connone, the final judgment lacked the necessary specific findings where the trial court found that the time reasonably necessary to handle the case was “between 100 to 150 hours.” Id. Similarly, here the final judgment lacked the necessary specific findings in that the trial court found the reasonable number of hours was “between 1800 and 1900 hours.” DMI concedes that the order is deficient because it does not make a specific finding as to the total number of hours reasonably incurred. As such, we reverse and remand for the trial court to make the necessary findings.

Delmonico also contends that the trial court abused its discretion by awarding $25,000 in nontaxable costs as a sanction under section 768.79, Florida Statutes. “The taxation of costs in any particular proceeding is within the broad discretion of the trial court.” In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 616 (Fla.2005). The moving party has the burden of showing “that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.” Id. “[N]ontaxable costs are not recoverable pursuant to section 768.79.” C & S Chems. Inc. v. McDougald, 754 So.2d 795, 797 (Fla. 2d DCA 2000).

Contrary to section 768.79, the trial court included nontaxable costs as components of the $25,000 award. First, the trial court identified “CPA damage expenses” as expenses for which it partially reimbursed DMI. The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions advise that expenses for expert witnesses who testify should be taxed, while expenses related to consulting but non-testifying experts should not be taxed. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d at 616-17; see also Broward Cnty. v. LaPointe, 685 So.2d 889, 893 (Fla. 4th DCA 1996) (fees attributable to services as a litigation consultant were not recoverable under section 73.091, which authorizes an award of costs in eminent domain cases). Because the accountants at the CPA firm were consulting experts and not testifying experts, those expenses should not have been taxed.

The trial court also identified expenses for the jury selection consultant as an expense for which it partially reimbursed DMI. The uniform guidelines do not address jury consultants, nor are there any Florida cases addressing the issue. We agree with other jurisdictions which have held that costs and fees associated with jury consultants are not recoverable. See Jorling v. Habilitation Servs., Inc., 2005 WL 1657060, at *12 (S.D.Ohio July 14, 2005) (collecting cases and holding that jury consultant fees were not recoverable as attorney’s fees or costs). Further, the other routine expenses for which DMI sought to be reimbursed also are not recoverable. See Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998) (trial court abused its discretion in taxing postage, long distance calls, fax transmissions, delivery services, travel expenses, and computer research costs).

DMI suggests that the expense award can be upheld as an “upward adjustment of the lodestar fee” or as a “sanction against a vexatious serial litigant.” However, DMI did not advance those arguments below, and it does not appear from the record that the trial court intended to award the expenses under either of these grounds.

For the foregoing reasons, we reverse the attorney’s fee award to the extent it fails to make specific findings as to the number of hours reasonably expended, and we remand for the trial court to make the requisite findings. We also reverse the $25,000 expense award, as none of the enumerated costs listed by the court, or requested by DMI, are taxable. See Jorling, 2005 WL 1657060, at *12; Skidmore, 720 So.2d at 1130. We affirm on all other issues.

Affirmed in part, reversed in part, and remanded with directions.

STEVENSON, GERBER and LEVINE, JJ., concur.


text:
    Bernardo RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-875.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2012.
    Bernardo Ruiz, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla.2011); Fernandez-Tellez v. State, 89 So.3d 1070 (Fla. 3d DCA 2012).

MAY, C.J., TAYLOR and GERBER, JJ., concur.


author: May, C.J.

text:
    Jesse Lee MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3447.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2012.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, 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.
   May, C.J.

The defendant appeals his conviction and sentence for robbery, burglary, kidnapping, and murder. He argues, among other issues, that the trial court erred in allowing handwriting experts to bolster their testimony by describing the peer review process. We agree and reverse.

Late one evening in 1999, two law enforcement officers, working as security guards, saw two nervous young men outside a mall. One of the officers approached them. One of the individuals, an employee of a restaurant inside the mall food court, said that he was concerned because one of his friends, a restaurant supervisor, had not yet come out of the restaurant.

Both officers went to the closed restaurant. There they found the supervisor, duct taped to a folding chair and shot in the head. In the area, the officers found a file cabinet with its hasp open and a metal cash box located on top, a locked safe, and a desk. The daily receipt records and a yellow notepad were located on top of the desk. The notepad contained the following writing: “55, 65, 9, 10,” “4 time stop,” “left right left right.”

The officers also found a wad of duct tape in a trash basket. The cash earned from the day was still in the safe, but $625 was missing from the cash box. A black nylon skull cap was recovered from a dumpster outside the restaurant’s back door.

A partial print, sufficient for identification, was obtained from the duct tape found on the victim. No identification was made despite numerous comparisons, including the defendant’s. The latent fingerprints obtained from various surfaces at the crime scene matched those of other employees, but not the defendant. The only latent fingerprint on the yellow notepad belonged to the restaurant manager.

In 2000, the State charged the defendant with committing the offenses, but later nolle prossed the case due to insufficient evidence. The State filed new charges against the defendant in 2006; specifically, first degree murder with a firearm, robbery with a firearm, burglary with an assault or battery with a firearm, and armed kidnapping. In 2009, the case went to trial and resulted in a hung jury. The case was retried later that same year.

The State sought to establish motive by presenting the testimony of several restaurant employees. Their testimony revealed that the defendant had worked at the restaurant and had been promoted to crew leader. The victim was a supervisor. In early 1999, the victim reported the defendant for stealing money from the restaurant. The defendant denied the allegation, but the manager demoted him to crew member and reduced his hours. The defendant’s work performance deteriorated, and the manager terminated him two months prior to the murder.

One employee testified that the defendant was upset about his demotion, angry with the victim, and wanted to fight him. Another testified that the defendant referred to the victim as a “squealer” or “rat,” but he had not seemed angry or upset.

A third employee testified that although the defendant was upset and wanted to fight the victim, the two simply went their separate ways. The defendant had once talked about robbing the restaurant. And, although the defendant had a hand gun with him on one occasion, he did not display it when he argued with the manager. Between the time of his termination and the murder, the defendant returned to the food court a few times. During one visit, the defendant formed his hand into the shape of a gun and pointed it at the victim.

Another employee confirmed that the defendant was upset by his demotion, and had commented about robbing the restaurant. This witness did not take the defendant seriously. However, he had overheard the defendant arguing with the manager when he was terminated.

Yet another employee testified that she saw the defendant return to the restaurant three times after his termination. On one visit, the defendant “trash talked” a few feet from the counter. On another visit, the defendant told the victim to “watch his back” and threatened to “kick his ass.” On a third visit, the defendant walked up to the .counter and told the victim that he was going to kill him.

Using the disgruntled employee motive, the State used the following evidence to connect the defendant with the crimes. In 1999, the detective originally assigned to the case obtained writing samples from the defendant and five other employees. He had each individual write what was written on the yellow notepad fifteen times.

In 2000, a second detective took over the investigation and obtained additional handwriting samples from the defendant. In 2003, he repeated what was done in 1999 and obtained four more samples from the defendant. He obtained samples of business writings from the other persons. Ultimately, most of the sample writings were from the defendant.

In 2003, the second detective retained a criminal investigator with the United States Postal Inspection Service to obtain yet more handwriting samples from the defendant. In 2006, the second detective and the State retained a forensic document examiner, who was provided with the writing on the notepad and handwriting samples of twelve persons.

In 2004, the second detective retained a second forensic document examiner with the United States Postal Inspection Service to examine the writings. The second examiner was provided with the same materials as the first. In total, both examiners received seventy-five pages of handwriting samples from the defendant.

At trial, the first examiner explained that handwriting identification is based on the premise that everyone has an individual set of writing characteristics. With enough of a particular person’s writings, the individual characteristics can be found. Handwriting analysis was similar to fingerprint analysis. However, he explained that the notepad contained “a rather small quantity of writing” and a small number of characteristics, which limited the analysis that could be done.

When the State asked the first examiner to explain the protocol employed in issuing a final report from his laboratory, defense counsel objected on the ground of “bolstering.” During a sidebar conference, defense counsel argued that “it’s impermissible for him to talk about his peer review in his office that as a protocol, someone else reviews the work that he has done to make sure that it’s succinct.... He can certainly testify to how he came to his conclusion, but to talk about somebody else in his office, who’s not going to be here to testify, reviewing that work as protocol is certainly bolstering his testimony.” Defense counsel cited our opinion in Bunche v. State, 5 So.3d 38 (Fla. 4th DCA 2009). The trial court overruled the objection and allowed the examiner to give the following testimony:

Q. Okay. Does your conclusion have to be peer reviewed by another analyst within the context of your laboratory?
A. It does.
Q. And is that part of your protocols and procedures?
A. Yes.

After explaining more of the protocols, defining some industry-specific terms, and how a document analysis is conducted, the first examiner testified more specifically about his review of the documents presented to him. He determined to a “high degree of probability” that the defendant executed the text on the yellow notepad. He explained that in the world of document examiners, “high degree of probability” meant it was a virtual certainty that the defendant had written the text. The limiting factor was the small number of characteristics that were in the questioned document. When the State asked if his conclusion was contained in the report issued by the lab, he testified:

Q. Now, let me ask you this question: Was that the opinion within the purview of your laboratory protocols?
A. The ultimate conclusion that I just gave, the high degree of probability, was the conclusion that exited the laboratory due to the peer review process that we follow.
Defense Counsel: Objection, bolstering.
Court: Overruled.

The first examiner then went on to clarify that it was a “positive” identification, which was a higher level of certainty than that contained in the final report. It was only through the peer review process that the conclusion went down a slight notch to “high degree of probability.”

The State also presented the testimony of the second examiner, who testified that the volume of submitted writing had no bearing on the results. He testified that the failure to have both requested writings and business writings for comparison does not preclude an examiner from rendering a valid opinion. In his expert opinion, the defendant wrote the words and numbers on the yellow notepad to the exclusion of everyone else. He made a full identification, which was the highest conclusion in the field of forensic documents examination. When the State asked him about the protocols in his field, he testified:

Q. When you formulate that opinion within the context of the laboratory, for whom you worked at the time that you did this work, are there quality assurance controls in place within the context of that laboratory?
A. Yes, we have—
Defendant: Objection, Judge, bolstering.
Court: Okay, I’m sorry. The objection is bolstering?
Defendant: Bolstering, I’m sorry.
Court: Overruled.
Q. And could you explain to the members of the jury what those quality assurance controls are?
A. We have two different types of quality assurance processes, one is a technical review and one is a confirmation. Technical review, every tenth case normally that is examined is reexamined by another examiner to ensure that the protocols have been followed, the standards have been applied, and that the notes and findings or that the notes, diagrams or whatever actually support the conclusion that is being offered. Additionally, in our laboratory, whenever there was an identification made, a separate examiner is required to independently examine the evidence associated with that case and reach his or her own conclusion. The identification would only go out of the laboratory based on our own protocols if there’s confirmation.
Q. And did you have that in this case?
A. Yes, sir, I did.

The morning after the document examiners testified, a juror reported that they had looked up the word “bolstering.” The juror was individually questioned and said they were discussing the meaning of bolstering and looked it up on a cell phone. All but three jurors were present. The juror said the defense attorneys had used the word two to three times. The question came up when they were going to write a note asking the court for the meaning, but a juror looked it up instead. Each juror was questioned and none said it would affect their jury service. The defendant moved for a mistrial; the court denied the motion.

The remaining evidence consisted of testimony that a ski mask found outside the restaurant had a mixture of DNA on the inside of it. According to the State’s DNA experts, the defendant could not be excluded as a minor contributor of the DNA. The major contributor of the DNA was another individual. One expert testified that it was 180 million times more likely that the DNA stain came from the defendant and Otto Wright — an individual who gave a confession and was convicted of the crimes — than Otto Wright and some unknown person.

It was the defense, however, that presented the taped confession of Otto Wright. Mr. Wright admitted to being present on the night of the crime, but indicated that he had been the lookout. He testified that two other individuals other than the defendant had committed the crime. He did not know the defendant. On cross-examination, the State pointed out that, at his 2003 trial, Mr. Wright had testified that his confession was coerced and was false.

During closing argument, defense counsel questioned the handwriting identification. He argued that the identifications were tainted by the tactics of the second detective, who submitted excessive amounts of samples of the defendant’s handwriting, but only limited samples from other individuals — many of which were business writings. The defendant highlighted the limited nature of the writing at issue and the limited nature of the identifying characteristics.

The defendant was found guilty as charged in the indictment and sentenced to four concurrent life terms. The defendant, who was seventeen years old at time of the offense, filed a motion to correct sentencing error, which the trial court denied. The defendant filed a timely notice of appeal.

We review trial court decisions on the admissibility of evidence for an abuse of discretion. Dessaure v. State, 891 So.2d 455, 466 (Fla.2004).

The defendant argues the trial court abused its discretion by allowing the State “to bolster the testimony of its two document examiners with testimony that other non-testifying examiners verified the identification.” The State responds that the defendant waived the issue by failing to file a motion in limine, and by failing to raise the “bolstering” objection during the first trial. The State further responds that the error was invited. The State then suggests there was no improper bolstering because the experts only discussed peer review as a means of explaining the process through which handwriting is analyzed at the lab. Lastly, the State argues that any error was harmless.

We agree with the defense that the testimony constituted improper bolstering and was not harmless. We therefore reverse.

In Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997), we held that an expert may not testify that he formed his opinion by consulting with others in the same field. Id. at 455; see also Telfort v. State, 978 So.2d 225, 227 (Fla. 4th DCA 2008) (holding that the trial court committed reversible error by allowing a fingerprint expert to testify that his identification of the defendant’s fingerprint was verified by two other examiners). Subsequently, we extended the reach of that concept to preclude an expert from bolstering “his own opinion on direct examination with that of another expert.” Bunche, 5 So.3d at 40. We explained that this prohibitive rule applies equally whether the expert relies on a second expert’s opinion or testifies about other experts’ opinions in explaining the process employed. Id. at 40-41.

Here, the defendant specifically lodged a bolstering objection to both examiners testifying about the process and called the court’s attention to our decision in Bunche. Nevertheless, the court overruled the objections and permitted the testimony. In doing so, the trial court erred. We must next decide if the error was harmless.

In State v. DiGuilio, 491 So.2d 1129 (Fla.1986), our supreme court explained that:

The harmless error test ... places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the ver-diet or ... that there is no reasonable possibility that the error contributed to the conviction.

Id. at 1135.

Here, as in Bunche, the handwriting examiners testified that they “use[d] ... a second examiner in the verification process.” Bunche, 5 So.3d at 40. The first examiner testified that, “in our laboratory, whenever there was an identification made, a separate examiner is required to independently examine the evidence associated with that case and reach his or her own conclusion. The identification would only go out of the laboratory based on our protocols if there’s confirmation.” (Emphasis added). The second examiner testified that, “the high degree of probability ... was the conclusion that exited the laboratory due to the peer review process that we follow.” (Emphasis added). Both of these comments improperly bolstered the testifying experts’ findings because they relied on the “use of a second examiner in the verification process.” Id.

The State argues that no improper bolstering occurred because the experts “were simply providing a general explanation of the [peer review] process.” While that may be true, it does not eliminate the harm of admitting the opinions of non-testifying experts to bolster the testimony of those testifying. Instead, it deprives the opposing party of the opportunity to cross-examine the non-testifying experts. This was the reasoning in Bunche, notwithstanding that we found the error harmless there.

The State attempts to distinguish Telfort and Bunche because it presented two independent experts instead of one. The State argues the expert examiners’ testimony was properly admitted because their conclusions “were consistent with each other.” Two wrongs do not make a right. Two instances of inadmissible bolstering testimony do not ameliorate the harm and prejudice simply because the experts come to the same conclusion. Rather, two instances double the harm.

The State also suggests that Telfort, Bunche, and Potts v. State, 57 So.3d 292 (Fla. 4th DCA 2011), conflict with cases from the Third and Fifth Districts. See J.V. v. Dep’t of Children & Family Servs., 967 So.2d 354 (Fla. 3d DCA 2007); Masters v. State, 958 So.2d 973 (Fla. 5th DCA 2007). We disagree. J.V. and Masters involved expert witnesses rendering an opinion after reviewing “facts and data.” Such testimony is entirely permissible under the Florida Evidence Code. There simply is no conflict.

Because the defendant contested the experts’ conclusions that he wrote the words and numbers on the yellow notepad, and those opinions are the only real direct evidence placing the defendant at the scene of the crime, we cannot find the error harmless.

Next, the defendant argues that his life sentence for first-degree murder is unconstitutional because he was a minor at the time the crime was committed. The State responds that the trial court properly imposed four concurrent life sentences. Because we reverse the conviction and sentence, this issue is moot. However, the United States Supreme Court has recently held that a mandatory life sentence without the possibility of parole “for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Miller v. Alabama, — U.S. —, —, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012).

Florida imposes a mandatory sentence of life in prison without the possibility of parole if convicted of first degree murder when the death penalty is not imposed. § 775.082(1), Fla. Stat. (2005). Upon retrial of the case, should the defendant be found guilty, the trial court should be mindful of Miller.

Reversed and Remanded for a New Trial.

DAMOORGIAN, J„ and TUTER, JACK, B., JR., Associate Judge, concur.

      . Because Bunche was decided on February 18, 2009, it was not in existence at the time of the first trial.


text:
    Leander NESBITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1761.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Leander Nesbitt, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, HAZOURI and CONNER, JJ., concur.


text:
    Aaron APRILE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1771.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Brian Balaguera of The Balaguera Law Firm, P.A., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    Wichardy HORTUA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1778.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.

      Wichardy Hortua, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, HAZOURI and GERBER, JJ., concur.


text:
    Sergio Herrera PENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1187.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Sergio Herrera Pena, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant contends on appeal that his dual convictions for driving with a canceled, suspended, or revoked license causing serious bodily injury or death and leaving the scene of crash causing death violate double jeopardy. The denial of his motion to correct illegal sentence filed pursuant to Fla. R.Crim. P. 3.800(a) was proper. Black v. State, 52 So.3d 830, 831 (Fla. 4th DCA 2011) (citing Henry v. State, 920 So.2d 1204, 1205 (Fla. 4th DCA 2006)). We affirm the order of denial, but do so without prejudice to appellant filing a timely motion for post-conviction relief under Fla. R.Crim. P. 3.850 that raises this issue. See Abbate v. State, 82 So.3d 886, 888 (Fla. 4th DCA 2011).

Affirmed.

STEVENSON, TAYLOR and CONNER, JJ., concur.


text:
    Kofi ADOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1181.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Lucero M. Saldana, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). See also Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

GROSS, TAYLOR and CONNER, JJ., concur.


text:
    Michael McAULIFFE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-944.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085 (Fla.2012).

POLEN, CONNER, JJ., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.


text:
    Patrick FUNCHESS, Appellant, v. STATE Of Florida, Appellee.
    No. 4D12-824.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Patrick Funchess, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Stano v. State, 520 So.2d 278 (Fla.1988); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011); Gidney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006).

STEVENSON, CIKLIN and CONNER, JJ., concur.


text:
    Leslie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-818.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Leslie Smith, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

GROSS, TAYLOR and GERBER, JJ., concur.


text:
    Trenton GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4627.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Roy DIXON, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-4614.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins 96 So.3d 412 (Fla.2012).

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Merilyn FLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4587.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, CONNER, JJ., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.


text:
    Jerry MARSHALL, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-4362.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085, 2012 WL 5273325 (Fla. Oct.23, 2012).

WARNER, STEVENSON and HAZOURI, JJ., concur.


text:
    Michael BAZEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3352.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, 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.

Affirmed. See Yaun v. State, 898 So.2d 1016 (Fla. 4th DCA 2005).

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Harold Dean DOMBROWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3178.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gutierrez v. State, 731 So.2d 94 (Fla. 4th DCA 1999); State v. Adkins, 96 So.3d 412 (Fla.2012).

TAYLOR, CIKLIN and LEVINE, JJ., concur.


author: GERBER, J.

text:
    Nicolaos TERZIS, Appellant, v. POMPANO PAINT AND BODY REPAIR, INC., Appellee.
    Nos. 4D11-2155, 4D11-4939.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.

      Maurice Graham, Oakland Park, for appellant.
    Keith T. Grumer of Grumer & Macaluso, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The plaintiff appeals from a final order dismissing with prejudice his third amended complaint for breach of an oral contract. The plaintiff argues the circuit court erred in finding, at the motion to dismiss stage, that the oral contract violated the statute of frauds. We agree with the plaintiff and reverse.

In the third amended complaint, the plaintiff alleged the following facts. He entered into the oral contract with the defendant sometime in 2008 to store and secure his boat for $100 per month on a month-to-month basis. The defendant agreed to supply twenty-four hour security and keep the boat free from damage or theft. The boat was worth $175,000. The plaintiff fulfilled all of his obligations under the contract through June 9, 2009. On that date, the defendant breached the contract by failing to provide adequate security, as the boat was stolen. The sheriffs office recovered the boat’s hull minus the engines, which were torn out along with the cables and wiring connecting the engines to the steering column. The damage reduced the boat’s value to approximately $36,000. The plaintiff recovered that amount in mitigating his loss. The plaintiff sought to recover the boat’s lost value from the defendant.

The defendant moved to dismiss the third amended complaint with prejudice. In the motion, the defendant argued: (1) the oral contract violated the statute of frauds; (2) the contract lacked consideration; (8) the third amended complaint failed to state a cause of action for breach of contract; and (4) the plaintiff lacked standing because he sold the boat’s hull and recovered $36,000 in mitigating his loss.

The circuit court held a hearing on the motion. The plaintiff argued that the oral contract did not violate the statute of frauds because he performed the contract by paying the defendant for every month during which he kept the boat with the defendant. The plaintiff also argued that the contract was supported by consideration, that he stated a cause of action for breach of contract, and that he had standing to recover the lost value of the boat.

At the end of the hearing, the court addressed only the argument regarding the statute of frauds. After addressing that argument, the court announced that it was granting the motion to dismiss with prejudice. The court later entered a written order to that effect. The court also granted the defendant’s motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (2010). The court later issued a written order setting the amount of those fees.

The plaintiff appealed both orders. The plaintiff primarily argues the circuit court erred in finding, at the motion to dismiss stage, that the oral contract violated the statute of frauds. Our review is de novo. See Fresh Capital Fin. Servs., Inc. v. Bridgeport Capital Servs., Inc., 891 So.2d 1142, 1143-44 (Fla. 4th DCA 2005) (appeal of an order of dismissal based on the statute of frauds is reviewed de novo).

We conclude the court erred in finding, at the motion to dismiss stage, that the oral contract violated the statute of frauds. The statute of frauds provides, in pertinent part:

No action shall be brought ... whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person ... or upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith....

§ 725.01, Fla. Stat. (2008). Case law interpreting the statute of frauds further has held that “when no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.” DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So.3d 313, 327 (Fla. 4th DCA 2010) (citation and quotation omitted), rev. granted, 47 So.3d 1288 (Fla.2010).

However, “[t]he general rule is that an oral contract for an indefinite time is not barred by the Statute of Frauds. Only if a contract could not possibly be performed within one year would it fall within the statute.” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (citation and quotations omitted). Moreover, “full performance by one party to the contract works to remove an oral agreement from the purview of the statute of frauds.” 101 Monument Rd., Inc. v. Delta Prop. Mgmt., Inc., 993 So.2d 181, 182 (Fla. 4th DCA 2008) (citation omitted).

Here, the plaintiffs third amended complaint did not allege the parties agreed on any time for the complete performance of the oral contract or that the parties intended that it should extend for a longer period than a year. Instead, the reasonable inferences arising from the complaint suggest that the oral contract was for an indefinite time and could be performed within one year. See Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla.2009) (“For ... purposes of a motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.”) (emphasis, citations, and quotations omitted). Further, the plaintiff alleged that he fully performed the contract by paying the defendant on a month-to-month basis to store and secure his boat. Thus, the oral contract fell outside the purview of the statute of frauds, at least for purposes of reviewing the defendant’s motion to dismiss. Cf. Fresh Capital, 891 So.2d at 1144-45 (reversing granting of motion to dismiss where, “[a]s alleged in the second amended complaint, [the plaintiffs] referral of each client to [the defendant] amounted to a separate contract which [the plaintiff] fully performed at the time of the referral”) (footnote omitted).

Seeking to avoid reversal, the defendant argues that the court’s order dismissing the complaint with prejudice was correct for the other reasons argued in the motion to dismiss. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). According to the defendant, the contract lacked consideration, the third amended complaint failed to state a cause of action for breach of contract, and the plaintiff lacked standing because he sold the boat’s hull and recovered $86,000 in mitigating his loss.

We disagree with all three arguments. First, the contract was supported by consideration. In order for a contract to be supported by consideration, “[i]t is not necessary that a benefit should accrue to the person making the promise. It is sufficient that something of value flows from the person to whom it is made, or that [the person] suffers some prejudice or inconvenience and that the promise is the inducement to the transaction.” Real Estate World Fla. Commercial, Inc. v. Piemat, Inc., 920 So.2d 704, 706 (Fla. 4th DCA 2006) (citation and quotation omitted). Here, something of value flowed from the plaintiff, who suffered prejudice based on the defendant’s promise. As alleged in the third amended complaint, the plaintiff paid the defendant $100 per month, in exchange for the defendant’s promise to store the plaintiff’s boat and keep it free from damage or theft. The plaintiff was prejudiced when the defendant allegedly allowed the boat to be stolen from its storage facility.

Second, the third amended complaint stated a cause of action for breach of contract. “The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.” Merin Hunter Codman, Inc. v. Wackenhut Corr. Corp., 941 So.2d 396, 398 (Fla. 4th DCA 2006) (citation and quotations omitted). Here, the plaintiff alleged those elements. He alleged the existence of a valid contract whereby he paid the defendant $100 per month to store his boat and keep it free from damage or theft. He alleged that the defendant materially breached the contract by allowing the boat to be stolen from the defendant’s storage facility. Lastly, he alleged damages measured by the lost value of the boat’s original condition minus the amount which he recovered by selling the hull before he filed suit. Thus, the plaintiff alleged sufficient ultimate facts to show that he is entitled to relief. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.”) (citation and quotation omitted).

Third, the plaintiff had standing. “To satisfy the requirement of standing ... individuals must allege some threatened or actual injury resulting from the putatively illegal action.” Olen Props. Corp. v. Moss, 981 So.2d 515, 517 (Fla. 4th DCA 2008) (citations and quotations omitted). Here, the plaintiff alleged an actual injury resulting from the putatively illegal action. Specifically, the plaintiff alleged that the defendant breached its contract to keep his boat free from damage or theft, which caused him damages.

We do not address the defendant’s remaining arguments for affirmance, as those arguments go beyond the four corners of the third amended complaint. See Mitleider v. Brier Grieves Agency, Inc., 53 So.3d 410, 412 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss, this court’s gaze is limited to the four corners of the complaint.”) (citation and quotation omitted).

Because we reverse the circuit court’s order granting the defendant’s motion to dismiss with prejudice, we also reverse the court’s order awarding the defendant attorney’s fees pursuant to section 57.105(1), Florida Statutes (2010).

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and LEVINE, JJ„ concur.


author: POLEN, J.

text:
    Daniel LEBRON, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-2270.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   POLEN, J.

We reverse the defendant’s conviction and sentence for delivery of cocaine because we find that the trial court erred in the following: (1) by sustaining the State’s hearsay objection to testimony that was admissible non-hearsay; (2) by sustaining the State’s relevancy objection to testimony of LeBron’s work history, which was being offered to demonstrate the defendant’s lack of predisposition to commit the crime charged; (3) by refusing to instruct the jury that the State had to prove delivery to the detective, as was specifically alleged in the information; and (4) improperly initiating a plea dialogue. We are not persuaded by the defendant’s other arguments on appeal.

I. Factual Background

The State charged LeBron with delivery of cocaine, specifically alleging delivery to the undercover detective who was in the car with the confidential informant and LeBron during the transaction at issue. LeBron’s defense was that (1) he was entrapped by the informant, and (2) he delivered the cocaine to the informant, and not to the detective as was alleged in the information.

Before the start of the trial, the court initiated the following discussion:

THE COURT: State, have you made a plea offer in this case?
THE STATE: No, I haven’t made an offer just with this case.
THE COURT: Where does he score?
THE STATE: He scores 48.9 points combined but that is on both cases. The score sheet is prepared with both open cases.
THE COURT: Okay. [Defense Counsel], is your client interested in entering in any type of plea in this case here today?
DEFENSE COUNSEL: No. But just out of curiosity, that is a combined score, does he score under 44 on the one delivery case?
THE STATE: He would.
DEFENSE COUNSEL: So was there, just for the record, for no other reason, an offer based on that individual score?
THE STATE: No. Both combined.
THE COURT: I can’t force them to make an offer, [Counsel].
What I can tell you is if your client pled today on this case, I would be inclined to give him probation, if that is where he scores on the delivery of cocaine case.
I would have to look at the facts, but that would be where I would go. But I can’t make him any promises to what would happen with the next case.
DEFENSE COUNSEL: Understood.
THE COURT: 14.85 months Florida State Prison. That is the bottom of the guidelines on the delivery case?
Mr. LeBron, do you want that? Do you want the bottom of the guidelines because if you do I will give you the bottom of the guidelines right now.
MR. LEBRON: Bottom of the guidelines is?
THE COURT: 14.8 months.
MR. LEBRON: I would have to talk to my attorney.
THE COURT: Well, now is the time. If you want the bottom of the guidelines, you can have it now,„ otherwise we are going forward.
DEFENSE COUNSEL: I don’t recommend it.
MR. LEBRON: No.
THE COURT: All right. It is your decision to make, Mr. LeBron. I am not trying to twist your arm.

The case then proceeded to trial.

The undercover detective testified that the informant had a pending charge, and when the informant was arrested, he named two targets: LeBron and a juvenile. The informant called LeBron and arranged for a deal with LeBron about a week and a half before November. Le-Bron agreed to the deal, but did not show up; so nothing happened at that time.

On November 30, the detective was undercover as a passenger of a car driven by the informant. LeBron pulled up next to them and got into the backseat behind the informant. The detective testified that LeBron dropped a baggy of cocaine over the armrest and it landed in the detective’s lap.

After the State rested, LeBron testified on his own behalf. He said that he worked for a bank for the last three years. Seven years before this trial, while in high school, he lived with his father who had a drug problem. During this time period, LeBron was arrested multiple times. As a result, he had nine felony convictions. After Le-Bron’s stepfather entered his life, LeBron got a job with an alarm company and then went to work in banking.

When LeBron said he had been working for the last five years, the State made a relevancy objection. Defense counsel argued that LeBron’s work history went to the issue of predisposition for his entrapment defense, but the court sustained the objection.

LeBron testified that he met the informant four years prior, and the two became acquaintances. They became close, and the informant started asking if LeBron could get him cocaine. LeBron testified that he was trying to leave that lifestyle and did not want to get in any more trouble. The informant, nonetheless, kept pursuing this for months.

LeBron testified that the informant knew LeBron was going through a tough financial situation, and that the informant kept telling him “well, wouldn’t this help you out with the move, wouldn’t this help you out with your financial situation.” Le-Bron testified that the informant requested drugs repeatedly and LeBron always said no. LeBron said he eventually succumbed to the pressure and arranged for a meeting. LeBron added that he did not show up to the meeting, however, because it was not something he wanted to do. After missing this initial meeting, LeBron said that the informant continued to call him.

When defense counsel began to question LeBron about what the informant would say to him, the State made a hearsay objection. At side bar, defense counsel said that he should be allowed to “get it in with the [confidential informant] how much the confidential informant persuaded him.” Counsel continued: ‘Tour Honor, in all due respect how can I move forward on an entrapment defense if my client can’t testify to the actions and words and inducement of the confidential informant?” The court sustained the State’s objection and limited testimony to the conversations had on the day of the transaction and the week leading up to the transaction. The court allowed this limited testimony based on the rule of completeness, because the State had previously inquired into these conversations.

LeBron testified that he “eventually succumbed” to the pressure; and on November 30, he drove up and gave the baggie to the informant (not to the detective), and the informant then paid LeBron. LeBron stated that he was not given any money by the detective, and was not talking to her, even though she asked about money.

In closing argument, defense counsel relied primarily on the claim that LeBron was entrapped; but counsel also specifically argued to the jury that it had to acquit LeBron if the State did not prove that he delivered the cocaine to the detective, as was alleged in the information. The State objected that this argument was a misstatement of the law, and the court agreed.

During deliberations, the jury sent a question to the court asking: “If it is determined that the alleged delivery was not to [the detective], must we return a not guilty verdict?” Over defense counsel’s objection, the court refused to instruct the jury that the State had to prove delivery to the detective as alleged in the information, and said it would simply read to the jury that the State had to prove a delivery. The court then instructed the jury:

To prove the crime of delivery of cocaine, the state must prove the following three elements beyond a reasonable doubt:
One, Daniel Peter LeBron delivered a certain substance. Two, the substance was cocaine. Three, Daniel Peter Le-Bron had knowledge of the presence of the substance. Deliver or delivery means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

LeBron was subsequently convicted of the crimes charged and sentenced to fifteen months in prison followed by two years of community control, followed by three years of probation with no early termination.

II. Analysis

We find that the trial court erred in the following: (1) y sustaining the State’s hearsay objection to testimony that was admissible non-hearsay; (2) by sustaining the State’s relevancy objection to testimony of LeBron’s work history, which was being offered to demonstrate the defendant’s lack of predisposition; (3) by refusing to instruct the jury that the State had to prove delivery to the detective, as was specifically alleged in the information; and (4) improperly initiating a plea dialogue.

1.

We first note that the defendant’s claim that the trial court improperly sustained the State’s hearsay objection was preserved for appeal because defense counsel sufficiently stated a non-hearsay purpose for offering the testimony. An issue is properly preserved for appeal when “[the] issue, legal argument or objection to evidence ... is timely raised before, and ruled on by, the trial court, and is sufficiently precise that it fairly apprised the trial court of the relief sought and grounds therefor.” Corona v. State, 64 So.3d 1232, 1242 (Fla.2011) (quoting § 924.051(l)(b), Fla. Stat. (2002) (internal quotations omitted)). “[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); accord Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992). While “no magic words are needed [to preserve the error], the articulated concern must be ‘sufficiently specific to inform the court of the perceived error.’ ” Corona, 64 So.3d at 1242. “The purpose of this rule is to place the trial court on notice that an error may have been committed and therefore provide the trial court with an opportunity to rectify the error prior to any appellate review.” Fleitas v. State, 3 So.3d 351, 355 (Fla. 3d DCA 2008) (citing Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004)).

In this case, the defendant contends that the arguments made side bar, specifically “I think I can get it in with the [confidential informant] how much the confidential informant persuaded him,” were sufficient to preserve this issue for appeal. We agree. Although defense counsel did not use any “magic word” while making his non-hearsay argument, defense counsel did proffér to the trial court that the statements were not going to be used for their truth (i.e., that LeBron actually had financial troubles), but instead were going to be used for the non-hearsay purpose of showing “how much the [confidential informant] persuaded [LeBron].” This satisfies the requirement that “the articulated concern ... be ‘sufficiently specific to inform the court of the perceived error.’ ” Corona, 64 So.3d at 1242; see also Harden v. State, 87 So.3d 1243, 1245 (Fla. 4th DCA 2012).

After reviewing the trial court’s ruling on the State’s hearsay objection, we also find the trial court erred in sustaining the State’s objection because the proffered testimony was not being offered for the truth of the matter asserted, but was offered only to show the persuasive effect that the statements had on LeBron.

Any testimony offered to show the state of the defendant’s mind, rather than offered to prove the truth of the matter asserted, is admissible as non-hearsay. Flynn v. State, 351 So.2d 377, 378 (Fla. 4th DCA 1977). In Flynn, the defendants were charged with delivery of cannabis, and they asserted the entrapment defense alleging that they “did what they did only to help out a troubled friend [who happened to be] the [police] informant.” Id. The trial court refused to allow testimony regarding a discussion had between a co-defendant and the police informant involved in setting up the delivery. Id. This court held that:

To disallow the Defendants to testify about the conversations, as they recalled them, was to remove the heart of their defense.... [T]he error was not in disallowing the informant’s testimony but in not permitting the Defendants to explain their motives and states of mind at the time of the alleged inducement. The testimony offered was not offered to prove the truth of the informant’s statements but to attempt to show the state of the Defendants’ minds.... We reverse and remand for a new trial because of this error.

Id. (citing Brown v. State, 299 So.2d 37 (Fla. 4th DCA 1974)).

In this case, the State objected to Le-Bron’s testimony about the conversations LeBron had with the confidential informant prior to November 30th. At sidebar, defense counsel stated that these statements were to be used to show “how much the confidential informant persuaded [Le-Bron].” These statements were not being offered for the truth of the matter(s) asserted by the informant, but were instead being offered to show their persuasive effect on LeBron. In accordance with Flynn, we hold that the court erred in sustaining the State’s hearsay objection. See Flynn, 351 So.2d at 378-79; see also Ortiz v. State, 654 So.2d 1002, 1003 (Fla. 4th DCA 1995) (“[The] testimony would have been extremely relevant to the issue of whether the informant caused appellant to engage in illegal conduct by employing methods of persuasion which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it.”). Based on the foregoing, the case is reversed and remanded for a new trial as to this issue.

2.

The trial court erred in sustaining the State’s relevancy objection to testimony regarding LeBron’s work history because said testimony was relevant to his entrapment defense. Relevant evidence “is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). More specifically, evidence “tending] to show ... the defendant’s lack of predisposition tis] ... relevant to [a] defense of entrapment.” Cotton v. State, 763 So.2d 437, 440 (Fla. 4th DCA 2000). And most important to this case, evidence that a defendant “was steadily employed in an honest job” is relevant when considering a defendant’s lack of predisposition. United States v. Rodriguez, 858 F.2d 809, 816 (1st Cir.1988).

In this case, defense counsel asked Le-Bron about his work history during the last five years. The State objected, and the following argument was made at side bar:

THE COURT: Explain how work history goes to dispossession [sic]?
DEFENSE COUNSEL: Criminal history is consistent with unemployment. At the time he had no means of income so he might have been — he was conducting himself to support the habit. For the last five years, he has remained arrest free. He was working diligently and has shown a dramatic change in lifestyle and less of a predisposition to commit a crime.
THE COURT: I don’t find it is relevant to—
DEFENSE COUNSEL: I will move on, anyway, so.

Because LeBron asserted an entrapment defense in this case, evidence of his steady work history over a period of five years at least tends to show the defendant’s lack of predisposition. See Rodriguez, 858 F.2d at 816 (considering evidence that the defendant “was steadily employed in an honest job”). The State is certainly free to argue that little weight should be given to LeBron’s steady employment during that five-year period, especially in light of his lengthy criminal record. The defense, however, should not be prohibited from arguing that LeBron was no longer predisposed to commit crime because “for the last five years [LeBron] has remained arrest free [and] was working diligently and has shown a dramatic change in life style and less of a predisposition to commit crime”; which was counsel’s relevancy argument made to the trial court.

Holding that such evidence is not relevant to an entrapment defense would create a situation where defendants with criminal records would not be allowed to demonstrate that they have been successfully rehabilitated and are no longer predisposed to commit crime — a “once predisposed, always predisposed” scenario. Contra Ortiz, 654 So.2d at 1003 (“Despite [the Defendant’s] past connection to the drug world, the jury still could have believed that [the Defendant] was not predisposed to commit this particular crime.”). The trial court, therefore, abused its discretion by ruling that LeBron’s work history was not relevant to his claim of entrapment; specifically, such evidence has a tendency to prove LeBron’s lack of predisposition to commit the crime charged.

This error was not harmless. See Hughes v. State, 36 So.3d 816, 817 (Fla. 1st DCA 2010). Like the defendant in Hughes, LeBron had one main theory of defense: entrapment relying on the proposition that — despite his past criminal history — he was no longer predisposed to commit crime. Therefore, the State cannot prove beyond a reasonable doubt that the exclusion of this testimony “had no effect on the jury’s verdict despite the fact that the jury heard testimony about some of [LeBron’s work history].” See id. Accordingly, we reverse and remand for a new trial based on this issue.

3.

The trial court erred in refusing to instruct the jury that the State had to prove delivery to the undercover detective, as was specifically alleged in the information. “When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction.” Brickley v. State, 12 So.3d 311, 313 (Fla. 4th DCA 2009). The failure to give a requested jury instruction is an error if “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Id.

LeBron relies on State v. Shaw, 415 So.2d 93 (Fla. 4th DCA 1982), to support his contention that the jury instruction should have required the State prove that the cocaine was actually delivered to the undercover detective, as was alleged in the information. We agree.

In Shaw, the defendant was charged by information with the delivery of metha-qualone to Detective David Ecklund. At trial, the State proved that the methaqual-one was actually delivered to Officer Robert Gren. Alleging that the variance between the offense charged and proved was material, the defendant moved for a judgment of acquittal at the conclusion of her defense, which was granted. The State then filed a second information, charging the defendant with delivery to Officer Gren. The defendant filed a motion to dismiss the second information, arguing double jeopardy, and that motion was granted. On appeal, this court reversed the dismissal of the second information because “quite clearly, the facts as alleged in the second information — that appellee had delivered methaqualone to Officer Gren — would not have supported a conviction of the offense charged in the first information — that [the defendant] had delivered methaqualone to Detective Ecklund.” Id. at 93-94.

The Florida Supreme Court similarly notes that:

The general rule is where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.... The indictment or information may ... allege[ ] them in the conjunctive and proof of one [will suffice] but if [only] one of the state of facts is alleged, it cannot be established by proof of the other.

Long v. State, 92 So.2d 259, 260 (Fla.1957).

In this case, the charging document alleged that LeBron “did unlawfully deliver to [the undercover detective] a controlled substance.” A part of the defendant’s theory of defense, which was argued at closing, was that the cocaine was delivered to the confidential informant, and not to the undercover detective as was alleged in the information. During its deliberations, the jury even sent a question to the court asking, “[i]f it is determined that the alleged delivery was not to [the undercover detective], must we return a verdict of not guilty?”

At that point, defense counsel requested the judge to instruct the jury that “the state’s burden is to prove the allegations in the charging document,” to which the court replied “that is not the law.” The court then recalled the jury and instructed thé jurors that “[d]eliver or delivery means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

The trial court’s failure to give the requested jury instruction in this case cannot escape the law of this jurisdiction, specifically Shaw and Long. If, as in Shaw, “the facts as alleged in [one] information — that [the defendant] had delivered [a controlled substance] to [a specific person] — would not have supported a conviction of the offense charged in [a separate] information — [alleging] that [the defendant] had delivered [the controlled substance] to [a different person],” then the facts alleged in the information in this case — that LeBron delivered cocaine to the undercover detective — cannot support a conviction if the jury finds that he delivered the cocaine to a different person. See Shaw, 415 So.2d at 94 (emphasis added). Further, and like Long, because delivery “may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment [or information].” Long, 92 So.2d at 260. In this case, the State’s “information may have alleged [delivery] in the conjunctive and proof of [delivery to] one would have sufficed[,] but [the State only alleged] one of the state of facts ..., [and the offense] cannot be established by proof of the other.” Id.

Accordingly, the defendant’s request for a special jury instruction should have been granted because (1) the special instruction was supported by evidence that delivery was actually made to someone other than the undercover detective; (2) the standard instruction did not adequately cover the defense’s theory that delivery was not made to the detective, as was alleged in the information; and (3) the special instruction was in accordance with the law of this state, specifically Shaw and Long. See Brickley, 12 So.3d at 313. Therefore, the trial court erred in denying the special instruction and the case should be reversed and remanded for a new trial. On remand, the State is free to amend its information to allege delivery to either the informant, the detective, or both.

4.

The sentence violates due process under Wilson v. State, 845 So.2d 142 (Fla.2003). A trial court “must not initiate a plea dialogue; rather at its discretion, it may (but is not required to) participate in such discussions upon request of a party.” State v. McMahon, 47 So.3d 368, 369 (Fla. 4th DCA 2010), aff'd, 94 So.3d 468 (Fla. 2012) (quoting State v. Warner, 762 So.2d 507, 513 (Fla.2000) (emphasis added)). The other factors that should be considered in determining whether a sentence was the result of judicial vindictiveness include but are not limited to:

(1) [W]hether the trial judge initiated the plea discussions with the defendant in violation of Warner; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Wilson, 845 So.2d at 156 (footnotes omitted). The Wilson court further stated that “[a]s regards factors (1) and (2) ... these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.” Id.

In this case the first Wilson factor is met because the trial court did initiate plea discussions by stating “7 can’t force [the State] to make an offer. ... What I can tell you is if your client pled today on this case, I would be inclined to give him probation, if that is where he scores on the delivery of cocaine case[;]” and also by stating, “Do you want the bottom of the guidelines, because if you do 7 will give you the bottom of the guidelines right now.” The second Wilson factor is met because the trial judge implied that Le-Bron would receive a harsher sentence by going to trial instead of accepting the minimum sentence when it was offered.

Even if the third and fourth Wilson factors are not satisfied, the foregoing is sufficient to give rise to a presumption of vindictiveness. Wilson, 845 So.2d at 156. We hold that, while LeBron’s sentence may not have actually been the product of vindictiveness, it was nonetheless improper for the trial court to initiate a plea dialogue with the defendant, especially one during which the court implied that the defendant would possibly be subject to a harsher sentence by refusing to accept the court’s plea offer. Therefore, we hold that the trial court violated LeBron’s due process rights according to Wilson. See id. On remand, this case should be reassigned to a new judge in order to remove any presumption of vindictiveness.

III. Conclusion

Based on the foregoing, this case is reversed and remanded for a new trial in accordance with this opinion. The case shall be reassigned to a different judge on remand. We are not persuaded by Le-Bron’s other arguments on appeal.

Reversed and Remanded for a New Trial.

STEVENSON, J., and BONAVITA, AUGUST, Associate Judge, concur.

      . One of LeBron’s other arguments on appeal was that the statutory scheme under which he was convicted is unconstitutional. The Florida Supreme Court recently held, however, that Chapter 893 of the Florida Statutes is constitutional on its face. State v. Adkins, 96 So.3d 412 (Fla.2012).

      . The trial judge told LeBron: "If you want the bottom of the guidelines, you can have it now, otherwise we áre going forward."


author: DAMOORGIAN, J.

text:
    Emmory MOORE, Appellant, v. STATE Of Florida, Appellee.
    No. 4D10-5045.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.

      Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Emmory Moore appeals his conviction and sentence for one count of armed kidnapping, one count of carjacking with a firearm, one count of burglary of a dwelling while armed, one count of robbery with a firearm, and one count of aggravated battery with a deadly weapon. We reverse and remand for a new trial.

By way of background, Moore was charged and tried for his alleged involvement in a violent robbery and kidnapping. During Moore’s trial, the court admitted evidence of a collateral crime in order to rebut the defense’s argument of mistaken identity. Prior to admitting the evidence, the court held an evidentiary hearing where it determined that there was clear and convincing evidence proving that Moore committed the collateral crime. The jury found Moore guilty of all charges, and Moore was sentenced to life in prison.

After Moore’s convictions in this case, Moore was acquitted of the charges based on the collateral crime. Moore now challenges his conviction and sentence, arguing that his due process and double jeopardy rights were violated when the court introduced evidence of a collateral crime for which he was subsequently acquitted. The acquittal of the charges based on the collateral crime compels us to reverse for a new trial.

The instructive law originates in our supreme court’s holding in Burr v. State, 576 So.2d 278 (Fla.1991) (Burr II). There, the defendant was tried and convicted of first degree murder for killing a convenience store clerk during the commission of a robbery. Burr v. State, 550 So.2d 444, 445 (Fla.1989) (Burr I). During the trial, three other convenience store clerks testified that the defendant robbed them in a similar manner to the clerk who was ultimately killed. Id. Subsequently, the defendant was acquitted of one of the collateral convenience store robberies. Id. Relying on another Florida Supreme Court case where the court held it was error to introduce a collateral crime for which the defendant had previously been acquitted, the Burr II court held that it was also error to admit evidence of a collateral crime for which the defendant was subsequently acquitted. Burr II, 576 So.2d at 280 (citing State v. Perkins, 349 So.2d 161, 163-64 (Fla.1977)).

In Perez v. State, 801 So.2d 276 (Fla. 4th DCA 2001), this Court was faced with the same issue presented here by Moore. There, we held that Burr II compelled reversal when the trial court admitted evidence of a collateral crime for which the defendant was subsequently acquitted. Id. at 277. The First District followed suit, holding that Burr II requires reversal when evidence of a collateral crime is presented at trial and the defendant is subsequently acquitted of the collateral crime. Hines v. State, 983 So.2d 721, 725 (Fla. 1st DCA 2008). However, it did not arrive at its conclusion lightly, reasoning:

Accordingly, we conclude, as did the Fourth District in Perez, that Burr II requires that we reverse appellant’s conviction and remand for a new trial. Although we do so, we are troubled by the apparent illogic of such a result....
As previously discussed, Burr II relied exclusively on Perkins, and Perkins, in turn, relied on the decision of the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which held that the doctrine of collateral estoppel was a requirement of due process of law embodied in the Fifth Amendment’s guarantee against double jeopardy. However, as the Court pointed out in Ashe, “ ‘[cjollat-eral estoppel’ ... means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (emphasis added). The doctrine of collateral estoppel does not require reversal of a prior lawsuit because an issue of ultimate fact necessary to the outcome of that lawsuit was determined differently in a subsequent lawsuit. Such being the case, it does not appear to us that the authority relied on in Burr II for the result reached provides any support for that result. While policy arguments might be made both for and against the result in Burr II, it seems to us that, ultimately, the result must rest on a choice from among the countervailing policy considerations, rather than on constitutional considerations. One such important policy consideration, it seems to us, is the need for finality in judgments.

Id. at 725 (internal citations omitted).

The First District then certified a question of great public importance regarding the holding of Burr II to our supreme court. Id. The supreme court accepted jurisdiction only to relinquish it two years later. State v. Hines, 990 So.2d 1060 (Fla.2008) (accepting jurisdiction); State v. Hines, 26 So.3d 1289 (Fla.2010) (discharging jurisdiction). We share the First District’s concern with the rule created by Burr II, especially in light of the fact that a trial court cannot admit evidence of a collateral crime without first determining that the defendant’s involvement in the collateral crime is proven by clear and convincing evidence. McLean v. State, 934 So.2d 1248, 1262 (Fla.2006) (“[Bjefore even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.”). However, because Burr II is controlling and our supreme court has declined to alter its holding, we must reverse.

Reversed and Remanded.

TAYLOR, J., and CORLEW, REGINALD, Associate Judge, concur.