author: WARNER, J. GROSS, C.J.,

text:
    Lewis Clarence LESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4094.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      Phillip Massa and Marrett W. Hanna, Office of Criminal Conflict and Regional Civil Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

The issue we address in this case is whether a defendant who was convicted after trial has a remedy in postconviction relief where his counsel misadvised him of his potential sentence, leading him to reject a more favorable pretrial plea offer from the state. We hold that the defendant is not entitled to a new trial but to a sentence no harsher than the expected maximum sentence he would have received by proceeding to trial based upon his attorney’s advice.

The state charged appellant Lester with robbery by sudden snatching and offered a 41.7-month sentence in return for a guilty plea. Lester rejected the offer. Immediately prior to the commencement of trial, the state amended the information to charge Lester with robbery by force. Lester proceeded to trial and was found guilty. Prior to sentencing, the state filed a notice of its intent to seek habitual violent felony offender (HVFO) status. The court found that Lester qualified for HVFO status and sentenced him to a mandatory minimum term of thirty years in prison.

After his conviction, sentence, and appeal, Lester moved for postconviction relief, claiming that his trial counsel had misadvised him of his potential sentence. Lester claimed that counsel did not inform him of the possibility of habitualization and a thirty-year mandatory sentence. Had he known of that possibility, he would have accepted the 41.7-month plea offer by the .state. The trial court granted an eviden-tiary hearing on the claim.

At the hearing, Lester testified that counsel had advised him of the potential fifteen-year sentence but had not advised him of a possible habitual sentence of thirty years. He would have accepted the state’s plea offer had he known of his exposure to a thirty-year sentence.

Lester’s trial counsel testified to his conversations with Lester about the plea. When the state originally extended the plea offer of 41.7 months, trial counsel informed Lester that the charged crime was a third-degree felony and carried a maximum five-year penalty. Although counsel advised Lester to take the plea, Lester refused, wishing to go to trial. On the eve of trial the state increased the charge to robbery by force for which the maximum penalty would be fifteen years as a prison releasee reoffender (PRR). Counsel discussed this with Lester, and recommended acceptance, but Lester still desired to go to trial. Prior to trial, the state had not filed a notice of intent to seek habitualization as a violent felony offender, so counsel did not discuss any ha-bitualization vrith Lester. Trial counsel admitted that in hindsight he should have advised Lester of the potential of an HVFO sentence, but the state had increased the charge only on the eve of trial and had not filed a notice to seek habituali-zation. Counsel opined, however, that based on his dealing with Lester, Lester’s position with respect to the plea would have been different if Lester had known about the HVFO exposure. Lester’s counsel at sentencing also testified and agreed that Lester had not known about the exposure of thirty to forty years for the HVFO designation.

Following the evidentiary hearing, the trial court denied the motion. It found that “there is no evidence in the record that [Lester’s trial attorney] failed to accurately advise his client of the State’s plea offer nor is there any evidence to indicate that any of the information provided to the defendant was misleading or inaccurate.” From the trial court’s order, Lester appeals.

“The primary guide for ineffective assistance claims is the United States Supreme Court’s hallmark opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Cottle v. State, 733 So.2d 963, 965 (Fla.1999). “First, the defendant must show that counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms. Next, [t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Beasley v. State, 964 So.2d 213, 216 (Fla. 2d DCA 2007) (internal quotations and citation omitted). This court reviews the postcon-viction court’s factual findings for competent, substantial evidence and its legal conclusions de novo. Id.

The supreme court addressed the requirements to allege ineffective assistance of counsel where counsel advises a defendant to reject a favorable plea offer in Morgan v. State, 991 So.2d 835 (Fla.2008). The court said:

[We] reaffirm the requirements that a defendant must allege and prove in order to be entitled to relief based on ineffective assistance of counsel for advising a defendant to reject a plea offer. The defendant must allege and prove that (1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.

Id. at 839-40 (emphasis added). Although in this case counsel actually recommended acceptance of the plea, we think that the Morgan factors apply, because the defendant testified that he would have accepted the plea had counsel advised him of a potential thirty to forty-year sentence as a HVFO. See also Jackson v. State, 987 So.2d 233 (Fla. 4th DCA 2008).

This case is most closely analogous to Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000). In Lewis, the state charged the defendant with sale of cocaine. His attorney conveyed the state’s offer of one year in prison. Although the attorney knew that Lewis could be habitualized, he did not think the state was requesting that and did not discuss with Lewis the potential of a thirty-year sentence. Counsel advised Lewis that if he were convicted he would most likely be facing a two to three-year sentence. Believing his innocence, Lewis rejected the plea and proceeded to trial where he was found guilty. After trial, the state moved to habitualize Lewis. Based upon the state’s notice, the court found him to be a habitual offender and sentenced him to fifteen year's in prison.

After an evidentiary hearing on his post-conviction relief motion in which he alleged that he would have taken the plea had his attorney properly advised him of the potential sentence as a habitual offender, the trial court denied relief. The Fifth District reversed because of counsel’s failure to advise Lewis regarding the habitualization penalty. The court said:

We conclude that Lewis is entitled to relief because his trial counsel conceded that when the state’s offer of one year was made, he failed to inform Lewis of a potential sentence of 30 years incarceration and consistently informed him, instead, that his maximum exposure of incarceration was two to three years. Even though the possibility of a much longer sentence seemed remote, the possibility became the reality. Lewis, in order to make an informed decision, needed to be aware of the possible penalties.

Id. at 718. The court reversed for a new trial but encouraged the “good faith resumption of plea negotiations.” Id.

Similarly, in Revell v. State, 989 So.2d 751 (Fla. 2d DCA 2008), the court reversed Revell’s conviction based upon his postcon-viction claim of ineffective assistance of counsel “for failing to advise him of the possibility and consequences of being sentenced as a habitual felony offender.” Id. at 751. At the evidentiary hearing, his counsel admitted that he was not aware of that possibility and therefore failed to inform the defendant of it. The Second District found that counsel’s failure to advise the defendant of the potential habitual offender sentencing constituted ineffective assistance of counsel. The court reversed and remanded for a new trial, with the suggestion in Letvis that good faith plea negotiations be resumed.

In this case counsel admitted that he had not informed Lester of the potential of habitualization and the potential sentence of thirty to forty years. Based upon Leivis and Revell, Lester has shown that counsel was ineffective and that he would have taken the plea had counsel informed him of the consequences.

We diverge from Lewis and Re-vell regarding the proper remedy in this case. The proper remedy in such cases where a defendant rejects a plea offer and proceeds to trial has been debated in the courts. Where the defendant rejects a plea offer, which is not a constitutionally protected right, in favor of a fair trial, in which the state has been put to its burden of proof, a balancing of interests is required for any postconviction relief based upon that plea rejection. In United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), the Court said:

At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored, to the injury suffered from the constitutional violation and, should not unnecessarily infringe on competing interests.

(emphasis added). Taking to heart that admonition by the Supreme Court, we think that more narrowly tailored relief is warranted by the specific constitutional violation. Here, after the state increased the charges prior to trial, Lester still rejected his counsel’s recommendation to accept the plea after having been advised of the potential PRR sentence of fifteen years. He proceeded to trial with the expectation that should he be convicted of the new charge, he would receive a fifteen-year sentence. Only after his conviction did the state file a notice of intent to seek HVFO sentencing.

The specific injury to Lester was the failure to inform him of the HVFO sentencing potential. Based upon the eviden-tiary hearing, Lester was fully aware of the potential for PRR sentencing if he were convicted at trial. The state, on the other hand, incurred the time and expense of a full trial and should not be compelled to retry the defendant if some other remedy would uphold both the defendant’s constitutional rights and the state’s right to finality with an appropriate sentence for the conviction obtained.

Under these circumstances, we think the more narrowly tailored remedy would permit the state to elect whether to retry Lester or to withdraw its notice of intent to seek HVFO sentencing. If it would withdraw that notice, the court could sentence Lester as a PRR to fifteen years. Lester would receive a sentence no greater than he anticipated when rejecting the plea offer of the state, and the state would not be required to retry him.

Based on the foregoing, we reverse the trial court’s denial of appellant’s motion for postconviction relief. We remand for a new trial unless, within the time prescribed by Florida Rule of Criminal Procedure 3.191(m), the state withdraws its notice of intent to seek HVFO sentencing, in which case the court shall sentence Lester as a PRR and no new trial shall be required.

HAZOURI, J., concurs.

GROSS, C.J., concurs specially.

GROSS, C.J.,

concurring specially.

This postconviction relief case concerns a defendant who was found guilty in a jury trial. His conviction was affirmed. He received what the constitution contemplates — he had a “speedy and public trial, by an impartial jury”; he was “informed of the natui’e and cause of the accusation”; he “was confronted with the witnesses against him;” he had “compulsory process for obtaining witnesses in his favor”; and he had “the assistance of counsel for his defence.” U.S. Const. Amend. VI. He was not “compelled ... to be a witness against himself”; he was not “deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V.

After the jury verdict, but before sentencing, the state filed a notice of its intent to have Lester classified as an habitual violent felony offender. The court found that he qualified for HVFO status and sentenced him to 30 years in prison.

Before trial, Lester rejected a plea offer for a 41.7 month sentence. He now claims that at the time he rejected the plea, he did not know that the state could seek to have him sentenced as an HVFO. He says that when he rejected the plea, he did not know that he faced 30 years in prison.

We are compelled to grant relief by Morgan v. State, 991 So.2d 835 (Fla.2008).

This development in the law concerns me. It goes beyond the limits contemplated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The law now renders a jury trial, explicitly guaranteed by the Constitution, secondary to the right to get a plea bargain, which is found nowhere in the Constitution. At a trial, Lester had the chance of an outright acquittal. Going to trial is a gable involving risk for both sides. As a trial judge, I saw strong cases fail and weak cases prevail. It is destructive of the entire process to allow a defendant to enjoy all the benefits of a trial and then force the state into the position it was in before the trial occurred.

In the criminal justice system envisioned by the Constitution, there would be no plea bargains, only trials complete with all the attendant guarantees. Due to the crush of numbers, plea bargaining has come to be recognized as an integral component of the criminal justice system. There are too many cases to hold a trial in every one.

Posteonviction relief makes constitutional sense where counsel’s ineptitude impacted the trial or convinced a defendant to give up his right to a trial by pleading guilty. Different from these situations, Morgan concerned a situation where the defendant went to trial and lost, but counsel’s ineffectiveness arose from the advice to reject a plea offer. In Morgan and Cottle v. State, 733 So.2d 963 (Fla.1999), the Florida Supreme Court read Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), as extending the Strickland “standard and analysis ... to claims of ineffective assistance that arise in the plea context.” Morgan, 991 So.2d at 840. Morgan extended Stiickland to every situation that arises from the plea bargaining process, including cases where defendants rejected plea offers and proceeded to trial.

Hill does not support the Florida Supreme Court’s extension of it. Hill was a case where a defendant pleaded guilty and gave up his right to a trial. The analysis in Hill turns on obtaining the trial that was blocked by counsel’s ineptitude. To satisfy Strickland’s prejudice requirement, Hill holds that a “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 106 S.Ct. 366. Hill describes the prejudice inquiry in “guilty plea” cases by comparing it to “ineffective-assistance challenges to convictions obtained through a trial.” Id. Nothing in Hill suggests that the United States Supreme Court intended it to apply in “rejection of plea offer” cases.

But for Morgan, I would hold that a defendant whose guilt is determined after a trial, conducted with all of the guarantees of the Constitution, has not suffered a constitutional deprivation, even where his lawyer’s conduct prevented him from accepting a plea, which with the post-trial benefit of hindsight, turns out to have been a favorable one. The guilt of such a defendant has been established in the manner envisioned by the framers of the Constitution. To set aside the trial in this case elevates the constitutional importance of the plea bargaining process over that of the trial itself, which is at the heart of the Sixth Amendment. This is the case where the state should seek review in the United States Supreme Court to consider the extension of Hill v. Lockhart to “rejection of plea” cases.

      . A short synopsis of some positions various courts have taken is found in Riggs v. Fairman, 178 F.Supp.2d 1141, 1151-52 (C.D.Cal.2001):
      When ineffective assistance of counsel has deprived a defendant of a favorable plea bargain, courts have not been consistent in the remedies afforded. Some courts vacate the conviction and return the parties to the plea bargaining stage, where the parties may negotiate, or decline to negotiate, as they see fit. See, e.g., United States v. Gordon, 156 F.3d 376, 381-82 (2nd Cir.1998) (upholding district court's discretion to order retrial); People v. Curry, 178 Ill.2d 509, 227 Ill.Dec. 395, 687 N.E.2d 877, 890-91 (1997) (new trial accompanied by resumption of plea bargaining process); In re Alvernaz, 2 Cal. 4th 924, 942-44, 8 Cal. Rptr.2d 713, 724-26, 830 P.2d 747, 758-59 (1992) ("Most courts, in determining the remedy that should be afforded a defendant who establishes that he or she has been denied effective assistance of counsel with regard to an offered plea bargain, have vacated the judgment of conviction and remanded the case for a new trial”). Other courts force the prosecution to reinstate die lost plea offer. See, e.g., Alvernaz v. Ratelle, 831 F.Supp. 790, 797-99 (S.D.Cal.1993); Williams v. State, 326 Md. 367, 382-83, 605 A.2d 103, 110-11 (1992). Still other courts return the parties to the plea bargaining stage, but impose a rebuttable presumption of vindictiveness upon any prosecutorial refusal to reinstate the lost plea offer. See, e.g., Turner v. Tennessee, 940 F.2d 1000, 1001-02 (6th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992).
      Depending upon the circumstances, each of these remedies can be inadequate or unfair. Vacation of the conviction sometimes is unfair to the state. Such a remedy reverses the result of an entirely fair trial, sometimes in situations where the passage of time would make retrial difficult or impossible. See State v. Donald, 198 Ariz. 406, 10 P.3d 1193, 1205 n. 7 (Ariz.App.2000), cert. denied, 534 U.S. 825, 122 S.Ct. 63, 151 L.Ed.2d 30 (2001). Mere vacation of the conviction also sometimes is unfair to the petitioner. The remedy does not restore the lost plea opportunity of which the petitioner was deprived, although it may, as a practical matter, induce the prosecution to bargain anew.
      (Footnote omitted).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    VOS, B.V., Appellant, v. Marie PAYEN, as Personal Representative of the Estate of Pamela Sue Payen (deceased), et al., Appellees.
    No. 3D08-2635.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.

      Arnstein & Lehr and Jeffrey Shapiro, Neville M. Leslie, and Andrea Cox, Miami, for appellant.
    David B. Mishael, Miami; Josephs Jack and Susan Lerner, Miami; Barbara Green; and Kutner, Rubinoff & Moss and Arno Kutner, Miami, for appellees.
    Before COPE, GERSTEN, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Vos B.V. (“Vos”), a corporation from the Netherlands, appeals from a non-final order denying its motion to dismiss the plaintiffs’ complaint due to a lack of personal jurisdiction. We reverse because Vos’ general business contacts with Florida were insufficient to support the plaintiffs’ assertion of personal jurisdiction over Vos.

BACKGROUND

The facts and circumstances underlying this case can only be described as heartbreaking. From 1995 through 1997, a tainted batch of children’s fever medicine was distributed in Haiti causing the deaths of more than seventy children, and the serious illness of a number of other children. Public health officials traced the deaths and illnesses to a shipment of glycerin that was manufactured in China, purchased through a German company, and eventually sent to Haiti by Vos. The plaintiffs are either the personal representatives of the estates of the deceased children, or the parents of the survivors.

The complaint alleges that in 1994, Vos purchased seventy-two drums of glycerin from China, tested samples, found them to be impure and tainted with diethelyne glycol, but nevertheless, proceeded to sell the glycerin to one of its customers in Haiti after affixing false labels to the drums. The tainted glycerin was incorporated into a children’s fever medicine, and the injuries and deaths followed.

Vos responded to the complaint with its motion to dismiss due to the lack of personal jurisdiction. After extensive jurisdictional discovery, the trial court denied the motion, finding that Vos had the requisite continuous and systematic business contacts based upon its dealings with A & V Industries, Inc., Quem Commercial, Inc., and SunBank International Branch Division of Miami (“SunBank”).

As to A & V, a Florida corporation, and Quem, a British Virgin Islands corporation with an office in Miami, from 1994 to 1997, Vos entered into transactions with these companies totaling approximately $500,000, and involving approximately 1 million pounds of chemicals, though no chemicals were shipped into Florida, or passed through any Florida ports. It is undisputed that Vos’ sales to A & V and Quem amounted to only 0.236% of Vos’ total sales from 1994 through 1997. Also, from time to time, Vos would call, fax, and write to the companies in Florida in an attempt to keep up its business relationships with A & V and Quem.

As to SunBank, the evidence found by the trial court to be “most damaging” to Vos’ case was that Vos established a line of credit in Miami to facilitate its sales to A & V, using SunBank as a collection agent.

Upon this evidence, the trial court concluded that Vos’ business contacts with Florida were sufficiently systematic and continuous to support the exercise of personal jurisdiction.

ISSUE ON APPEAL

As an initial matter, it is undisputed that the instant claim does not specifically relate to, or arise out of, Florida activity. The tainted glycerin did not touch or pass through a Florida port, involve an intermediate Florida business/broker, or injure a Florida resident. Thus, the sole issue on appeal is whether the courts of Florida may properly exercise general personal jurisdiction over Vos by way of its regular business contacts with Florida, unrelated to the present claim. See § 48.193(2), Fla. Stat. (1997) (“A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state whether or not the claim arises from that activity.”). The applicable standard of review is de novo. Labbee v. Harrington, 913 So.2d 679, 681 (Fla. 3d DCA 2005).

ANALYSIS

“An assertion of general jurisdiction under [section 48.193(2) ] requires a ‘showing of continuous and systematic general business contacts’ with this state.” Gadea v. Star Cruises, Ltd., 949 So.2d 1143, 1145 (Fla. 3d DCA 2007) (quoting Carib-USA Ship Lines Bahamas, Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006)). See also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Philip J. Padovano, Florida Civil Practice § 8.7 (2007 ed.). The requisite threshold of “continuous and systematic” contacts is significantly more demanding than the showing necessary to establish specific jurisdiction because section 48.193(2) does not require any connection between a plaintiffs claim and the defendant’s Florida activities. Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788 (Fla. 4th DCA 2009); Juan Ramirez, Jr., Florida Civil Procedure § 5.1(e) (3d ed. 2007) (providing that “[t]he requirement of continuous and systematic business contacts establishes a much higher threshold” than the contacts required for an assertion of specific jurisdiction). Furthermore, to establish general personal jurisdiction, a plaintiff must show that the defendant’s conduct in connection with Florida is “such that he [or she] should reasonably anticipate being haled into court [ ]here.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

With these principles in mind, it is clear that the instant plaintiffs face a difficult task. The plaintiffs cannot deny that many of the undisputed facts in this case weigh against the trial court’s finding that Vos’ Florida contacts were systematic and continuous. During the relevant time period: (1) Vos had no offices or employees in Florida; (2) Vos did not own any assets or real estate in Florida; (3) Vos did not distribute any chemicals into or through Florida; (4) Vos did not advertise in Florida; and (5) Vos never sent representatives to Florida. Thus, the plaintiffs’ case depends on characterizing Vos’ contacts with A & V, Quem, and SunBank as so pervasive that this Dutch corporation should reasonably anticipate being sued in Florida on an unrelated matter.

At oral argument, counsel for Vos properly admitted that the weak link in its position — that Florida may not appropriately exercise personal jurisdiction over Vos — is that it did have business contact with A & V and Quem in Florida. However, Vos argues that because those contacts were insignificant, and only tangentially involved Florida’s interests, the trial court reversibly erred by relying on those contacts to support its general jurisdiction determination. We agree.

A foreign defendant’s de minimis contacts with Florida cannot form the basis of an assertion of personal jurisdiction in Florida, where the plaintiffs claim arises out of an unrelated foreign incident. In TRW Vehicle Safety Systems, Inc. v. Santiso, 980 So.2d 1149, 1150 (Fla. 4th DCA 2008), the plaintiffs’ claims arose out of a rollover accident in Argentina. The TRW plaintiffs asserted, and the trial court agreed, that Florida could exercise jurisdiction over the defendants (two foreign manufacturers/distributors of seat-belts) due to the fact that the defendants directly shipped products into this state. Id. at 1152. The Fourth District reversed, holding that because the defendants’ Florida shipments amounted to a fraction of one percent of the defendants’ total annual sales, Florida could not constitutionally exercise personal jurisdiction over the defendants based upon these contacts. Id. at 1153.

Therefore, like the TRW court, we hold that because Vos’ Florida “sales” during the relevant time period amounted to just 0.236% of its total annual sales, they are de minimis and are insufficient to support an exercise Florida’s jurisdiction. In the instant case, A & V and Quem acted as brokers for Vos’ sale of chemicals to buyers in South America and the Caribbean. Vos did not ship a single ounce of chemicals into Florida, or through any of Florida’s ports. In TRW, strikingly similar percentages were involved; however, in that case, the defendants shipped actual goods to addresses in this state. Therefore, the connection between Vos and Florida is even more attenuated than the connection at issue in TRW, which lends further support to this Court’s conclusion.

Finally, we address the evidence found by the trial court to be “most damaging” to Vos’ case — Vos’ alleged use of Florida’s banking system to facilitate its sales to A & V. Our review of the evidence on this issue reveals that in the transactions involving A & V, CommerzBank Nederland sent shipping documents to SunBank, Sun-Bank notified A & V of the documents’ arrival, A & V signed the trade acceptance forms and submitted payment to SunBank. SunBank then transferred the funds and paperwork to CommerzBank. Vos’ involvement in the process was virtually non-existent, and SunBank merely operated to facilitate the international transfer of money under a letter of credit. Such contacts are clearly insufficient to establish personal jurisdiction over Vos. See Banco Continental, S.A. v. Transcom Bank (Barbados) Ltd., 922 So.2d 395, 400 (Fla. 3d DCA 2006) (holding that a correspondent relationship with a Florida bank, where the bank merely facilitates the international transfer of monies under a letter of credit is insufficient to meet the minimum ' contacts requirement); La. Reunion Franqaise, S.A. v. La Costeña, 818 So.2d 657, 659 (Fla. 3d DCA 2002) (holding that the maintenance of a Florida bank account, even if used to collect premiums, is too tenuous a contact to support an assertion of general jurisdiction over a foreign insurer).

CONCLUSION

Because the plaintiffs’ action for damages arising out of the deaths and injuries to Haitian children bore no connection to this state, the plaintiffs were forced to contend that Vos’ general business contacts with Florida were continuous and systematic. However, whether considered individually, or collectively, those contacts do not support the plaintiffs’ assertion of Florida’s general jurisdiction. Vos’ transactions with A & V and Quern constituted a de minimis amount of its total annual sales, with those businesses acting merely as brokers, and no products reaching Florida’s shores or residents. The correspondent banking relationship that Vos employed (through CommerzBank) with SunBank, incident to its dealings with A & V, also fails to reach the requisite level of minimum contacts.

Accordingly, the trial court erred in finding that Vos could be constitutionally subjected to a lawsuit in Florida based upon its alleged activities related to the deaths and injuries of the Haitian children. The non-final order denying Vos’ motion to dismiss for lack of personal jurisdiction is reversed.

Reversed.

      . Diethelyne glycol is an industrial chemical normally incorporated into antifreeze and lacquer.


author: MAASS, ELIZABETH T„ Associate Judge.

text:
    Mark Anthony ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2629.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   MAASS, ELIZABETH T„ Associate Judge.

Curtis Tenney and Elizabeth Johnson were murdered on January 8, 2006. Mark Alvarez confessed to the murders. He was convicted of two counts of first degree murder with a firearm and one count of second degree arson following a jury trial. He raises five points on appeal. First, he argues that his Miranda warning failed to tell him he had the right to appointed counsel before questioning. Second, he argues that his confession occurred only after he unambiguously invoked his right to remain silent. Third, he claims that there was insufficient evidence to support the standard jury instruction on principals, which the state then used to make an improper closing argument. Fourth, he maintains that the trial court failed to inquire into an apparent conflict of interest between his counsel and him. Finally, he argues that the trial court improperly threatened a witness with prosecution for perjury. We affirm, but write to address Alvarez’s contention that the trial court erred in denying the motion to suppress his confession and giving the standard principals instruction.

I. Motion to Suppress

A. Adequacy of Constitutional Warning

Tenney and Johnson died of single gun shots to the head the night of January 8, 2006. Their bodies were found in Elizabeth’s burned out car on an isolated stretch of road in Okeechobee County. Law enforcement sought Alvarez for questioning early in the investigation. He was located April 3, 2006.

He was first questioned by Detective T.J. Brock, the murder investigation’s lead detective, early that afternoon. Detective Brock had Alvarez confirm that he was not under the influence of alcohol or drugs, spoke English, and could read. Brock told Alvarez that “before you answer any questions, the [Constitution requires me to inform you that you have the right to remain silent.” Alvarez indicated that he understood. Brock then gave Alvarez a preprinted Okeechobee County rights form and asked him to read it aloud. The form read:

You have the right to remain silent. Do you understand that right?
Anything you say may be used as evidence against you in Court. Do you understand?
You have the right to call or obtain an attorney at this time and, have one present now or at any time during questioning. Do you understand that right?
If you cannot afford to hire an attorney, the Court will appoint one for you without cost. Do you understand?
If you decide to answer questions now, you have the right to stop answering at anytime during questioning. Do you understand that right?
Knowing these rights, do you wish to talk with me or us at this time?
Alvarez responded “yes” to each question.

(Emphasis added).

Alvarez then submitted to a 54 minute interview with Brock. During that interview Alvarez said he had smoked pot with Curtis the night of the murders, but denied having killed him or knowing who did.

After that interview, Alvarez was asked to take a voice stress test with Detective Marty Faulkner. He agreed. The voice stress test began mid-afternoon and lasted 2 hours and 35 minutes. At the beginning of the interview Alvarez was once again given the preprinted Miranda rights form and asked to waive his rights. In addition, Faulkner told Alvarez:

Let me advise you of your Miranda Warnings. You have the right to remain silent. Anything you say may be used against you in court. If you-you have the right to call an attorney (indiscernible) have him present any time during questioning. If you decide — if you cannot afford an attorney one will be appointed to you without cost. If you decide to answer any questions (indiscernible) stop answering questions. Do you understand your rights?

Alvarez answered “yes, sir.”

After the Faulkner interview Brock again spoke to Alvarez, beginning in the late afternoon. This final interview last 3 hours, 11 minutes. Brock did not reread Alvarez his Miranda rights or ask again that he waive them. Alvarez confessed at the end of this third interview.

Alvarez moved to suppress his confession. At the hearing on the motion, defense counsel expressly limited his argument to two points, indicating he was waiving all other grounds. First, he claimed that the Miranda warning was legally insufficient because it did not tell Alvarez he had the “right to have counsel appointed for him prior to his interrogation.” Second, he claimed that Alvarez unambiguously invoked his right to remain silent after initially waiving his rights and questioning should have stopped. The trial court denied the motion after an eviden-tiary hearing.

A trial Court’s ruling on a motion to suppress is presumed correct. See Connor v. State, 803 So.2d 598, 605 (Fla.2001); Murray v. State, 692 So.2d 157, 159 (Fla.1997). Factual findings are disturbed only if clearly erroneous because not supported by substantial, competent evidence. See Herrera-Fernandez v. State, 984 So.2d 644, 646 (Fla. 4th DCA 2008). The application of the law to those facts, though, is reviewed anew. See Owen v. State, 862 So.2d 687, 695 (Fla.2003); Connor, 803 So.2d at 605-08; Alvarez v. State, 890 So.2d 389, 392 (Fla. 1st DCA 2004). Specifically, the adequacy of a Miranda warning, once any factual disputes are resolved, is a question of law subject to review without a presumption of correctness. See Roberts v. State, 874 So.2d 1225, 1227 (Fla. 4th DCA 2004). Courts “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). The warning, though, must convey that (1) the individual has the right to remain silent; (2) anything he says can be used against him in court; (3) he has the right to the presence of an attorney; and (4) if he cannot afford an attorney, one will be appointed for him prior to questioning, if he wishes. Miranda, 384 U.S. at 467-473, 479, 86 S.Ct. 1602.

The Florida Self-Incrimination Clause, article I, section 9 of the Florida Constitution, provides that “[n]o person shall be ... compelled in any criminal matter to be a witness against oneself.” Under Florida law, then, prior to custodial questioning a suspect must be told (1) he has the right to remain silent; (2) that anything he says may be used against him in court; (3) that he has a right to a lawyer’s help, which means the right to consult a lawyer before being questioned and to have a lawyer present during questioning; and (4) if he cannot afford a lawyer one will be appointed for him. See Traylor v. State, 596 So.2d 957, 965-66 (Fla.1992). These rights must be given so that a person of average, ordinary intelligence can understand them. See State v. Powell, 998 So.2d 531, 540 (Fla.2008).

Here, the warning, given both orally and in writing, adequately informed Alvarez that he had the right to a court-appointed attorney at all times, both prior to and during questioning. Specifically he was told he had the right to an attorney “at this time,” which was before the questioning started. Police officers need not give a talismanic incantation of a suspect’s constitutional rights, provided the statement given is a fully effective equivalent. See California v. Prysock, 453 U.S. 355, 359-360, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). The warning sufficiently told Alvarez he had the right to counsel both prior to questioning “and to have one present now or at any time during the questioning.” (Emphasis added). See also Chavez v. State, 832 So.2d 730, 750 (Fla.2002); Johnson v. State, 750 So.2d 22, 25 (Fla.1999).

Alvarez’s reliance on Thompson v. State, 595 So.2d 16 (Fla.1992) is misplaced. There, the defendant was not told he was entitled to court-appointed counsel if he could not afford to hire one himself. Id. at 17-18.

B. Revocation of Waiver of Right to Remain Silent

In the second attack on his confession’s admissibility, Alvarez claims that he unambiguously invoked his right to remain silent midway through his second interrogation; that questioning should have ceased; and that his later confession should have been suppressed.

Alvarez was given his Miranda rights, both orally and in writing, before his first interview. During this initial 54 minute interview he repeatedly denied knowing anything about the crimes. He was given Miranda rights, again both orally and in writing, before Faulkner began the voice stress test. About two thirds through that second interview he asked to use the bathroom. Faulkner responded, “yeah, give me one second, okay? You are sure you don’t want to talk to me?” Alvarez responded “I really don’t have nothing to say.”

Alvarez had steadfastly maintained he knew nothing about the crimes during his initial interview with Brock and before his alleged revocation of his silence waiver to Faulkner. Immediately preceding the allegedly unambiguous revocation he was asked “[d]o you want to sit here and talk with me and let’s talk about this?,” to which he responded “I just don’t know what to say.” He was asked “[c]an you answer some questions for me?,” to which he replied “I can try.” He was asked where he had gotten the gun and responded he did not have a gun. He was asked who got the gun and responded he did not know. He was asked why he did not want to help himself and responded “[y]ou know, it’s cause I have nothing to offer ...” He was asked how well he knew Elizabeth and responded he did not know her. He was asked who burned up the car and said he did not know. He was asked how the crime occurred and responded “I don’t know, that’s what I’m saying.... I don’t know what caused it, that’s what I’m saying. I don’t know what really happened or what.” He was asked who was involved and he said he did not know: “I just don’t know what happened or caused it, why it happened and how it happened.” Immediately after that answer, he asked to use the bathroom and the disputed colloquy occurred.

Faulkner testified at the motion to suppress hearing that he did not interpret Alvarez’s statement as an invocation of his right to remain silent. He testified he did not coerce Alvarez to speak; that Alvarez never clearly indicated he no longer wanted to speak with him; and that he never felt that Alvarez did not want to speak with him. When Alvarez returned from the bathroom he completed his interview with Faulkner without incident.

If a suspect unambiguously or unequivocally invokes his right to remain silent during a custodial interrogation further questioning must scrupulously honor that right. See Miranda, 384 U.S. at 473, 86 S.Ct. 1602; Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). If a post-Miranda waiver of the right to remain silent is ambiguous or equivocal, though, clarification is not required and further questioning is permitted. See Davis v. United States, 512 U.S. 452, 458-461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (Miranda’s ease of application would be lost “if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney .... We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”); State v. Owen, 696 So.2d 715, 717-718 (Fla.1997) (Davis applies in equivocal assertion of any Miranda right); see generally, United States v. Rodriguez, 518 F.3d 1072 (9th Cir.2008).

The trial court found that Alvarez’s statement was, at most, equivocal or ambiguous. There is no factual dispute about the words used. The parties dispute their meaning in context. The issue, then, is whether the factual finding that the statement was ambiguous in context was supported by competent, substantial evidence.

A revocation of a waiver of the right to remain silent is unambiguous if a reasonable police officer under the circumstances would understand that the suspect is invoking the right. See Alvarez, 890 So.2d at 394. Thus the statement is considered in context.

In Owen, 696 So.2d at 719-20 the Florida Supreme Court found these statements to be equivocal: “I don’t want to talk about it” and “I’d rather not talk about it.” These statements were made in response to questions about whether the crime was random or planned and where the suspect put his bicycle during the crime. See id. at 717 n. 4.

In State v. Pitts, 936 So.2d 1111, 1130-31 (Fla. 2d DCA 2006), the court found that a suspect’s response of “[n]o sir,” after being asked if he was willing to speak to the interrogating officer on tape, to be ambiguous where he had just agreed to speak on tape, since a reasonable officer under the circumstances would have thought either the suspect had misunderstood the question or the officer had misunderstood the answer.

In Alvarez v. State, 890 So.2d at 393, 395, the statement “[f]rom here on, I’m not supposed to talk about it. Mr. Stanfield told me not to talk about the rest of this,” when the subject turned to what had happened after the victim took the suspect home to his apartment, was found not to have “sufficient clarity that a reasonable police officer in the circumstances would have understood Alvarez’s statements to be an assertion of a constitutional right.”

In State v. Davis, 971 So.2d 1017, 1018 (Fla. 1st DCA 2008), a suspect was asked which of three officers he would feel more comfortable talking to. He responded “none of them.” Id. The statement was found to be an ambiguous invocation since it was unclear whether the suspect meant that he did not want to speak to anyone or just not to one of the three officers. Id. at 1019; see also State v. Moya, 684 So.2d 279, 280-81 (Fla. 5th DCA 1996) (“I don’t know” in response to question about whether suspect wanted to talk was equivocal); Ford v. State, 801 So.2d 318, 319-20 (Fla. 1st DCA 2001) (“Just take me to jail” was an ambiguous attempt at invocation).

In contrast, courts have been more apt to find a revocation of a waiver of the right to remain silent unambiguous and unequivocal if made before substantive questioning. Thus, in United States v. Reid, 211 F.Supp.2d 366, 368 (D.Mass.2002), cited by the defense, the defendant was taken into custody following a transatlantic flight at 12:55 p.m. He was first given his Miranda warning at 1:00 p.m., before being transported to the state police barracks for temporary detention. Id. at 368-69. The transporting officer asked Reid some questions, most of them mundane. Id. at 369. He then asked Reid what happened on the plane, to which Reid responded “nothing.” Id. Reid asked the officer whether reporters were covering his detention, became indignant when told there were no media, and retorted “I have nothing else to say.” Id. He was at the police barracks by 1:30 p.m. Id. The district court found Reid’s invocation of his right to remain silent unambiguous. Id. at 371. In so holding it noted both that the types of questions answered prior to an invocation may provide a context for finding an alleged invocation ambiguous, though holding that the officer and Reid’s “banter” before Reid’s statement was not the type of dialogue that could trigger such a finding, and that the parties’ reactions shortly after the alleged invocation may shed light on whether the suspect intended to invoke his right. Id. at 372-74.

The defense cites several cases addressing motions to suppress where a defendant claims an ambiguity in his initial waiver. See, e.g., Cuervo v. State, 967 So.2d 155, 157, 162-63 (Fla.2007) (“I don’t want to declare anything” in response to an initial request to waive a suspect’s constitutional rights was unambiguous); Smith v. State, 915 So.2d 692, 693-94, 694 n. 1 (Fla. 3d DCA 2005) (suspect’s statement in no uncertain terms that he had “nothing to say” to law enforcement when asked if he wanted to waive his rights and give his side of the story was unambiguous); Arnold v. Runnels, 421 F.3d 859, 862 (9th Cir.2005) (defendant permissively selectively invoked his Miranda right to refuse to speak on tape; law enforcement turned on a tape recorder and posed the defendant a series of questions, to which he responded “no comment;” the tape was played for the jury).

Invocation and waiver of constitutional rights are distinct inquiries, though, and should not be merged. See Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). The state must prove by a preponderance of the evidence that a suspect has voluntarily, knowingly, and intelligently waived his Miranda rights before a statement may be used against him. See Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Ramirez v. State, 739 So.2d 568, 575 (Fla.1999). Thus, an ambiguous waiver must be clarified before initial questioning. See Rodriguez, 518 F.3d at 1080. However, once a suspect has waived his rights, an attempt to revoke the waiver must be unambiguous. See Owen, 696 So.2d at 717-718; Collins v. State, 4 So.3d 1249, 1250 (Fla. 4th DCA 2009). Unlike the pre-waiver context, an ambiguity need not be clarified before proceeding with questioning. See Davis, 512 U.S. at 459, 114 S.Ct. 2350; Owen, 696 So.2d at 717; Collins, 4 So.3d at 1250. This rale regulates the tension recognized in Miranda between, on the one hand, the preservation of the right against self-incrimination and, on the other, the need for clear rules for law enforcement in the field. See Davis, 512 U.S. at 461, 114 S.Ct. 2350.

These rulings make sense: if a suspect has not answered any questions and fails to clearly waive his right to remain silent, or has waived his right but then answered only “mundane” questions before any substantive questioning, announcing he does not want to answer anymore, it is reasonable to conclude that he has decided not to speak. However, where a suspect has heard, understood, and waived his Miranda rights, and has been answering substantive questions without incident and continues to do so, a statement which may have been unambiguous if uttered initially may be objectively ambiguous when considered in context. The question immediately preceding Alvarez’s statement that he had nothing to say was simply whether he could wait a minute and talk some more before using the bathroom. That is not the type of question a reasonable officer would conclude would trigger a spontaneous, global invocation of the right to remain silent.

Instead, the words Alvarez now claims represent that global invocation are consistent with his answers to the series of questions immediately preceding the exchange: he had nothing to say because he knew nothing about the crimes, not because he was refusing to talk. Both Alvarez’s and Faulkner’s actions after the alleged invocation are consistent with the trial court’s finding that Alvarez’s statement was, at best, ambiguous, and not intended to invoke his constitutional right to remain silent. Although the same words in a different context could mean he knew the answer but was refusing to respond to either that or any other question, such an interpretation is not the only one consistent with the exchange. Consequently, Alvarez’s response was not an unambiguous invocation of his right to remain silent and Faulkner was not required to end the interrogation or clarify Alvarez’s intent. See Owen, 696 So.2d at 717; Davis, 512 U.S. at 459, 114 S.Ct. 2350.

Alvarez’s statement of constitutional rights comported with both state and federal law. He does not challenge his waiver of those rights. He never unambiguously revoked his waiver of those rights. The trial court properly denied his motion to suppress.

II. Principals Instruction

The court held a charge conference prior to closing argument. All the instructions were agreed to but one. The state requested the standard instruction on principals, Florida Standard Jury Instruction (Criminal) 3.5(a), arguing that the jury could conclude that Alvarez had help in committing the crimes. The defense objected, arguing that the instruction was not supported by the evidence. The court instructed the jury:

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if:
1. The defendant had a conscious intent that the criminal act be done, and
2. The defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime
To be a principal the defendant does not have to be present when the crime was committed or attempted.

The instruction was supported by the evidence. First, near the end of the third custodial interview, Alvarez asked for a pen and paper. He originally wrote “I took them to the dead end street shot curtís then elizabeth.” He later crossed out “took” and “to” and substituted “meet” and “at,” so that it read “I meet them at the dead end street shot curtís then eliza-beth.”

Second, at trial the state presented the testimony of Steven Castillo, James Ten-ney, Jose Santibanez, Evie Serrano, Jose Aranda, David Compton, Teresa Landa-verde, several experts, and several law enforcement officers, among others, and played Alvarez’s taped confession, all of which supported the instruction.

Castillo testified to a confrontation between Curtis, Alvarez’s younger brother Junior, and Samuel Madronna two to four weeks before the murders.

Compton testified that Alvarez talked to him about a week before the murders and asked for a gun. He said that Alvarez came to his house with three other people, including Junior, to borrow the gun, though the others stayed in the car. Compton testified that he gave Alvarez a snub-nosed .38 and a box of cartridges which Compton kept under the seat of a car in his front yard. Compton testified Jose Aranda was with him when Alvarez came to get the gun.

Curtis’s father, James Tenney, testified that he last saw Curtis at 8:45 the night of the murders. Mr. Tenney testified that he found out about Curtis and Elizabeth’s murders the next morning, about 5:30 or 6 a.m., from law enforcement. Brock told the jury that Alvarez told him that he was at his uncle’s house when he heard from Jose Aranda about midnight the night of the murders that Curtis had been shot. According to Brock, Alvarez told him that Aranda told Alvarez that he had heard about the shooting from someone named Paco.

Jose Santibanez lived near the murder scene. He testified he was home watching television the night of January 8 when he heard what sounded like a car door closing, followed by a car horn blowing steadily. When he looked outside he saw a fire across the road, through the woods. He drove as close as he could, saw a car on fire, and called 911. A few minutes later a deputy arrived, who called for additional help.

The jury heard testimony that after the fire was put out law enforcement discovered Curtis and Elizabeth’s badly burned bodies in the front driver and passenger seats. Each had a single gunshot wound to the head. The scene was searched, but no shell casings were recovered. The bullets that lulled both victims were recovered. The gun retrieved from Compton was searched for fingerprints. A part of one “poor quality” latent print was found that revealed a whirl pattern, consistent .with Aranda and Alvarez’s prints, but not Compton or the gun owner’s. Junior’s prints were not compared. The gun was test fired and the spent cartridges compared to those recovered at the scene. The class markings were consistent, meaning that the recovered cartridges could have been fired from Compton’s gun. There were insufficient individual markers, though, to confirm that they actually were. Thus, while both the finger print and recovered cartridges did not exclude the possibility that Alvarez used the gun to kill Curtis and Elizabeth, they did not prove that he did. There was expert testimony that the victims could have been killed by bullets fired from two different guns.

There was expert testimony that gasoline was used as an accelerant near the front center of the car’s passenger compartment, and that the fire could not have been started by firing a gun. In the portion of his confession played to the jury, Alvarez denied starting the fire or having gasoline.

Castillo testified that about 2 to 3 weeks after the murders he was driving around with Alvarez and Serrano when Alvarez said the he had shot both Curtis and Eliza-beth in the back of the head and that the car had blown up. Castillo said that Alvarez told him he shot them because Curtis had a gun and wanted to kill Junior. Serrano testified that he, Castillo, and Alvarez were driving around in Castillo’s ear, drinking and smoking, when the subject of the murders came up and Alvarez said he did it. Serrano denied that Alvarez said that Junior was having a problem with Curtis.

In closing, the state acknowledged that there were credibility problems with some of its witnesses. Aranda’s testimony was “a real teeth pulling episode ... He had no memory, couldn’t recall.” The prosecutor noted that the jurors would make their own conclusions about the evidence, and what inconsistencies in the evidence mean.

You may say to yourself, boy, there’s a lot of other people involved in this, we keep hearing these names, ... Samuel Madronna, Junior ....Now what was their involvement? What did they do? Who would you lie to protect? To the extent that the Defendant is lying in his final confession, who most will you lie to protect? ... [sjome of us said you might lie to protect somebody you love, like a family member, like maybe Junior. But what does that mean? See, he wouldn’t admit to that arson. He never did confess to the arson. He probably didn’t strike the match that lit the car on fire. He wasn’t going to admit to something he didn’t do, but he wasn’t going to give up whoever did do that. WThat I’m saying is, it should be clear to everybody he had help. He got the gun. He set up the meeting. He murdered the victims, but he probably had help because look what his note says. His note says, ‘I meet them at.’ All right, but crossed out underneath there is, T took them to the dead end street’ where they were waiting for them. He got them there and more likely then (sic) not, helped. And so you say to yourself, who, what does that mean... ? It means nothing .... [A]s long as people who know what happened, breathe and live and can come forward, they too some day may be subject to prosecution. That doesn’t mean Mark Alvarez gets to walk. That’s not the way it works. Today, here, he will be accountable under the law for his actions.

During defense counsel’s closing statement he argued that Compton’s refusal to talk absent a grant of immunity showed he was complicit. He noted that Serrano did not go to law enforcement when Alvarez confessed, and that Seiran» and Castillo’s versions of the same confession differed, implying they may have been involved. He argued that Aranda’s testimony was not truthful and had to be coaxed out of him because “he knows more then [sic] he is saying or he is somehow complicit in the homicide.”

Defense counsel then turned to the principals instruction, saying “[w]hy are you given this instruction? Interesting. Apparently, everybody agrees more then (sic) one person was present when these homicides occurred. If not for that, you would never been given that instruction.”

Later, defense counsel argued “[s]o what’s the reasonable doubt? Junior did it. Mark is taking the fall for his younger brother.... Is it so unbelievable to believe that he might take the fall for his younger brother? It happens and it’s what happened in this case and it’s what’s happening in this case.... [Mark] caves in, covers for his brother, says, okay, I did it. He certainly isn’t going to say Junior did it.”

Alvarez claims that the trial court erroneously gave the standard principals instruction and that the state improperly used that instruction to argue the confusion in the record was not inconsistent with its theory of the case.

There was evidence before the jury that Curtis had fought with others, including Alvarez’s brother Junior, before his murder; that Alvarez procured the murder weapon from Compton accompanied by three other people and in the presence of a fourth; that Alvarez did not have gasoline, though gasoline was used as an accelerant in the arson; that Alvarez’s original written confession implied that he had taken Curtis and Elizabeth to an isolated area where someone was waiting; that the forensic evidence did not exclude others’ involvement; and that two other people knew about the murders before they were public. Given this evidence, a reasonable juror could have concluded that Alvarez acted in concert with others in committing the crimes. See generally Masaka v. State, 4 So.3d 1274 (Fla. 2d DCA 2009). Consequently, the trial court did not abuse its discretion in giving the principals instruction. See Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA 1997). The state did not make an impermissible argument from the evidence.

Conclusion

We find that Alvarez’s constitutional warning adequately conveyed his right to confer with counsel prior to questioning and that he did not unambiguously invoke his right to remain silent after waiver. Thus the motion to suppress was properly denied. Further, the tria1 court did not abuse its discretion in giving the principals instruction and the state did not use the instruction to make an improper argument. We find no error appearing in the record before us, and affirm.

GROSS, C.J., and FARMER, J., concur.

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

      . Alvarez's contention that his confession should have been suppressed because he was not specifically told he had the right to speak with counsel before being questioned is based on state, not federal, law. See Powell, 998 So.2d at 537-38; cf. United States v. Prankson, 83 F.3d 79, 82 (4th Cir.1996) (statement that suspect had right to an attorney without specifically stating that right applied both pri- or to and during questioning adequately conveyed right to consult with attorney prior to questioning). In referring to a Miranda warning in this opinion, then, we are adopting the parties' colloquial, not technical, use of the phrase.

      . Alvarez argues his statement was ambiguous, not equivocal. See Rodriguez, 518 F.3d at 1077 (equivocal evinces uncertainty; ambiguity allows more than one interpretation).

      . The state also cites to Dubon v. State, 982 So.2d 746 (Fla. 1st DCA 2008). That case does not give any context to the defendant's three custodial statements that he has “nothing to say.” Id. at 746-47.


author: WELLS, J.

text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Anthony L. DAVIDE, Appellee.
    No. 3D08-2376.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Schwartz & Horwitz and Steven G. Schwartz, Boca Raton, for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg; Mintz Truppman and Mark J. Mintz, Miami, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   WELLS, J.

Sunshine State Insurance Company appeals from an order awarding pre-judgment interest from the date the insured’s property was damaged rather than from the date payment became due under the policy issued by Sunshine. We reverse and remand for imposition of pre-judgment interest from the date payment became due under the policy.

Arthur Davide’s home was damaged by both Hurricane Katrina (August 25, 2005) and Hurricane Wilma (October 24, 2005). Approximately three months after Hurricane Wilma, Sunshine, Davide’s homeowner’s insurer, made an initial payment on Davide’s claim relating to damage sustained in these hurricanes. After a dispute arose between Sunshine and Davide as to whether Sunshine was obligated under its policy to pay the actual cash value of the roof on Davide’s home or replacement cost for the roof, the parties submitted the issue to appraisal as authorized by the policy.

On November 2, 2006 an appraisal award was issued. While fixing the amount of the loss at $246,491.94, the award also stated:

This appraisal award is in total, and money previously paid by the carrier to its insured on the subject claim, if any, should be deducted from this award. This appraisal award is subject to the terms and conditions of the policy of insurance (e.g., deductible) and the laws of the State of Florida.

Claiming to be unsure as to whether this language meant that the $249,491.94 appraisal award had already taken into account a deduction for depreciation or whether this language authorized Sunshine to take such a deduction from this amount, Sunshine made multiple inquiries of the umpire for clarification. On November 28, 2006 (within the sixty days allotted by the policy to pay an appraisal award), with no clarification in hand, Sunshine paid the award less an amount it attributed to depreciation. Some three months later, Davide brought suit to confirm the appraisal award. According to Sunshine, that same day, Davide’s counsel obtained a letter from the umpire which, according to Davide’s counsel, confirmed counsel’s understanding that the award was an actual cash value award which took depreciation into account. This information was provided to Sunshine on March 8, 2007, and the amount previously withheld by Sunshine was paid to Davide on April 4, 2007.

Davide, claiming that withholding a portion of the arbitration award constituted a denial of coverage, sought an award of prejudgment interest on the amount held back from the date on which Davide’s home was damaged rather than within the time frame authorized by the policy (that is within sixty days of the filing of an appraisal award). The trial court agreed; we reverse.

The record before us confirms that Sunshine has never denied coverage of Davide’s claim, but rather only disputed the amount to be paid under the policy to satisfy this claim. Here, as in Citizens Property Insurance Corp. v. Mallett, 7 So.3d 552 (Fla. 1st DCA 2009), the policy provides that the insurer is not obligated to pay a covered claim until twenty days after the insurer has reached a written agreement with the insured, or sixty days after entry of a final judgment on a claim or after the filing of an appraisal award or mediation settlement with the insurer. As the court in Mallett makes plain, the provisions governing appraisal deal with “covered” claims and “determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable.” Id. at 555 (holding that prejudgment interest accrues from the date of a judgment or appraisal fixing the amount of coverage not from the date the insured property is damaged); Am. Reliance Ins. Co. v. Devecht, 820 So.2d 378, 379 (Fla. 3d DCA 2002) (stating that “prejudgment interest may be awarded from the date of the appraisal award unless policy provisions allow the insurer to pay the award within a certain period, and payment was made within the allotted time”); Allstate Ins. Co. v. Blanco, 791 So.2d 515, 516 (Fla. 3d DCA 2001) (reversing prejudgment interest award from the date of damage to insureds’ home “because prejudgment interest should have been computed from the date of the appraisal award, not the date of loss”); Allstate Ins. Co. v. Martinez, 790 So.2d 1151, 1152 (Fla. 3d DCA 2001) (“The trial court erred when it ordered prejudgment interest to be paid from the date of loss. Rather, if Martinez is entitled to prejudgment interest it is to be calculated from the termination of sixty days after the date of the appraisal award.”); Aries Ins. Co. v. Hercas Corp., 781 So.2d 429, 430 (Fla. 3d DCA 2001) (stating that the insured “was entitled to interest from the date of the appraisal award as that is the date on which the damages were liquidated”).

We see no conflict between these authorities and Lumbermens Mutual Casualty Co. v. Percefull, 638 So.2d 1026 (Fla. 4th DCA 1994), approved, 653 So.2d 389, 390 (Fla.1995), on which Davide principally relies. Percefull involved a policy which provided benefits payable to the insured “immediately upon receipt” of a written proof of a loss. The Supreme Court confirmed that the insurer’s failure to pay claims submitted by the insured for services not yet paid for by the insured, entitled the insured to pre-judgment interest from the date on which the claims were submitted because “the general rule [is] that prejudgment interest is allowed in Florida for actions based on contract from the date the debt is due”:

Lumbermens argues that because Percefull has not paid the medical expenses related to the insurance claims, Percefull should not receive a “windfall” in the form of prejudgment interest. Lumbermens’ argument ignores the fact that it has a contract with Percefull, supported by consideration, in which Lumbermens agreed to pay Percefull specified sums on the occurrence of certain conditions. Whether Percefull uses this money to pay medical bills or for some other purpose does not change the fact that a debt has been created.

Percefull, 653 So.2d at 390.

Here, Sunshine’s debt became due when the appraisal liquidated Davide’s loss. That amount came due under the policy sixty days after “[t]here [was] a filing of an appraisal award... with [Sunshine].” Davide is therefore entitled to pre-judgment interest on that portion of the appraisal award not timely paid within sixty days of the filing of the appraisal award with Sunshine, not from the date that Davide’s home was damaged.

Accordingly, the order on appeal is reversed and remanded for further proceedings consistent with this opinion.

      . The policy expressly provides that should the insurer and the insured "fail to agree on the amount of the loss," they could either demand mediation or appraisal of the amount of the loss.

      . The appraisal award is dated November 2, 2006. Sunshine states that it received a copy of the appraisal award on November 5, 2006, and Davide does not dispute that assertion.


author: COPE, J.

text:
    Jorge MANZANO and Brian Flaherty, Appellants, v. Franco NICOLETTI and Florencia Ferreira, Appellees.
    No. 3D08-2719.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.

      Jorge Manzano, in proper person.
    James W. Beagle, Fort Lauderdale, for appellee Franco Nicoletti.
    Florencia Ferreira, in proper person.
    Before COPE, LAGOA, and SALTER, JJ.
   Confession of Error Corrected Opinion

COPE, J.

Jorge Manzano and Brian Flaherty appeal an order dismissing their lawsuit. On the confession of error filed by Franco ■Nicoletti, we reverse the dismissal order.

Plaintiffs Manzano and Flaherty are incarcerated in correctional institutions. They filed this lawsuit against defendants Nicoletti and Ferreira, asserting breach of contract and other claims. The plaintiffs filed a motion for an order allowing the plaintiffs to take the deposition of Ferreira by telephonic means. The motion was scheduled for hearing on September 23, 2008. The plaintiffs attempted to participate in the hearing by telephone but were unsuccessful in doing so.

Both sides agree that at the September '23 hearing, the trial court dismissed the lawsuit. The plaintiffs contend that this was because the plaintiffs were unable to appear by telephone at this hearing. Defendant Nicoletti maintains that the trial court examined the complaint and concluded that the complaint did not state a cause of action. The defendants had not filed a motion to dismiss the complaint.

We are confident that the able trial judge did not impose the sanction of dismissal because the plaintiffs were unsuc- ■ cessful in appearing telephonically at a hearing on a procedural motion. As the defendant points out, the written order nowhere indicates that the dismissal was being imposed as a sanction. We accept the defendant’s characterization and treat this as a dismissal for failure to state a cause of action.

We accept the defendant’s concession that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond. Surat v. Nu-Med Pembroke, Inc., 632 So.2d 1136, 1136-38 (Fla. 4th DCA 1994). The defendant acknowledges that the procedure outlined in Surat was not followed here, and accordingly we reverse the dismissal order. This ruling is without prejudice to the defendants to file a motion to dismiss, or the court to raise the issue on its own motion. The plaintiffs must be given a reasonable opportunity to respond in wilting, and if at all possible, should be afforded the right to be heard at the hearing telephonically.

For the stated reasons, the order now before us is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.


author: PER CURIAM.

text:
    Michael WEAVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1294.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Rehearing and Rehearing En Banc Denied Sept. 2, 2009.
    Michael Weaver, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Weaver v. State, 845 So.2d 280 (Fla. 3d DCA 2003).


author: FARMER, J.

text:
    Thomas H. STEVENS and Thomas Waynick, Appellants, v. TARPON BAY MOORINGS HOMEOWNERS ASSOCIATION INC., Appellee.
    No. 4D08-1444.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      Guy M. Shir and Patrick Dervishi of Kahan, Shir, P.L., Boca Raton, for appellants.
    Shelly J. Stirrat and George W. Bush, Jr. of Fox Wackeen Dungey Beard Sobel Bush & McCluskey LLP, Stuart, for ap-pellee.
   FARMER, J.

In a suit between 2 owners in a community of related homes and their Homeowners Association, the court was asked to decide whether the 2 owners had a right to space on a community dock. The community is comprised of three buildings having 22 townhomes in all. Two buildings face a canal, one a river. The community’s original site plan provided 8 dock spaces on the river and 14 on the canal. The developer built river docks having 13 dock spaces, the ownership of which was open to all members of the community, regardless of their unit’s building. The developer never built the canal docks.

Later, 13 of the 14 canal owners built a canal dock. After that, plaintiffs bought units in the building on the canal. They solicited the Association’s approval to add to the canal dock space so that each would be able to share in using the dock. Ultimately a majority of Association members voted to add 220 feet of dock space and agreed that space on the canal dock would be divided among only those participating owners in the 2 buildings who contributed to the cost. The effect of this was to foreclose plaintiffs from any rights to canal dock space. The addition was then built and space assigned as they had agreed.

Plaintiffs sued only the Association and sought an injunction to give them a right to dock space. They also sought money damages for the diminution in the value of their units without the dock space. Before trial the Association moved to dismiss the action for failure to join the other owners in the Community, on the grounds they were persons whose presence in the suit was necessary for any just adjudication. The motion was denied and the case proceeded to trial. In a final judgment, the court ruled that each of the 22 unit owners should have had an opportunity to participate in the dock expansion. Thus, each owner had a right to purchase 10 feet of canal dock space.

In a cross-appeal, the Association argues that reversal is required because plaintiffs failed to join the other owners as parties. It argues that no relief in favor of plaintiffs could possibly be granted without affecting the interests of the other owners. We agree.

Recently in Florida Dept. of Revenue v. Cummings, 930 So.2d 604 (Fla.2006), the court discussed the law regarding indispensable parties:

“The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties. The Fourth District elaborated on this rule in Phillips v. Choate, 456 So.2d 556, 557 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855)), where it defined an indispensable party as one whose interest in the controversy is of ‘such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’ ”

Cummings, 930 So.2d 604 at 607.

Here, the trial court ordered the Association to assign 10 feet of canal dock space to each plaintiff. All of that dock space had already been given to other owners, who paid construction costs for their interest, or as guest space open to all owners in the Community. Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried out without affecting the interests of these other owners in the community. By any measure the other owners are indispensible parties, as the court described that term in Cummings.

We reject plaintiffs’ argument that Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003), supports the absence of the other owners. In that case several owners had built screened enclosures intruding into the condominium’s common elements. A single owner sued the Association to perform its duty to enforce the rules against such enclosures. In granting relief, the trial court ordered all the offending enclosures torn down, in spite of the absence of those offending owners in the suit. The order was reversed for failure to join the offending owners. Thus Sheoah Highlands actually supports the Association’s argument that all owners should have been parties to this action.

Surely the class of absent owners is not so large that joinder is impractical. Neither does it appear that any of the absent owners is a fugitive from justice as in Glancy v. First Western Bank, 802 So.2d 498 (Fla. 4th DCA 2001). We perceive no practical barrier to joining all the owners if the dock space is to be reallocated. All should be made parties and the case tried anew. The other issues can then be revisited.

Reversed for consistent proceedings.

POLEN and GERBER, JJ., concur.


author: FARMER, J. HAZOURI, J.,

text:
    Joseph Eugene McFADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2098.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Rehearing Denied Sept. 3, 2009.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

Defendant had a business relationship with one Ritter selling audio systems and parts. They had a dispute over money. Ritter and a friend went to defendant’s house, where he lived with his sister, and demanded a sum of money. Racial epithets were heard. Ritter claimed defendant accosted him with a shotgun in the front yard, which he then tried to take from defendant. Bystanders joined in the fray. Ritter suffered a concussion and a broken ankle. He said defendant and his friends left with some of his audio equipment.

At trial defendant tried to show self defense. He called his sister to testify. She missed the affray but saw defendant walk into the house afterwards. She said her brother did not have a gun and that he walked into the house afterwards with nothing in his hands. She said there had never been a gun in their house.

The State called a detective in rebuttal. He testified that he spoke to the sister on the day before the incident. She told him of her concerns about her brother, that he possessed a shotgun. Defendant immediately objected, arguing a discovery violation because this conversation had never been disclosed to the defense. The State said it did not know she was going to say there were no guns in the house. The court overruled the objection without inquiry. The court explained that the State did not know what defendant’s witness was going to say. On appeal, defendant argues this discovery violation requires a new trial. We agree.

Florida Rule of Criminal Procedure 3.220(b)(1) requires the State to disclose to the defense, among other things, the following:

“(T)he statement of any person whose name is furnished in compliance with [rule 3.220(b)(1)(A) ]. The term ‘statement’ as used herein includes a urritten statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term ‘statement’ is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled.” [e.s.]

Fla. R.Crim. P. 3.220(b)(1)(B). Richardson v. State, 246 So.2d 771 (Fla.1971), obligates the trial court to conduct an inquiry into discovery violations and determine the effects of non-disclosure and the extent of any prejudice to the defense. In Scipio v. State, 928 So.2d 1138 (Fla.2006), the court explained:

“This Court has held that the chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush.”
“Because full and fair discovery is essential to these important goals, we have repeatedly emphasized not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context. This Court has explained that the rules of discovery are intended to avoid surprise and ‘trial by ambush.’ ”

928 So.2d at 1144 (internal citations omitted). We have no trouble in concluding that the State’s failure to disclose the substance of the detective’s testimony was directly contrax-y to the purpose and spirit of this provision. If the State is guilty of a discovery violation it is required to show beyond any reasonable doubt that the violation did not materially hinder defendant’s trial pi’eparation or strategy. Scipio, 928 So.2d at 1150. It has not done so hei'e.

The State ai'gues that rule 3.220(b)(1)(B) did not cover the oral statement of the police detective because it was not a written statement. The rule’s operative term is includes (“tei'm ‘statement’ as used hei-ein includes ... ”). The State would have us understand that includes is hei'e synonymous with comprise. We reject this interpretation.

The standard meaning of the word includes is not as a term of limitation but only as a partial listing of a larger whole. See Amer. Heritage Dict. (3d ed.) 913 (“to take in as a part, an element, or a member; to contain as a secondary or subordinate element; to consider with or place into a group, class, or total.”). Indeed, one eminent authoi'ity on language has stressed that vnchtdes should not be employed when comprises is intended, as the State would have us do hei'e:

“comprise is appropi’iate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption (though it is often the fact) that all or even most of the components are mentioned; with comprise, the whole of them ai'e understood to be in the list.”

H.W. Fowler, Dict. of Modern English Usage (2d ed.) 275.

Admittedly includes is sometimes used uncritically to signify a full listing, one meant to cover exhaustively the entire specified set. But using include in place of comprise without qualifiers to mean a thorough listing raises an inherent ambiguity, as this usage note explains:

“Some writers have insisted that include be used only when it is followed by a partial list of the contents of the referent of the subject. This restriction is too strong. Include does not rule out the possibility of a complete listing. When one wants to make clear that the listing is exhaustive, however, the use of comprise or consist o/'will avoid ambiguity.”

Amer. Heritage Diot. (3d ed.) 913 (examples and illustrations omitted). Doing so with this rule of criminal procedure produces an unnecessary ambiguity.

Defendant is entitled to a new trial where all other issues raised on this appeal may be revisited in the trial court.

Reversed.

CIKLIN, J., concurs.

HAZOURI, J., specially concurs with opinion.

HAZOURI, J.,

concurring specially.

I concur and write to note that the error here was compounded by the failure of the trial judge to conduct a Richardson hearing. When McFadden’s counsel objected and asserted a discovery violation, the trial judge overruled the objection because he concluded the detective’s testimony was rebuttal and, therefore, not subject to a discovery violation. “There is neither a rebuttal nor impeachment exception to the Richardson rule.” Elledge v. State, 613 So.2d 434, 436 (Fla.1993); see also Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001) (citing Elledge, 613 So.2d at 436).

      . See also McLaughlin v. State, 698 So.2d 296, 298 (Fla. 3d DCA 1997) (includes is term of enlargement not of limitation); Miami Country Day School v. Bakst, 641 So.2d 467 (Fla. 3d DCA 1994) (holding that legislature meant includes to enlarge definition); You v. Fleming, 595 So.2d 573, 577 (Fla. 4th DCA), rev. denied, 599 So.2d 1281 (Fla.1992) (holding that within meaning of Uniform Jurisdiction Child Custody Act, includes is term of enlargement not of limitation); but see Tyson v. Viacom Inc., 760 So.2d 276 (Fla. 4th DCA 2000) (in context includes is unambiguously one of limitation not enlargement). It is elementary in the interpretation of criminal law that ambiguities are construed in defendant's favor. State v. Hayes, 305 So.2d 822 (Fla. 1st DCA 1975), cert. denied, 317 So.2d 764 (Fla.1975) (criminal laws are to be strictly construed).

      . See Rotstein v. Dep’t of Prof. & Occ. Reg., 397 So.2d 305, 311 (Fla. 1st DCA 1980) (construing statutory term include to favor licensee in license disciplinary proceeding).

      . Richardson v. State, 246 So.2d 771, 775 (Fla.1971).


author: GROSS, C.J.

text:
    Arthur BLAIR, Petitioner, v. STATE of Florida and Ric L. Bradshaw, Palm Beach County Sheriff, Respondents.
    No. 4D09-2335.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Rehearing Denied Sept. 10, 2009.

      Carey Haughwout, Public Defender, Daniel Cohen, and Yvette Farnsworth Baker, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondents.
   GROSS, C.J.

The trial court ordered petitioner, Arthur Blair, held without bond after he failed to appear for a court date on a felony DUI charge. Blah* had never been arrested on the felony charge and he did not receive notice of the court date. Blair had been arrested for misdemeanor DUI and appeared at a scheduled court date for that charge. At that time, he was advised that the court appearance had been can-celled and that the misdemeanor case had been nolle prossed. Unbeknownst to Blair, the state had filed an information charging felony DUI, but the uncontested evidence at the bond hearing showed that Blair did not receive notice of the felony charge.

The trial court did not find the failure to appear to be willful. The record is devoid of evidence to suggest that petitioner willfully failed to appear. Pretrial detention may not be ordered based on a failure to appear unless the court finds that the failure to appear was willful. See Lee v. State, 956 So.2d 1292 (Fla. 4th DCA 2007); Johnson v. Jenne, 913 So.2d 740 (Fla. 4th DCA 2005); Winters v. Jenne, 765 So.2d 54 (Fla. 4th DCA 1999).

Further, the trial court improperly ordered pretrial detention without finding that “no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.” Art. I, § 14, Fla. Const. A pretrial detention order must contain findings of fact and conclusions of law showing that the constitutional and statutory criteria for pretrial detention are met. See Fla. R.Crim. P. 3.132(c)(2); § 907.041(4)(i), Fla. Stat. (2008).

This court’s decision in Bradshaw v. Jenne, 754 So.2d 109, 110-11 (Fla. 4th DCA 2000), predates the Florida Supreme Court’s decision in State v. Paul, 783 So.2d 1042 (Fla.2001). In Paid, the supreme court agreed with Judge Taylor’s dissent in Bradshaiv. See id. at 1049 n. 11. Pretrial detention based on a violation of a bond condition, other than the commission of a new offense while on pretrial release, is subject to the requirements of section 907.041, Florida Statutes. See § 907.041(4)(c)7, Fla. Stat. (2008) (requiring a court ordering pretrial detention based on a violation of a pretrial release condition to find that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial”). Cf. § 903.0471, Fla. Stat. (2008) (permitting court to order pretrial detention when it finds probable cause to believe defendant committed a new offense while on pretrial release); Parker v. State, 843 So.2d 871, 878 (Fla.2003) (finding section 903.0471 constitutional and suggesting that an Article I, section 14 finding is not required when probable cause is found that defendant committed a new offense while on pretrial release).

Although a trial court has discretion in setting reasonable pretrial release conditions, a trial court’s authority to order pretrial detention is circumscribed by the state constitution and relevant statutes. Paul makes clear that these requirements apply even where a defendant has violated pretrial release conditions, such as through a failure to appear. 783 So.2d at 1051. Paul effectively overruled the majority’s analysis in Bradshaiv, which permitted a court to order pretrial detention following a finding of a willful failure to appear without also finding that the constitutional and statutory criteria for pretrial detention were met.

The court in Ricks v. State, 961 So.2d 1093, 1093-94 (Fla. 5th DCA 2007), appears to have relied on pre-Paul cases to reach the same conclusion as Bradshaw, that a court may order pretrial detention based solely on a finding of a willful failure to ajapear “without determining whether conditions of release are appropriate.” Id. (citing Wilson v. State, 669 So.2d 312, 313 (Fla. 5th DCA 1996)). We certify conflict with this aspect of Ricks.

' The petition for writ of habeas corpus is granted and the trial court shall hold a bond hearing and release the defendant on reasonable conditions unless the court determines that the failure to appear was willful and that “no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.” Art. I, § 14, Fla. Const.; § 907.041(4)(c)7, Fla. Stat. (2008); Paul, 783 So.2d at 1042.

POLEN and STEVENSON, JJ., concur.

      . The petition for writ of habeas corpus was previously granted by order of June 29, 2009, with opinion to follow.


text:
    August Christine CAVE, Appellant, v. Felipe RIOS, Appellee.
    No. 3D08-2181.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.

      The Margalli Law Office, P.A., and Cheri A. Shapiro, Key West, for appellant.
    The Fowler Law Firm, P.A., and Richard J. Fowler, Key West, for appellee.
    Before GERSTEN, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

August Christine Cave (“mother”) appeals from the denial of her petition to modify custody. We affirm.

In June 2001, an amended final judgment of dissolution of marriage awarded the mother and Felipe Rios (“father”) shared parental responsibility of their two minor children, but awarded primary residential responsibility of the children to the father. In October 2007, the mother filed a petition to modify custody, asserting that there had been a substantial change in circumstances warranting a modification of the primary residential parent designation from the father to the mother, and that the modification would be in the children’s best interest. Following a trial, at which the trial court heard testimony from numerous witnesses, the trial court entered an order denying the mother’s petition to modify custody based on specific findings of fact.

On appeal, the trial court’s order denying the mother’s petition to modify custody comes to this Court clothed with a presumption of correctness. See Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, 949 So.2d 347, 349 (Fla. 4th DCA 2007) (holding that “a judgment from the trial court comes to an appellate court clothed with a presumption of correctness,” and that “this presumption of correctness is even stronger when reviewing a judgment based upon the factual findings of the trial court”). In support of her argument that the trial court abused its discretion by denying her petition to modify custody, the mother improperly relies on the father’s deposition testimony, as it was not admitted into evidence, and therefore not a part of the record on appeal. See Gross v. Hat-maker, 173 So.2d 158, 160 (Fla. 2d DCA 1965) (holding that a deposition that is not introduced into evidence at trial is not a part of the record on appeal). Furthermore, as the mother has not filed a transcript of the trial or a statement of the evidence, as permitted under Florida Rule of Appellate Procedure 9.200(b)(4), no meaningful appellate review can occur in this case, and therefore, we must affirm the order under review. See S.R.J. v. State, 997 So.2d 498, 499 (Fla. 5th DCA 2008) (“With no ability to review any portion of the adjudicatory proceeding on appeal, no meaningful appellate review can occur in this case.”); Smith v. Orhama Inc., 907 So.2d 594, 596 (Fla. 3d DCA 2005) (“As the appellants have failed to submit a transcript of the proceedings below, we conclude that the appellants have failed to meet their burden and that meaningful review is precluded.”); S. Fla. Apartment Ass’n v. Dansyear, 347 So.2d 710, 711 (Fla. 3d DCA 1977) (finding that it is the responsibility of the appellant to provide a sufficient record for review, and that the failure to do so leaves the appellate court with no alternative but to assume that the trial court ruled correctly).

Affirmed.