text:
    Elizabeth WILCOXON f/k/a Elizabeth Moller, Appellant, v. Martin MOLLER, Appellee.
    No. 4D12-4076.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Hugo A. Rodriguez of Law Offices of H.A. Rodriguez, P.A., Fort Lauderdale, for appellant.
    Mark A. Levy and Marissa J. Pullano of Brinkley Morgan, Fort Lauderdale, for ap-pellee.
   DAMOORGIAN, C.J.

Elizabeth Wilcoxon (“Former Wife”) appeals the trial court’s post-dissolution order holding her in contempt, modifying a time-sharing agreement, and awarding attorney’s fees in favor of her Former Husband, Martin Moller. We affirm in part and reverse in part.

Former Husband and Former Wife were married in 1998 and divorced in January of 2009. Their marriage produced two minor children. In conjunction with the dissolution of their marriage, the parties entered into a Marital Settlement Agreement (“MSA”). The MSA incorporated a Time-Sharing Agreement (“TSA”) in which the parties agreed to 50/50 time-sharing. The parties also agreed that either parent could enroll the children in extracurricular activities “so long as it does not interfere with the other parent’s time-sharing provided herein, unless mutually agreed to in writing or permitted by Court order.” The TSA also provided that whichever parent was with the children was responsible for transporting the children to their extracurricular activities. Former Husband and Former Wife later entered into an addendum to the MSA where they agreed to communicate regarding co-parenting responsibilities “utilizing Our Family Wizard or SMS text absent an emergency.”

In regard to healthcare, the MSA required Former Husband to maintain the children’s hospital and medical insurance policies and Former Wife to maintain their dental and vision insurance policies. The parties agreed to share the costs of health coverage for the children equally. Additionally, the MSA provided for prevailing party fees in the event that either party had to seek court enforcement.

Former Husband’s First Motion for Contempt

More than two years after their divorce was finalized, Former Husband filed an “Expedited Motion to Enforce, for Contempt, and For Sanctions and Request for Special Set Hearing.” By that time, Former Wife was remarried and the children were insured at no additional cost under her new husband’s employer-offered plan. In his motion, Former Husband asserted that Former Wife was “willfully and maliciously” non-compliant with the MSA in that she: 1) “abjectly refused to provide the Former Husband with vital health-related and health insurance-related information for the children” such as their health insurance cards; 2) terminated her subscription to Our Family Wizard; 3) failed to discuss and give reasonable consent for the children’s extracurricular activities; and 4) allowed her current husband to “badmouth” Former Husband in front of the children.

A general magistrate heard Former Husband’s motion on September 16, 2011. Based on the arguments and testimony presented, the magistrate found that: 1) Former Wife failed to maintain her subscription to Our Family Wizard; 2) Former Wife failed to provide Former Husband with insurance cards for the children; and 3) it was not in the best interest of the children to have Former Wife’s current husband near Former Husband. Based on these findings, the magistrate recommended the following:

• “Former Wife shall have five (5) days from September 16, 2011 (September 22, 2011) to re-subscribe to OFW, and that the parties shall use this resource frequently and shall provide responses within 48 hours to all communications.”
• “The Former Wife shall have five (5) days from September 16, 2011 to provide Former Husband with insurance cards, provider book, and any other necessary information incident to the children’s health and medical insurance.”
• “The Former Wife’s current husband shall not be present anywhere that the Former Husband is, particularly in the presence of the children. In the event that there are events or activities of any sort involving the minor children, if the Former Husband is in attendance, the Former Wife’s current husband shall not be.”

Despite the September 22, 2011 deadline for compliance imposed in the recommendation, the magistrate did not actually file her report and recommendation until October 18, 2011, and the court did not ratify it until November 15, 2011.

Former Husband’s Second Motion for Contempt

On April 17, 2012, Former Husband filed “Former Husband’s Motion to Enforce, for Contempt, and for Sanctions.” In this motion, Former Husband alleged that Former Wife ignored and violated the directives set forth in the court’s November 15, 2011 order ratifying the magistrate’s recommendations in the following manners: 1) Former Wife did not re-subscribe to Our Family Wizard on or before September 22, 2011; 2) Former Wife did not provide Former Husband with the children’s health insurance identification cards until thirty-five days after the policy initiation; 3) Former Wife failed to prohibit her current husband from attending an event at the children’s school which Former Husband also attended; 4) Former Wife “failed to allow the children to participate in several extracurricular and school related activities”; and 5) Former Wife failed to pay Former Husband her share of the children’s health expenses. Based on this alleged behavior, Former Husband requested that the court hold Former Wife in contempt and impose “sanctions for her contempt.” As a sanction for contempt, Former Husband requested that “Former Wife’s time-sharing be changed so that the minor children exercise time-sharing with Former Husband every Wednesday and Thursday overnight in order to ensure that the children attend all extracurricular activities and school related functions” as well as “all attorney’s fees and costs incurred to prepare and prosecute this motion.”

The court heard Former Husband’s second motion on August 3 and August 6, 2012. Former Husband testified that Former Wife refused to bring the children to certain extracurricular activities during her visitation time. With respect to Former Wife’s current husband, Former Husband testified that the current husband attended two of the children’s school events in violation of the court’s order. Relating to health insurance, Former Husband testified that he was required to maintain the children’s insurance through his employer under the MSA, but admitted that he was not able to do so “a couple years back” so Former Wife added the children to her current husband’s employer’s policy. Former Husband did not financially contribute to the costs of insurance through Former Wife’s current husband. Former Husband testified that he recently had the opportunity to add the children back to his work policy, and asked the court to order Former Wife to pay half of the premium policies pursuant to the MSA.

Former Wife admitted that her current husband attended an event which Former Husband also attended, but maintained that she did not ask or encourage her current husband to attend. She made it clear to her current husband that he was not supposed to be anywhere near Former Husband, but explained: “There is no restraining order, all I can say is, [...] you are not supposed to be there ... How am I supposed to inhibit somebody from showing up?” She also testified that the extracurricular events missed by her children during her time-sharing were per their requests. She maintained that she never let dental and vision insurance for the children lapse. As far as her Our Family-Wizard use, Former Wife testified that she used it from 2009 until 2011 when her subscription lapsed because it was too expensive for her to maintain. She re-subscribed after the court ordered her to and after a family member gave her money for her subscription.

The Court’s Order

Following the hearing, the court entered an order finding Former Wife in contempt for failing to re-subscribe to Our Family Wizard before September 22, 2011 and for “permitting her current husband to be in the general area of the Former Husband while at the minor children’s activities.” The court also found Former Wife in violation of the MSA “for having not used her best efforts to transport the children to their extracurricular activities.” As a sanction, the court modified the TSA by switching the days the parents had with the children, ordered Former Wife to cancel the children’s health insurance policies through her current husband and pay Former Husband for health insurance, and awarded a money judgment in the amount of $10,442.50 to Former Husband for sanctions and attorney’s fees. A portion of the award, $4,657.50, covered fees and costs incurred by Former Husband related to Former Wife’s failure to attend her depositions. The order did not make any findings or conclusions regarding Former Wife’s ability to pay the sanctions and attorney’s fees.

We find numerous errors in the trial court’s order.

The Contempt Ruling

“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). However, “‘[a] judge cannot base contempt upon noncompliance with something an order does not say.’ ” Id. (quoting Keitel v. Keitel, 716 So.2d 842, 845 (Fla. 4th DCA 1998)). Under such circumstances, the standard of review is de novo, not abuse of discretion. Id.

Generally, there are two types of contempt: civil and criminal. “[T]he purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). Thus, a party who is held in civil contempt can “purge” the contempt by doing as instructed. Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977). Further, the purge instructions must actually be feasible for the contemnor. Bowen, 471 So.2d at 1277-78.

“The purpose of criminal contempt, on the other hand, is to punish .... Because this type of proceeding is punitive in nature, potential criminal con-temnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings.” Id. at 1277 (citations omitted). Criminal contempt can either be direct or indirect. Bank of N.Y. v. Moorings at Edgewater Condo. Ass’n, Inc., 79 So.3d 164, 166 (Fla. 2d DCA 2012). “Direct criminal contempt sanctions are imposed for conduct that takes place in the judge’s presence while indirect contempt sanctions are imposed for conduct that takes place outside the judge’s presence.” Id. at 167.

In either the civil or criminal contempt scenario, a person cannot be held in contempt for violating a court’s order if the order is not sufficiently explicit or precise to put a party on notice of exactly what it must or must not do. Marcus v. Marcus, 902 So.2d 259, 262 (Fla. 4th DCA 2005). Further, a party cannot be held in contempt for non-compliance with a court order if the party did not have the ability to comply with the court order. Harris v. Hampton, 70 So.3d 747, 749 (Fla. 4th DCA 2011). Thus, before imposing contempt sanctions, a trial court must make an affirmative finding that the contemnor had the ability to comply with the court’s prior directive. Id.

The challenged order fails to state the nature of the contempt the trial court intended to impose. We hold that under either scenario, criminal or civil, the contempt order fails.

If the order is criminal in nature, then it must be for indirect criminal contempt since it was imposed for conduct which took place outside the judge’s presence. Bank of N.Y., 79 So.3d at 166. The trial court did not follow the necessary procedural safeguards prerequisite to entering an order of indirect criminal contempt. “An indirect criminal contempt proceeding must comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840.” Baker v. Green, 732 So.2d 6, 7 (Fla. 4th DCA 1999). Rule 3.840(a) requires the court to issue an order to show cause supported by an affidavit or sworn testimony. Id. “Where there is no affidavit or sworn testimony to support the issuance of an order to show cause, the failure to comply with the rule is fundamental error and a contempt order arising out of that proceeding may not stand.” Id. Here, the court did not enter an order to show cause and there was no affidavit or sworn testimony submitted to the court with Former Husband’s motion for contempt. Thus, the court did not comply with Florida Rule of Criminal Procedure 3.840 as required to enter an order of indirect criminal contempt.

Additionally, if the contempt order is for civil contempt, it also fails for procedural reasons. First, the order does not contain a purge provision, i.e., a provision allowing Former Wife to get herself out of contempt. Lo v. Lo, 878 So.2d 424, 426 (Fla. 3d DCA 2004). Second, the court did not make any findings that Former Wife had the ability to comply with the court’s November 15, 2011 order. Harris, 70 So.3d at 749 (explaining that before holding a party in contempt for failure to comply with a court order, the trial court must make an express and affirmative finding that the party actually had the ability to comply with its previous directive).

Finally, whether criminal or civil in nature, the original order was not specific enough as to what Former Wife’s duties were in regard to her current husband. A court cannot base contempt upon noncompliance with something an order does not say, and we will not read implications into an order to justify contempt. Marcus, 902 So.2d at 260 (reversing order of contempt against mother for non-compliance with time-sharing plan when child refused to visit father and time-sharing plan did not provide mother with instructions on what to do when child would not cooperate). The court’s November 15, 2011 order merely instructed that “[t]he Former Wife’s current husband shall not be present anywhere that the Former Husband is.” It is problematic enough that the court sought to hold Former Wife accountable for the behavior of another adult with his own free will, but even more so that the court failed to instruct Former Wife as to her obligations should her current husband refuse to listen to her. Accordingly, the court erred by holding Former Wife in contempt based on her current husband’s conduct.

Modification of the Parties’ Time-Sharing

We review the portion of the trial court’s order modifying the parties’ custody arrangement for an abuse of discretion. Ragle v. Ragle, 82 So.3d 109, 111 (Fla. 1st DCA 2011).

Since the court’s modification of the parties’ time-sharing schedule was a sanction for Former Wife’s non-compliance with the TSA, it follows that the sanction is only warranted if the evidence showed Former Wife did indeed fail to comply with the TSA. It did not. Although the TSA provides that the parent with the children is responsible for transporting the children to their extracurricular events, it also provides that neither parent can enroll the children in an extracurricular activity that would affect the other parent’s time-sharing without written consent from the other parent. The evidence established that Former Husband enrolled the children in extracurricular activities that overlapped with Former Wife’s time-sharing. However, there was no evidence that Former Husband ever obtained Former Wife’s written consent to enroll the children in these activities, thus triggering Former Wife’s transportation duties during her visitation time. Accordingly, the evidence did not establish that Former Wife violated the TSA.

This is not to say that the court was without the authority to modify the TSA absent a breach of the agreement. However, it could not do so absent a showing of “a substantial, material, and unanticipated change in circumstances and that the modification is in the best interest of the child.” § 61.13(3), Fla. Stat. (2012). The parties did not present any evidence establishing a substantial, material, and unanticipated change in circumstances, and thus the trial court erred in modifying the TSA.

Modification of the Parties’ Health Care Responsibilities Under the MSA

“The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.” Reilly v. Reilly, 94 So.3d 693, 696 (Fla. 4th DCA 2012) (quotations and citations omitted). “[A] court-approved marital settlement agreement is nothing more or less than a contract, and we will not rewrite terms that are clear and unambiguous.” Cole v. Cole, 95 So.3d 369, 371 (Fla. 3d DCA 2012).

Here, the MSA is unambiguous regarding the parties’ health insurance obligations: Former Husband agreed to maintain the hospital and medical insurance policies for the children and Former Wife agreed to maintain the dental and vision insurance policies for the children. Further, the parties agreed to “share equally in the cost of the foregoing insurance.” Despite the clear and unambiguous language of the MSA, the court ordered Former Husband to maintain the vision and dental insurance for the children. This was error as it was in direct conflict with the express terms of the Agreement. Further, there was no evidence establishing a change of circumstances supporting the court’s modification of the parties’ healthcare duties.

Attorney’s Fees Award

The trial court awarded Former Husband attorney’s fees as a sanction for Former Wife’s contempt, as the prevailing party to enforce the MSA, and as a sanction for Former Wife’s failure to appear at a deposition. As discussed above, we hold that the court erred when it found Former Wife in contempt and in violation of the MSA. Thus, its attorney’s fee award on these grounds must be reversed.

With regard to Former Husband’s fees for Former Wife’s failure to attend her deposition, the fee award was based on a previous order issued by the trial court in which the court found that Former Wife unjustifiably failed to attend her own deposition, and deferred its award of attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.380(d). Rule 1.380(d), in pertinent part, provides that “the court shall require the party failing to [appear at its own deposition] to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust.” As Former Wife did not appeal the trial court’s order finding that she unjustifiably failed to attend her deposition and Rule 1.380(d) mandates an award for fees and costs under such circumstances, we must affirm this portion of the court’s order.

For the foregoing reasons, we reverse the entirety of the court’s order except for the portion awarding Former Husband $4,657.50 in fees and costs related to Former Wife’s failure to attend her deposition. We direct the trial court to enter an amended final judgment consistent with this opinion.

Affirmed in Part and Reversed in Part.

MAY and FORST, JJ., concur.

      . Our Family Wizard is a subscription-based website which is designed as a medium for divorced or separated parents to communicate and manage issues regarding shared parenting.


source: Caselaw Access Project

author: DAMOORGIAN, C.J.

license: Public Domain

text:
    Derrick MURDOCK, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-4623, 4D12-4624.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Carey Haughwout, Public Defender, and Richard B. Greene, 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.
   DAMOORGIAN, C.J.

In this consolidated appeal, Derrick Murdock appeals the order revoking his probation and the judgments and sentences which resulted from the probation revocation. On appeal, Murdock argues that the trial court erred in permitting the state to cross-examine him in connection with the credibility of the state’s own witnesses. Additionally, Murdock points out that the order revoking his probation is deficient because the trial court failed to enter a written order specifying which conditions of probation were violated. We affirm the revocation of probation and the resulting judgments and sentences, but remand for the trial court to enter a written order.

Murdock was charged with violating the terms of his probation after being charged with committing lewd or lascivious battery on a victim between the ages of 12 and 16. Murdock denied committing the new law violation and demanded an evidentiary hearing.

At the hearing, the state presented evidence showing that Murdock’s DNA was found inside the victim. Murdock testified on his own behalf and denied ever meeting the victim. During cross-examination, the state asked Murdock the following:

State: So the CODIS system that said your DNA matched, the CODIS system was wrong according to you because you never had sex with her, right?
Murdock: Never had sex with her.
State: [The DNA analyst] who tested your DNA swab and compared it to the DNA profile she got from [the victim], she’s wrong according to you because you never had sex with her, correct?
Murdock: Yes.
State: And [the State’s expert] who looked at all the results and everything conducted by [the DNA analyst], he is also wrong because you never had sex with her, correct?
Murdock: Yes.

At the conclusion of the hearing, the trial court revoked Murdock’s probation and imposed concurrent state prison sentences.

“The standard of review in a probation revocation case is ‘abuse of discretion.’ ” Perez v. State, 801 So.2d 1001, 1001 (Fla. 4th DCA 2001). The standard of review of a trial court’s ruling on the scope of cross-examination is also abuse of discretion. Eliakim v. State, 884 So.2d 57, 60 (Fla. 4th DCA 2004) (citing White v. State, 817 So.2d 799, 806 (Fla.2002)).

“It is clearly error for one witness to testify as to the credibility of another witness.” Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001). The purpose of this prohibition is to avoid invading the province of the jury. See Seibert v. State, 923 So.2d 460, 472 (Fla.2006) (quoting Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993)). In this case, the state was not seeking to have Murdock testify as to the credibility of the state’s witnesses. Rather, the state sought to highlight the inconsistency between Murdock’s testimony that he never met the victim and the overwhelming evidence that Murdock’s DNA was found inside the victim. Accordingly, we find no error in the state’s cross-examination.

Murdock also contends that this case should be remanded because the trial court failed to render a written order memorializing its oral finding that Murdock willfully, materially, and substantially violated the terms of his probation. We agree. See Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (affirming the trial court’s order revoking the defendant’s probation but remanding the case with directions to enter a formal written order). A written order does not exist in this case. Accordingly, we remand for entry of a written order specifying the conditions of probation that were violated.

Affirmed and Remanded with instructions.

GERBER and CONNER, JJ., concur.

      . This appeal was consolidated because the challenged order revoking Murdock's probation applies to charges filed in two separate cases for delivery of cocaine and grand theft, respectively.


author: STEVENSON, J.

text:
    Marlon Anthony ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-778.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, 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.
   STEVENSON, J.

Marlon Anthony Ellison challenges his conviction for bribery by a public servant in violation of section 838.015(1), Florida Statutes (2008). The defendant was a corrections officer at a prison and employed by a private company that operated the prison pursuant to a contract with the State. The charges were filed following a prison corruption investigation during which a confidential informant advised police that the defendant was willing to smuggle contraband into the prison for a fee. The defendant argues that he cannot be convicted for a violation of section 838.015 because he was not a “public servant” within the meaning of the statute. As explained below, we conclude that the Correctional Privatization Act, Florida Statutes Chapter 957, brings Ellison and his conduct within the reach of section 838.015. Thus, we affirm the conviction.

The alleged bribery offense took place in October of 2008. It is undisputed that the defendant was employed by GEO Group, a publicly-traded corporation that operated South Bay Prison pursuant to a contract with the State. Relying upon these undisputed facts, the defendant filed a motion to dismiss, arguing that as an employee of a private company, and not a governmental entity, he was not a “public servant,” as that term is defined in the Florida Statutes. The trial court denied the motion, relying upon two alternative theories. First, the trial court found the defendant was a “consultant” performing a governmental function and, thus, a “public servant.” Second, the trial court found that, even if not a “public servant,” the defendant could still be convicted by virtue of section 957.09, Florida Statutes (2008), which generally provides if an act would be a crime if committed at a state correctional facility, then such act is also a crime if committed at a privately-run correctional facility. § 957.09(l)(a), Fla. Stat. Reserving his right to appeal the ruling, the defendant pled guilty.

Section 838.015 makes it a second degree felony for a “public servant” to accept pecuniary benefit given for the purpose of influencing such public servant in the performance of his duties. § 838.015(1), (3), Fla. Stat. A “public servant” is defined as follows:

“Public servant” means:
(a) Any officer or employee of a state, county, municipal, or special district agency or entity;
(b) Any legislative or judicial officer or employee;
(c) Any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or
(d) A candidate for election or appointment to any of the positions listed in this subsection, or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office.

§ 838.014(6), Fla. Stat. (2008).

The defendant insists he does not fit within the statute’s definition of “public servant.” We agree. Subsections (b) and (d) are plainly inapplicable. Likewise, the defendant’s employment by a private company — not a governmental entity — precludes him from falling within the scope of subsection (a). And, while the day-to-day operation of a state prison is fairly characterized as the performance of a governmental function, we reject the notion that, in performing his duties as a corrections officer, the defendant was acting as a “consultant.” See, e.g., Publix Supermarkets, Inc. v. Santos, 118 So.3d 317, 320 (Fla. 3d DCA 2013) (stating that, where term not defined in statute, it should be given its “plain and ordinary meaning”); Consultant Definition, http://dictionary. cambridge.org/us/dictionary/american-english/eonsultant (last visited Dec. 6, 2013) (defining “consultant” as person “whose job is to give advice”); Consultant Definition, http://www.oxforddictionaries. com/us/definition/american_english/ consultant (last visited Dec. 6, 2013) (defining “consultant” as person who provides expert advice).

We agree with the trial court, however, that section 957.09, Florida Statutes, subjects the defendant to criminal liability. Section 957.09 is part of the “Correctional Privatization Act,” enacted in 1993 and authorizing the Department of Corrections to contract with private entities to operate prisons, provided certain conditions are met. Section 957.09 states that “[a]ny offense that if committed at a state correctional facility would be a crime is a crime if committed by or with regard to inmates at private correctional facilities .... ” § 957.09(l)(a), Fla. Stat. As it would be a crime and a violation of section 838.015(1) for a corrections officer at a state prison and employed by the State to agree to smuggle contraband into a prison for a fee, the conduct alleged here, it is also a crime for a corrections officer at a state prison and employed by a private company that runs the prison pursuant to a contract with the State to engage in such conduct.

We have examined the other arguments raised by defendant, but find them unpersuasive. Accordingly, the defendant’s conviction is affirmed.

Affirmed.

CIKLINS and KLINGENSMITH, JJ., concur.


author: PER CURIAM.

text:
    Damas JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4508.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Barwick v. State, 88 So.3d 85 (Fla.2011).

DAMOORGIAN, C.J., GROSS and TAYLOR, JJ., concur.


text:
    Norman PICKEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2272.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, 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.
   STEVENSON, J.

A jury found Norman Pickel guilty of two counts of sexual battery on a child less than twelve years of age, kidnapping of a child under thirteen years of age, burglary with a battery, and lewd or lascivious molestation. On appeal, the defendant challenges his convictions for these crimes, arguing error in evidentiary rulings and insisting convictions for both sexual battery and lewd or lascivious molestation violate double jeopardy. We affirm the challenged evidentiary rulings without further comment. As for the double jeopardy argument, as acknowledged by the defendant, this court has resolved this issue adversely to him. See Darville v. State, 995 So.2d 1025 (Fla. 4th DCA 2008) (holding dual convictions for sexual battery and lewd or lascivious molestation do not violate double jeopardy as each offense contains an element the other lacks). We certify conflict with Drawdy v. State, 98 So.3d 165 (Fla. 2d DCA 2012), review granted, 116 So.3d 1263 (Fla.2013), regarding application of the Blockburgeff same elements test to the offenses of sexual battery and lewd or lascivious molestation.

Affirmed; conflict certified.

CIKLIN and LEVINE, JJ., concur.

      . The incidents of sexual battery (count I— penetration of vagina with penis; count II— penetration of vagina with mouth and/or tongue) and lewd or lascivious molestation (count V■ — touching breasts in lewd or lascivious manner) occurred during the same episode. The young victim alleged that the defendant abducted her from her bedroom, took her to a nearby vacant home, pulled her pants off, placed his mouth on her breasts and vagina, and forced her to have sex with him. 2. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Vicky L. KING, Appellant, v. BAC HOME LOANS SERVICING, LP f/k/a Countrywide Home Loans Servicing, LP, Appellee.
    No. 4D12-1202.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    C. David Tangora, Fort Lauderdale, for appellant.
    Victor Kline of Greenspoon Marder, P.A., Orlando, for appellee.
   PER CURIAM.

Appellant appeals a summary final judgment of foreclosure in favor of appellee. We reverse and remand solely for recalculation of damages to accurately reflect payments appellant made to appellee during the pendency of the foreclosure proceedings. We find no merit in the other issues raised on appeal and affirm as to those issues.

Affirmed in part, reversed in part, and remanded for recalculation of damages.

STEVENSON, CIKLIN and LEVINE, JJ., concur.


text:
    Corrine BLAKELY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-200.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Corrine Blakely, Ocala, pro se.
    No appearance for respondent.
   PER CURIAM.

Corrine Blakely has filed a petition for writ of habeas corpus contending that she was entitled to the same relief that was granted to the appellant in DeLuise v. State, 72 So.3d 248 (Fla. 4th DCA 2011). Blakely claims that a manifest injustice has occurred because this court rejected her argument and affirmed without opinion in her direct appeal, but granted relief on similar grounds to appellant DeLuise later that same year.

We do not reach the issue of whether Blakely states a valid basis for relief under these circumstances. This court has now receded from the holding of DeLuise. Noel v. State, 127 So.3d 769 (Fla. 4th DCA 2013) (certifying conflict with Nezi v. State, 119 So.3d 517 (Fla. 5th DCA 2013)). We are bound by the decision in Noel. The petition must be denied on this basis alone.

Denied.

DAMOORGIAN, C.J., GROSS and KLINGENSMITH, JJ., concur.


text:
    Spencer MILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2197.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Spencer Miles, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013).

TAYLOR, MAY and CIKLIN, JJ., concur.


text:
    Javier GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2722.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Richard C. Klugh of Richard C. Klugh, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Defendant appeals the denial of a motion to correct an illegal sentence filed under rule 3.800(a).

Defendant was sentenced to one year of probation for one count of first degree stalking, and for one count of misdemeanor criminal mischief. The sentences were ordered to run consecutively. Less than one year after sentencing, the court granted Defendant’s request for early termination of probation.

Three years later, Defendant filed a rule 3.800(a) motion, alleging that the one-year probationary term imposed for the offense of criminal mischief was illegal, as the statutory maximum was six months. See Smith v. State, 484 So.2d 581 (Fla.1986). The State contended that Defendant was not entitled to correction of a sentence that had been fully served. See Lane v. State, 92 So.3d 885 (Fla. 4th DCA 2012). Based on the State’s reasoning, the trial court denied Defendant’s motion. Thereafter, Defendant filed a motion to vacate the court’s ruling, arguing that he was not precluded from seeking relief on a fully-served sentence where the length of that sentence caused him to receive a significantly longer sentence in a subsequent prosecution. The court denied his motion.

In this appeal, Defendant reasserts the grounds raised in his motion to vacate. Relying primarily on Pettit v. State, 995 So.2d 544 (Fla. 2d DCA 2008), and Smith v. Kearney, 802 So.2d 387 (Fla. 4th DCA 2001), he argues that he is entitled to relief on his fully-served sentence. In particular, he alleges that the illegal one-year probationary term imposed for criminal mischief was used to increase his criminal history score in a subsequent federal prosecution, resulting in a higher sentence.

We find this case to be distinguishable from Pettit and Kearney where the illegal sentences affected the defendants’ release dates, thereby making them subject to civil commitment under the Jimmy Ryce Act. Here, Defendant did not serve the portion of the probation which he challenges as illegal. Thus, it is unclear from the record how the length of that sentence could cause an increased sentence on his subsequent prosecution. Nor is it apparent from the record how the length of the sentence that was never served could have been used to increase his criminal history score. We recognize that the federal sentencing guidelines are different than our own, and it is possible that they assess points based on previous sentences, notwithstanding the time served. However, it is not this court’s responsibility to ascertain such information. We remind Defendant that the burden is on him to demonstrate entitlement to relief from the face of the record. See Johnson v. State, 60 So.3d 1045 (Fla.2011). Conclusory allegations are not enough to satisfy the threshold allegation requirements of rule 3.800(a). See Martinez v. State, 976 So.2d 68 (Fla. 4th DCA 2008).

For these reasons, we affirm without prejudice to Defendant’s filing a rule 3.800(a) motion that establishes how the allegedly illegal sentence for count two, which was not served, affected his criminal history score and sentence in the subsequent prosecution.

Affirmed without prejudice.

DAMOORGIAN, C.J., STEVENSON and CONNER, JJ., concur.


text:
    Hector Vicente COLON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2654.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Hector Vicente Colon, Punta Gurda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, challenging the voluntariness of his plea agreement in lower tribunal case number 502011CF007485AXX, in light of his claim that he was not awarded the proper amount of jail credit as part of the agreement. See Johnson v. State, 60 So.3d 1045, 1052 (Fla.2011); Lacy v. State, 117 So.3d 848 (Fla. 4th DCA 2013); Villar v. State, 110 So.3d 503, 504 (Fla. 4th DCA 2013).

Affirmed without prejudice.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Bryan Keith KENDZIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2915.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Bryan Keith Kendzia, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013).

WARNER, GROSS and FORST, JJ., concur.


text:
    SUNRISE AIR, INC. and Joseph P. Klock, Jr., Appellants, v. U.S. BANCORP EQUIPMENT FINANCE, INC., Appellee.
    No. 4D13-760.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 7, 2014.
    Roberto E. Moran of Rasco Klock Perez Nieto, Coral Gables, for appellants.
    Riley W. Cirulnick and Richard B. Stor-fer of Rice Pugatch Robinson & Schiller, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The judgment on appeal is affirmed. To the extent appellate review of entitlement to attorneys’ fees is sought, the appeal is dismissed for lack of jurisdiction. See GEICO Gen. Ins. Co. v. Williams, 111 So.3d 240, 246 (Fla. 4th DCA 2013) (“ ‘[T]he attorney’s fee issue is not finally resolved or ripe for appellate review until both entitlement and amount have been determined.’”) (quoting Ulrich v. Eaton Vance Distribs., Inc., 764 So.2d 731, 733 (Fla. 2d DCA 2000)).

Affirmed in part & Dismissed in part.

STEVENSON, CIKLIN and LEVINE, JJ., concur.


text:
    Brandon Philip PANGBURN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-887, 4D13-888.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Our complete review of the record reveals that the only issue which might merit relief was not preserved for appellate review. See Lachenauer v. State, 117 So.3d 880 (Fla. 4th DCA 2013); St. Cyr v. State, 106 So.3d 487 (Fla. 4th DCA 2013). Thus, we affirm without prejudice to the filing of an appropriate collateral motion.

Affirmed.

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Franklin JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-894.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, 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.
   PER CURIAM.

Franklin Jones appeals the sentences imposed after he admitted a technical violation of his probation. He admitted violating as to one of the seven counts alleged in the amended affidavit of violation of probation, and the state chose not to pursue the other counts. His assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We note that the record contains an order of revocation of community control, which finds Jones violated with respect to all seven counts listed on the amended affidavit of violation of probation, although the record establishes that Jones admitted only one technical violation and the state decided not to proceed with the other counts. The order was not entered until about three weeks after Jones filed his notice of appeal, after the trial court had lost jurisdiction.

We affirm the revocation of probation and the sentences, see Robinson v. State, 373 So.2d 898 (Fla.1979), but we strike the order of revocation of probation because it was entered after the trial court lost jurisdiction. We remand with the direction that the trial court enter an order of revocation which reflects that Jones admitted violating his probation only as to one technical allegation: by leaving the county of his residence without the consent of his probation officer.

Affirmed; Remanded with Instructions.

WARNER, FORST and KLINGENSMITH, JJ., concur.


text:
    Meldon RICH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6076.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.
    Rehearing Denied Feb. 25, 2014.
    Meldon Rich, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Dallas SEYMOUR, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-4649.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2014.

      Howard Finkelstein, Public Defender, and Tamara L. Curtis, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Dallas Seymour (Petitioner) filed an emergency petition for writ of habeas corpus, asking this court to quash the trial court’s order denying him bond following an Arthur hearing and to direct the trial court to set a reasonable bond. We grant the petition.

Petitioner was charged with (I) second degree murder and (II) possession of a firearm by a convicted felon. The first count alleges that Petitioner unlawfully killed Darryl Keith Hardnett (the victim) “by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life, although not necessarily with an intent to cause death,” by shooting the victim with a firearm. It also charged that he actually possessed and discharged the firearm and, as a result, inflicted death on the victim. Count I is punishable by life in prison. §§ 782.04(2), 775.087(l)(a), (2)(a), Fla. Stat. (2012).

Petitioner moved to set bond and requested an Arthur hearing, asserting that because the evidence was consistent with an accidental shooting, which would support a verdict of not guilty, the state had not met its burden of showing “proof evident or presumption great.” See State v. Arthur, 390 So.2d 717, 720 (Fla.1980) (holding that release on bail pending trial for an accused charged with a capital offense or an offense punishable by life imprisonment cannot be denied absent a showing “that the proof of guilt is evident or the presumption is great”).

The trial court considered the state’s packet of documents, including witness statements and video surveillance. The evidence suggests that, at the time of the shooting, Petitioner, the landlord of what seems to be a rooming house, was among a gathering of tenants and friends who were watching television and drinking beer outside in the carport of the residence. He had given the victim something to smoke and the victim returned, asking for more. The group was talking and laughing, and Petitioner started playing with a small pistol, putting the clip in, taking it out, and pointing it at people. Petitioner went toward the TV and set the gun down while he looked for something in his pocket. Then he grabbed the gun, it went off, and one of the group was shot in the head; subsequently, he died. According to an eyewitness, Petitioner exclaimed, “Oh y’all I shot that man for real right there.” Another eyewitness explained there had been no argument and Petitioner had not aimed the gun; the shooting of the victim was a “pure accident.” There also was evidence Petitioner had a reputation of shooting off a small black pistol on celebrations like the Fourth of July.

Petitioner himself called 911, but not until after he was seen by another witness at a bus stop, and on two stores’ surveillance videotapes, running on nearby streets with a firearm. A detective retrieved a black Glock 19 semi-automatic 9mm firearm from a storm drain in the area where Petitioner had fled. It was free of debris, suggesting it had been discarded recently.

On questioning, Petitioner maintained he was in the house when he heard gunshots. He went outside, did not notice any injury to the victim (who remained seated where he was when shot), and went from 57th Avenue to Pembroke Road and back home — the same streets where he was seen running with the gun — looking for the shooter. When he got back, another resident showed him the victim was bleeding, and Petitioner called 911.

At the Arthur hearing, the defense argued that while the state’s evidence could support the charge of second degree murder, it also could support a charge not carrying a sentence of life in prison, such as manslaughter, culpable negligence, or not guilty as an accidental shooting. If the facts would support something other than a guilty verdict on the second degree murder charge then proof is not evident and the presumption is not great.

The trial court denied the motion to set bond. It indicated the state was required to present evidence which, in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilt. See Arthur, 390 So.2d at 720. It also acknowledged the state is held to a higher standard of proof than beyond a reasonable doubt. See Elderbroom v. Knowles, 621 So.2d 518, 520 (Fla. 4th DCA 1993). Having considered the evidence and the parties’ arguments, the court found the state had met its burden and established the proof was evident and the presumption great and the evidence presented would be sufficient to sustain a jury verdict of guilty. The trial court chose not to exercise its discretion to set bond. After the trial court denied Petitioner’s motion to reconsider denial of bond, Petitioner filed the instant petition.

Habeas corpus is the proper remedy to challenge incarceration due to denial of a request for bond. See id. at 521. Article I, section 14, of the Florida Constitution provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime ... shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const. (emphasis added); see also Fla. R. Crim. P. 3.131(a).

As noted above, the Florida Supreme Court has held that “when a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail when the proof of guilt is evident or the presumption great[,]” and that “before the court can deny bail the state must have carried the burden of establishing that the proof of guilt is evident or the presumption great.” Arthur, 390 So.2d at 717. The burden is upon the state because the accused is presumed innocent while awaiting trial. Id. at 719-20.

Thus, for the trial court to deny Petitioner a bond for this reason, it was necessary for it to properly find the state met this stringent burden. We conclude it did not.

In Elderbroom, this court interpreted the state’s burden as follows:

Indeed, the state is held to a degree of proof greater than that required to establish guilt beyond a reasonable doubt. Furthermore, where the state’s evidence is arguably sufficient to convict, but is contradicted in material respects such that substantial questions of fact are raised as to the guilt or innocence of a defendant, then a trial court may properly find that the proof of guilt is not evident or the presumption of guilt is not great.

Elderbroom, 621 So.2d at 520 (citing State v. Perry, 605 So.2d 94 (Fla. 3d DCA 1992)); see also Hoskins v. Knowles, 757 So.2d 512 (Fla. 4th DCA 1998) (concluding the state failed to establish that the proof of guilt was evident or the presumption great, where the accused’s evidence substantially contradicted and impeached the state’s case); Kirkland v. Fortune, 661 So.2d 395, 397 (Fla. 1st DCA 1995) (“The degree of proof which the state must present to carry its burden in such a case has long been held to be a higher one than that of guilt to the exclusion of all reasonable doubt required for a criminal conviction.”).

In Elderbroom, there was evidence supporting both the state and the defense, and the trial court found the state had presented sufficient evidence to carry its burden and denied bond. However, the defendant had presented alibi evidence, challenged the victim’s description of the assailant, and showed that the victim had a motive to falsely accuse him. Under the circumstances, this court concluded that the trial court had erred in concluding the defendant was not entitled to pretrial release, granted the petition, and ordered the circuit court to release the defendant on bail and conditions to be determined by the trial court.

In Kirkland, the defendant was charged with first degree murder as a principal; he was not present at the time of the crime. The state’s only evidence of the defendant’s involvement was three unsworn statements. Two of the statements came from the person who allegedly committed the stabbing, and these statements were inconsistent. The other came from that person’s wife, alleging that the defendant had told her that the defendant and the alleged perpetrator were going to do some business with the victim and he did not know who would come out on top, and the alleged perpetrator told her that he had the defendant’s knife. The seventeen-year-old defendant testified at the hearing and denied the material portions of the foregoing statements; he also stated that, on the day of the murder, he had been riding in the alleged perpetrator’s truck, later discovered his knife was missing, and assumed it fell out of his pocket. The trial court concluded the state had failed to carry its burden of establishing “that the accused’s guilt is ‘evident’ — that is, ‘[m]ani-fest, plain, clear, obvious, conclusive[,]’ ... ‘beyond question of doubt.’” Kirkland, 661 So.2d at 398 (quoting Russell v. State, 71 Fla. 236, 71 So. 27, 28 (1916)).

In Mininni v. Gillum, 477 So.2d 1013 (Fla. 2d DCA 1985), the defendant was charged with first degree murder. He was the manager of a club and employees had escorted out a customer, but they were unable to subdue him. The defendant went outside with a pistol and fired two warning shots, the customer continued his aggressive behavior, and the defendant fatally shot the customer. After he was indicted, the trial court revoked his bond and he sought habeas relief. Based on Arthur, the district court granted the petition, explaining,

It may well be that a jury could legitimately conclude that [the defendant] acted without justification and is, in fact, guilty as charged. On the other hand, the facts as presented to the circuit court are also susceptible of interpretations ranging from a lesser degree of murder down to excusable homicide. We simply cannot conclude that the state met the substantial burden of proof ....

Id. at 1015 (emphasis omitted).

Likewise, in this case, the evidence supports lesser degrees of homicide; witnesses who observed the shooting all perceived that Petitioner was surprised the victim was shot. Although the trial court’s order found the evidence would be sufficient to sustain a guilty verdict for second degree murder as charged, that is not the proper test:

[T]he proper test is not that which determines whether the evidence is sufficient to overcome a motion for a directed verdict of acquittal at trial — whether the state has presented a prima facie case establishing guilt. Rather, the state is required to carry a greater burden. In essence, the state must establish that the accused’s guilt is “evident” — that is, “ ‘[mjanifest, plain, clear, obvious, conclusive[,]’ ... ‘beyond question of doubt.’ ” [Russell 71 So. at 28].

Kirkland, 661 So.2d at 398.

The state has argued in its response that Petitioner’s attempt to discard the gun supports its position that the shooting was not an accident; however, if Petitioner did shoot the victim by accident, he still might have attempted to discard the gun immediately, knowing his status as a convicted felon precluded him from legally possessing one. § 790.23(l)(a), Fla. Stat. (2012).

We find the trial court abused its discretion in concluding the state met its stringent burden. Accordingly, we grant the petition and direct the trial court to release Petitioner on such bail and on such conditions as it may deem appropriate.

Petition Granted.

DAMOORGIAN, C.J., CIKLIN and FORST, JJ., concur.

      . State v. Arthur, 390 So.2d 717, 718 (Fla. 1980).

      . In Dorsey v. State, 74 So.3d 521, 524 (Fla. 4th DCA 2011), this court explained:
      The crime of second degree murder is defined as the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04, Fla. Stat. (2006). An act is imminently dangerous to another and evinces a "depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life. Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011); Fla. Std. Jury Instr. (Crim.) 7.4.


author: CIKLIN, J.

text:
    Sherwin WOLF, Appellant, v. SAM’S EAST, INC. d/b/a Sunrise Sam’s Club, Appellee.
    No. 4D12-3064.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.

      Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and H. Joshua Diamond of H. Joshua Diamond, P.A., Coral Gables, for appellant.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and David Tarlow and Michael Wood of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauder-dale, for appellee.
   CIKLIN, J.

Sherwin Wolf appeals the order granting final summary judgment in favor of Sam’s East, Inc. (“Sam’s Club”). Wolf argues the trial court erred by entering summary judgment because there was a genuine issue of material fact as to whether Sam’s Club breached its duty to make the premises reasonably safe for invitees by failing to trim or remove above-ground tree roots from a landscaping area. We disagree because Sam’s Club had no duty to make its landscaping areas safe for walking when Sam’s Club had already provided concrete walkways for invitees to cross the landscaping areas. Accordingly, we affirm the summary judgment.

Facts

Wolf went to Sam’s Club for the purpose of making a purchase within the store. He parked his car in the Sam’s Club parking lot. The parking lot had landscaping areas with dirt, trees, grass, and mulch. The landscaping areas were a few feet wide, were not curbed, and had concrete walkways that allowed persons to cross from one side of the landscaping area to the other without the need to step into the landscaping area itself. There were no signs directing persons to use the concrete walkways.

Wolf exited his vehicle and attempted to traverse a landscaping area located between his parking spot and the Sam’s Club entrance. In a deposition, Wolf testified that he was aware there were concrete walkways located throughout the landscaping areas, but nevertheless chose to enter and cross the landscaping area because it was a shorter distance from his car to the store entrance. When crossing the landscaping area, Wolfs foot caught on a tree root and Wolf fell on a concrete parking stop. Wolf stated he was aware there were trees in the landscaping areas, but that he had “not consciously” noted the tree roots before the accident. Wolf was injured by the fall, and he was taken by ambulance to a hospital.

Wolf sued Sam’s Club, alleging the store breached its duty to maintain the premises in a reasonably safe condition by allowing the tree roots to grow above-ground in the landscaping areas. Wolf also alleged Sam’s Club failed to warn him of the latent danger posed by the tree roots, which Wolf alleged were obscured by grass and leaves.

During discovery, Sam’s Club disclosed that two other persons had tripped over tree roots when crossing the landscaping areas in the three years before Wolfs accident. In a deposition, a Sam’s Club employee testified that Sam’s Club was responsible for evaluating potential hazards to Sam’s Club members in the Sam’s Club parking lot. The employee also stated that Sam’s Club contracted with a landscaping service for routine landscaping duties, but that something as extraordinary as tree root removal would not be part of regular landscape maintenance and would require a specific request from Sam’s Club.

Sam’s Club moved for summary judgment, arguing that even taking the evidence in the light most favorable to Wolf, he was solely liable for the accident because he chose to walk across the landscaping area even though he knew there were concrete walkways for that purpose. The court denied the motion. Sam’s Club then moved for rehearing and reconsideration, citing the then recently issued opinion Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012). Upon reconsideration, the court entered final summary judgment in favor of Sam’s Club.

Wolf now appeals the entry of summary judgment.

Analysis

“A trial court’s entry of a final summary judgment is reviewed de novo. When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012) (citations and quotation marks omitted).

“A landowner or occupier owes an invitee two independent duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils.” Id. at 734 (citation omitted). As this court and other Florida courts have stated:

The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.

Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005) (citation omitted); see also Spatz v. Embassy Home Care, Inc., 9 So.3d 697, 698-99 (Fla. 4th DCA 2009).

Sam’s Club relies primarily on Dampier v. Morgan Tire & Auto, LLC, to argue that it had no duty to make the landscaping areas in its parking lot fit for pedestrian traffic. In Dampier, the plaintiff was an invitee of a Tires Plus store who walked to a nearby McDonald’s restaurant. 82 So.3d at 205. To reach the restaurant, the plaintiff chose to walk across a raised, curbed planting bed that was eight to ten feet wide. The plaintiff tripped on a tree stump in the planting bed. The trial court granted summary judgment in favor of the store because the stump was “so open and obvious as to not constitute a dangerous condition as a matter of law.” Id. at 206.

On appeal, the Fifth District affirmed the summary judgment. Id. at 208. The court acknowledged that the open and obvious nature of a hazard does not discharge the landowner’s duty to maintain the property in a reasonably safe condition, but wrote “[n]onetheless, some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition.” Id. at 206 (citation omitted). Relying on a line of Fifth District and Third District cases, the court wrote that “[l]andseaping features are generally found not to constitute a dangerous condition as a matter of law.... [A] landowner has no liability for falls which occur when invitees walk on surfaces not designed for walking, such as planting beds.” Id. (citing City of Melbourne v. Dunn, 841 So.2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Prop. Mgmt., 779 So.2d 621 (Fla. 5th DCA 2001); K.G. v. Winter Springs Cmty. Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987); Prager v. Marks Bros. Co., 483 So.2d 881 (Fla. 3d DCA 1986)). The court concluded that “the planting bed, and the stump within the planting bed, did not constitute a dangerous condition that could give rise to liability ... due to the alleged failure to maintain the premises in a reasonably safe condition.” Id. at 208. The court also concluded the store had no duty to warn the plaintiff “of the danger of walking in the planting bed, because the planting bed and stump did not constitute a dangerous condition when used as a planting bed and not for walking.” Id.

As to the instant case, we find that the tree roots in the landscaping areas were “so obvious and not inherently dangerous” as to constitute a non-dangerous condition as a matter of law. Id. at 206. Our conclusion is reinforced by the fact that Wolf could have easily and safely crossed the landscaping area using a concrete walkway located only a few feet away from where he fell. Wolf testified in his deposition that he knew the walkway existed but chose not to use it.

We are not persuaded by Wolfs arguments that the above-ground tree roots were not easily visible. As the Fifth District stated:

[Ajnyone who walks into a planter containing a Washington palm, greenery and/or flowers and dirt is held to know that this is a hazard to walking. The precise nature of the hazard need not be observable. Such a change in level caused by the change in materials and surface texture and the effect on footing is to be expected.

Taylor, 779 So.2d at 622.

Like the court in Taylor, we conclude that anyone who walks into a landscaping area containing trees, grass, and mulch is held to know that the landscaping area presents “a hazard to walking,” particularly when concrete traverses have been specifically constructed to prevent this type of accident. See id. Under these facts, we find that Sam’s Club had no duty to make the landscaping areas safe for a pedestrian’s encroachment. See Dampier, 82 So.3d at 208.

We also reject Wolfs arguments that reversal is required because two other persons had tripped on the tree roots during the three years before Wolfs accident. Wolf relies on Williams v. Madden, 588 So.2d 41 (Fla. 1st DCA 1991). In that case, the plaintiff fell on a step in a hotel restaurant. Id. at 42. The plaintiff was informed by hotel staff that other persons had fallen due to the same condition. The trial court granted summary judgment in favor of the hotel, reasoning that the danger posed by the step was “open and obvious” and that the plaintiff admitted she was aware of the step. Id. at 43.

On appeal, the First District reversed the summary judgment. The court acknowledged that “Florida courts have applied the general rule that it is not negligence for the proprietor of a public place to maintain steps or uneven floor levels and fail to give warning of such conditions to invitees.” Id. (citation omitted). Nevertheless, the court concluded that summary judgment was inappropriate because the hotel staff member admitted that prior invitees had fallen due to the same condition. The court wrote: “Evidence of the occurrence or non-occurrence of prior accidents can serve to prove whether the proprietor of a business should have anticipated harm to his invitees despite the obviousness of the condition.” Id. (citations omitted). The court concluded that “[t]he issue of [the hotel owner’s] negligence, if any, must be resolved by a jury.” Id. at 44.

The instant case is distinguishable from Williams because in that case the falls occurred in an area that was apparently intended for walking. In contrast, Wolf fell because he was knowingly cutting through a landscaping area rather than using the concrete walkways designed for that purpose. Under the facts of this case, we determine that the prior falls did not create a duty on the part of Sam’s Club to make the landscaping areas safe for pedestrian traffic.

Affirmed.

GROSS and MAY, JJ., concur.


text:
    Erik SAGASTIZADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4129.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

CIKLIN, GERBER and CONNER, JJ., concur.


text:
    Marcia L. WEISER, Appellant, v. Sandy WEISER, Robert Weiser, and Lawrence Taube, Appellees.
    No. 4D13-2010.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.

      Marcia L. Weiser, Harrodsburg, KY, pro se.
    John P. Morrissey of John P. Morrissey, P.A., West Palm Beach, for appellee Sandy Weiser.
    Jeffrey H. Skatoff and Anya Van Veen of Clark Skatoff P.A., Palm Beach Gardens, for appellee Robert Weiser.
   PER CURIAM.

In this guardianship action, Appellant, Marcia Weiser, appeals the trial court’s non-final order denying her motion for reimbursement of attorneys’ fees and motion for reimbursement of loans/advances to the guardianship. We reverse.

Appellant and her brother, Sandy Weiser, were serving as co-guardians of their mother. During the pendency of the guardianship, Appellant filed the following motions: (1) Motion for Authorization and Direction for Co-Guardians and Co-Trustees to Pay for Nursing Care; (2) Motion for Reimbursement of Attorneys’ Fees; and (3) Motion for Reimbursement of Loans/Advances to Guardianship. Appellant properly noticed the motions for hearing. At the beginning of the hearing, the trial court announced that none of the motions would be continued if the parties ran out of time. Appellant’s attorney decided to first proceed on the motion to pay for nursing care.

Towards the end of the hearing, the trial court allowed brief arguments and reminded the attorneys that the total time allotted for the hearing on all motions was ending. The trial court then denied the first (and only) motion argued. Upon the parties’ inquiry into the court’s determination with respect to the two other motions, the court denied them with prejudice on the grounds that they were not reached by the parties during the time allotted. This appeal follows.

Appellant argues that her due process right to be heard was violated when the trial court summarily denied the remaining motions with prejudice based solely on the grounds that the time for the hearing had expired, without considering the merits of each motion.

We need not determine whether Appellant’s counsel objected to the trial court’s ruling or whether preservation requires a specific objection to respond to such a sua sponte action. Our review is proper if the trial court’s actions constitute fundamental error. See Aills v. Boemi, 29 So.3d 1105, 1108, 1109 (Fla.2010). Fundamental error occurs when the error goes “to the heart of a trial and vitiate[s] its fairness.” Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000).

The denial of due process rights, including the opportunity to be heard, to testify, and to present evidence, is fundamental error. Slotnick v. Slotnick, 891 So.2d 1086, 1089 (Fla. 4th DCA 2004). In Slotnick, we held that due process is violated when a trial court summarily disposes of the issues without allowing either party to present evidence, even if the issues were informally discussed with the attorneys. Id. (“This summary process, while initially appearing efficient, denied the [appellant] her due process of law.”).

We conclude that the trial court erred because its decision was based solely on the ground that the allotted time for the hearing ran out. By doing so, the trial court failed to provide Appellant with a meaningful opportunity to be heard. See id. Appellee counters that the trial court previously heard Appellant’s arguments and took evidence in connection with both motions before ruling. There is no support in the record for Appellee’s contention. Where a trial court grants a party a hearing on a motion, the court must give each party a meaningful opportunity to be heard before rendering its decision on the motion.

Accordingly, we reverse the order denying Appellant’s motion for attorneys’ fees and motion for reimbursement of loans/advances to the guardianship and remand for further proceedings.

Reversed and Remanded for appropriate proceedings.

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


text:
    Michael Anthony KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2596.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.
    Carey Haughwout, Public Defender, and John M. Conway, 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.
   ON CONFESSION OF ERROR

PER CURIAM.

The appellant’s sole issue on appeal is that the trial court erred in conducting a restitution hearing where there was no showing that the appellant voluntarily waived his right to attend the hearing. The State concedes, and we agree, that the trial court improperly conducted a restitution hearing without the presence of the appellant or a showing of a knowing and voluntary waiver of his attendance. The record demonstrates that the appellant did not receive notice of the hearing. Accordingly, we reverse and remand with instructions to vacate the restitution order and to conduct a restitution hearing with the attendance of the appellant or an appropriate showing of his waiver of attendance.

Reversed and remanded.

TAYLOR, LEVINE, and CONNER, JJ., concur.


text:
    Cordarrol Lawrence FULTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-1462, 4D13-1463.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 379 So.2d 222 (Fla.1979).

GROSS, CIKLIN and CONNER, JJ., concur.


author: LEVINE, J.

text:
    Roger A. BROWNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2772.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, 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.
   LEVINE, J.

Appellant was convicted of attempted sexual battery. Over appellant’s objection, the state introduced testimony from the victim’s friend consisting of what the victim told her regarding the details of the attempted sexual battery. We find the trial court’s admission of this statement was error. Further, we find that the error in this case was not harmless, and therefore, we reverse appellant’s conviction.

The victim was a college student interested in becoming a physician’s assistant. She was introduced to appellant, a physician who agreed to allow her to observe him at his medical practice. When the work day ended between 7:00 p.m. and 9:00 p.m., the victim and appellant would have dinner at a local restaurant, and the victim would continue to question appellant about his medical practice.

On the night of the incident, appellant and the victim left appellant’s office to eat at the restaurant at about 9:15 p.m. Appellant’s partner declined an offer to join them. After dinner, appellant started driving the victim to his office instead of to her car. She asked where he was going, and appellant said to the center. The victim testified at trial that she thought that appellant must have forgotten something at the office.

At this point, appellant stopped the car and turned to the victim. The victim testified that appellant pushed her backward and put his dead weight on her. She testified to appellant assaulting her by touching her breasts and vaginal area, as well as pulling at her clothes and exposing her breasts. Appellant kissed the victim, “grinded” on her, and exposed his erect penis before he eventually ejaculated.

During the assault, the victim testified to repeatedly saying no and mentioning appellant’s wife and children to him. Appellant only responded repeatedly that “you know you want this.” Subsequently, the victim then left appellant’s car and left the parking lot in her own car. While driving home, the victim saw appellant following her and did not answer either of two calls he made to her cell phone.

The victim called her friend. Over defense objection, the friend testified that the victim was upset because appellant was chasing her. She asked the friend what to do, and the friend told the victim to meet her at the hospital where the friend worked. Instead the victim went to the friend’s home, where she met the friend’s boyfriend upon arriving.

Later that night, the friend arrived home and found the victim lying on the couch. The friend noticed a “hickey” on the victim’s neck but did not notice the victim’s clothes to be torn or ripped. In their second conversation, the friend testified that the victim said she was “very nervous” due to the “events that taken place” and because of “being followed and what had happened with [appellant] that night.”

The trial court denied appellant’s objection to the state asking the friend what details the victim had relayed to her about the events of that night. The friend testified:

She stated to me that he had, she was in the passenger side of the vehicle, of his vehicle and he had moved on over to pin her down and force her to kiss, you know, to kiss her and stuff and, and later, you know, as that was happening he, what she told me was that he ejaculated on her, that’s what she told me.

Appellant again raised an objection, which the trial court overruled finding the friend’s testimony admissible as an excited utterance or as the first recounting of a sexual battery crime. The friend testified that although the victim did not explicitly state the incident was not consensual, “that’s what it seemed like ... she was getting at,” and that the victim “was trying to fight him off.”

At trial, the other evidence introduced included a “controlled call” between the victim and appellant. During the conversation, the victim said that what happened was not something she wanted and that appellant crossed the line. Appellant apologized and said he would “make sure it doesn’t happen again.” Appellant also said, “I didn’t listen to you, you know, and it all happened.” Appellant gave a statement to law enforcement in which he said that the victim participated in everything and that he did not force her to participate.

The defense called the friend’s boyfriend to testify. He stated that when the victim arrived the night of the incident he asked her if she wanted to call the police and the victim said no. Later, but before the friend arrived home, the victim woke the friend’s boyfriend because she was upset about a “hickey” on her neck. The boyfriend told her to use a frozen spoon on the spot.

Appellant was found guilty as charged and appeals his conviction. Appellant argues that the trial court erred by admitting the hearsay statement of the victim through the testimony of the victim’s friend. The trial court overruled appellant’s timely objection to the friend’s recounting of the victim’s version of events from that night that occurred after the friend returned home.

The state argues, in response, that the trial court did not abuse its discretion by admitting the friend’s testimony recounting the victim’s statements because (1) of the “first complaint” exception to the hearsay rule, (2) it was an excited utterance, and (3) the statement was not hearsay, but rather a prior consistent statement. We find that none of the above reasons advanced by the state are correct and that the trial court abused its discretion by allowing the admission of the hearsay statements.

“The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. [W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations omitted). Thus, “whether evidence is admissible in evidence under an exception to the hearsay rule is a question of law ... [subject to] the de novo standard of review.” Powell v. State, 99 So.3d 570, 573 (Fla. 1st DCA 2012).

As to the “first complaint” exception to the hearsay rule, the state points to Irvin v. State, 66 So.2d 288 (Fla.1953), in which the Florida Supreme Court held that certain statements were admissible under this exception. Under the “first complaint” exception, “the fact that a victim of a sexual battery sought the first opportunity to complain is admissible to rebut any inference of consent that might be drawn from the silence of the victim.” Charles W. Ehrhardt, Florida Evidence § 803.1 (2013 ed.).

Even though there are Florida cases recognizing the “first complaint” exception, there are other cases holding that the adoption of the Florida Evidence Code eliminated any common law hearsay exceptions not codified by statute. In Chavez v. State, 25 So.3d 49, 51-52 (Fla. 1st DCA 2009), the court explained:

Although section 90.102 states that common law that does not conflict with the Code is still applicable in Florida, section 90.802 prohibits courts from admitting hearsay “except as provided by statute.” ... The Florida Evidence Code has expressly established that to be admissible, hearsay evidence must fall under a statutory exception.

Our court adopted the reasoning of Chavez in Mortimer v. State, 100 So.3d 99 (Fla. 4th DCA 2012). “Section 90.802 plainly provides, ‘Except as provided by statute, hearsay evidence is inadmissible.’ This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes (2010).” Mortimer, 100 So.3d at 102.

Applying this reasoning to the common law “first complaint” rule leads to the conclusion that it is no longer a valid exception to the prohibition on admitting hearsay testimony. The Irvin case was decided in 1953, before the adoption of the Florida Evidence Code in 1976. Furthermore, no provision of the Florida Evidence Code has specifically authorized the “first complaint” exception to the hearsay rule, as set forth in section 90.802, Florida Statutes. Thus, because “only exceptions to the hearsay rule in Florida are the ones recognized by statutes,” and “the admission of hearsay evidence under the common-law ... contradicts this express directive,” the testimony of the victim’s friend should not be admissible. Mortimer, 100 So.3d at 102; Chavez, 25 So.3d at 52.

Even if the “first complaint” rule remains a valid exception, the testimony of the victim’s friend in this case would still be inadmissible. In Irvin, in response to the question of “[w]hat did she tell you?,” the husband was allowed to testify that his wife, the victim, told him that she was raped. 66 So.2d at 294. The Florida Supreme Court further elucidated that “[n]one of the information amounted to narration of the criminal assault save only the single statement” that the victim had been raped, and the court determined that the husband’s testimony of his wife’s statement “was quite proper.” Id.

In the present case, unlike Irvin, the friend’s testimony went far beyond the “single statement” of the attempted sexual battery, and amounted to a “narration of the criminal assault.” Thus, even under Irvin, the testimony of the friend would be improper and beyond the parameters of the “first complaint” exception. See also Burgess v. State, 644 So.2d 589, 591 (Fla. 4th DCA 1994) (holding that the “first complaint exception allows only the fact of the report of the sexual battery but not the details”).

For all the reasons stated above, we find the admission of the friend’s statement was inadmissible hearsay, and not admissible under the “first complaint” rule.

The trial court also relied on section 90.808(2), Florida Statutes (2010), to admit the friend’s recitation of the victim’s statement as an “excited utterance.” As this court has explained:

[I]n order for an excited utterance to be admissible, the following requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.

Mariano v. State, 933 So.2d 111, 115 (Fla. 4th DCA 2006) (citation omitted).

Thus, where the time between the event and the statement is long enough to permit “reflective thought,” the statement will be excluded unless there is evidence that the “declarant did not in fact engage in a reflective thought process.” Id. at 116 (citation omitted). The state must present evidence that the declarant did not engage in reflective thought during the time between the time of the event and the statement.

In Hutchinson v. State, 882 So.2d 943 (Fla.2004), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla.2008), a witness testified that she spoke to a murder victim about a fight the victim had with the defendant on the night of the murder. Because it was unclear how much time had passed between the fight and the victim’s statement, and the state failed to present evidence that the declar-ant did not engage in reflective thought, the Florida Supreme Court held that the victim’s statement could not be admitted as an excited utterance.

In the present case, it is also unclear from the record the time between the incident and the time when the victim told the friend of the incident. Therefore, the state did not meet its burden to establish that the victim did not engage in reflective thought before telling her friend of the incident. We find the trial court erred in relying on the excited utterances exception in admitting the victim’s hearsay statements.

The state also argues that we can affirm the admission of the friend’s testimony regarding the victim’s statement based on the application of the prior consistent statement rule, pursuant to section 90.801(2)(b), Florida Statutes (2010). Although the trial court did not rely on this ground, the state would have us affirm under the rule of “tipsy coachman.” See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (The tipsy coachman doctrine “allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ”) (citations omitted).

Under section 90.801(2)(b), Florida Statutes, prior statements of a witness that are “[c]onsistent with the declarant’s testimony and ... offered to rebut an express or implied charge against the de-clarant of improper influence, motive, or recent fabrication” are “not hearsay if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement.” (emphasis added). “Both conditions must be satisfied to admit a prior consistent statement as nonhearsay.” Graham v. State, 56 So.3d 97, 102 (Fla. 4th DCA 2011). Additionally, “a prior consistent statement is inadmissible under section 90.801(2)(b) if it is made after the witness’ motive to lie arose.” Carter v. State, 115 So.3d 1031, 1035 (Fla. 4th DCA 2013).

Here, the defense accused the victim of having a motive to fabricate that the incident was non-consensual once she discovered the hickey on her neck. The defense proffered that the victim wanted to rekindle a relationship with an ex-boyfriend whom she knew would see the hickey. The testimony of the friend’s boyfriend revealed that the victim was aware of the hickey before the friend came home and before the victim spoke with the friend revealing details of the assault. In other words, the victim’s second conversation with the friend — during which she revealed details of the assault — occurred after the point in time at which the defense argued that she had a motive to fabricate. Thus, the victim’s hearsay statement to the friend was inadmissible as a prior consistent statement. See id.

The admission of inadmissible hearsay evidence is subject to harmless error analysis. Peterson v. State, 874 So.2d 14 (Fla. 4th DCA 2004). 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.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). “The pertinent question in a harmless error analysis is not the sufficiency or quality of the remaining, properly admitted evidence; rather, it is ‘whether there is a reasonable possibility that the error affected the verdict.’ ” Pulcini v. State, 41 So.3d 338, 346 (Fla. 4th DCA 2010) (citation omitted).

In Carter v. State, 951 So.2d 939 (Fla. 4th DCA 2007), the trial court erroneously admitted hearsay statements made by a carjacking victim to a police officer. “Because there was no physical evidence or independent eyewitness testimony to corroborate the victim’s account of events, the victim’s credibility was a crucial issue in the trial.” Id. at 944. The hearsay statements “tended to bolster the credibility of the victim and provide self-corroboration.” Id. Furthermore, the prosecution featured the hearsay statements in its closing argument. Accordingly, this court reversed and remanded for a new trial because there was “a reasonable possibility that the error contributed to the conviction.” Id. at 945; see also Powell v. State, 99 So.3d 570, 575 (Fla. 1st DCA 2012) (finding the admission of the victim’s hearsay statements regarding a sexual assault to be harmful and holding that “[t]o conclude that the error was harmless because the statements were merely cumulative to testimony given in court would effectively reduce every error in admitting a prior consistent statement to the status of a harmless error”); Elysee v. State, 920 So.2d 1205, 1208 (Fla. 4th DCA 2006) (“Allowing the officer to bolster the credibility of the victim, who was the only witness to the crime, with her prior consistent statements, was prejudicial.”); Valley v. State, 860 So.2d 464 (Fla. 4th DCA 2003) (holding the erroneous admission of a hearsay statement of identification to be harmful where the state used the improper hearsay to bolster its closing argument and strengthen a contested issue in the case).

Here, allowing the friend’s testimony was prejudicial and harmful in that it provided self-corroboration of the victim’s testimony, bolstered the victim’s credibility which was a crucial issue at trial, and was featured in the state’s closing argument before the jury. See Carter, 951 So.2d at 944; Elysee, 920 So.2d at 1208. The fact that the friend’s testimony concerning the victim’s statements was “merely cumulative to testimony given in court,” does not make the error harmless. Powell, 99 So.3d at 575. The state did not “prove beyond a reasonable doubt ... that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So.2d at 1135.

In conclusion, we find that the trial court’s error in admitting inadmissible hearsay from the friend, testifying to the details of the incident as relayed to her by the victim, is not harmless error beyond a reasonable doubt. Therefore, we reverse and remand for a new trial.

Reversed and remanded.

WARNER and GROSS, JJ., concur.