author: WARNER, J. TUTER, JACK, Associate Judge, LEVINE, J.,

text:
    Kevan BOYLES, Esquire, as limited guardian of the property of Roman Vonkomarnicki, III, Appellant, v. A & G CONCRETE POOLS, INC., and James E. Preece, Appellees.
    No. 4D12-3334.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Rehearing En Banc Denied Oct. 8, 2014.

      Bard D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach; Steven Mitchel and Christopher I. Pezón of Steinger, Iscoe, Greene & McAfee, Fort Lauderdale, for appellant.
    John A. Wilkerson of John A. Wilkerson, P.A., Daytona Beach, for appellees.
   WARNER, J.

Appellant challenges a final judgment for the appellee in his personal injury action. He claims that the court erred when it admitted a physician’s testimony that the surgery performed on appellant was unnecessary. He also argues that the court erred in denying his motion for new trial; because liability was admitted and appellant had suffered at least some injury as a result of the accident giving rise to his claim. As to the admission of evidence, we hold that the issue was not properly preserved. As to the denial of the motion for new trial, the evidence on liability and damages was not uncontradicted, and the expert’s opinions on the plaintiffs injuries were discredited by plaintiffs own lack of credibility. Therefore, the trial court did not abuse its discretion in denying the motion for new trial.

In February 2008, plaintiff was the front seat passenger in a utility truck driven by plaintiffs co-worker, Mr. Poole, when it was rear-ended by a truck owned by A & G Concrete Pools and driven by one of its employees, Mr. Preece. The accident occurred after the utility truck was stopped for a. red light with the A & G truck stopped behind it. When the light turned green, both trucks began to drive forward, and Preece merged left because the lane he was in was ending. A vehicle in front of the utility truck came to a sudden stop after crossing the intersection, forcing Poole to stop. Preece was traveling at 30 mph and was looking to merge into traffic. When he looked forward, the utility truck was stopped, and he realized he would not be able to stop in time. He hit his brakes and swerved, but nonetheless collided with the rear of the utility truck. Preece testified that he never saw brake lights or reflectors on the truck, prior to impact. Photographs of the utility truck showed that the taillights were covered in mud.

At the time of the collision, plaintiff testified that his body was thrust forward, and that he hit his head on the dashboard. He complained of pain at the accident scene. A paramedic, who arrived at the scene and evaluated the plaintiff, testified that plaintiff told him that he had been involved in an automobile accident in 2001 and had suffered four herniated discs as a result. Plaintiff was transported to the emergency room but was released. Shortly thereafter, he was referred by his attorney to a chiropractor for treatment, and he told the doctor that he had not previously experienced problems with his neck or back. He continued to see the chiropractor for about four months.

When he did not improve, he was referred to Dr. Katzman, an orthopedic surgeon. He complained of neck and back pain but told the doctor that he had never had any injuries to his neck. When Dr. Katzman later discovered that plaintiff had encountered back problems in 2001, plaintiff maintained that the problems had been resolved, and that for at least two years prior to the 2008 accident he had not had any problems with or treatment for his back or neck.

After therapy and pain shots failed to relieve plaintiffs reported symptoms, Dr. Katzman performed a lumbar procedure in November of 2008 and a cervical procedure in January 2009, which the doctor testified were related to injuries sustained in the 2008 accident. The lumbar procedure was successful, but the cervical operation on his neck was not.

Plaintiff then went to see Dr. Dare, a neurosurgeon. During the initial evaluation, plaintiff did not inform Dr. Dare about the 2001 car accidents or any other treatments for back pain that he had received over the years. When Dr. Dare later received medical records from plaintiffs attorney revealing a prior medical and injury history, he questioned plaintiff, who responded that he had returned to normal by the time of the 2008 accident. Dr. Dare testified: “What he told me at the time was that he was not suffering from neck pain or seeking active treatment for neck and/or back pain at the time of his accident.” In reviewing plaintiffs subjective complaints as well as the MRI tests taken after the accident, Dr. Dare concluded that the 2008 accident caused a worsening of his back weakness, which had necessitated surgery. Dr. Dare also concluded that his neck condition was caused solely by the 2008 accident. Dr. Dare performed additional surgery on the plaintiff, including both neck and back surgery. When Dr. Dare examined plaintiff for the last time, nearly three years after the surgery, his condition had improved.

Contrary to his representations to Drs. Katzman and Dare, the plaintiff had been injured in two accidents in 2001 and had continued to encounter back pain and neck pain as a result. Following the first motor vehicle crash in 2001, he was treated by an urgent care clinic physician for low back pain. To this doctor, plaintiff complained of significant pain in the neck as well as the low back. The doctor prescribed Lor-cet and Oxycontin, an addictive narcotic pain medication, as well as giving him trigger point injections. As plaintiff continued to complain of uncontrolled pain, the doctor increased the Oxycontin dosage. The doctor ordered an MRI of his back which showed a herniated disc in the lumbar region of his lower back. Although the neck MRI did not show a herniation, it was-taken prior to the second accident in 2001.

A variety of other medical records showed the plaintiff made multiple complaints of pain to other medical providers. In 2002, plaintiff reported neck pain and low back pain. He saw a chiropractor from June through November 2005 to whom he complained of severe low back pain. He saw two other doctors in 2006, to whom he reported back and neck problems since his 2001 accidents. In December 2006, a nurse’s note on a medical record stated that plaintiff reported that prolonged standing made his back hurt.

His co-workers also reported that he complained of back pain from the prior accident. One of them testified that he was taking pills three times a day for back pain before the accident in this case.

Dr. Schumacher performed a compulsory medical examination (“CME”) of the plaintiff at the defendants’ request. Plaintiffs physical examination showed normal neurological findings and no signs of spinal cord compression, muscle atrophy, or loss of any objective neurologic function. He reviewed the cervical MRI films taken within a month of the 2008 accident and prior to surgery. He opined that the MRI revealed mild degenerative changes but no evidence of trauma or disruption of the discs. He also did not see any evidence of trauma on the lumbar MRI. When asked whether or not the plaintiff suffered a soft tissue injury in the accident of 2008, he responded: “I would say yes, but that comes down to subjectivity and the word of the person that gives it to you.”

The court denied a motion for directed verdict on liability. During closing argument, defense counsel initially conceded that Preece was negligent but then backtracked later in his argument, concluding that while Preece had stated that he felt responsible, he also could not have seen the taillights. Defense counsel asked the jury to be the judge of how much Poole, as driver of the utility truck, contributed to the accident, since the lights of the truck were covered in mud and Poole slammed on his brakes to come to a sudden stop.

After closing argument, the jury was instructed on both liability and damages. They returned a verdict in which they checked “no” to the question “Was there negligence on the part of [Preece] which was a legal cause of loss, injury or damage to [Plaintiff]?” Plaintiff moved for a new trial, claiming that defendants had conceded negligence and all experts agreed that plaintiff had suffered at least some injury from the accident. The trial court denied the motion, prompting this appeal.

I. Admission of Expert Opinion that Surgery was not Necessary

Plaintiff claims that the trial court erred in admitting defense expert Dr. Schumacher’s testimony that the surgeries performed on plaintiff were unnecessary, because it had previously granted a motion in limine precluding CME doctors from testifying that surgery was not medically necessary. During his direct testimony, Dr. Schumacher was asked:

Q: ... Based on your examination, your education, experience and training, based on your review of the medical records, do you have an opinion within a reasonable degree of medical probability as to whether this auto accident in 2-5-08 caused or necessitated the neck and back surgeries in 2008 and 2009?
A: Well, all I can say is in my practice, I wouldn’t prescribe surgery in this case for someone with back and neck pain and MRI’s that don’t show anything on there that is pushing on something, or show on examination an objective neurological deficit.

Plaintiff did not object to this testimony. While not raising this in his motion for new trial, he now claims on appeal that this testimony violated an order on a motion in limine. We conclude that the issue was not preserved.

Nine months after suit was filed, plaintiff filed a twenty-two page motion in li-mine, which appears to be a boilerplate, shotgun approach to various evidentiary issues. The motion sets forth forty-five different categories of evidence or testimony which the plaintiff claimed should not be admitted. Many of the categories had nothing to do with the facts of this ease. The trial judge assigned to the case at that time entered an order which granted, denied, or delayed ruling on each paragraph according to the listed number assigned to each paragraph. The order (which we have shortened) appeared as follows:

ORDERED AND ADJUDGED as follows:
The Plaintiffs Motion in Limine is hereby Ruled upon as follows:
1. Not ruled upon;
2. Before offered, there must a proffer outside the presence of the jury;
27. Granted;
28. Agreed upon by counsel;
29. Agreed upon by counsel;
36. Granted[.]

Another circuit judge took over the division prior to trial a year and a half later. At the beginning of the trial, the judge considered a motion in limine filed by the defendant. As that motion was being discussed, the plaintiff objected that Dr. Schumacher may have considered additional materials sent to him by defense counsel, which plaintiff contended violated the order on the motion in limine entered a year and a half earlier. The trial judge then reviewed the order granting the motion and expressed her displeasure with the order:

THE COURT: .... [T]here is a bunch of them here that says [“jdenied without prejudice to making contemporaneous objections. Before offered, there must be a proffer outside the presence of jury.[”] I have no idea.
That’s why when I am presiding over a trial, I want the motion in limine like the week before, so I remember. I would never do a motion like this two years before. And then have another judge rely on it. I mean, I have no idea. So hopefully, you all know and you are going to have to raise your objections because I don’t know what has been done.

(emphasis supplied). The plaintiff’s attorney agreed, noting that he was not even involved in the case when the order was entered.

The trial court thus changed the ruling and required the parties to raise objections to any matters covered by the motion in limine. “[A] trial court has the inherent authority to reconsider a non-final order and modify or retract it.” Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744, 745 (Fla. 4th DCA 1999). We think the trial court sensibly modified the prior ruling to require objections, and counsel acknowledged that modification.

Motions in limine can serve an important function in streamlining a trial. The excessive use of them, however, can clog the docket and become a trap. Boilerplate motions in limine filed early in a case have dramatically increased in the years since the amendment of section 90.104, Florida Statutes in 2003. This amendment modified the rule requiring a contemporaneous objection to preserve an objection to the admission of evidence on appeal. The amendment states: “If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Civil litigants now attempt to obtain blanket rulings well in advance of trial on every conceivable reason to object to evidence at trial, whether or not those matters apply to the facts of the case. Therefore, when the trial is held later, litigants believe that they do not have to object at all, and appellate issues will still be preserved. Trial judges may be put in the position of having to sua sponte strike evidence or hazard an appellate reversal with the requirement of a new trial.

The motion in limine filed in this case is an example of the type of motion that poses a problem for trial judges and litigants alike. Looking specifically to the item in question in this case, the motion requested an order prohibiting a CME doctor from testifying that plaintiffs surgeries were unreasonable or unnecessary. At the time of the motion, however, no CME doctor had examined the plaintiff. Therefore, there was no evidence as yet of any CME doctor’s findings or report. It is hard for us to conclude that the trial court made a definitive ruling excluding evidence that did not even exist or excluded it without knowing the specific context in which it may be given. And, as we show later, the testimony of Dr. Schumacher was admissible.

Trial judges do not have to consider such motions well in advance of trial. Many times they should not rule in advance. Evidentiary issues often depend upon the context in which they are raised or the other evidence which is admitted or developed through discovery. Where evidence excluded by a prior order in limine is admitted inadvertently, simply because it was not pointed out to the trial court that the evidence violated the order, this provides an appealable issue and an opportunity for a new trial, even though the error could have been easily corrected had it been pointed out by the parties.

To prevent that from occurring in this case, the trial judge astutely required the parties to object to any evidence sought to be excluded. Because the plaintiff did not object, this issue was not preserved for appeal.

Even assuming that the trial court did not intend to overrule the entire order in limine and that the issue is preserved, we would still affirm. The motion in limine requested the exclusion of any testimony from a CME doctor that the plaintiffs surgeries were unreasonable or unnecessary, based upon Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994). We conclude that the questions asked of Dr. Schumacher went to the causal link between the surgeries and the contested accident and thus did not address the same issue as was present in Dungan.

In Dungan, the plaintiff was injured in an automobile accident. Id. at 160. Although she required no immediate treatment, she developed pain and resulting disabilities and sought medical care. Her physician ultimately performed disc fusion surgery. At trial, the defendant’s medical expert opined that he would have given the plaintiff conservative treatment, and that the disc fusion surgery was not appropriate or reasonable based upon the plaintiffs physical findings. Id. at 161-62. After the plaintiffs continued objections, the trial court instructed the jury to disregard the expert’s testimony “with respect to whether the surgery was reasonable or not,” but the plaintiffs motion for a mistrial was denied. Id. at 161-62. Notwithstanding the trial court’s ruling'and over further objection, the expert testified that a substantial cause of the plaintiffs continuing pain and disability was the inappropriate surgery performed by her treating physician. Id. at 162. He concluded that the surgery actually caused additional pain and disability to the plaintiff and increased her permanent disability rating. The trial court then refused the plaintiffs request for a special jury instruction on the defendant tortfeasor’s liability for aggravation of injuries caused by subsequent medical treatment. The jury returned a verdict denying recovery to the plaintiff, and she appealed.

The First District reversed, relying on Stuart v. Hertz Corp., 351 So.2d 703, 707 (Fla.1977), for the proposition that “a wrongdoer is liable for the ultimate negligence on the part of a physician who has treated an injury in such a way that the treatment may have increased the damage which otherwise would have followed from the original wrong.” Dungan, 632 So.2d at 162. It concluded that the medical expert’s testimony was directed at proving that the plaintiffs continuing pain and disability were the result of inappropriate surgery rather than the accident. Id. at 163. It pointed to defense counsel’s opening and closing statements, in which counsel told the jury that the plaintiffs physician’s initial treatment was incorrect, and the surgery he performed was inappropriate and led to problems which she did not have before the surgery. Id. at 162-63. It also concluded that the court erred in failing to give the special jury instruction. Id. at 163.

In Nason v. Shafranski, 33 So.3d 117, 122 (Fla. 4th DCA 2010), we relied on Dungan to hold that the refusal to give a special instruction that the defendant was responsible for damages resulting from negligent or improper medical care was error requiring reversal. There, as in Dungan, the plaintiff was injured in an accident, complained of neck and back pain, and was referred to a physician who diagnosed him with both cervical and lumbar disc herniations based upon MRI scans. Id. at 118. His treatment began with injections, but the doctor eventually performed several surgeries on the plaintiff, the last of which was a disc fusion. Id. at 118-19. The plaintiff continued to complain of pain and headaches and developed depression. His physician also testified that the plaintiff could need additional, more extensive surgery should his condition not improve.

The defense medical expert was Dr. Schumacher, the same medical expert as in the present case. He testified in Nason that his review of the MRI scans did not reveal any herniation and that the plaintiff had suffered a mere sprain in the accident which should have been conservatively treated. Over objection, he testified that he would not have recommended surgery. The plaintiffs counsel requested a similar instruction as the court considered in Dun-gan, but the court denied it, as it did not think that the defendant was claiming that the treating physician was negligent. Nevertheless, during closing argument, defense counsel attacked the treating physician and the surgery he performed, which counsel argued made the plaintiffs problems worse. Id. at 119-20. When the jury retired to deliberate, it asked a question which indicated that it was confused as to whether the defendant would be liable for the consequences of treatment. Id. at 120. It returned a verdict for the plaintiff but did not award the full cost of the surgeries, prompting an appeal.

Relying on Stuart and Dungan, we reversed because of the trial court’s failure to give the special jury instruction. Id. at 120-22. We noted that, even though the defendant did not actually accuse the treating physician of malpractice, the defense medical expert’s testimony and the defense closing argument “clearly placed this issue before the jury.” Id. at 121. Although the plaintiff also argued Dr. Schumacher’s testimony that he would not have recommended surgery was inadmissible, we did not rule on that issue, reversing only on the jury instruction issue. Id. at 122.

The present case is distinguishable from both Nason and Dungan. In both of those cases, the inappropriate or unnecessary surgery was claimed by the defendants to have actually made the plaintiffs condition worse, and the treating physicians’ inappropriate treatment in performing the surgeries on the plaintiffs became the main point of attack. The same cannot be said for what occurred in this case. According to the plaintiffs own witnesses, the surgeries ultimately made the plaintiffs condition better. Thus, this case does not even fall into the Stuart-Dun-gaiu-Nason rule, which makes the tortfea-sor liable for negligent medical treatment of an injury which increases the plaintiffs damages.

For damages, the plaintiff sought only his past and future medical expenses and lost earning capacity. The surgeries alone cost hundreds of thousands of dollars. The defense did not claim that these very expensive surgeries were inappropriate; the defense claimed they were related not to this accident, but to the plaintiffs ongoing and well-documented past injuries. In opening statement and again in closing argument, defense counsel stressed that the main issue the jury would have to decide was whether the surgeries were caused by this accident, and the plaintiff voiced no objection to these statements. The defense never argued that the doctors were negligent or committed malpractice. What was argued was that the plaintiff failed to tell all of his doctors of his significant pre-existing condition, including his repeated complaints of neck and back pain which pre-existed the accident in this case. The defense suggested that the surgeries would have been a result of those conditions.

Thus, Dr. Schumacher’s testimony was not inadmissible based upon the Dungan line of reasoning. He was asked whether the surgeries were necessary as a result of the 2008 accident. Based upon his review of the medical records, he concluded that they were not. If the order in limine could be understood to bar this causation type testimony, then the trial court would have erred in granting the motion on those grounds.

Dr. Schumacher’s testimony in this case does mirror the testimony that he provided in Nason. He did not, however, ever accuse either Dr. Katzman or Dr. Dare of medical malpractice. He simply took a more conservative approach to treatment of the subjective complaints that the plaintiff expressed. Because Nason did not address whether Dr. Schumacher’s testimony in that case was objectionable, it does not compel reversal. Nason held that the use of the testimony by the defense to create an issue of physician negligence required the court to give the special jury instruction on tortfeasor liability for subsequent medical treatment. Such an instruction was not even requested in this case.

Because Dr. Schumacher’s testimony was not the Dungan-type testimony, accusing the treating physicians of malpractice, it was not covered by the motion in limine or the order granting it. It was admissible evidence, and no error occurred in its admission.

II. Denial of the Motion for New Trial

Generally, an order denying a motion for new trial is reviewed for an abuse of discretion. Collins v. Douglass, 874 So.2d 629, 681 (Fla. 4th DCA 2004); Smith v. Brown, 525 So.2d 868, 869 (Fla.1988).

A trial court has discretionary authority to order a new trial when the verdict is contrary to the manifest weight of the evidence. Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). In utilizing this discretionary power:

A trial judge has the responsibility to draw “on his [or her] talents, his [or her] knowledge, and his [or her] experience to keep the search for the truth in a proper channel,” and the trial judge should always grant a motion for a new trial when “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.”

Id. at 497 (quoting Cloud v. Fallís, 110 So.2d 669, 673 (Fla.1959)).

In Brown, the supreme court articulated the following test for determining whether the trial court abused its discretion in denying a motion for new trial:

[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Brown, 749 So.2d at 497-98. Consequently,

The question for an appellate court is not whether or not the [verdict] was contrary to the manifest weight of the evidence presented below.... Rather, the appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial. In order for [the appellate court] to reach that conclusion, the evidence must be clear and obvious, and not conflicting ....

Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000) (citations and footnote omitted); see also Weatherly v. Louis, 31 So.3d 803, 805 (Fla. 3d DCA 2009).

Plaintiff argues that the trial court abused its discretion in denying his motion for a new trial because the jury’s verdict is contrary to the manifest weight of the evidence. Plaintiff claims that defendants admitted liability, and the jury was not free to reject the testimony from the expert witnesses who all testified that he suffered some injury from the 2008 accident. We disagree.

First, we do not agree that the defendants admitted liability at trial. While the attorney did appear to concede responsibility on behalf of Preece, he told the jury that it was their decision as to how much blame to assess to Poole, given the fact that Poole made a sudden stop and his taillights were covered with mud so that Preece could not see them. The jury could have determined that Preece was not negligent because of these other conditions.

The defense attorney also argued strenuously that the accident did not cause any of the injuries to the plaintiff. We disagree that all of the experts concluded that plaintiff suffered some injury. Dr. Schu-macher testified that plaintiff suffered a soft tissue injury only if one believed the subjective complaints reported by the plaintiff.

The court read the standard jury instruction regarding expert testimony which instructs the jury that it

may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in this case.

See Fla. Std. Jury Instr. (Civ.) 2.2(b) [since renumbered 601.2(b) ]. However, “when medical evidence on permanence or causation is undisputed, unimpeached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it.” Campbell v. Griffith, 971 So.2d 232, 236 (Fla. 2d DCA 2008).

The jury’s ability to reject expert testimony must be founded on some reasonable basis in the evidence. Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla.2011). This reasonable basis can include: conflicting medical evidence; evidence that impeaches the credibility or basis for an expert’s opinion; the lack of candor of the plaintiff in disclosing prior accidents, prior medical treatment, and prior or subsequent similar injuries; conflicting lay testimony or evidence that disputes the injury claim; or the plaintiffs overall credibility relating to conflicting statements regarding the alleged injury. Id. at 1206; see also Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla.1993) (concluding that jury could reject expert medical testimony that the plaintiff had sustained permanent injuries from an automobile accident where the experts’ medical opinions were premised on the plaintiffs self-reported false medical history).

In Fell v. Carlin, 6 So.3d 119', 120 (Fla. 2d DCA 2009), the plaintiff moved for a directed verdict on the issue of whether he sustained an injury in an accident. The trial court denied the motion, and the jury found for the defendant. On appeal, the plaintiff argued that the testimony was undisputed that he had suffered an injury as a result of the accident.

The Second District noted that the jury heard testimony that would provide it with a reasonable basis to reject the medical expert’s testimony. The medical opinions regarding plaintiffs injury were based on his subjective complaints of pain. As such, the validity of those opinions depended on the plaintiffs candor in reporting his complaints. The defendant’s medical expert testified that while he believed the plaintiff sustained a non-permanent, soft tissue injury, his opinion was a “benefit of the doubt” diagnosis. He clarified that this meant he based his opinion on the plaintiffs subjective complaints of pain, which he assumed were truthful; however, if they were not truthful, his opinion would not be valid. Id, at 120-21. Thus, the court held that because the jury had a reasonable basis to conclude the plaintiff “was not candid with his doctors, it also had a basis to reject their opinions regarding whether he was injured as a result of the accident.” Id. at 121; see also Hernandez v. Gonzalez, 124 So.3d 988, 991 (Fla. 4th DCA 2013) (finding that “[a] jury may reject medical testimony, even on un-controverted issues, provided it has a reasonable basis to do so, such as where there is conflicting lay testimony.”).

Here, there is no question that the jury heard substantial evidence that plaintiff was less than candid with his doctors. He failed to tell them of his prior accidents. He also minimized his prior injuries and complaints, when the medical records showed his continual complaints of both low back and neck pain and treatment over the years. His co-workers testified to his complaints and his need to take medication for his complaints up until the time of this accident. All the doctors testified that their opinions were based in part upon the plaintiffs report of his pre-accident condition, as well as his subjective complaints after the accident. Similar to Fell, because the jury had a reasonable basis to conclude the plaintiff was not candid with his doctors, the jury had a reasonable basis to reject the doctors’ opinions. Moreover, Dr. Schumacher’s opinion that plaintiff suffered a soft tissue injury was predicated on plaintiffs subjective complaints of pain, which the doctor noted depended upon the plaintiffs candor. The trial court did not err in denying the motion for new trial.

For the foregoing reasons, we affirm the final judgment.

TUTER, JACK, Associate Judge, concurs specially with opinion.

LEVINE, J., dissents with opinion.

TUTER, JACK, Associate Judge,

concurring specially.

I wholeheartedly agree with Judge Warner’s reasoned analysis regarding the admission of the expert testimony from the defense expert in this ease and write to concur in the motion in limine/preservation of error issues. More than a year-and-a-half prior to trial, plaintiff scheduled a hearing on a forty-five category motion in limine. At the time the motion was heard, pre-trial discovery was ongoing, medical expert depositions had not been completed, and a compulsory medical examination of plaintiff had neither been sought nor completed. Despite all of these pending matters, the predecessor trial judge ruled on the motion and granted plaintiffs request to exclude proposed and undeveloped defense testimony that plaintiff underwent unnecessary surgeries.

However, by the time the case went to trial, a successor judge was presiding over the matter and was left with these early and out-of-context motion in limine rulings. The successor judge rightly revisited the rulings and advised the parties to make contemporaneous evidentiary objections based on her unfamiliarity with the case. Thus, there was no definitive pre-trial ruling on the admissibility of the challenged testimony, and plaintiff was required to voice a contemporaneous objection to the testimony in order to preserve the issue for appeal. Compare Philip Morris USA, Inc. v. Tullo, 121 So.3d 595, 601 (Fla. 4th DCA 2013) (contemporaneous objection required to preserve evidentiary issue for appeal when trial court does not make a definitive pre-trial ruling), with § 90.104(l)(b), Fla. Stat. (2010) (providing in relevant part that when a “court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection ... to preserve a claim of error for appeal.”). Plaintiffs failure to make any such objection precludes our consideration of his argument on appeal.

This scenario should serve as a cautionary tale. Motions in limine should never be used by litigants simply to get a “feel” for how the trial judge may view the evidence that will develop over the course of a trial. A significant number of motions in limine are not true motions in limine, but are simply an effort to engage in dialogue with the trial judge as to how he or she may view the evidence which will be offered at trial. Unfortunately, this puts the trial judge at a disadvantage, as the evidence ruled on is often not fully developed and cannot be considered in the context of the entire case. It is also problematic that such rulings may be passed to successor judges who are then confronted with either blindly accepting the rulings or abandoning them. Venturing into the motion in limine foray too far in advance of trial or without the matter constituting a true motion in limine is fraught with peril for both litigants and the trial court.

LEVINE, J.,

dissenting.

I respectfully dissent from the majority opinion.

In this case, appellant filed a motion in limine to prevent the defense from arguing that appellant’s medical surgery was not reasonable or necessary. The trial court granted the motion in limine based on case law from this court. Appellee violated the order in limine by directly asking the defense medical witness a question contrary to the order. Based on this improper line of questioning, I would reverse for a new trial.

Prior to trial, appellant filed a motion in limine which included the following requests:

24. An expert may properly explain ■his or her opinion on an issue in controversy by outlining the claimed deficiencies in the opposing expert’s methodology so long as the expert does not attack the opposing treating physician or retained expert’s ability, credibility, reputation or competence.
34. That any of the Plaintiffs treating physicians have committed medical malpractice or medical negligence or suffered any negative repercussions from the care rendered.
36. CME doctors are precluded from providing testimony wherein they opine that a Plaintiffs surgery was not reasonable or not necessary....

(citations omitted).

Subsequently, the trial court issued an order that listed rulings for all of appellant’s requests in the motion in limine, which included the following as it related to requests numbered 24, 34, and 36:

24. Agreed upon by counsel;
34. Agreed as to this case;
36. Granted;

At a hearing regarding a supplemental motion in limine, appellant brought up the fact that the predecessor judge previously granted a motion in limine limiting the defense’s CME doctor to opinions expressly in their reports, which was request number 9 in appellant’s original motion in li-mine. The trial court then reviewed the predecessor judge’s order and stated the following:

THE COURT: I mean, I am looking at this order on plaintiffs motion in limine, and it really does not tell me a lot. It’s numbered and says not ruled upon, agreed by counsel. I have no idea what any of this means.
[PLAINTIFF’S COUNSEL]: Number nine is the one we are talking about.
THE COURT: Nine, granted. Yeah, that is all it says, granted. Granted as to what. Are you kidding me, two years ago. Whatever.
Hopefully, you know, because there is a bunch of them here that says denied without prejudice to making contemporaneous objections. Before offered, there must be a proffer outside of the presence of jury. I have no idea.
That’s why when I am presiding over a trial, I want the motion in limine like the week before, so I remember. I would never do a motion like this two years before. And then have another judge rely on it. I mean, I have no idea.
So hopefully, you all know and you are goiny to have to raise your objections because I don’t know what has been done.
[PLAINTIFF’S COUNSEL]: Yes, Your Honor. I mean, I was not even involved in the case.
THE COURT: On Dr. Schumacher’s opinion, it is granted in part. I guess it is an ora [sic] tenus motion. Granted in part and denied in part. His opinions may not change. If there is any question about him updating or supplementing or changing the opinion in any way, we need to proffer that part of the testimony before we proceed to the jury.
I am not going to limit him to say, you could only rely or review records in 2001. If he has looked at records since then, without admitting the contents of those records or disclosing the contents, the details of those records, then I will reserve on that issue subject to a proffer.
I don’t know what you are, or what he is trying to get in something, whether it is something that you have provided or it is additional treatment.

(emphasis added).

The majority believes that the second statement in bold, reminding the parties to object, effectively vacated the motion in limine granted by the predecessor judge regarding forty-five specific requests. However, it appears just as likely that the trial court was referring to the first statement in bold, reminding the parties to object if the motions were denied without prejudice, or contemporaneously object if it was one of the items not ruled upon.

The order of the prior judge included twenty requests agreed to by the parties; four requests denied by the court, including two requests denied without prejudice to making contemporaneous objections; five requests granted by the court; fifteen requests not ruled upon; and one request requiring a proffer outside the presence of the jury before evidence is offered. Nowhere in the record is there any reference directly stating or alluding to the fact that all of the prior motions in limine granted, denied, or denied without prejudice had been vacated.

In fact, the best evidence that the trial court did not vacate the order in limine— specifically as to items 24, 34, and 36 — is appellee’s own brief. After listing requests 16, 24, 34, and 36, appellee concedes to the following in its answer brief: “The trial court entered a written order denying request number 16, and the remainder of the requests were agreed by the parties or granted by the trial court. (R: 105-106).” Appellee argues that appellee’s questioning of the CME doctor “did not violate the Order in Limine.” Nowhere does appellee even argue or hint that the trial court’s order was vacated. All parties argue under the clear assumption that the order in limine as to requests 24, 34, and 36 was not vacated.

“Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance.” Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009); Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”). “Relatedly, we ‘cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.’ ” Featured Props., LLC v. BLKY, LLC, 65 So.3d 135,137 (Fla. 1st DCA 2011) (quoting Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009)). Where the record lends itself to differing interpretations in retrospect, the appellate court should restrict itself to the record as understood by all the parties.

If the record does not clearly support a finding that the motion in limine has been vacated, then appellant did preserve the record on the violation of requests 24, 34, and 36. “Section 90.104(1) was amended in 2003 to provide that, ‘If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.’” Charles W. Ehrhardt, Florida Evidence § 104.5 (2014 ed.). It would be unfair to require appellant to object to evidence introduced in violation of the previously-granted requests in limine — specifically 24, 34, and 36 — where the record does not clearly support that the trial court vacated the order granting those requests. Appellant would correctly rely on section 90.104(1), which states that appellant need not object in order to preserve the issue, where the trial court has previously granted requests within the motion in limine and where the “vacating” of the entire motion in limine is not clear to the parties. “[I]t is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations.” Reidelberger v. Highland Body Shop, Inc., 83 Ill.2d 545, 48 Ill.Dec. 237, 416 N.E.2d 268, 271 (1981).

In Reidelberger, a predecessor judge granted a motion in limine prohibiting certain questions regarding the speed and movement of the decedent’s vehicle. During trial, the successor judge made several statements adopting differing restrictions as to testimony regarding the ■ vehicle’s movement and speed, inconsistent with the original limine order. The Illinois Supreme Court found that the trial court’s rulings during trial were not sufficiently specific or clear. As such, violations of these new rulings could not support a basis for granting a new trial. Similarly, in the present case, the trial court’s ruling was not sufficiently specific or clear to support a finding that the trial court intended to vacate the original order in limine. Because the trial court’s statements were ambiguous as to any intention to modify or vacate the limine order, the original order in limine controlled.

The majority argues that even if “the trial court did not intend to overrule the entire order in limine and that issue is preserved, we would still affirm.” I also respectfully disagree. Clearly, the questions asked by appellee violated the previously granted motion in limine. During trial, appellee elicited the following testimony from Dr. Schumacher:

Q Based on your examination, your education, experience and training, based on your review of the medical records, do you have an opinion within a reasonable degree of medical probability as to whether this auto accident in 2-5-08 caused or necessitated the neck and back surgeries in 2008 and 2009?
A Well, all I can say in my practice, I wouldn’t prescribe surgery in this case for someone with back and neck pain and MRI’s that don’t show anything on there that is pushing on something, or show on examination an objective neuro-logic deficit.
That doesn’t mean that if he had surgery, it is not malpractice if someone did. It is just my practice and the way I was trained that I would not prescribe surgery for that.

The questions asked by appellee violated the specific order in limine of the trial court. The trial court granted request 36 in which appellant requested that “CME doctors [be] precluded from providing testimony wherein they opine that a Plaintiffs surgery was not reasonable or not necessary.”

In a line of cases starting with Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla.1977), Florida courts have concluded that “[a]n active tortfeasor should not be permitted to confuse and obfuscate the issue of his liability by forcing the plaintiff to concurrently litigate a complex malpractice suit in order to proceed with a simple personal injury suit.” This is because “the rule is well established that a wrongdoer is liable for the ultimate result, although the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the Original wrong.” Id. at 707 (quoting 57 Am. Jur. 2d Negligence § 149, at 507).

Applying Stuart, this court has stated that a “third-party malpractice claim could not be tried as part of the main lawsuit over the plaintiffs objection.” Nason v. Shafranski, 33 So.3d 117, 121 (Fla. 4th DCA 2010). This court concluded that “ ‘unnecessary surgery may constitute medical malpractice where it deviates from the standard of care.’ Although the defendants carefully avoided the term ‘malpractice’ during trial, Dr. Schumacher’s testimony and the defendants’ closing argument clearly placed this issue before the jury.” Id. (citation omitted).

In the present case, the same Dr. Schu-macher testified effectively that the surgery was unnecessary and that he would not have prescribed surgery in this case. As stated before by this court, unnecessary surgery could constitute medical malpractice. Further, in this case, the question and answer by Dr. Schumacher not only violated the order in limine, but also clearly placed the necessity of appellant’s surgery before the jury. See Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994) (finding trial court reversibly erred in admitting testimony that plaintiff received inappropriate medical treatment for injuries sustained in an automobile accident).

The testimony of Dr. Schumacher relied on by appellant in his motion for new trial is relevant to a harmless error analysis. The error is not harmless because it cannot be said it is more likely than not that the improper testimony in violation of the order in limine “did not influence the trier of fact and thereby contribute to the verdict.” Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011).

During trial, Dr. Schumacher testified as follows:

Q Based on your examination, education and experience and training, and based on your review of the medical records, do you have an opinion within a reasonable degree of medical probability as to whether this auto accident on 2-5-08 caused a minor soft tissue injury?
A Well, I would say yes, but that comes down to subjectivity and the word of the person that gives it to you. If they say — and many of us have had this, where you might have fallen or been in an accident or what have you, where you have a stiff neck the next day. That’s what we call a minor soft tissue injury.
They don’t necessarily show up on a x-ray or MRI scan, but we do believe it is microscopic. And it does cause some spasm, but if there is no radiology that shows an injury. That should spontaneously resolve or resolve with some mild massage, what have you, in a couple weeks to a few months at the latest.

(emphasis added).

In this case, Dr. Schumacher, the defense medical witness, conceded that appellant had suffered soft tissue injury as a result of the 2008 accident. However, the jury answered “No” to the first question on the verdict form, which asked, “[W]as there negligence on the part of [defendant] which was the legal cause of loss, injury or damage to [plaintiff].” Based on the testimony and admission of Dr. Schumacher as to appellant’s resulting soft tissue injury, the placing of inadmissible evidence before the jury in violation of the granted motion in limine cannot be said to be harmless error. See Special, 79 So.3d at 771.

In conclusion, I would reverse based on the violation of the order in limine, and I would find the admission of this evidence before the jury was not harmless error.

      . In Nason, we noted "We have twice certified to the Florida Supreme Court the question of whether Stuart v. Hertz is still good law since the passage of the Tort Reform and Insurance Act of 1986, which made each tort-feasor liable only for his own negligence. See Caccavetla v. Silverman, 814 So.2d 1145 (Fla. 4th DCA 2002); Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA 2001). The Florida Supreme Court has declined to answer the certified questions in both cases." Nason, 33 So.3d at 121 n. 1.

      . Because I would reverse based on the violation of the order in limine, it is not necessary to address the merits of the motion for new trial.


source: Caselaw Access Project

author: FORST, J.

license: Public Domain

text:
    Kendrick C. SILVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-335.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Rehearing Denied Oct. 3, 2014.

      Carey Haughwout, Public Defender, and John M. Conway, 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.
   FORST, J.

Defendant Kendrick Silver (“Defendant”) was convicted of three counts of attempted second-degree riiurder and two other misdemeanors. Defendant now appeals his convictions and sentences, alleging that the trial court erred by: (1) improperly allowing the State to impeach Defendant with questions about prior robberies; (2) giving an incomplete jury instruction; (3) allowing the State to strike a potential juror without a valid, race-neutral reason for doing so; and (4) denying his motion to suppress his post-arrest confession to investigators. We find none of Defendant’s arguments on appeal warrant a reversal. We write to address only Defendant’s argument regarding the incomplete jury instruction. With regard to this issue, we hold that any error was waived and that giving the requested jury instruction did not constitute fundamental error; thus, the instruction cannot be a basis for reversal on appeal.

Background

Defendant was an employee at Picasso’s Pizza for about four months prior to the events occurring on June 1, 2007. That evening, Defendant and another individual entered the restaurant wearing masks and armed, with one individual carrying a revolver and one with a rifle. The masked men initially concentrated on controlling the restaurant’s employees and owner. When the owner pleaded with one gunman to just take the money from the register, the gunman responded: “Just be quiet; you don’t want to get shot, Papa.” The owner later testified that only Defendant referred to the owner as “Papa.” Based on this, and what the owner could see of this gunman’s face through his mask, the owner realized that this gunman (with the revolver) was Defendant.

The owner was then ordered off the ground and into the back of the restaurant in order to open a safe. Both gunmen came to the back room where the safe was located. The owner then heard the back door of the restaurant slam shut, so he knew that one of the other employees had “took off running through the back door.”

Once the safe was open, the owner told the gunman, “I told you there was no money in there.” The gunmen then saw that the employees were all running out the back door, leaving the owner by himself for a few seconds. At this point, the owner took off running and heard gunshots. After reaching the front door, the owner heard the man with a revolver yell “stop,” then the gunman shot the owner in the arm. The owner kept running and finally saw police who were responding to the robbery.

One of the employees ran toward a storage warehouse that was located directly behind the pizza restaurant. The owner of the warehouse was present at the warehouse the night of the robbery and heard the fleeing employee yelling that the restaurant was being robbed. The warehouse owner then dialed 911 and also pulled the escaping employee into the warehouse, shutting the warehouse door behind him as he noticed a person wearing a mask emerge from the back of the restaurant. Gunfire followed, with both the warehouse owners and the employee being shot.

After law enforcement officers arrived on the scene of the shooting, a search for the suspects began. Eventually, Defendant and another individual were found hiding inside a boat.

After being given Miranda warnings, Defendant confessed that he was part of the robbery of the pizza restaurant that “went bad.” He also admitted to both shooting at the owner and at “the wall” of the storage unit when he saw the employee run inside with the other man. At his trial, however, Defendant provided a very different story, contending that he was at the restaurant the night of the robbery only because he was picking up his paycheck, and that he left once two men with whom he came to the restaurant announced their intention to rob it.

The initial jury instructions read to the jury were agreed upon by both parties. These instructions included a brief statement designating the charge of attempted manslaughter as a lesser-included offense of first-degree murder (“[Y]ou will then consider the circumstances around the attempted killing in deciding if it was attempted first-degree murder or ... attempted voluntary manslaughter.”). The instructions did not include any further mention of attempted voluntary manslaughter.

After reading a substantial portion of the instructions to the jury, the trial court noticed the instructions had a number of typos and other errors. The judge then addressed the prosecutor and defense counsel: “These jury instructions really are not acceptable. Why don’t we do it this way; why don’t we adjourn, you can go back ... you make the corrections, we’ll come back tomorrow, we’ll do the jury instructions.” When the parties arrived in court on the following day with the revised/corrected instructions, the statement about attempted .voluntary manslaughter was omitted completely, and defense counsel affirmatively stated that he was “in agreement with these instructions.” Thereafter, the instructions were read to the jury.

Defendant was convicted of three counts of attempted second-degree murder (as lesser included offenses of attempted first-degree murder) and two other misdemeanors.

Standard of Review

“‘Generally speaking, the standard of review for jury instructions is abuse of discretion,’ but that ‘discretion, as with any issue of law is strictly limited by case law.’ ” Krause v. State, 98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Lewis v. State, 22 So.3d 753, 758 (Fla. 4th DCA 2009)). Any objection to a jury instruction must be specific; without a specific objection during the jury charge conference, the issue is reviewed to determine if any error was fundamental. Id. In the instant casis, Defendant did not object to the jury instructions.

Fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010)). “[T]he fundamental error doctrine should be applied ‘only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” Nesbitt v. State, 889 So.2d 801, 802 (Fla.2004) (quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981)).

Analysis

Defendant argues that it was fundamental error for the jury to not have been instructed on attempted manslaughter as a lesser-included offense of attempted first-degree murder. The State responds that this argument was waived by defense counsel because defense counsel did not object and agreed to the instructions as given.

A. Failure to instruct on lesser included offenses is not necessarily fundamental error.

In non-capital cases, the “failure to instruct on necessarily lesser-included offenses (even category 1 lesser-included offenses) ... is not fundamental error.” Generazio v. State, 727 So.2d 333, 335 (Fla. 4th DCA 1999). In addressing a similar scenario, the Florida Supreme Court has stated:

In formulating his argument, petitioner asks us to apply the label “fundamental error” to this case, thereby allowing this Court to stray from the long and unbroken lines of precedent conditioning a right to jury instructions on lesser included offenses upon a request for such instructions, State v. Bruns, 429 So.2d 307 (Fla.1983); Griffin v. State, 414 So.2d 1025 (Fla.1982); Chester v. State, 441 So.2d 1165 (Fla. 2d DCA 1983); Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), review denied, 444 So.2d 418 (Fla.1984), and requiring a contemporaneous objection as predicate to proper appellate review, Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984); Ray v. State, 403 So.2d 956 (Fla.1981).

Jones v. State, 484 So.2d 577, 579 (Fla.1986). In Harris, a capital case, the supreme court held that criminal defendants have a fundamental right to have the jury instructed on all necessarily lesser-included offenses. However, the supreme court in Jones expressly declined to extend Harris to non-capital cases. Id. (“[recognizing that the role of defense counsel necessarily involves a number of tactical decisions and procedural determinations inevitably impacting on a defendant’s constitutional rights,” and finding “no personal waiver [with respect to jury instructions on lesser-included offenses] is required in order to guarantee fundamental fairness in the non-capital context”).

This court recently found that the failure of the trial court to give a lesser-included offense instruction (in that case, the omitted instruction also was “attempted manslaughter”) was not fundamental error, as the defendant failed to request the instruction. Cosme v. State, 89 So.3d 1096, 1097 (Fla. 4th DCA 2012). Cosme cited to Gomez v. State, 5 So.3d 700, 702 (Fla. 5th DCA 2009), for the proposition that, “[w]hen there is no timely request made by the defendant, a trial court’s failure to instruct on a neeessarily-lesser included offense in a non-capital case does not constitute fundamental error.” Cosme, 89 So.3d at 1097.

Our sister court has reached a similar conclusion. In Firsher v. State, 834 So.2d 921, 922 (Fla. 3d DCA 2003), the defendant was charged with attempted second degree murder. The jury was not instructed on the category 1 lesser included offense, attempted manslaughter; instead, as in the instant case, defense counsel requested an instruction on aggravated battery. The court noted:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.

Id. at 922 (quoting Armstrong v. State, 579 So.2d 734, 735 (Fla.1991)) (in turn, quoting Ray, 403 So.2d at 961 (emphasis supplied by Armstrong)); see also Nesbitt, 889 So.2d at 803 (quoting Ray, 403 So.2d at 961). Thus, consistent with Jones, the exception to fundamental error exists “where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So.2d 425, 427 (Fla.1994). A defendant in a non-capital case must specifically request instructions on lesser-included offenses, or object to the omission; otherwise, any error in failing to give an instruction that was not requested is not preserved for appellate review and is not fundamental error.

Such was the case here. Defense counsel did not request an instruction on attempted voluntary manslaughter, and in fact was a participant in modifying the initial instructions and deleting the instruction on attempted voluntary manslaughter. Thus, no such instruction was given. To hold that such an omission constitutes fundamental error would “stray from the long and unbroken lines of precedent conditioning a right to jury instructions on lesser included offenses upon a request for such instructions.” See Jones, 484 So.2d at 579.

The initial instructions in the instant case briefly discussed attempted voluntary manslaughter as a lesser included offense: “[Y]ou will then consider the circumstances surrounding the attempted killing in deciding if it was attempted first-degree murder or attempted second-degree murder or attempted third-degree murder or attempted voluntary manslaughter or .... ” (emphasis added). These initial instructions did not 'include instructions about the specific elements of attempted manslaughter, although the specific elements of the other lesser-included offenses were discussed therein. After the trial court noticed typos, confusing language, and errors in other parts of the jury instructions, it adjourned so that the parties could “make the corrections” to the jury instructions. When the parties arrived in court on the following day with the revised/corrected instructions, any mention of attempted voluntary manslaughter was omitted completely, and defense counsel affirmatively stated that he was “in agreement with these instructions.”

By all indications, counsel was alerted to the fact that the initial instructions were incomplete; instead of requesting a complete instruction, however, counsel agreed to remove any mention of attempted voluntary manslaughter completely. The record indicates defense counsel, like the jury instructions he agreed to, purposefully neglected to mention/discuss a jury instruction regarding attempted manslaughter when making his closing argument to the jury:

This is what’s there: aggravated battery with a firearm, that’s there .... There was an aggravated battery committed here with a firearm; there was no attempted first-degree murder; there was . no attempted second-degree murder.

As delineated in the transcript, defense counsel’s strategy (at least in part) was to argue that the facts demonstrated only an aggravated battery with a firearm rather than the charged offenses, ie., Defendant was merely shooting at the wall of the warehouse, with no intent to kill the warehouse owner or the fleeing employee (and arguing that he never shot at the owner). Accordingly, the record demonstrates not only defense counsel’s affirmative agreement with respect to the omission, but also reliance on the instructions as read. As in Armstrong, defense counsel modified the instruction to “tailor it to the defense .... ” Armstrong, 579 So.2d at 735. It was “a tactical decision.” Id. at 735 n. 1. As stated in Armstrong,

By affirmatively requesting the instruction he now challenges, [the defendant] has waived any claim of error in the instruction. Any other holding would allow a defendant to intentionally inject error into the trial and then await the outcome with the expectation that if he is found guilty the conviction will be automatically reversed.

Id. at 735 (footnote omitted). Similar to Armstrong, defense counsel in the instant case relied on the charge as evidenced by approval of the submission of the revised jury instructions, which deleted attempted manslaughter as a lesser included charge. See id. Thus, the Armstrong/Ray exception to “the general rule” is applicable in the instant case.

B. The jury had an opportunity to exercise its “pardon” capacity.

“As a general rule, ‘the failure to instruct on the next immediate lesser-included offense (one-step removed) constitutes error that is per se reversible.’ ” Firsher, 834 So.2d at 922 (quoting State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978)). The instant case does not involve “the failure to instruct on the next immediate lesser-included offense (one step removed).” Id. The jury was instructed on the next immediate lesser-included offense of attempted second degree murder. Moreover, the jury in this case was instructed on the lesser-included offense of aggravated battery with a firearm which, like the omitted instruction of attempted manslaughter with a firearm, is a second degree felony. Thus, the jury was provided “a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime.” Id. at 923 (quoting Abreau, 363 So.2d at 1064).

C. The jury instructions did not contain erroneous definitions of the charged offenses.

We are aware of our supreme court’s recent decision- in Williams v. State, 123 So.3d 23 (Fla.2013), but find this case distinguishable. In Williams, the court found that the standard jury instruction for attempted manslaughter by act constituted fundamental error because it included an intent to kill element. In that case, the defendant was convicted of attempted second degree murder, and the supreme court held fundamental error existed in the following context:

[Bjecause the jury found Williams guilty of attempted second-degree murder, an offense not requiring proof of intent to cause the death of the victim, it must have determined that Williams did not intend to cause the victim’s death. And, because the instruction given for attempted manslaughter by act erroneously included an intent to kill element, the jury was left with attempted second-degree murder as the only viable lesser included offense under the instructions given.

Id. at 28. Williams and the earlier decision in State v. Montgomery, 39 So.3d 252 (Fla.2010), as well as the supreme court’s decision in Haygood v. State, 109 So.3d 735 (Fla.2013), addressed the issue of whether the standard jury instruction for attempted voluntary manslaughter and voluntary manslaughter, as read in those cases, constituted fundamental error by erroneously including an intent to kill element. The issue in the instant case, however, is whether fundamental error — if any — was waived when defense counsel chose to omit the attempted manslaughter instruction altogether (presumably in order to steer the jury to the lesser-included offense of aggravated battery). Accordingly, Williams, Montgomery, and Haygood are distinguishable and do not warrant a reversal.

Conclusion

In this case, counsel was alerted to an incomplete instruction on attempted manslaughter when it was included in the haphazard initial jury instructions. When asked to amend these instructions because of typos and other errors contained therein, counsel did not seek a complete instruction on attempted manslaughter, but instead agreed to an omission of the attempted manslaughter instruction altogether. Moreover, counsel then relied on the omission during his closing argument to the jury. It is not fundamental error in non-capital cases to omit an instruction on a lesser-included offense (particularly when an instruction on the “next immediate lesser-included offense” is given) when that instruction is neither requested nor objected to. See Jones, 484 So.2d at 579. As discussed above, we find the record reflects a situation where any fundamental error in omitting the attempted manslaughter instruction was waived in the instant case via strategic decisions made by counsel below.

Moreover, we find that defense counsel in this case went beyond mere acquiescence in the erroneous omission. Instead, the record reflects that defense counsel’s “failure to object has been coupled with affirmative acts either seeking or acquiescing in the erroneous instructions.” See Nesbitt, 889 So.2d at 803 (quoting Ray, 403 So.2d at 961). Based on the foregoing, we find no reversible error occurred by failing to give an instruction on attempted voluntary manslaughter. We also find no merit in the other issues raised by Defendant on appeal. Accordingly, we affirm Defendant’s convictions and sentences.

Affirmed.

TAYLOR and MAY, JJ., concur.

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


author: PER CURIAM.

text:
    David DUDZIAK, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4580.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Rehearing En Banc Denied Oct. 3, 2014.
    Robert S. Gershman of Gershman & Gershman, P.A., Delray Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Alonso v. State, 447 So.2d 1029 (Fla. 4th DCA 1984).

LEVINE, CONNER and KLINGENSMITH, JJ., concur.


author: CONNER, J.

text:
    Jermaine HENDERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-1533, 4D11-3737.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Rehearing Denied Oct. 9, 2014.

      Antony P. Ryan, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, and Richard G. Bartmon, Assistant Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Jermaine Henderson, the defendant, challenges his convictions for first-degree murder with a firearm, robbery with a firearm, attempted robbery with a firearm, and conspiracy to commit robbery with a firearm, raising three issues. We affirm without discussion both issues regarding the jury’s request for the read-back of testimony. We also affirm the third issue, regarding the trial court’s denial of the defendant’s motion to suppress, but write to address the defendant’s argument that the police did not have valid consent to conduct a search of his residence.

Factual Background and Trial Court Proceedings

The following facts were revealed during the hearing on the motion to suppress. Pursuant to an open warrant on a charge unrelated to this case, Officer Seltzer arrested the defendant outside the motel efficiency apartment where he lived with his girlfriend and children. At the time, the defendant was a suspect in the murder and robberies at issue on appeal. Officer Seltzer searched the defendant’s motel room and found ammunition. Subsequent to the discovery of the ammunition, Officer Reynolds and Assistant Chief Smith arrived at the motel as backup. Since Officer Seltzer was deceased at the time of the hearing, Smith and Officer Reynolds testified that Officer Seltzer told them that he had oral consent from the defendant’s live-in girlfriend to conduct the first search, which led to the discovery of the ammunition. Once Smith arrived, he directed Officer Reynolds to obtain a written consent from the defendant’s girlfriend to search the room again for a firearm. The written consent of the girlfriend was obtained. Smith and Officer Seltzer proceeded to search the motel room for a firearm.

The defendant was in a police vehicle while Smith and Officer Seltzer searched the room for the firearm. Officer Reynolds was standing next to the vehicle. The defendant told Officer Reynolds of his concern that his girlfriend would be arrested and their children would be placed in the custody of the Department of Children and Families. Officer Reynolds did not respond to the defendant’s comments. Soon thereafter, the defendant made an unsolicited offer to Officer Reynolds to “show them where the gun is.” Officer Reynolds brought the defendant to the motel room, where the defendant directed police to a satchel which contained a firearm and additional ammunition.

The trial court denied the motion to suppress, finding that the defendant’s girlfriend gave valid third-party consent to search the motel room and the defendant acquiesced to the search. This appeal follows.

Legal Analysis

The defendant argues three points on appeal in support of reversing the order denying his motion to suppress: (1) since his girlfriend and Officer Seltzer did not testify at the suppression hearing, the State did not provide appropriate proof that the police had consent to conduct the first search; (2) his girlfriend did not have the authority to consent to the search of his personal property; and (3) his offer to assist the officers in the search for the firearm was not voluntary. As to his third point, the defendant further argues that he was under duress because he believed his girlfriend would be arrested and his children would go into the custody of the Department of Children and Families. Additionally, the defendant contends that the handcuffs and the presence of three officers in the motel room created a coercive and intimidating atmosphere, thus negating the voluntary nature of his acts.

Appellate courts apply a mixed standard of review to the trial court’s ruling on a motion to suppress. Springer v. State, 125 So.3d 271, 272 (Fla. 4th DCA 2013). The trial court’s findings of fact are presumed correct if they are supported by competent, substantial evidence, but the trial court’s application of law to those facts is reviewed de novo. Id.

“A warrantless search is per se unreasonable under the Fourth Amendment. . However, a search will be considered lawful if conducted pursuant to consent which was given freely and voluntarily.” Hernandez v. State, 80 So.3d 416, 419 (Fla. 4th DCA 2012) (citations omitted). Whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances. Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). “Those circumstances include whether the person is detained; the length of the detention; any subtly coercive police questions; the education, intelligence, and possible vulnerable subjective state of the person; and the lack of effective warnings.” State v. McCord, 833 So.2d 828, 830 (Fla. 4th DCA 2002) (citations omitted). “Generally, the fact that a defendant has been taken into custody or otherwise detained [by itself] is not sufficient to constitute coercion and render consent involuntary as a matter of law.” Gonzalez v. State, 59 So.3d 182, 186 (Fla. 4th DCA 2011). However, the inherently coercive nature of handcuffing places a higher burden on the State to establish that the handcuffed defendant voluntarily consented and that consent was not a mere acquiescence to a show of police authority. Id.

The trial court found by a preponderance of the evidence that Officer Seltzer had valid third-party consent from the defendant’s girlfriend to conduct the first search, which led to the discovery of ammunition in the motel room. As to the second search, which revealed the firearm and additional ammunition, the trial court applied.the clear and convincing evidence standard to determine whether the written consent was voluntary. The trial court apparently understood “the essential purpose of the clear and convincing evidence requirement is to place the burden on the State to demonstrate an ‘unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.’ ” Alvarez v. State, 515 So.2d 286, 288-89 (Fla. 4th DCA 1987). As commented by the trial court, “worst-case scenario, assuming that the first search of the projectiles was illegal,” clear and convincing evidence would be the standard to determine if consent was voluntary as to the second search. However, the trial court did not make any finding about an unequivocal break between the first search, which uncovered the ammunition, and the subsequent search for the firearm.

. [5] Although much of the arguments below and on appeal revolve around whether the consents to search given by the defendant’s girlfriend were legally valid, we determine the unsolicited offer by the defendant to show the location of the firearm is the critical factor that must be assessed. The State argues, and we agree, that the defendant’s unsolicited offer to show the police the location of the firearm was a sufficient break in the chain of any arguable illegality as to the first and second searches.

Courts in other jurisdictions have held that a defendant’s unsolicited offer to allow a search mitigates the effect of any unlawful police conduct. See United States v. Pedroza, 269 F.3d 821, 827-28 (7th Cir. 2001) (holding that the defendant’s volunteered permission for DEA agents to search his house and his car, without being asked, was an independent act of free will which was not tainted by a prior illegal pat-down search); United States v. Martinez, 166 F.3d 340 (5th Cir.1998) (holding that the defendant’s unsolicited consent to search his vehicle cured any defect from an improper traffic stop); United States v. Mendozar-Salgado, 964 F.2d 993, 1012-13 (10th Cir.1992) (holding that co-tenant’s unsolicited consent to search sufficiently purged the government agents’ warrant-less entry of any primary taint and rendered the subsequent search valid); State v. Phillips, 232 Or.App. 547, 222 P.3d 738, 741 (2009) (citing State v. Rodriguez, 317 Or. 27, 854 P.2d 399 (1993); State v. Kennedy, 290 Or. 493, 624 P.2d 99 (1981)) (holding that the defendant’s unprompted offer to allow the officer to search his vehicle sufficiently severed the causal connection between the unlawful police conduct and the discovery of the evidence).

Although no Florida case appears to directly address the issue, we hold that under the totality of the circumstances in this case, the defendant’s unsolicited offer to show the police the location of the firearm severed the causal connections between any unlawful police conduct and the discovery of evidence. We also note that the defendant had the opportunity to refute or repudiate his girlfriend’s consent to the second search. Instead, he endorsed her consent by offering his own unsolicited consent and assistance. The defendant’s subjective concerns that his girlfriend would be arrested were not introduced or encouraged by officers. The officers were under no obligation to reassure the defendant that his girlfriend would not be arrested. Although the defendant was in handcuffs when he offered to show the location of the firearm, there is no evidence that officers created a coercive atmosphere to prompt the offer. The defendant was alone inside a police cruiser and Officer Reynolds was standing outside the vehicle. Officer Reynolds was not trying to engage the defendant in conversation; instead, it was the defendant who expressed his subjective concerns and insisted that Officer Reynolds take him to the room so that he could show the location of the firearm. His unsolicited offer to show the location of the firearm was not a mere acquiescence to a show of police authority. See Gonzalez, 59 So.3d at 186.

In sum, we conclude that the defendant’s unsolicited offer to show the location of evidence cured any defect in the officer’s conduct and based on the totality of the circumstances that offer was unsolicited and voluntary. Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

      . The defendant argues the ammunition found during the first search should have been suppressed because no one could testify as to where Officer Seltzer found the ammunition. Officer Seltzer never wrote in his report or relayed to another officer where the ammunition was found. In tandem with his second point on appeal, the defendant argues that because it is unknown whether the ammunition was found in an area of the motel room open to both occupants or in bags or containers over which the defendant alone asserted control, the ammunition should have been suppressed.


text:
    Christina PRINZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2103.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Rehearing Denied Oct. 3, 2014.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Christina Prinz, appeals from a restitution order entered following her no contest plea to grand theft. The trial court ordered her to pay $149,183 total in restitution — $144,183 for the actual amount taken from her employer, plus an additional $2,000 and $3,000 respectively for bookkeeping and accounting expenses incurred. We affirm the $144,183 portion of the order because the State provided legally sufficient evidence supporting the fact that she stole this amount. However, we agree with Defendant’s contention that the trial court erred in requiring her to pay for the victim’s bookkeeping and accounting expenses, as the only evidence of those costs came solely from the victim’s testimony. As such, we reverse the $5,000 portion of the order for those legally unsupported awards.

Defendant worked as an office manager for the victim’s business, and was responsible for the company’s billing, payroll and day-to-day operations. Defendant was subsequently charged with organized fraud and grand theft, based on allegations that she stole from the company by transferring funds into her account through the company’s direct deposit payment system. Following her no contest plea to the grand theft charge, the trial court adjudicated her guilty, sentenced her to forty-five months in prison followed by ten years of probation, and ordered her to pay restitution.

At the restitution hearing, the State presented testimony from a certified public accountant who had conducted a forensic accounting of the company’s banking and accounting records along with Defendant’s banking records during the time of the theft. The State’s CPA testified that there was inconsistent treatment between the accounting records of the company’s QuickBooks account, the company’s banking records and Defendant’s banking records. The company’s QuickBooks account showed that the total compensation to Defendant for that period was $67,245, but her bank account reflected that she received $223,548. Thus, the State’s forensic accountant found she actually received $156,298 more than the accounting records showed she was paid.

Next, the victim testified that Defendant earned $16.00 an hour and on average worked a forty-hour week. The victim also testified that Defendant’s grand theft had forced her to spend $3,000 in bookkeeping and $3,000 for accounting fees. Based on this testimony, the State estimated that Defendant should have received $640 a week for thirty-one months, totaling $79,360. The State then subtracted $79,360 from the amount Defendant’s bank showed she received — $223,543—and determined the total theft amount to be $144,183. Additionally, the State asked for $3,000 for the victim’s bookkeeping, $3,000 for the victim’s accounting and $20,000 in attorney’s fees — totaling $170,183 in restitution.

The trial court awarded restitution as follows:

I do believe the proper corpus of the theft involved as to the count for which the defendant is sentenced is the difference between ... the amounts testified to essentially by the state’s accountant, there were wire ACH transfers to the defendant’s Bank of America account, Wachovia account.... [T]he theft would be the difference between the two figures essentially testified to by the state’s expert [$156,298].
[The State] is, by concession, saying let’s just be cautious in fairness and reduce that to [$144,183], which I’ll take the invitation and do that since there is no prejudice to the defendant....
Along the same lines, with regard to the bookkeeping amount which was here testified to be [$3,000], in the pre-sen-tence investigation the amount was listed as [$2,000] [sic] I do find that the victim, who is competent to testify on the issues of restitution generally, did sufficiently establish by her testimony that the ... bookkeeping fees were isolated and related significantly to this offense so that they bear significant relationship to the offense .... But with the discrepancy in the amounts, I’ll go ■with the [$2,000] amount listed in the P.S.I.
On the [$3,000] for the accountant ... her testimony was competent and it was substantial evidence in that regard and sufficiently isolated to relate to this offense. ...
On the issue of attorneys fees .... there is no doubt in my mind a portion of that goes beyond the amount that otherwise would be isolated indirectly or significantly related to this offense.... So I won’t grant the attorneys fees in that regard.
So that leads to a total amount of restitution of [$149,183],

Defendant now appeals the restitution order, arguing the trial court erred in ordering her to pay the $149,183 in restitution. Specifically, Defendant contends that the State failed to' show the amount of money Defendant legitimately made, thereby rendering the court’s finding on the amount taken incorrect. Defendant also claims that neither the $2,000 awarded for bookkeeping nor the $3,000 awarded for accounting were supported by accompanying bills and, thus, those amounts were awarded in error.

We review a trial court’s restitution order for an abuse of discretion. Thompson v. State, 68 So.3d 425, 426 (Fla. 4th DCA 2011) (citing Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007)). “The amount of restitution must be supported by competent, substantial evidence.” Id.

Section 775.089, Florida Statutes (2010), which governs restitution, provides that “the court shall order the defendant to make restitution to the victim for” damage or loss “caused directly or indirectly by the defendant’s offense” and damage or loss “related to the defendant’s criminal episode, unless it finds clear and convincing reasons not to order such restitution.” § 775.089(l)(a), Fla. Stat. (2010). The State has the burden of, showing any amount of loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. (2010). “Such evidence must be established through more than mere speculation; it must be based on competent evidence.” Soriano, 968 So.2d at 114 (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla.1997)).

Here, the $144,183 awarded for the amount taken was supported by competent, substantial evidence. The State’s forensic accountant determined that the Defendant received $156,298 more than the payroll showed. This amount was not mere speculation as it was provided by an expert, based on a valid accounting, and determined a definite amount taken. See Brumley v. State, 500 So.2d 233, 234 (Fla. 4th DCA 1986) (“Competent evidence is matter probative of the fact to be proved; that is, relevant evidence that does not fit within any rule of exclusion. Evidence is substantial if a reasonable mind might accept it to support a conclusion.”) (citation omitted). Although the trial court deviated from the expert’s finding, it properly did so by lowering the amount in Defen- ■ dant’s favor. See State v. Hawthorne, 573 So.2d 330 (Fla.1991) (recognizing that the court may exercise such discretion as is required to further the purposes of restitution).

As to the portion of restitution awarded for bookkeeping and accountant fees, the victim’s testimony, absent any supporting documentation, was not sufficient. See Boone v. State, 112 So.3d 676, 677 (Fla. 4th DCA 2013) (“It is axiomatic for purposes of determining the amount of restitution ... that the victim’s testimony must be corroborated with billing records.”); Williams v. State, 645 So.2d 594, 595 (Fla. 2d DCA 1994) (finding the State did not meet its burden of demonstrating loss by preponderance of evidence where victim’s testimony was sole basis for determination and no documentary evidence was presented).

For these reasons, we affirm the court’s award of $144,183 in restitution for the amount of the theft, but we reverse the portion of the restitution order awarding expenses incurred for bookkeeping and accounting and remand for further proceedings.

Affirmed in part, Reversed in part, and Remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.

      . In exchange for her plea, the State nolle prossed the organized fraud charge.


author: WARNER, J.

text:
    Michelle GERBINO, Appellant, v. ISLE OF PARADISE B, INC., Gus Nasiell, Jean-Paul and Marie Berthiaume, Kasey and Kevin McClung, and Anthony Vitale, Appellees.
    No. 4D12-4547.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Rehearing En Banc Denied Oct. 14, 2014.

      Lorenzo Jackson, Jr. of Jackson Law P.A., Miramar, for appellant.
    Dennis S. Lefkowitz, Boca Raton, for appellee Isle of Paradise, B Inc.
    Richard Birkebwald, North Miami Beach, for appellees Gus Nasiell, Jean-Paul and Marie Berthiaume, Kasey and Kevin McClung, and Anthony Vitale.
   On Motion fob Rehearing

WARNER, J.

. We grant appellant’s motion for rehearing, withdraw our prior opinion and substitute the following in its place.

Appellant challenges a final order dismissing her complaint for declaratory judgment with prejudice after the court denied her request for additional time to file an amended complaint. She claims that the court failed to provide proper notice and did not conduct an analysis pursuant to Kozel v. Ostendorf 629 So.2d 817 (Fla.1993), to determine whether dismissal was an appropriate sanction. We agree on both points and reverse.

Appellant, acting pro se, filed a complaint for declaratory judgment in county court to determine whether private docks were built on the common property of her condominium association. She later retained an attorney who moved to transfer the case to circuit court and to amend the complaint. Appellees moved to dismiss the amended complaint for failure to state a cause of action. The court granted the motion to dismiss, pointing out that appellant’s causes of action for damages and injunctive relief should be separately stated.

Appellant acquired new counsel who filed a second amended complaint, which appellees also moved to dismiss. The court dismissed the second amended complaint for failure to join indispensable parties. It granted leave to amend. When the deadline for filing the third amended complaint passed, appellees moved to dismiss the complaint with prejudice for failure to timely file the third amended complaint. Appellant filed the complaint shortly thereafter. Again, appellees moved to dismiss the complaint for failure to state a cause of action and requested dismissal with prejudice. The court, however, granted the motion to dismiss with leave to amend within thirty days to specifically name individual defendants who were indispensable parties.

The day before the amended complaint was due to be filed, appellant filed a motion for extension of time to file the new complaint, proffering that additional investigation needed to be done. Appellees objected, contending that the excuse for failure to file was insufficient and that the court had discretion to deny the extension. At the hearing on the motion, the court denied the motion for extension and entered a final order dismissing the complaint with prejudice. From that order, appellant files this appeal.

We reverse the final order of dismissal for two reasons. First, the court did not give the proper notice of its intent to dismiss with prejudice. Second, the court failed to consider the factors of Kozel before entering the ultimate sanction of dismissal with prejudice.

The court dismissed appellant’s complaint with prejudice without notice and after a hearing in which the court denied the appellant’s motion to extend the time for filing the fourth amended complaint.

Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.

Neu v. Turgel, 480 So.2d 216, 217 (Fla. 3d DCA 1985), cause dismissed, 486 So.2d 598 (Fla.1986); accord Kruger v. Kruger, 124 So.3d 1033, 1034-35 (Fla. 3d DCA 2013); Smith v. City of Panama City, 951 So.2d 959, 960 (Fla. 1st DCA 2007); Sekot Labs., Inc. v. Gleason, 585 So.2d 286, 287 (Fla. 3d DCA 1990); see also McMurray v. U-Haul Co., 425 So.2d 1208, 1209 (Fla. 4th DCA 1983) (where trial court dismissed complaint with leave to amend and plaintiff failed to amend within the time provided, it was error to dismiss case with prejudice without giving notice to the plaintiff). Here, neither alternative described in Neu was provided. Therefore, procedurally the court erred.

More importantly, the court erred in failing to consider the Kozel factors prior to dismissing the complaint with prejudice. In Kozel, the trial court had dismissed the complaint for failure to state a cause of action and granted ten days to amend. 629 So.2d at 817. When the plaintiff did not file an amended complaint until five months later, the defendant moved the court to dismiss the complaint with prejudice, which the trial court did. Id. On appeal, the second district determined that the trial court had discretionary authority to dismiss a complaint if the plaintiff failed to file a timely amendment. Kozel v. Ostendorf, 603 So.2d 602, 603 (Fla. 2d DCA 1992). But on review by the supreme court, the court held that such discretionary authority cannot be exercised without the trial court’s consideration of six factors to assure that the ultimate sanction of dismissal will not be imposed on the client solely for the attorney’s neglect. Kozel, 629 So.2d at 818. Those factors are:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id. After considering these factors, if a sanction less severe than dismissal of the suit is a viable alternative, then the court should employ such an alternative. Id.; accord Kruger, 124 So.3d at 1034-35; Smith, 951 So.2d at 960; Sekot, 585 So.2d at 287; SPS Dev. Co. v. DS Enters, of the Palm Beaches, Inc., 970 So.2d 495, 497 (Fla. 4th DCA 2007); Town of Manalapan v. Fla. Power & Light Co., 815 So.2d 670, 672 (Fla. 4th DCA 2002). In this case, the court failed to consider these factors in dismissing the appellant’s complaint with prejudice.

Appellee contends that the order of dismissal does not mention sanctions, and the trial court was simply dismissing the complaint for failure to state a cause of action. First, the mere fact that “sanction” is not mentioned is not dispositive. Second, the court had already granted leave to amend to correct the pleading deficiencies, as it" saw them. Thus, the complaint could have stated a cause of action, and the court provided no analysis of why it was dismissing the case with prejudice, other than the fact that the plaintiff had not filed a timely amended complaint. Alone, that reason is insufficient to warrant dismissal with prejudice. See Kozel, 629 So.2d at 818. Moreover, without the trial court’s analysis of those factors, we cannot review the discretionary decision of the trial court. See Rohlwing v. Myakka River Real Props., Inc., 884 So.2d 402, 405 (Fla. 2d DCA 2004). The trial court must conduct the analysis before dismissing the complaint with prejudice.

Reversed and remanded for further proceedings consistent with this opinion.

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


text:
    Jermaine D. LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1812.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Rehearing Denied Oct. 3, 2014.
    Jermaine D. Logan, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of the defendant’s “motion to clarify,” which we treat as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).

The defendant’s motion challenged the sufficiency of his aggravated battery conviction entered after plea in this case. However, the defendant’s motion did not establish an illegal sentence for purposes of rule 3.800(a). Instead, the defendant has sought a procedurally-barred and untimely request for post-conviction relief under Florida Rule of Criminal Procedure 3.850. See, e.g., Hallmon v. State, 139 So.3d 405, 406 (Fla. 4th DCA 2014). Moreover, the defendant already has raised this claim in a previous rule 3.800(a) motion, the denial of which we affirmed on appeal. See Logan v. State, 979 So.2d 237 (Fla. 4th DCA 2008). As a result, collateral estoppel bars this claim. See, e.g., McKeman v. State, 139 So.3d 948 (Fla. 4th DCA 2014).

Because we warned appellant in Logan v. State, 21 So.3d 917, 918 (Fla. 4th DCA 2009), that continued filing of frivolous post-conviction motions would result in sanctions, we direct the clerk-of this court to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. State v. Spencer, 751 So.2d 47, 51 (Fla.1999). Further, we warn appellant that future frivolous filings will result in additional sanctions, such as a bar on pro se filings in this court. Id.

Affirmed with referral for consideration of disciplinary procedures.

STEVENSON, GERBER and FORST, JJ., concur.


text:
    William G. FAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2783.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Rehearing Denied Oct. 9, 2014.
    William G. Fagan, Bennettsville, South Carolina, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,' Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. At appellant’s plea colloquy, he expressly assured the court that every term of the plea was contained in the written plea agreement and was discussed at the plea conference. He also assured the court that no one, including his lawyer, made any promises that were not part of the plea agreement. The court told appellant if anyone made him any such promises, they carried no weight or validity with the court, and appellant confirmed that he understood. The record therefore refutes appellant’s claim .of a breach of the plea agreement. “A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences.” Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007).

WARNER, GROSS and MAY, JJ., concur.