text:
    SAVE OUR CREEKS and Environmental Confederation of Southwest Florida, Appellants, v. STATE OF FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D12-764.
    District Court of Appeal of Florida, First District.
    May 9, 2013.

      David G. Guest, Joshua Douglas Smith, and Alisa A. Coe, of Earthjustice, Tallahassee, for Appellants.
    Mark Henderson, Assistant General Counsel, and Michael A. Yaun, Deputy General Counsel, of Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellants seek review of the dismissal with prejudice of their petition for an administrative hearing to challenge an alleged decision by the Florida Fish and Wildlife Conservation Commission “to backfill the navigation channel in Cowbone Marsh in Fisheating Creek,” which is sovereignty submerged land. We reverse because the order of dismissal is based on matters outside the four corners of the petition. However, because we agree with the Commission’s argument that the petition fails to sufficiently plead final agency action in its current form, we remand with directions that the Commission give Appellants an opportunity to amend their petition.

According to Appellants’ petition, the Commission manages the land surrounding Fisheating Creek under a lease from the Trustees of the Internal Improvement Trust Fund and, pursuant to that lease, is required to maintain and improve navigability throughout Fisheat-ing Creek, including the navigation channel in Cowbone Marsh. Appellants claimed they received an e-mail from the Commission indicating that the Commission had made a decision to backfill the navigation channel. The petition characterizes the anticipated backfilling as both a “proposed action” and a “decision.” It does not provide the language of the e-mail or give any additional information about the nature of the “proposed action” or “decision.” It does, however, argue that such backfilling would exceed the Commission’s authority, violate the terms of the Commission’s lease with the Trustees, and affect Appellants’ substantial interests.

The Commission dismissed Appellants’ petition with prejudice on the ground that no final agency action had occurred because the Commission is engaged in ongoing planning with various federal and state agencies relating to the navigation channel in Cowbone Marsh in Fisheating Creek. The Commission explained that the planning is a result of an “enforcement action” and that any final agency action arising from the enforcement action would be that of the Florida Department of Environmental Protection. For these reasons, the Commission determined that the petition contains uncorrectable defects.

Our review is de novo. See Sickon v. Sch. Bd. of Alachua County, Fla., 719 So.2d 360, 362 (Fla. 1st DCA 1998). In considering the dismissal of a petition for a hearing under section 120.57, Florida Statutes, an agency must “accept as true the factual allegations of the petitions and may not consider any factual matters outside the amended petitions.” St. Francis Parkside Lodge of Tampa Bay v. Dep’t of Health & Rehabilitative Servs., 486 So.2d 32, 34 (Fla. 1st DCA 1986).

Florida Administrative Code Rule 68-1.008(2) provides that the rights provided in chapter 120, Florida Statutes, “shall be accorded to any party whose substantial interests will be affected by any action of the commission in the performance of its statutory duties or responsibilities,” which include “[l]and acquisition and management.” As a general principle of administrative law, a person is entitled to a section 120.57 hearing when an agency takes a final action affecting that person’s interests and there is a disputed issue of material fact related to that action. Friends of the Hatchineha, Inc. v. Dep’t of Envtl. Regulation, 580 So.2d 267, 269 (Fla. 1st DCA 1991). The petition must be filed with the “agency responsible for rendering final agency action.” Fla. Admin. Code R. 28-106.201(1). There has been no contention in this case that Appellants’ substantial interests are not affected; the question before us is whether the allegations in the petition sufficiently set forth final agency action by the Commission.

Agency action includes “the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order.” § 120.52(2), Fla. Stat. (2011). When an agency binds itself to a course of action in such a way as to prevent affected parties from protecting their interests at a later date, final agency action has occurred. See Manasota-88, Inc. v. Gardinier, Inc., 481 So.2d 948, 950 (Fla. 1st DCA 1986) (deeming an “informal, telephonic notice” of an “affirmative decision” not to require a business to obtain an air-pollution permit for a construction project a final agency action); Gen. Dev. Utils., Inc. v. Fla. Dep’t of Envtl. Regulation, 417 So.2d 1068 (Fla. 1st DCA 1982) (rejecting a claim that a letter was “informational in nature” and concluding that it constituted final agency action because the agency had “taken a position, reduced it to writing, and disseminated it to the affected party,” who was required to take responsive action to avoid nonrenewal of its permit); Daniels v. Fla. Parole & Probation Comm’n, 401 So.2d 1351, 1353 (Fla. 1st DCA 1981) (finding the written establishment of a presumptive parole date a final agency action subject to review), superseded by statute on other grounds as stated in Griffith v. Fla. Parole & Probation Comm’n, 485 So.2d 818, 819-20 (Fla.1986).

Appellants have established error in the Commission’s consideration of matters outside the four corners of the petition. The enforcement action referenced for the first time in the Commission’s order was not a proper basis for dismissal. The lack of specificity in the petition, however, would have been a proper basis for dismissal without prejudice. Cf. Dockery v. Fla. Democratic Party, 719 So.2d 9, 10 (Fla. 2d DCA 1998) (requiring amendment of a civil complaint because the allegations were too conclusory).

Appellants rely on the bare allegation that the Commission has made a decision, or alternately notified them of a “proposed action,” to backfill a navigation stream to show that final agency action has occurred. The determination of whether a communication evidences final agency action depends on the language used. Compare Gen. Dev. Utils., 417 So.2d at 1069 (characterizing the language of an agency’s letter as unequivocally imposing a requirement on the petitioner and, therefore, constituting final action), with Hobe Assocs., Ltd. v. State, Dep’t of Bus. Regulation, Div. of Fla. Land Sales, Condos., & Mobile Homes, 504 So.2d 1801 (Fla. 1st DCA 1987) (concluding that a letter did not constitute final agency action because it “did not constitute a warning” and “did not have the attributes of a rule or order”). Consequently, even accepting the petition’s allegations as true, we cannot determine whether the decision to backfill the navigation stream was merely preliminary to future agency action, such that Appellants would have a meaningful opportunity to challenge the backfilling of the stream at a later date, or whether it is truly final. The allegations in the petition are too concluso-ry to sufficiently allege final agency action. See Fla. Admin. Code R. 28-106.201(2)(e) (requiring specific allegations).

Because a petitioner is entitled to at least one opportunity to amend a defective but correctable petition, we cannot affirm, as proposed by the Commission, on the basis of the insufficient allegations. W. Frank Wells Nursing Home v. State, Agency for Health Care Admin., 979 So.2d 339, 341 (Fla. 1st DCA 2008). We, therefore, reverse the order of dismissal and remand the case to the Commission with instructions to allow Appellants an opportunity to amend.

REVERSED and REMANDED with instructions.

WOLF, RAY, and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clark MACKENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5229.
    District Court of Appeal of Florida, First District.
    May 9, 2013.

      Nancy A. Daniels, Public Defender; and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Clark MacKendrick appeals his convictions for capital sexual battery and lewd or lascivious molestation. MacKendrick contends that the trial court erred in denying the motion to suppress his incriminating statement and other evidence, disclosed during a custodial interrogation before deputies read his Miranda rights. Finding this suppression issue dispositive, we reverse and remand for a new trial, thereby mooting a second, separate issue relating to the denial of a motion for mistrial.

I. Facts

The amended information alleged that MacKendrick committed sexual acts against a minor, H.M., on various occasions between July 28, 2003, and July 28, 2005. At the suppression hearing, the State established that on February 21, 2007, MacKendrick was incarcerated at the Okaloosa Correctional Institution for another offense. On that date, two deputies from the Liberty County Sheriffs Office came to the prison to interview MacKen-drick regarding the allegations that ultimately led to the charges in this case.

MacKendrick testified regarding his summons to the central office. He was in the dorm area when a prison officer directed him to report to the inspector’s office at the center compound. MacKendrick, who is familiar with prison rules and regulations, testified that he heeded the official order because he was told to do so. He explained that his refusal to comply would have constituted disobeying a verbal order, resulting in a disciplinary report. An officer escorted MacKendrick through two secured doors out of the dorm area and frisked him for contraband. When an officer inquired why he was being called to the office, MacKendrick said he did not know the reason. The officer commented that MacKendrick must have done something wrong. In the prison warden’s presence, the inspector took MacKendrick to an eight-by-eight room in the “admin” area. MacKendrick testified that after the inspector shut the door behind him, it remained closed during the ensuing interview. MacKendrick denied initiating the interview or voluntarily going to the room. He professed to have no idea why he had been summoned to the office and then to the interview room. MacKendrick encountered Deputies Swier and Bateman, dressed in plain clothes, waiting for him inside the room.

Deputy Swier testified regarding the circumstances that led to the prison interview. Swier became the lead investigator in this case after the mother of eleven-year-old H.M. provided information to authorities concerning sexual abuse by MacKendrick. This led to the victim’s taped forensic interview with the Child Protection Team. The allegations in that interview prompted Swier to arrange with prison authorities to interview MacKen-drick at the institution. Swier characterized the purpose of his visit as a fact-finding mission to get MacKendriek’s version of the story. The deputies brought with them a laptop computer, a blank tape, an audio recorder, and the victim’s DVD interview.

The interview room was an administrative office, which had a table, desk, and a few chairs. Swier testified that as MacK-endrick was escorted into the room, he appeared shocked to see Swier, whom MacKendrick remembered as the investigator in the prior case that led to his incarceration. MacKendrick asked what Swier and Bateman wanted and why they were there. Swier informed him of H.M.’s allegations. The deputies wanted to hear what MacKendrick had to say. Initially, according to MacKendrick, he doubted whether the victim had really made allegations of sexual abuse. He repeatedly denied the truth of the allegations.

Swier testified that he had no idea whether prison rules and regulations required MacKendrick to appear for questioning. Swier did not discuss with prison officials the terms and conditions of the interview. MacKendrick did not receive Miranda warnings before the interview, which was not recorded. After MacKen-drick sat down in the room, the deputies played H.M.’s interview. Swier testified that as MacKendrick listened to the victim’s specific allegations of sexual abuse, MacKendrick began shaking and seemed very nervous. Toward the end of the DVD, after H.M. had presented details of the sexual abuse, MacKendrick told the investigators to turn it off, and they complied. MacKendrick testified that he told the deputies to turn off the DVD, not because he was nervous, but because he thought he needed a lawyer.

Swier testified that he then told MacK-endrick: “You’re saying it didn’t happen, she’s saying it did. Somebody’s not telling the truth.” According to Swier, MacKen-drick replied: “If she said it, it must be true.” In Swier’s view, this was an incriminating remark that converted what had been a voluntary interview into a custodial interrogation. Swier testified that in a prior, totally separate investigation, MacK-endrick had spoken of his past episodes of becoming intoxicated and experiencing alcoholic blackouts. Swier inquired as to whether this could have happened regarding the present allegations.

At that point in the interview, after MacKendrick made the incriminating statement, Swier decided it was time to give Miranda warnings for the first time. Before administering the warnings, Swier told MacKendrick that he wanted to obtain a formal taped statement. MacKendrick testified that he initially agreed to give a statement. Just as he seemed about to waive his rights, however, MacKendrick changed his mind and told the deputies: “I can’t do it. You know I’m not waiving my rights.” The interview ended, and the deputies left MacKendrick alone in the room until an officer escorted him back to his cell. About thirty minutes elapsed from the beginning of the interview to the end. At no time during the interview was MacKendrick formally arrested. Subsequently, Swier filed a probable cause affidavit in the court, and an arrest warrant was issued. ’

In Swier’s opinion, the questioning started out as a voluntary interview, and MacKendrick could have left whenever he wanted to do so. MacKendrick was not shackled or handcuffed during the questioning. Swier did not recall whether Bateman had left the room during the interview. The deputy acknowledged that he never informed MacKendrick that he was free not to talk or free to leave the room and return to his cell anytime. Swier testified that he did not give Miranda warnings at the onset of the interview because he was not sure what MacKen-drick’s version of the facts would be, and whether H.M.’s allegations were true.

MacKendrick provided a somewhat different account of certain details surrounding the interview. After the inspector shut the door and left MacKendrick with the deputies, Swier asked MacKendrick how he was doing. He answered: “I’m doing as best I can, considering my situation.” MacKendrick observed Swier’s gold star and knew that Swier was a law enforcement officer. MacKendrick testified that he believed he had to answer the questions. He did not feel that he had the right to leave the interview. The door to the room was locked. When Bateman left and tried to re-enter the room, he had to keep knocking to gain admittance.

MacKendrick testified that Swier never advised MacKendrick about his right to a lawyer before asking for a taped formal statement. After Swier read Miranda rights and asked him to sign a piece of paper, MacKendrick replied: “No. I need an attorney.” According to MacKendrick, he had orally indicated that he needed to talk to an attorney as soon as he viewed H.M.’s interview and asked the investigators to stop the DVD. This was before Swier read his Miranda rights. MacKen-drick denied ever saying to Swier that if the victim had said it, then it must be true. MacKendrick told the court that what he really said was: “Everything that these people say about me down there, you think is true.” MacKendrick complained that nothing he told Swier was believable enough for Swier to accept his side of the story. MacKendrick testified that at the conclusion of the interview, the prison inspector escorted MacKendrick out of the room and through a high-security area. MacKendrick reported back to an officer, was frisked again, and was taken back to the dorm.

The motion to suppress asked the trial court to suppress “all statements, gestures or other incriminating evidence obtained at the prison” and to rule it inadmissible at trial. After hearing arguments of counsel, the trial court commented that the mere fact that MacKendrick was incarcerated at the time of the interview, and certainly was not free to leave the institution of his own accord, did not mean he was not free to leave the room. The judge opined that MacKendrick’s belief that he was not at liberty to leave did not make it so. Concluding that the interview was not a custodial interrogation for purposes of Miranda, the court denied the motion to suppress without additional comment or factual findings.

At the trial (over which a different judge presided), Deputy Swier testified about the background information and H.M.’s interview with the Child Protection Team, which led the deputies to schedule the interview with MacKendrick. The parties agreed that the jury would not be told that the interview with MacKendrick took place while he was incarcerated. Describing the interview, Swier testified that after MacK-endrick became quite upset while listening to H.M.’s interview and told them to turn it off, they did so. After that, according to Swier, MacKendrick commented that if the victim said it, then it must be true. H.M. testified at the trial, and the jury viewed the victim’s interview. MacKendrick chose not to testify at the trial. The jury found him guilty as charged on both counts, and the court sentenced him to concurrent terms of life in prison.

II. Standard of Review

The trial court’s ruling on a motion to suppress presents a mixed question of fact and law. State v. Glatzmayer, 789 So.2d 297, 301 & nn. 4, 7 (Fla.2001); Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009).

The United States Supreme Court has stated that mixed questions of law and fact that ultimately determine constitutional rights are to be reviewed by the appellate courts applying a two-step approach. Deference is to be shown to the trial court on questions of historical fact, but de novo review of the application of a constitutional standard to the facts in a particular case is proper.

Brye v. State, 927 So.2d 78 (Fla. 1st DCA 2006) (emphasis in original) (citing United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)); see Fitzpatrick v. State, 900 So.2d 495, 510 (Fla.2005); Connor v. State, 803 So.2d 598, 605-06 (Fla.2001). We must view the evidence adduced at the suppression hearing in a light most favorable to sustaining the trial court’s ruling. San Martin v. State, 705 So.2d 1337, 1345 (Fla.1997).

III. Law

This appeal requires us to determine whether the prison interview constituted a “custodial interrogation” because “Miranda warnings must precede any ‘custodial interrogation.’ ” Garcia v. Singletary, 13 F.3d 1487, 1489 (11th Cir.1994) (citing Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602); see Sapp v. State, 690 So.2d 581, 585 (Fla.1997) (stating that the Miranda safeguards against self-incrimination are triggered only by the presence of a custodial setting and official interrogation); Duddles v. State, 845 So.2d 939, 941 (Fla. 5th DCA 2003). In the Miranda line of decisions, ‘“custody5 is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, — U.S. -, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). For purposes of Miranda:

[T]he term “interrogation” ... refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Everett v. State, 893 So.2d 1278, 1284 (Fla.2004).

In resolving the issue of whether a person was “in custody” for Miranda purposes, the focus is primarily on the perception of the suspect defendant, rather than the intent of law enforcement. Rhode Island v. Innis, 446 U.S. at 301, 100 S.Ct. 1682; Timmons v. State, 961 So.2d 378, 380 (Fla. 4th DCA 2007). To make this determination, a court must decide whether, under the totality of the circumstances, a reasonable person in the suspect’s position would feel a restraint of his or her freedom of movement, i.e., would not feel free to stop talking or terminate an encounter with the police (or other law enforcement officials) and leave. Ross v. State, 45 So.3d 403, 415 (Fla.2010); Buddies, 845 So.2d at 941.

In its recent decision in Howes v. Fields, the United States Supreme Court considered whether an interview was a “custodial interrogation” for purposes of Miranda. Howes, like the instant case, involved deputies questioning a person who already was “in custody” and subject to institutional restrictions by virtue of being an inmate serving a sentence in jail or prison for a different offense from the subject of the interview. The Court stated that the first step in the analysis involves ascertaining whether, given “the objective circumstances of the interrogation,” a reasonable person would have believed that he or she was not free to end the interrogation and leave. 132 S.Ct. at 1189 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)); Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). “Relevant factors include the location of the questioning,” “its duration,” “statements made during the interview,” “the presence or absence of physical restraints during the questioning,” and “the release of the interviewee at the end of the questioning.” Howes, 132 S.Ct. at 1189; see Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1224-26, 175 L.Ed.2d 1045 (2010); Stansbury, 511 U.S. at 325, 114 S.Ct. 1526; Berkemer v. McCarty, 468 U.S. 420, 437-38, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (listing among the relevant factors whether the suspect “initiated contact with authorities,” “was informed at the time of the questioning that the questioning was voluntary,” and “possessed unrestrained freedom of movement during questioning”).

“Determining whether an individual’s freedom of movement was curtailed, however, is simply the first step in the analysis, not the last.” Howes, 132 S.Ct. at 1189. A court must ask “the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Id. at 1190. Applying this analysis, the Court in Howes v. Fields ultimately determined “that imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” Id.; Garcia v. Singletary, 13 F.3d at 1491.

The Court provided three reasons for this conclusion. “First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest.” Howes, 132 S.Ct. at 1190. “Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.” Id. at 1191. “Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who questioned him probably lack the authority to affect the duration of his sentence.” Id.

The facts in Howes v. Fields indicated that, while Randall Fields was serving a sentence in jail, a corrections officer escorted him to a conference room where two sheriffs deputies questioned Fields about allegations that he had engaged in sexual conduct with a minor before coming to prison. 132 S.Ct. at 1185. Fields arrived at the conference room between 7:00 and 9:00 P.M. and was questioned for five to seven hours. Id. at 1186, nn. 1-2. The deputies were armed during the interview, but Fields was not handcuffed or restrained. When the interview began, the deputies told Fields that he was free to leave and return to his cell. Later, they reminded Fields that he could leave whenever he wished. The conference room door was sometimes open and sometimes closed. Id. at 1186.

About halfway through the interview, after being told of the allegations of abuse, Fields became agitated and began to yell. Howes, 132 S.Ct. at 1186. According to Fields, one of the deputies used an expletive, told him to sit down, and stated that if he did not want to cooperate, then Fields could leave. Eventually, Fields confessed to engaging in sexual acts with the child. At the suppression hearing, Fields testified that several times during the interview, he stated that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell before the interview ended. Id. Fields did not return to his cell until well beyond the hour when he usually retired. He did not receive Miranda warnings, nor did the deputies advise Fields that he did not have to speak with them. Id.

Given these circumstances, the Court’s majority determined that Fields was not “in custody” during the interview for purposes of Miranda. Howes, 132 S.Ct. at 1192. Admittedly, some facts supported Fields’ argument that his interview was a custodial interrogation: Fields did not invite the interview or give advance consent to be questioned, the deputies did not advise Fields that he was free not to talk to them, the interview lasted more than five hours and extended well past Fields’ usual bedtime, the deputies were armed, and one of them (according to Fields) used profanity and a sharp tone of voice. Id. at 1192-93.

The Court concluded, nevertheless, that other significant, offsetting factors existed in the record. Howes, 132 S.Ct. at 1193. “Most important” to the Court was the evidence that the deputies told Fields, first at the commencement of the interview and a second time during the interview, that he could leave and return to his cell whenever he wanted. Id. He was not physically restrained or threatened. The interview occurred in “a well-lit, average-sized conference room” in which Fields was “not uncomfortable.” They offered Fields food and water, and the door to the room sometimes was open. Under these objective conditions, a reasonable person would have felt free to stop the questioning and leave. Id.

Addressing the facts that Fields, a jail inmate, required an escort and was not at liberty to move around in the vicinity outside the interview room, the Court noted that the standard prison security conditions still would have required these restrictions, even if Fields had been taken to the room for some purpose other than police questioning. The deputies did not coerce Fields’ cooperation by threatening harsher conditions. Id. “Returning to his cell would merely have returned him to his usual environment.” Id. at 1194.

As a guide in deciding whether custodial interrogation occurred, Florida courts consider the following circumstances:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez v. State, 739 So.2d 568, 574 (Fla.1999); Hunter v. State, 8 So.3d 1052, 1064 (Fla.2008); see Evans v. State, 911 So.2d 796, 799-800 (Fla. 1st DCA 2005). These Ramirez factors involve essentially the same general considerations required under the United States Supreme Court’s Howes v. Fields analysis of the requirements of Miranda.

IV. Analysis

Applying the “reasonable person” analysis to determine whether MacKen-drick was “in custody” during the prison interview for purposes of Miranda, we consider first the manner in which he was summoned for questioning. Ramirez, 739 So.2d at 574; see Howes, 132 S.Ct. at 1185-86. Swier admitted that MacKen-drick arrived at the interview room with no idea why the prison officer had ordered him to appear. MacKendrick did not initiate the interview or submit to it voluntarily. Without contradiction, MacKendrick testified that he had no choice other than to follow orders to come to the inspector’s office and then report to the interview room, or else risk receiving a disciplinary report for disobeying a verbal order. MacKendrick passed through security and was frisked before the interview. He thus submitted to official requests to appear at the office and proceed to the interview room because he was ordered to do so. The presence of high security is consistent with typical prison procedures, which would have been in effect regardless of whether MacKendrick was interviewed. What is relevant to our inquiry is MacKen-drick’s unrebutted testimony that he would have received disciplinary sanctions if he had disobeyed the officer’s verbal order to appear at the inspector’s office.

The second Ramirez factor considers “the purpose, place, and manner of the interrogation.” 739 So.2d at 574; see Howes, 132 S.Ct. at 1189 (considering where the questioning takes places). The interview occurred while MacKendrick was in prison on other charges. His incarceration did not automatically mean, however, that he was “in custody” under Miranda. Howes, 132 S.Ct. at 1190-91; see Joseph v. State, 41 So.3d 307, 310-11 (Fla. 4th DCA 2010); State v. Russell, 814 So.2d 483, 487 (Fla. 5th DCA 2002). Like the Court in Howes v. Fields, we must consider the circumstances surrounding the institutional interview. The inspector escorted MacKendrick to a small room, ushered him inside, and shut the door. MacKendrick did not believe he had the ability to refuse, with impunity, the verbal order to show up. The questioning lasted approximately thirty minutes. Deputy Swier stated that the purpose of the interview was to inform MacKendrick of the victim’s allegations and to get his version of the facts.

The third Ramirez factor deals with “the extent to which the suspect is confronted with evidence of his or her guilt.” 739 So.2d at 574; see Howes, 132 S.Ct. at 1189 (considering “statements made during the interview”). Shortly after being ordered to appear in a room for reasons not previously explained to him, MacKen-drick was confronted with H.M.’s very serious allegations. Initially, he questioned whether the victim had really said this, and then he denied the allegations. The deputies played the DVD, in which the victim provided specific details of MacKen-drick’s sexual abuse. Given MacKen-drick’s denial and the victim’s affirmative claims of his wrongdoing, Swier told him that somebody was not telling the truth. Swier testified that after MacKendrick became shaken and nervous and asked the investigators to stop the DVD, he made the incriminating statement that if the vie-tim said it, then it must be true. This occurred before Swier read Miranda rights. Clearly, the deputies presented evidence which, if true, showed that MacK-endrick was guilty of one or more serious crimes.

The final factor in Ramirez addresses “whether the suspect is informed that he or she is free to leave the place of questioning.” 739 So.2d at 574; Howes, 132 S.Ct. at 1189, 1193. Swier acknowledged never telling MacKendrick that he was free to stop talking or leave the room. MacKendrick testified that he did not believe he was free to stop talking, to end the interview, or to return to his cell anytime. He was escorted to the interview room by a prison official and believed that he had to comply or else risk sanctions. MacKen-drick gave unchallenged testimony that the door was shut and locked behind him. Pursuant to the analysis of Howes v. Fields and Ramirez v. State, the material facts ultimately indicate that MacKendrick was “in custody” during the interview, under the reasoning of Miranda and its progeny.

Like the record in Howes v. Fields, the instant facts include some evidence that favors the State’s position that the interview was non-custodial. The investigators were in plain clothes, although MacKen-drick saw a star or other indicator of the deputies’ obvious law-enforcement status. MacKendrick was not handcuffed or shackled or mistreated. Swier and Bate-man were present to get MacKendrick’s side of the story, not to arrest him. The interview lasted no more than thirty minutes.

Unlike Howes v. Fields, however, the present record established without dispute that before MacKendrick made the incriminating statement, the deputies never told MacKendrick that he was free to stop talking, to terminate the interview, or to leave the room and return to his dorm cell. The State offered no evidence to contradict MacKendrick’s testimony that he would have faced disciplinary sanctions had he refused to comply with official orders to report to the inspector’s office and proceed to the room. The evidence that Fields was told twice that he was free to leave the interrogation room was deemed the “most important” factor offsetting a finding of “custody” in Howes v. Fields, 132 S.Ct. at 1193. The absence of this significant factor in the instant case distinguishes it from Howes v. Fields and, along with certain other enumerated Ramirez circumstances, compels the conclusion that the prison interview was custodial. Given the “circumstances surrounding the interrogation,” a reasonable person would have felt that “he or she was not at liberty to terminate the interview and leave.” Ross, 45 So.3d at 415 (quoting Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)); see State v. Weiss, 935 So.2d 110, 118-19 (Fla. 4th DCA 2006).

The next part of our inquiry involves whether the interview constituted “official interrogation.” Sapp v. State, 690 So.2d at 585; see Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602. Clearly, some of Deputy Swier’s questions surrounding H.M.’s allegations, which he asked before reciting Miranda rights, met the definition of “interrogation.” That is, a reasonable person would have known such efforts by law enforcement to obtain MacKendrick’s side of the story, after the disclosure of very serious allegations, were “reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. at 301, n. 5, 100 S.Ct. 1682 (describing “incriminating response” as “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial”) (emphasis in original); Moore v. State, 798 So.2d 50, 52-53 (Fla. 1st DCA 2001). Given the circumstances demonstrating a custodial interrogation, MacKendrick was entitled to receive Miranda warnings. Ross, 45 So.3d at 417-18; State v. Weiss, 935 So.2d at 118-19.

“Miranda violations are subject to a harmless error analysis.” Deviney v. State, 112 So.3d 57, 2013 WL 627140 *20 (Fla. Feb. 21, 2013); see Ross, 45 So.3d at 434. The State argues that even if the interrogation was custodial, any error in admitting MacKendrick’s incriminating statement was harmless beyond a reasonable doubt. The State has the burden to demonstrate there is no reasonable possibility that the error affected the verdict. State v. DiGuilio, 491 So.2d 1129, 1138-39 (Fla.1986). In conducting a “harmless error” analysis, we must review the permissible evidence on which the jury could have relied, and examine even more closely the impermissible evidence, focusing on the effect of the error on the jury. Fitzpatrick, 900 So.2d at 517; DiGuilio, 491 So.2d at 1138.

The jury heard Swier, a law-enforcement officer, testify that after watching the victim’s interview, MacKendrick remarked that if H.M. said it, then it must be true. A statement like this, made by the suspect himself, was highly incriminating. This statement related directly to the allegations that formed the basis of the charges.

Admittedly, Swier’s testimony concerning MacKendrick’s admission was very brief, and the prosecutor mentioned it only briefly during closing argument. The State contends that its evidentiary case against MacKendrick was strong. This argument misses the point. The Florida Supreme Court has repeatedly instructed the courts that the “harmless error” test in State v. DiGuilio is not simply an “overwhelming evidence of guilt” test. See Johnson v. State, 53 So.3d 1003, 1005-06 & n. 3 (Fla.2010); Ventura v. State, 29 So.3d 1086, 1089-90 (Fla.2010). Instead, “harmless error” analysis is directed to the effect of the error on the trier-of-fact. See Johnson, 53 So.3d at 1007; DiGuilio, 491 So.2d at 1139.

Having examined all the evidence presented to the jury, we cannot say that the State met its burden to show harmless error. H.M. waited several years before reporting MacKendrick’s sexual abuse. Under oath, the victim intermittently denied the truth of her serious allegations, while at other times accusing MacKendrick of committing specific acts of sexual abuse. At the trial, the defense pointed out the victim’s inconsistent claims. The theory of defense was that H.M. was unreliable and had ulterior motives, unrelated to any criminal act by MacKendrick, to accuse him of sexual abuse. H.M. testified at the trial, where her credibility was a key issue. Given the passage of considerable time between the alleged sexual abuse and the victim’s disclosure of this information to her mother and to law enforcement authorities, investigators found no corroborating physical evidence of inappropriate sexual conduct. The State relied primarily on the victim’s allegations and her Child Protection Team interview. On this evi-dentiary record, we cannot conclude that MacKendrick’s incriminating statement did not affect the verdict.

For these reasons, we reverse the convictions and remand for a new trial.

BENTON, C.J., ROBERTS, and RAY, JJ., concur.

        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Gordon MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2725.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On appeal, Appellant asserts that the trial court erred in denying his motion to modify his designation as a sexual predator, because his plea specifically provided that he would be designated as a sexual offender.

Appellant pled guilty to sexual battery on a helpless victim, pursuant to section 794.011(4)(a), Florida Statutes (2010). The Plea of Guilty form, signed by Appellant, his counsel, and the trial court, stated there was no agreement as to the sentence. The form specifically checked that Appellant would be designated as a sexual offender, not a sexual predator.

During the plea colloquy and the sentencing hearing, the parties and the court spoke in terms of Appellant being designated as a sexual offender, and did not reference or request that Appellant be designated as a sexual predator. Following the sentencing hearing, the trial court entered an order designating Appellant as a sexual predator. In response to this order, Appellant filed a motion to modify his sexual predator designation to a sexual offender classification. The trial court denied the same. We affirm.

Our binding precedent has held that the Florida Sexual Predator Act is mandatory, and a trial judge must designate an individual as a sexual predator if the statutory criteria are established. See State v. Curtin, 764 So.2d 645 (Fla. 1st DCA 2000); see also Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001). Section 775.24(2), Florida Statutes (2010), also makes clear that a court may not enter an order approving a plea agreement that exempts a person who meets the criteria for designation as a sexual predator. Thus, the trial court was required to designate Appellant as a sexual predator, because Appellant met the sexual predator criteria by pleading guilty to sexual battery on a helpless victim. Whether Appellant was properly informed that such a designation was mandatory was not raised below, and thus we do not address that issue here.

AFFIRMED.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Orlance Jonathan SANGSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3098.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (holding that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court); see also State v. Adkins, 96 So.3d 412, 423 (Fla.2012) (holding that the Legislature’s decision to make the absence of knowledge of the illicit nature of a controlled substance an affirmative defense rather than an element of Florida’s drug offenses was constitutional).

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Walker DAVIS Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4744.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Walker Davis, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jay Kubica and Meredith Hinshelwood, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Walker Davis, Jr., is hereby afforded a belated appeal from the order which denied post-conviction relief in Okaloosa County case number 96-CF-735. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WOLF, WETHERELL, and MAKAR, JJ., concur.


text:
    Reuben ALEXIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5824.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Dane K. Chase of Bower Rodriguez, P.A., Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By timely petition alleging ineffective assistance of appellate counsel, Reuben Alexis argues that his appellate attorney was ineffective in the direct appeal of his conviction for aggravated assault with a firearm with intent to kill. The crux of Alexis’ argument is that his waiver of the right to conflict-free trial counsel was invalid, that this issue was fundamental error or preserved for review, and that his appellate attorney was ineffective for failing to raise the issue. We grant the petition.

At a pre-trial hearing held February 25, 2009, Alexis’ trial counsel alerted the trial court to the existence of a potential conflict of interest arising from counsel’s simultaneous representation of both Alexis and his co-defendant, Terry Guerrier as a result of an incriminating statement made by Guerrier about Alexis. At that hearing, the following exchange occurred:

MR. HARRISON [Trial Counsel]: And by the way Judge, since both young men are here, I discussed with them a possible conflict of interest here because of the facts. Terry Guerrier, though, wants me to continue to be his attorney; because he emphatically denies ever making the statement to law enforcement. So I think that would take it out of the conflict. But I told him it was his call. And he’s in the courtroom, but he’s told me he wants me to continue to represent both of them. And Mr. Alexis says the same thing.
MR. CHOJNOWSKI [State Attorney]: And, Your Honor, for 3.850 purposes, could we inquire of the defendants to make sure that there is no conflict, and that they waive any possible conflict by being represented by the same counsel?
THE COURT: Okay. Let’s bring them on up, then.
And which one is this?
MR. HARRISON: This is Terry Guerrier, Your Honor.
DEFENDANT GUERRIER: Terry Guerrier.
THE COURT: Mr. Guerrier, and this then must be Mr. Alexis.
DEFENDANT ALEXIS: Reuben Alexis.
THE COURT: Okay. And the State Attorney does want to make sure that you don’t come back later; and file a claim and say Mr. Harrison was ineffective, because he was representing you with a conflict. But you heard what he just said, Mr. Harrison?
DEFENDANT GUERRIER: Yes, sir.
THE COURT: And knowing that there’s that potential conflict, both. of you still want him to be your attorney?
DEFENDANT GUERRIER: Yes, sir.
DEFENDANT ALEXIS: Yes, Your Honor.
THE COURT: Okay. Is that okay?
MR. CHOJNOWSKI: That should be sufficient, Your Honor.
THE COURT: Okay.
MR. HARRISON: Thank you, Judge.

Alexis argues that his appellate attorney was ineffective for failing to ensure that a transcript of the February 25, 2009, hearing was included in the record, and for failing to raise the issue that his waiver of his trial counsel’s conflict of interest was invalid. We agree.

Larzelere v. State, 676 So.2d 394, 403 (Fla.1996), requires that for such a waiver to be valid, the defendant must be aware of (1) the conflict, (2) the fact that the conflict could affect the attorney’s representation of the defendant, and (3) the right to seek conflict-free counsel. Under Larzelere, the trial court has a “duty to ensure that a defendant fully understands the adverse consequences a conflict may impose.” Id. Here, there is a substantial question of whether the requirements of Larzelere were met, which undermines our confidence in the correctness of the result in the prior appeal. See Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985). Accordingly, the petition is granted and a new appeal is ordered. See Jenkins v. State, 75 So.3d 1288 (Fla. 1st DCA 2011).

As in Jenkins, upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal directed to Alexis’ judgment and sentence in Leon County Circuit Court case number 2008-CF-003913. If Alexis qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him on appeal. The new appeal authorized by this opinion shall be limited to the sole issue identified herein.

PETITION GRANTED.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    Johnnie J. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1639.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, 'and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Johnnie J. Jackson is hereby afforded belated appeal from his judgment and sentence in Duval County case number 2011-CF-003814. Upon issuance of mandate in this cause,' a copy of the opinion shall be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal See Fla. R.App. P. 9.141(c)(6)(D).

The trial court is directed to appoint counsel to represent appellant in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, WETHERELL, and MAKAR, JJ., concur.


author: PALMER, J.

text:
    Tia GAUTREAUX, Appellant, v. Rafael Estrada MAYA, Appellee.
    No. 5D12-930.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.

      Susan W. Tolbert, of Morgan & Morgan, P.A., Daytona Beach, for Appellant.
    Gerald W. Weedon and Meagan L. Logan, of Marks Gray, P.A., Jacksonville, for Appellee.
   PALMER, J.

Tia Gautreaux appeals the trial court’s order dismissing her personal injury case for fraud on the court. Determining that the facts of this case were not sufficient to support dismissal, we reverse.

Gautreaux sued Rafael Estrada Maya for negligence in connection with an automobile accident. Gautreaux’s alleged primary continuing injury from the accident was migraine headaches. Maya filed a motion to dismiss Gautreaux’s lawsuit for fraud on the court, alleging that Gautreaux falsely stated, in her deposition and to a post-accident treating physician, that she had never had headaches before the accident. At a hearing on the motion, the following documentary evidence was presented.

At her deposition two years after the accident, Gautreaux testified:

Q Have you ever suffered from headaches before this accident?
A No, ma’am.

The same month, Gautreaux was examined by a neurologist, whose report contained the following:

CHIEF COMPLAINTS: 1. Headache
2. Neck pain
3. Low back pain
HISTORY OF PRESENT ILLNESS: The patient relates prior to [the date of the accident] she did not have these problems.

An intake form in the neurologist’s office regarding headache symptoms contained the handwritten notation, “per pt never had before.” In his deposition, the neurologist explained that that notation was made by his medical assistant. He was then asked by Maya’s counsel:

Q So the patient relays to someone in your office that she never had headaches before; is that accurate?
A Of this type, correct.

Two and a half years before the accident, Gautreaux indicated, on a medical history form, that she had “frequent headaches.” In addition, hospital records revealed that a year before the accident, Gautreaux went to the emergency room for pain and pressure in her eye. A nurse’s report from the visit noted that Gautreaux’s chief complaint was “headache,” and that she had a history of migraine headaches. A physician’s report similarly noted that Gau-treaux’s complaint was of a migraine headache that “started 3 days ago” and was “described as similar to previous headaches.” The report noted a history of “chronic headaches.” Maya obtained these hospital records after Gautreaux’s interrogatory answers disclosed that she had been treated at that hospital.

After Maya served the motion to dismiss, at a second deposition, Gautreaux claimed that the question about “headaches” at her first deposition had confused her, “because headaches is plural.” She also said she “remembered now” that she once had a “really bad headache,” but she had just thought of it as sinus pressure behind her eye.

The trial court granted the motion, dismissing the lawsuit with prejudice for fraud on the court. Gautreaux argues that the court reversibly erred in so ruling. We agree.

This court reviews a dismissal for fraud on the court for abuse of discretion. See Perrine v. Henderson, 85 So.3d 1210, 1212 (Fla. 5th DCA 2012); Sun v. Aviles, 53 So.3d 1075 (Fla. 5th DCA 2010); Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). However, such a dismissal must be supported by clear and convincing evidence. Perrine, 85 So.3d at 1212; Sun, 53 So.3d at 1077; Villasenor v. Martinez, 991 So.2d 433, 436 (Fla. 5th DCA 2008). Thus, the abuse-of-discretion standard of review “is somewhat narrowed” in this context, “as it must take into account the heightened standard of clear and convincing evidence.” Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349, 352 (Fla. 3d DCA 2012) (quotation marks omitted). Further, where the trial court does not receive live testimony, appellate deference is furthered narrowed, because the appellate court’s review is based on the same record. See Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003).

Fraud on the court means that

a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense. When reviewing a case for fraud, the court should consider the proper mix of factors and carefully bal-anee a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Because dismissal sounds the death knell of the lawsuit, courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious .... Because dismissal is the most severe of all possible sanctions, ... it should be employed only in extreme circumstances.

Cox v. Burke, 706 So.2d 48, 46 (Fla. 5th DCA 1998) (quotation marks and citations omitted). We have described the Cox standard as “narrow,” Ruiz, 859 So.2d at 575, and “stringent,” Sun, 53 So.3d at 1076; Gehrmann v. City of Orlando, 962 So.2d 1059, 1061 (Fla. 5th DCA 2007). “Misconduct that falls short of the rigors of this test, including inconsistency, nondisclosure, poor recollection, dissemblance and even lying, is insufficient to support a dismissal for fraud, and, in many cases, may be well-managed and best resolved by bringing the issue to the jury’s attention through cross-examination,” Perrine, 85 So.3d at 1212; see Sun, 53 So.3d at 1077, and by “traditional discovery sanctions,” Villasenor, 991 So.2d at 436; Ruiz, 859 So.2d at 576. Thus, a trial court’s authority to dismiss a lawsuit based on fraud “should be used cautiously and sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.” Sun, 53 So.3d at 1076 (quotation marks omitted); accord Villasenor, 991 So.2d at 435.

In other words, when seeking dismissal of a lawsuit for fraud on the court, “[a] mere testimonial discrepancy is ordinarily not enough.” Sun, 53 So.3d at 1077; accord Bologna, 995 So.2d at 528. Rather, to warrant dismissal, the party’s conduct must show “a scheme calculated to evade or stymie discovery of facts central to the case.” Perrine, 85 So.3d at 1212 (quotation marks omitted); Bologna, 995 So.2d at 528; accord Sun, 53 So.3d at 1077. “Courts act cautiously in dismissing on this basis because the Florida Constitution guarantees court availability to every person to redress injury.” Perrine, 85 So.3d at 1211; accord Sun, 53 So.3d at 1076-77.

The facts of this case do not meet the narrow, stringent standard required for dismissal for fraud on the court. Although Maya showed a “testimonial discrepancy,” Sun, he failed to show “a scheme calculated to evade or stymie discovery of facts central to the case,” Per-rine. Gautreaux’s misrepresentation of her lack of prior headaches did not rise to the level of “the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.” Sun. Accordingly, the dismissal order must be reversed.

REVERSED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.


author: TORPY, J.

text:
    John KEHOE, Appellant/Cross-Appellee, v. Christine GAREMORE, Appellee/Cross-Appellant.
    Nos. 5D12-1871, 5D12-2445.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.
    Mark D. Loerzel, Ocala, for Appellant/Cross-Appellee.
    Michael J. Cooper, Ocala, for Appel-lee/Cross-Appellant.
   TORPY, J.

This consolidated appeal and cross-appeal pertains to a dispute over the improvements or damages made/caused by lessee, John Kehoe, to a parcel of land owned by Christine Garemore. The parties allege various errors surrounding the trial court’s final judgment and attorney’s fees orders. We affirm in part and reverse in part.

Kehoe initiated an action for quantum meruit, claiming that he was entitled to compensation for improvements he had made to Garemore’s property. Garemore alleged as a defense that the so-called improvements were defective and without value. Garemore also filed a counterclaim labeled an “action for equitable relief,” in which she made the same or similar claims of defective workmanship. The trial court severed the counterclaim, believing it to be equitable in nature, based on the label affixed to it by Garemore. It conducted a jury trial on Kehoe’s quantum meruit claim and Garemore’s defenses. During the jury trial, Garemore’s expert witness opined that it would cost $86,914 to cure defects in the work performed by Kehoe. As a consequence, she argued that the work performed by Kehoe was without value. The jury determined that Kehoe was entitled to quantum meruit recovery in the amount of $43,997.46, but that Gare-more was entitled to an $800 offset for defects in the work.

Following the jury trial and over Ke-hoe’s objection, the trial court ordered a separate bench trial on Garemore’s counterclaim, during which it heard largely redundant evidence about the claimed defective work. The court awarded Garemore $13,453 on her counterclaim, which it offset against the prior jury award.

On appeal, Garemore argues that she was short-changed by the jury’s offset because of a misleading and/or incorrect jury instruction on offset valuation. She concedes, however, that the jury verdict would have a preclusive effect on her counterclaim but for the purportedly erroneous instruction. Garemore also challenges the sufficiency of the trial court’s offset, claiming that the court also short-changed her. Kehoe challenges the propriety of the bench trial, contending that the jury trial settled the factual dispute regarding the value of the work, including the purported defects.

We need not address the merits of Gare-more’s jury instruction argument because her trial counsel failed to object to the instruction. As a consequence, Garemore is bound by the jury’s determination that her total offset was limited to $800. Accordingly, irrespective of whether the counterclaim was appropriately severed and irrespective of whether it stated a cause of action distinct from the defenses, the jury’s determination was preclusive on the factual issues raised in the counterclaim. See Orange Lake Country Club, Inc. v. Levin, 645 So.2d 60, 62 (Fla. 5th DCA 1994) (“A resolution of the common issue by the first finder of fact whether it be the judge in the equitable case or a. jury in the action at law would necessarily bind the later finder of fact.”). We therefore reverse the judgment and remand this cause with instruction that the trial court enter judgment in accordance with the jury verdict.

Kehoe also challenges two orders awarding attorney’s fees to Garemore as the prevailing party on post-trial motions. Because we conclude that there was no legal basis for either of these awards, we reverse both orders.

In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

JACOBUS and BERGER, JJ., concur.

      . Garemore concedes that she was not impeded in her evidentiary presentation or argument on this issue,

      . Assuming that the instruction was erroneous, resulting in a miscarriage of justice, and that a proper and timely objection was lodged, the remedy would be a new trial. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).


author: COHEN, J.

text:
    Abbas PAZOUHANDEH, Appellant, v. SALGAR CONSTRUCTION COMPANY, Appellee.
    No. 5D10-470.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.
    Abbas Pazouhandeh, Rockledge, pro se.
    Charles A. Schillinger of Schillinger & Coleman, P.A., Melbourne, for Appellee.
   COHEN, J.

Abbas Pazouhandeh appeals from a final judgment awarding attorney’s fees. That judgment appears to grant each side fees related to a suit involving construction of a home, then set off the fees. Pazouhandeh notes the lack of a record, stating he will “rely on memory of the testimony that transpired at trial to the best of his abilities.” This does not comply with Florida Rule of Appellate Procedure 9.200(b)(4), and thus, we are unable to accept the facts as set forth in Pazouhandeh’s brief.

Pazouhandeh argues that the court improperly determined the prevailing party issue. Without a transcript of the hearing, our review is limited to errors appearing on the face of that judgment. See Maslow v. Edwards, 886 So.2d 1027, 1028 (Fla. 5th DCA 2004). As there are no such errors, we affirm.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.


author: MARSTILLER, J.

text:
    Geraud MORELAND, II, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D12-1529.
    District Court of Appeal of Florida, First District.
    May 10, 2013.
    Jodi Siegel, Kirsten Clanton and Gabriela M. Ruiz of Southern Legal Counsel, Inc., Gainesville, for Appellant.
    Richard C. Beliak, Tallahassee, for Ap-pellee.
   MARSTILLER, J.

Geraud Moreland, II, is a client of the Agency for Persons with Disabilities (“Agency”). He has been diagnosed with mental retardation, epilepsy, obsessive compulsive disorder, deep sleep phase syndrome, and apraxia (loss of fine motor skills). He is eligible for the Medicaid Waiver program for developmentally disabled persons, and appeals an Agency final order assigning him to the Tier Three Waiver. Citing our decisions in Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011), and Royer v. Agency for Persons with Disabilities, 88 So.3d 300 (Fla. 1st DCA 2012), Mr. More-land asserts that the Agency reversibly erred by making the tier assignment based only on his need for personal care assistance, when his Agency-approved cost plan includes other services. We agree, and remand to the Agency for further consideration.

Background

The Agency administers the State’s federally-approved Home and Community-Based Services Medicaid Waiver Program for individuals with developmental disabilities (“DD Waiver”). See 42 U.S.C. § 1396n(c); §§ 393.0661, 409.906(13), Fla. Stat. (2009). Section 393.0661(3), Florida Statutes (2009), creates a four-tiered structure for the DD Waiver based on the nature and extent of an individual’s disabilities and service needs. Each tier has an annual expenditure limit, and the statute directs the Agency to assign clients to one of the four tiers based on specified cost guidelines, reliable assessment instruments, and client characteristics. The Agency’s ability to serve DD Waiver clients is constrained by available appropriations. See § 393.0661, Fla. Stat. (2009).

In May 2010, the Agency notified Mr. Moreland it was assigning him to Tier Three. The reason given for the assignment was: “You live in your family home and are authorized to receive Personal Care Assistance at the moderate level.” At the time, Tier One had no expenditure limit, while the limit for Tier Three was $35,000. See §§ 393.0661(3)(a), (c), Fla. Stat. (2009). The Legislature subsequently imposed limits of $150,000 and $34,125, respectively. See §§ 393.0661(3)(a), (c), Fla. Stat. (2010).

Mr. Moreland requested and received an administrative fair hearing to challenge the tier assignment. At the hearing, he asserted that his service needs, as reflected in the following Agency-approved cost plans, justify assignment to Tier One:

Fiscal Year 2009-10:
Personal Care Assistance (moderate level, 60 hours per month): $11,700.00
Dental: ' $514.05
Support Coordination: $1,571.40
Companion: $10,447.00
Supported Employment: $32,884.80
Respite: $8,576.80
Medication Review: $66.78
Total Cost: $65,760.83
Fiscal Year 2010-11:
Personal Care Assistance (moderate level): $11,700.00
Dental: $514.05
Support Coordination: $1,571.40
Companion: $10,339.16
Supported Employment: $32,810.40
Respite: $8,697.60
Total Cost: $65,632.61

The Agency’s general factors for consideration in making tier assignments are as follows:

(a) The client’s needs in functional, medical, and behavioral areas, as reflected in the client’s assessment using the assessment instrument known as the Questionnaire for Situational Information (QSI), the client’s support plan, pri- or service authorizations and approved cost plan.
(b) The client’s cost plan is developed through Agency evaluation of client characteristics, the Agency approved assessment process, support planning information, and the Agency’s prior service authorization process.
(c) The services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive or behavioral needs of a client.
(d) The client needs considered in tier assignments include only those services approved through the prior service authorization process to be medically necessary;
(e) The client’s current living setting; and
(f) The availability of supports and services from other sources, including Medicaid state plan and other federal, state and local programs as well as natural and community supports.

Fla. Admin. Code R. 65G-4.0026Q).

The Tier One Waiver is “limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others.” § 393.0661(3)(a), Fla. Stat. (2009). Florida Administrative Code Rule 65G-4.0027 specifically governs Tier One assignments, and provides, in pertinent part:

(1) The Tier One Waiver is limited to clients that the Agency has determined meet at least one of the following criteria:
(a) The client’s needs for medical or adaptive services are intense and cannot be met in Tiers Two, Three, and Four and are essential for avoiding institutionalization, or
(b) The client possesses behavioral problems that are exceptional in intensity, duration, or frequency with resulting service needs that cannot be met in Tiers Two, Three, and Four, and the client presents a substantial risk of harm to themselves or others.
(4) Clients who meet the criteria in subsection (1), and their needs cannot be met in Tier Two, Tier Three or Tier Four, shall be assigned to the Tier One Waiver. The following services as defined in the DD Handbook, if approved through the Agency’s prior authorization process, will be used as the primary basis for making an assignment or determining whether a tier change to Tier One is required:
(a) Personal Care Assistance;
(b) Behavior Analysis;
(c) Behavior Assistant Services;
(d) Supported Living Coaching;
(e) In-home Supports;
(f) Skilled, Residential or Private Duty Nursing Services;
(g) Intensive Behavioral Residential Habilitation Services;
(h) Behavior Focus Residential Habil-itation Services at the moderate or above level of support;
(i) Behavior Focus Residential Habili-tation Services at the minimal level of support;
(j) Standard Residential Habilitation at the extensive 1, or higher, level of support;
(k) Standard Residential Habilitation at the moderate level of support;
(l) Special Medical Home Care;
(m) Occupational Therapy;
(n) Physical Therapy;
(o) Respiratory Therapy;
(p) Specialized Mental Health Services; or
(q) Adult Day Training at the 1:1 ratio.

The hearing officer found Mr. Moreland has “intense medical and adaptive service needs and ... would be in danger of institutionalization if the waiver services are reduced.” Thus, he meets one criterion for assignment to Tier One. See Fla. Admin. Code R. 65G-4.0027(1)(a). Finding no other criteria satisfied, the hearing officer then determined that, of the services listed in rule 65G-4.0027(4), only personal care assistance services (“PCA”) are included in Mr. Moreland’s cost plan. And because he is approved only for a moderate level of PCA at a cost of $11,700, his needs can be met within the Tier Three expenditure limit., Accordingly, the hearing officer recommended that the Agency find Mr. Moreland was properly assigned to Tier Three.

Mr. Moreland urged the Agency to reject the hearing officer’s recommendation, arguing that it is error, when making tier assignments, to only consider those services listed in rule 65G-4.0027(4). The Agency accepted the hearing officer’s recommendation, reasoning:

Petitioner cites Newsome v. APD []. In Newsome, the court expressly declined to determine whether all of the approved services on a client’s cost plan must be considered in determining tier assignment. While the court did find that the Agency should have considered a service not contained on the list set out in Rule 65G-4.0027(4), it found that service to be “directly related to Appellant’s intensive medical needs.”
The services and service arrays listed in Rule 65G-4.0027(2), (3) and (4) are the services and service arrays the Agency has determined presumptively address intensive medical or adaptive needs and exceptional behavioral problems. If Petitioner believes his intensive medical or adaptive needs require the continuation of other services not on that list, he needs to make that assertion and the Agency will evaluate his claim. A general assertion that he requires each and every one of his services because they have been determined medically necessary is insufficient to generate that assessment. In this case, however, every service Petitioner is approved to receive, with the exception of Supported Employment, can be accommodated under the spending cap of tier three. Petitioner has not cited us to anything in the record showing that Supported Employment is directly related to Petitioner’s intensive medical needs.

Analysis

In Newsome, we reversed a Tier Three Waiver assignment, finding the Agency incorrectly interpreted rule 65G-4.0027(4) as limiting consideration to only those approved medically necessary services in a client’s cost plan that appear in the rule. 76 So.3d at 975. There, as in this case, the client had intense medical needs that would otherwise qualify her for Tier One. Id. at 974. Although her cost plan included PCA and several other services, the Agency considered only the PCA in assigning her to Tier Three because it was the only service listed in rule 65G-4.0027(4). See id. at 974. Disagreeing with the Agency’s interpretation of the rule, we reasoned:

[Rule 65G-4.0027(4) ] states that the listed services are to be used as the “primary basis” for tier assignment; it does not state that the listed services are the only services to be considered .... [T]he Agency’s narrow interpretation of this rule is inconsistent with the proposition stated in rule 65G-4.0026(l)(c) that “[t]he services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive, or behavioral needs of a client.”

Id. at 975. We concluded at least one other service in the appellant’s cost plan— consumable medical supplies — was directly related to her intensive medical needs, and that had the Agency correctly considered it, the appellant’s needs would have exceeded the Tier Three expenditure limit. Id. Accordingly, we directed the Agency to assign the appellant to Tier One. Id.

Royer similarly involved an assignment to Tier Three of an Agency client who otherwise qualified for Tier One, based only on the cost of the client’s authorized PCA. 88 So.3d at 300. Citing Newsome, we reversed and directed the Agency to assign the client to Tier One “[b]ecause the Agency found that Appellant had intensive adaptive needs and the authorized services in Appellant’s cost plan exceeded the expenditure cap for Tier Three[.]” Id. at 300.

We disagree with Mr. Moreland that the Agency disregarded Newsome and Royer and misapplied rule 65G-4.0027(4) in his case. Rather, we conclude the Agency misapprehended its responsibility under rule 65G-4.0026(l)(c), which, as we pointed out in Newsome, provides that “[t]he services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive or behavioral needs of a client.”

The hearing officer’s recommended order included the finding — which the Agency adopted — that Mr. Moreland has “intense medical and adaptive service needs” and is “in danger of institutionalization if the waiver services are reduced.” See Fla. Admin. Code R. 65G^L0027(l)(a). Thus, Mr. Moreland qualifies for the Tier One Waiver, unless his intense medical and adaptive needs can be met in a lower tier and still allow him to avoid institutionalization. Under similar facts, we held in Newsome that the Agency cannot limit its consideration to the services listed in rule 65G^f.0027(4), but must also take into account other authorized services in the client’s cost plan, as indicated by rule 65G-4.0026. Because, under that rule, the cost plan services are “key indicators of a tier assignment,” directly reflecting the client’s medical, adaptive, or behavioral needs, it is not sufficient for the Agency simply to aver in its final order that all of Mr. More-land’s cost plan services except supported employment can be met within Tier Three. Moreover, Mr. Moreland, as the client whose services are to be reduced, is not appropriately charged with proving “his intensive medical or adaptive needs require the continuation of’ supported employment services, as the Agency stated in its final order. Instead, the Agency has the burden to demonstrate that the reduced level of services available in the Tier Three Waiver will meet Mr. Moreland’s needs so that he can remain in his home setting. See Fla. Admin. Code R. 65-2.060(1) (providing the agency has burden of proof in fair hearings where the challenged decision reduces or terminates benefits).

Finding the Agency failed to carry its burden, we reverse the final order approving Mr. Moreland’s Tier Three Waiver assignment. However, because the hearing officer and the Agency did not have the benefit of our decision when considering Mr. Moreland’s tier assignment, we conclude it is not appropriate to order reassignment to the Tier One Waiver, as we did in Newsome and Royer. Rather, we remand the matter for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WOLF and THOMAS, JJ., concur.

      . There is no dispute that Mr. Moreland does not qualify for Tier Two because he does not live in a residential facility, is not in supported living, and is not authorized to receive more than six hours of in-home support services daily. See Fla. Admin. Code R. 65G-4.0028.

      . Tier Four placement is only for clients who are not eligible for the other three tiers. See Fla. Admin. Code R. 65G-4.00291.

      . The Agency included waiver support services because it is a required component in all cost plans.

      . Supported employment services are among the "habilitation services” states can provide under Medicaid waiver programs like Florida's DD Waiver. See 42 U.S.C. § 1396n(c)(5)(B). Habilitation services are intended to "assist individuals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community based settings!)]” 42 U.S.C. § 1396n(c)(5)(A).