author: PARIENTE, J. POLSTON, J., PERRY, J.,

text:
    James WARMINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-1050.
    Supreme Court of Florida.
    Oct. 16, 2014.

      Carlos Jesus Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Richard L. Polin, Bureau Chief, and Nicholas Adam Merlin, Assistant Attorney General, Miami, FL, for Respondent.
   PARIENTE, J.

The conflict issue in this case concerns whether testimony elicited by the State during a criminal trial involving a defendant’s failure to produce exculpatory evidence impermissibly shifted the burden of proof from the State'to the defendant. In Warmington v. State, 86 So.3d 1188, 1192 (Fla. 3d DCA 2012), the Third District Court of Appeal held that such testimony did not shift the burden of proof because the testimony consisted only of “historical fact[s]” and involved actions taken by the defendant prior to trial. We have jurisdiction on the basis that the Third District’s decision expressly and directly conflicts with this Court’s- decision in Hayes v. State, 660 So.2d 257 (Fla.1995); the Fourth District Court of Appeal’s decision in Ramirez v. State, 1 So.3d 383 (Fla. 4th DCA 2009); and the Second District Court of Appeal’s decision in Miele v. State, 875 So.2d 812 (Fla. 2d DCA 2004), each of which held that similar testimony constituted impermissible burden shifting. See art. V, § 3(b)(3), Fla. Const.

We conclude that the State’s questioning of the lead detective assigned to investigate the defendant’s case constituted impermissible burden shifting because the testimony commented on the defendant’s failure to produce exculpatory evidence, which he had no legal duty to produce. We further determine that this error was not harmless beyond a reasonable doubt. Accordingly, we quash the Third District’s decision in Warmington, which is contrary to our decision in Hayes; approve the decisions of the Fourth District in Ramirez and the Second District in Miele; and remand this case for a new trial.

BACKGROUND

The State charged the defendant, James Warmington, with first-degree theft of an amount greater than $100,000. This charge arose from a business investment deal between Warmington and three other individuals — Robert Pistol, Christine Pistol, and Rene Sardina. While the existence of the deal was not disputed,. the terms and nature of the investment deal were contested.

At trial, the State asserted that Warm-ington agreed to act as an intermediary between the Pistols and Sardina, facilitating the execution of a private mortgage agreement between the parties, but that Warmington subsequently stole the money that the Pistols intended to loan to Sardi-na. Conversely, Warmington argued that the ' Pistols made an unsecured personal loan to Warmington and Sardina'jointly, which was not secured by real property, and although Warmington failed to repay this unsecured loan, this failure did not constitute theft.

During trial, the State called Detective Stuart Abolsky, a detective with the Miami-Dade Police Department’s Economic Crimes Bureau who was assigned to investigate Warmington’s case. Detective Abolsky testified that after contacting the Pistols and Sardina, he interviewed Warm-ington at his home. At trial, when inquiring about Detective Abolsk/s interview with Warmington, the State elicited testimony that Warmington contends imper-missibly shifted the burden of proof. This portion of the record provides as follows:

[Prosecutor]: Did you interview anyone else as a result of this investigation?
[Detective Abolsky]: Mr. Warming-ton.
[Prosecutor]: When you interviewed Mr. Warmington, how far [sic] is it that it came about?
[Detective Abolsky]: Well, what I believed to be the complete case file [sic], I went to his home to visit with him.
[Prosecutor]: What [was] the purpose of your visit?
[Detective Abolsky]: The purpose of my visit,was to allow him to dispel any alarms that I may have or concerns that he did anything wrong.
[Prosecutor]: And was he able to do that?
[Defense Counsel]: Objection. Burden shifting.
THE COURT: Sustained.
[Defense Counsel]: We have a motion to object, Judge.
THE COURT: Yes.
[Prosecutor]: When you went and spoke to him, what was the extent of your investigation?
[Detective Abolsky]: I advised him of the nature of the investigation. We spoke outside his residence. I began explaining to him what the allegations were and I offered him an opportunity to—
[Defense Counsel]: Objection.
THE COURT: Sustained.
[Prosecutor]: Your Honor.
THE COURT: Continue on.
[Prosecutor]: And what was the result of that conversation?
[Detective Abolsky]: Well, Mr. Warm-ington had indicated to me that a loan had been funded to Mr. Rene Sardina and that Mr. Sardina was no longer paying on the loan. The loan was comprised [sic] basically a mortgage or something and as a result he had explained this to the Pistols and subsequently it was a matter he was trying to take care of.
[Prosecutor]: Was the defendant able to produce any documentation?
[Defense Counsel]: Objection. Burden shifting. We reserve—
THE COURT: Overruled.
[Prosecutor]: Was there documentation that day with regards to this explanation he gave you?
[Detective Abolsky]: No, in fact, he represented that his home was also his office. And when I asked for him to provide any documentation, he couldn’t.
[Defense Counsel]: Objection.
THE COURT: Same objection as previously noted. We reserve the motion.
THE COURT: Continued objection. Go ahead.
[Prosecutor]: When you had that conversation with Mr. Warmington, what happened?
[Detective Abolsky]: I placed him under arrest.
[Prosecutor]: Thank you, Judge. No further questions.

Later, outside the presence of the jury, defense counsel made a motion for mistrial, alleging that burden shifting occurred during Detective Abolsky’s testimony. The trial court denied the motion for mistrial, stating that the testimony elicited from the detective did not constitute burden shifting.

After the close of evidence, the jury returned a verdict, finding Warmington guilty of the lesser-included crime of theft of an amount greater than $20,000 but less than $100,000. The trial court sentenced Warmington to two years of community control, followed by ten years’ probation, and payment of restitution to the victims.

On appeal, the Third District affirmed Warmington’s conviction, rejecting his argument that the trial court abused its discretion in denying the motion for mistrial. Warmington, 86 So.3d at 1190. The Third District concluded that the State’s questioning of Detective Abolsky involving Warmington’s failure “to produce any documentation” during the detective’s pretrial investigation did not shift the burden of proof because the detective’s testimony went to matters of “historical fact.” Id. at 1192. In rejecting Warmington’s argument, the Third District stated as follows:

An investigating officer’s testimony concerning what he saw, observed, or discovered during the course of his investigation does not shift the burden of proof. It is evidence. In this case, the investigating officer discovered that Warmington did not have copies of certain mortgage documents signed by Sar-dina at the closing of the transaction at his home. The testimony may or may not have been significant; one might argue that Warmington, who, after all, merely was the middleman in the transaction, would have no need to have a set of the mortgage documents. On the other hand, the fact certainly was material for the jury to hear.

Id. at 1190.

The Third District also distinguished the conflict cases of Hayes, Ramirez, and Miele, which each held that testimony concerning historical facts similar to the testimony elicited by the State in this case constituted impermissible burden shifting. See id. at 1190-92. The Third District concluded that all of those cases were distinguishable because each involved a situation where “a prosecutor’s questioning at trial resulted in the burden at trial being less than it should be, where the jury is left with the impression that a defendant had an obligation to produce evidence of his innocence at trial, or when the burden at trial, is less than reasonable doubt.” Id. at 1190.

The dissent in the Third District rejected the majority’s attempt to distinguish the conflict cases, explaining that in this case,

the prosecutor was allowed to ask the detective at trial why he visited the defendant — to allow him to dispel any concerns that he did anything wrong. The detective also testified at trial that the defendant could provide no documentation to support his position that .the money owed was a loan rather than a theft. When the defendant could not, he was immediately arrested. If this is not shifting the burden, I don’t know what is.

Id. at 1192 (Ramirez, J., dissenting). The dissent also stated that “the majority seems to create a historical exception to the burden shifting” rule, where “our long history of requiring the State to prove a defendant’s guilt is not applicable to ‘historical facts.’ ” Id. at 1193.

ANALYSIS

The conflict issue in this case is whether testimony elicited by the State during a criminal trial involving a defendant’s failure to produce exculpatory evidence im-permissibly shifted the burden of proof from the State to the defendant. In addressing this question, we first briefly describe the applicable standards governing burden-shifting claims. Next, we summarize the conflict cases. Finally, we turn to this case to determine whether burden shifting occurred and, concluding that testimony in this case did impermissibly shift the burden of proof, we address whether the error was harmless beyond a reasonable doubt.

I. Burden Shifting

“It is well settled that due process requires the state to prove every element of a crime beyond a reasonable doubt.” Jackson v. State, 575 So.2d 181, 188 (Fla.1991). “For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” Gore v. State, 719 So.2d 1197,1200 (Fla.1998). Accordingly, this Court has long held that “the state cannot comment on 'a defendant’s failure to produce evidence to refute an element of the crime, because doing so ■ could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Jackson, 575 So.2d at 188.

This Court has, however, recognized a narrow exception to the rule that a prosecutor may not comment on a defendant’s failure to produce exculpatory evidence, allowing comment “when the defendant voluntarily assumes some burden of proof.” Id. This Court has explained, though, that this exception is inapplicable where the defendant “never assume[s] any responsibility for presenting [evidence] to the jury as part of an affirmative defense.” Hayes, 660 So.2d at 266.

II. The Conflict Cases

In Hayes, 660 So.2d at 265, this Court held that testimony elicited by the State during a criminal trial involving the defendant’s failure to request DNA testing prior to trial of various pieces of scientific evidence, which were found at the scene of the crime, impermissibly shifted the burden of proof from the State to the defendant. Specifically, the State called an employee of the Broward County Sheriffs Office Crime Lab to testify about certain pieces of evidence found at the crime scene, including blood-stained clothing. Id. On cross-examination, the defense raised the fact that the State had never requested testing of the blood stains, in an apparent attempt “to cast doubt on the thoroughness of the State’s investigation and to imply that a test of the blood could have eliminated [the defendant] as a suspect.” Id. On redirect, the trial court allowed the State to inquire, over defense objection, as to “whether the defense had requested any testing of the blood stains.” Id. The witness replied that the defense had not, and added that “the lab had complied with such requests in the past for other defense attorneys.” Id.

This Court held that this line of questioning constituted impermissible burden shifting, stating that the prosecutor’s questions and statements in Hayes “may have led the jury to believe that [the defendant] had an obligation to test-the evidence found at the scene of the murder and to prove that the hair and blood samples did not match his own.” Id. “Clearly,” this Court explained, the defendant “had no such obligation.” Id. This Court also concluded that the narrow exception to burden shifting did not apply, as the defendant’s asserted defense to the crime — that the crime was committed by someone else — was not an affirmative defense and therefore did not place any burden of proof on the defendant. Id. Because this Court concluded that the burden-shifting error could not be considered harmless beyond a reasonable doubt, we vacated the conviction and remanded for a new trial. Id. at 266.

The Fourth District reached the same conclusion in Ramirez, 1 So.3d at 384, in which a defendant was convicted of battery on a law enforcement officer. In that case, the defendant denied battering the officer and alleged that she had been “treated roughly.” Id. In an effort to refute the defendant’s version of the events, the State asked the defendant during cross-examination whether she had taken any pictures of her alleged injuries prior to trial. Id. at 385. The defendant responded that she did, but that the pictures were “unclear” so she did not bring them to trial. Id. Defense counsel objected on the basis that the State’s questioning constituted impermissible burden shifting, but the trial court overruled the objection. Id. Subsequently, the State pursued the issue further, inquiring whether the defendant had asked anyone at the jail to take closer pictures of her injuries or if she had medical reports to substantiate her injuries, to which the defendant stated that she did not. Id.

After reviewing the testimony elicited by the State, the Fourth District reversed the defendant’s conviction, explaining that “the State impermissibly shifted the burden of proof by focusing on' the defendant’s failure to produce photographs and a doctor’s report to substantiate her claim of injury.” Id. at 386. The Fourth District explained that the State had the burden to prove that the defendant committed the crime, that the trial court therefore abused its discretion “when it allowed the State to shift that burden to the defendant through its questions and comments that implied the defendant should have produced photographic evidence and medical reports to support her version of events,” and that this error was not harmless beyond a reasonable doubt. Id. Additionally, because the “defendant did not assume a burden of proof by asserting an affirmative defense,” the Fourth District determined that the narrow exception to the burden-shifting rule did not apply. Id. at 385.

In Miele, 875 So.2d at 814, the Second District likewise concluded that impermissible burden shifting had occurred, based on a similar line of questioning. Specifically, the defendant in Miele was first identified as a suspect in a theft of a water jug containing “between $300 and $500 in coins, gold coins, and $2 bills” because he had made purchases at a local convenience store earlier that day using two-dollar bills. Id. at 813. The defendant denied that he committed the crime and stated that he had obtained the two-dollar bills, which he spent at the convenience store, from a jug owned by his father in which the father kept spare money. Id. at 814.

At trial, the defendant called his older sister to corroborate his story. Id. During cross-examination, the State asked the sister whether she had a camera with her on the date the defendant told police about the alternate source of the two-dollar bills. Id. Over defense objection, the sister responded that she did, but that she did not take pictures of her father’s money jug at that time. Id. The State then inquired further on this issue, eventually eliciting testimony that the defendant’s sister had taken pictures of the source of the money at a later date. Id.

The Second District concluded that this “line of questioning was a comment on [the defendant’s] failure to produce photographs of his father’s money jug,” and thus, had impermissibly shifted the burden of proof. Id. Further, just as in Hayes and Ramirez, the Second District concluded that the exception to burden shifting did not apply, as the defendant’s denial of committing the crime did not constitute an “affirmative defense for which he assumed the burden of proof.” Id. Moreover, the Second District explained that this error was not harmless beyond a reasonable doubt and therefore required a reversal of the conviction and a new trial. Id. at 814-15.

Taken together, these cases stand for the legal proposition that the State may not elicit testimony at trial that could lead the jury to the erroneous conclusion that the defendant has a duty to produce exculpatory evidence to refute an element of the charged crime. We turn next to this ease, where the Third District erroneously distinguished the conflict cases.

III. This Case

In this case, both the Third District’s decision below and the State’s arguments before this Court are premised on the assertion that Detective Abolsky’s testimony at trial involving Warmington’s failure to produce exculpatory documents during the pretrial investigation did not impermis-sibly shift the burden of proof to Warm-ington because the detective’s testimony involved conversations that occurred prior to trial and the testimony involved only “historical fact[s].” Warmington, 86 So.3d at 1192. We conclude that these distinctions are immaterial because the testimony at issue was elicited at trial and, although the testimony was historically accurate, this does not lessen the prejudicial impact of the impermissible testimony. We also conclude that this error was not harmless beyond a reasonable doubt.

A. Impermissible Burden Shifting

As the dissent in the Third District correctly observed, “the prosecutor was allowed to ask the detective at trial why he visited the defendant — to allow him to dispel any concerns that he did anything wrong” and the detective “also testified at trial that the defendant could provide no documentation to support his position that the money owed was a loan rather than a theft.” Id. (Ramirez, J., dissenting). When Warmington answered that he could not produce this evidence, Detective Abol-sky testified that Warmington was “immediately arrested.” Id. We agree with the dissent below that this line of questioning clearly constituted impermissible burden shifting.

The conflict cases illustrate this point. Just as in Hayes, where this Court held that State-elicited testimony involving a defendant’s pretrial failure to take steps to prove his innocence impermissibly shifted the burden of proof because that testimony “may have led the jury to believe that [the defendant] had an obligation to test the evidence found at the scene of the murder and to prove that the hair and blood samples did not match his own,” Hayes, 660 So.2d at 265, Detective Abolsky’s testimony regarding his pretrial investigation may have led the jury to believe that Warming-ton had a duty to produce exculpatory evidence. Indeed, the line of questioning in this case is strikingly similar to the questioning in the conflict cases, each of which correctly recognized, in accordance with this Court’s long-standing prohibition on burden shifting, that the testimony was improper.

As an alternative argument, the State asserts that Warmington invited Detective Abolsky’s testimony by asserting, during the detective’s pretrial investigation, that he used the money he received from the Pistols to fund a loan to a third party. However, just as in the conflict cases, Warmington’s asserted defense— that he used the money to fund a loan to a third party and therefore did not commit theft — is not an affirmative defense for which he voluntarily assumed any burden of proof. Simply asserting a defense to a crime does not create any issue for which a defendant “carries [the] burden of proof.” Id. (citing Jackson, 575 So.2d at 188). Therefore, in the absence of an affirmative defense for which the defendant carries the burden of proof, which was not present in this case, the narrow exception allowing the State to comment on the defendant’s failure to produce exculpatory evidence is inapplicable, and accordingly, we reject the State’s alternative argument.

For all these reasons, we conclude that the State’s questioning of Detective Abol-sky could have erroneously led the jury to believe that Warmington carried the burden of introducing exculpatory evidence and, therefore, impermissibly shifted the burden of proof from the State to Warm-ington. Accordingly, we now must analyze whether this error was harmless beyond a reasonable doubt. See Jackson, 575 So.2d at 189.

B. Harmless Error

As this Court has repeatedly stated, the harmless error test “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We have explained that

[ajpplication of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

Id. However, this Court has cautioned that “[h]armless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.” Id. at 1139. Instead, the “focus is on the effect of the error on the trier-of-faet.” Id. The question is “whether there is a reasonable possibility that the error affected the verdict.” Id. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

During the course of the trial, both the State and Warmington called multiple witnesses in order to support their directly conflicting theories. While' both sides agreed that Warmington, the Pistols, and Sardina entered into some form of investment deal, the specifics of this arrangement were contested.

The State presented no conclusive evidence of theft. Yet, through both its questioning and Detective Abolsky’s testimony, the State impermissibly informed the jury that Warmington was unable to produce documents supporting his version of the events. Because the State presented no conclusive evidence of guilt, the State’s presentation of Detective Abolsky’s testimony became even more important to the case. The importance of this evidence was bolstered by the fact that Detective Abol-sky testified that he had arrested Warm-ington immediately following his failure to produce documents supporting his claim.

Specifically, during direct examination, Detective Abolsky testified that he was assigned to investigate Warmington’s case and that he interviewed Warmington as the final step in his investigation. Detective Abolsky stated that he interviewed Warmington in order to allow Warmington to “dispel any alarms [Detective Abolsky had] or concerns that [Warmington] did anything wrong.” Although defense counsel’s objection to this testimony was sustained, the jury was still exposed to the fact that Detective Abolsky initiated the interview with Warmington in order to determine whether Warmington could refute the detective’s concerns. Subsequently, the State asked Detective Abolsky, over defense objection that was denied, whether Warmington was “able to produce any documentation” supporting his assertion that the Pistols’ money had been used to fund a loan to Sardina. The detective replied that Warmington could not produce documents supporting his claim.

The prejudicial effect of the testimony elicited by the State was magnified by the fact that Detective Abolsky, a detective with the Economic Crimes Bureau who presumably possesses a strong understanding of what evidence is relevant in proving theft, testified that he arrested Warmington immediately following Warm-ington’s failure to produce the exculpatory documents. Indeed, after inquiring into whether Warmington could produce exculpatory documents, the State asked “[w]hen you had that conversation with Mr. Warm-ington, what happened?” Detective Abol-sky responded, “I placed him under arrest.” The State ■ then ended the direct examination.

This chronology conveyed to the jury the distinct impression that Warmington was arrested as a direct result of failing to provide Detective Abolsky with evidence proving his innocence. Given that Detective Abolsky portrayed Warmington’s failure to produce exculpatory documents as the reason for his arrest, it is very likely that a jury could have inferred that Warm-ington had a duty to produce such evidence because, if Warmington did not have any such duty, the arrest would not have occurred immediately following his failure to produce the exculpatory documents.

After a thorough review of the record, including both the permissible and impermissible evidence upon which the jury could have relied, we cannot conclude, beyond a reasonable doubt, that the impermissible burden-shifting testimony did not affect the jury’s verdict. Accordingly, this error was not harmless beyond a reasonable doubt.

CONCLUSION

For all the reasons explained in this opinion, we conclude that the testimony elicited by the State from the lead detective involving Warmington’s failure to produce exculpatory evidence impermissibly shifted the burden of proof from the State to Warmington, and that this error was not harmless beyond a reasonable doubt. Accordingly, we quash the Third District’s decision, approve the decisions of the Fourth District in Ramirez and the Second District in Miele, and remand this case for a new trial.

It is so ordered.

LABARGA, C.J., and QUINCE, J., concur.

LEWIS, J., concurs in result.

POLSTON, J., dissents with an opinion, in which CANADY and PERRY, JJ., concur.

PERRY, J., dissents with an opinion.

POLSTON, J.,

dissenting.

I agree with Justice Perry’s dissent that this Court does not have jurisdiction in this case. As Justice Perry states, the Third District’s decision in Warmington v. State, 86 So.3d 1188 (Fla. 3d DCA 2012), does not expressly and directly conflict with this Court’s decision in Hayes v. State, 660 So.2d 257 (Fla.1995), the Fourth District’s decision in Ramirez v. State, 1 So.3d 383 (Fla. 4th DCA 2009), or the Second District’s decision in Miele v. State, 875 So.2d 812 (Fla. 2d DCA 2004).

In Hayes, Ramirez, and Miele, the prosecutors commented on the defendants’ failure to produce exculpatory evidence at trial, specifically evidence suggesting innocence and relating to elements of the charged crimes. In Hayes, 660 So.2d at 265, the defendant was charged with murder, but the prosecutor’s questioning suggested that the defendant was responsible for proving his innocence at trial by producing exculpatory scientific evidence from the crime scene. In Ramirez, 1 So.3d at 384-86, the defendant was charged with battery on a law enforcement officer, but the prosecutor commented on the defendant’s failure to produce during the trial photographs of injuries the defendant claimed were sustained during a battery of the defendant rather than a battery committed by the defendant. Similarly, in Miele, 875 So.2d at 814, the prosecutor’s questioning regarding the failure to produce testimony from a specific witness and photographic evidence at trial of another source of $2 bills “suggested at best that Miele had a duty to present additional evidence to refute the State’s allegation that these $2 bills were retrieved during the burglary.”

In contrast, Warmington did not involve comments regarding the failure of the defendant to produce exculpatory evidence at trial that related to elements of the charged crime. Detective Abolsky testified to historical facts of his investigation of the defendant, not any evidence of innocence that the defendant failed to produce at trial. As the Third District explained, “[t]he inquiry made in this ease is no different than an officer’s testimony of the inability of a defendant to produce his registration during the course of an investigatory stop.” Warmington, 86 So.3d at 1190 n. 1. Moreover, the fact that the defendant did not show the investigating officer a set of documents when he was questioned before his arrest does not relate to any element of grand theft. See id. at 1191. Therefore, unlike the situations in Hayes, Ramirez, and Miele, the prosecutor’s questions in Warmington would not have led the jury to believe that the defendant had the burden to refute an element of the charged crime.

Accordingly, because Warmington does not conflict with any of the cited cases, I respectfully dissent.

CANADY and PERRY, JJ., concur.

PERRY, J.,

dissenting.

With respect to my colleagues in the majority, I dissent because I do not agree that this Court has jurisdiction for discretionary review in this case. The decision in Warmington does not expressly and directly conflict with any of the cited appellate court decisions. See art. V, § (b)(3), Fla. Const. Accordingly, I would leave the. Third District’s Warmington decision undisturbed.

The reasons that I dissent are as follows. First, in Warmington, the facts and circumstances are distinguishable from those found in the decisions cited by the majority, see majority op. at 649, and negate a conclusion that there is express and direct conflict between these decisions. The record supports neither the assertion that the State invited the jury to return a guilty verdict in lieu of the State proving every element of the crime charged, nor a conclusion that the State led the jury to believe Warmington had a duty to present exculpatory evidence. Moreover, the majority ignores . that when Warmington chose to present a defense case, the State successfully refuted Warmington’s hypothesis of his innocence. Finally, the trial court’s- judgment to permit the jury to consider the lead detective’s testimony did not constitute error.

There Is No Conflict of Decisions

The facts and circumstances found in this case are distinguishable from the facts and circumstances presented in the asserted conflict decisions. First, this case is not in express and direct conflict with our decision in Hayes.

In Hayes, we previously described how the State used an expert witness’ testimony to impermissibly shift its burden of proof:

[0]n redirect, the trial judge overruled a defense objection and allowed the State to inquire whether the defense had requested any testing of the blood stains. The -witness replied that the defense had not asked the crime lab to test the blood stains and added that the lab had complied with such requests in the past for other defense attorneys. Similar comments were made by the prosecutor in closing argument concerning the failure of the defense to test hairs found at the scene of the murder. We find that the prosecutor’s comments were prejudicial.

Hayes, 660 So.2d at 265. However, in this case there was no impermissible burden shifting by the State.

The record plainly shows that the State’s direct examination of Detective Abolsky about what happened during his investigation did nothing to shift the burden from the State to prove, beyond a reasonable doubt, every element of the crime. It is well established that impermissible burden shifting involves the State’s comment on the defendant’s failure to refute one or more elements of the crime. See Evans v. State, 838 So.2d 1090, 1094 (Fla.2002) (citing Jackson, 575 So.2d at 188). Furthermore, impermissible burden shifting is attributable to the State’s invitation for the jury to find guilt when the State has failed to prove every element of the offense beyond a reasonable doubt. See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998) (“[I]t is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.”); see also Ealy v. State, 915 So.2d 1288, 1291 (Fla. 2d DCA 2005) (“The types of comments that may constitute improper burden shifting have one thing in common, that being ‘the prosecutor’s invitation to convict the defendant for a specific reason other than the state’s proof of the elements of the crime beyond a reasonable doubt, i.e., because the defendant failed to mount á defense by not testifying, presenting evidence to prove his or her innocence, or refuting an element of the crime.’ ” (quoting Rivera v. State, 840 So.2d 284, 288 (Fla. 5th DCA 2003))).

During Warmington’s trial, the State fully carried its burden of proof under the requirements of Florida law. See § 812.014(1), Fla. Stat. (2002) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) [djeprive the other person of a right to .the property or a benefit from the property[;j [and] (b) [ajppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.”).

Specifically, there is competent, substantial evidence in this record that Warming-ton took on deposit into his personal bank account $150,000 from the Pistols, and partially used it for purposes other than a loan to Sardina to obtain a second mortgage on real property and his rent. This record reflects that the Pistols believed that their loan to Sardina, for which Warmington acted as the intermediary, was to be secured by a mortgage on real property that Sardina was attempting to secure. When the State presented proof to the jury that the funds were used for purposes other than a mortgage to Sardi-na, such evidence was legally sufficient to support the guilty verdict against Warm-ington. The State presented evidence that Warmington received cashier’s checks totaling $150,000 from the Pistols, and deposited those funds into his personal bank account as part of a ruse. Warmington’s ruse was accomplished when he represented to Sardina that the Pistols decided not to lend him the money after all, even though the Pistols had in fact deposited the total funds agreed upon for Sardina’s second mortgage. The State presented evidence that Warmington, rather than Sardina, had control over and used the funds received from the Pistols. Therefore, it is clear that the State proved the elements of grand theft. See id.

Based on such evidence in the record on appeal, the Warmington majority below correctly recognized that the State did not shift any aspect of its burden of proof to the defendant. See Warmington, 86 So.3d at 1190. Accordingly, there is no apparent basis for concluding that there is express and direct conflict between the decision on review and Hayes. See Hayes, 660 So.2d at 265.

Next, the present case is not in conflict with Ramirez because Warmington’s possession of mortgage loan documentation is not an element of the crime for which he was convicted. But see majority op. at 653. In Ramirez, the Fourth District stated in pertinent part that “[t]he State is not permitted to ‘comment on a defendant’s failure to produce evidence to refute an element of the crime.’ ” Ramirez, 1 So.3d at 385 (quoting Jackson, 575 So.2d at 188).

However, Detective Abolsky’s testimony about this matter was merely his effort accurately to relay historical facts stemming from Warmington’s pre-arrest verbal disclosure to the detective. The majority below made this precise point — whether Warmington possessed loan documents is not an element of the crime — pertaining to the detective’s testimony. See Warming-ton, 86 So.3d at 1191. For this reason, I conclude that the decision on review does not conflict with Ramirez, which prohibits the State from shifting its burden of proof to the defendant. See Ramirez, 1 So.3d at 386.

Similarly, there is no apparent basis for concluding that the Warmington decision on review conflicts with Miele. But see majority op. at 653. In Miele, the Second District also stated that “[i]t is not permissible for the State to comment on the defendant’s failure to present evidence refuting an element of the charged crime.” Miele, 875 So.2d at 814 (citing Jackson, 575 So.2d at 188). I agree with the observation made by the Warmington majority below: “Our case is readily distinguishable from Miele, again on the ground that Detective Abolsky was testifying as to historical fact.” Warmington, 86 So.3d at 1192. Accordingly, the decision on review is not in conflict with Miele regarding impermissible burden shifting by the State. See Miele, 875 So.2d at 814.

In summation, it is unreasonable to conclude that the State’s direct examination of Detective Abolsky constitutes the State’s impermissible comment on Warmington’s failure to refute elements of the crime. Further, it is unreasonable to conclude that the State’s prompting of the detective’s testimony at issue demonstrates that the State invited the jury to find Warming-ton guilty without first proving every element of the crime beyond a reasonable doubt.

The Impact of the Defense’s Case on the Verdict

Next, not only was there no impermissible burden shifting by the State during Warmington’s trial, there is also little doubt that Warmington’s defense case impacted the jury’s verdict. The majority neglects to acknowledge that Warmington put on a defense during his trial. Notably, without mentioning Warmington’s defense case, the majority simply states “[ajfter the close of evidence, the jury returned a verdict, finding Warmington guilty of the lesser-included crime of theft of an amount greater than $20,000 but less than $100,000.” Majority op. at 651.

However, after the State rested its case, Warmington presented a defense in which he argued that he was actually innocent of committing the charged crime. The record shows that Warmington was among the witnesses who testified for the defense about the alleged loan deal that Warming-ton discussed with Detective Abolsky prior to his arrest. Warmington testified that when he received the money directly from the Pistols and deposited it into his personal bank account he did so lawfully, while acting as an intermediary in the supposed loan transaction. During cross-examination, Warmington admitted that he used portions of funds that the Pistols deposited into his personal bank account.

After Warmington asserted that he was actually innocent, the State was required under Florida law to refute any reasonable hypothesis of his innocence — which it did, partly by way of the testimony it elicited from Warmington. But see generally H.M. v. State, 802 So.2d 1185 (Fla. 3d DCÁ 2002) (“[T]he trial court should have granted the respondent’s motion for judgment of acquittal with respect to the burglary count where there was no evidence refuting his reasonable hypothesis of innocence that he was only an onlooker or mere witness to a crime.” (citing J.W. v. State, 467 So.2d 796, 797 (Fla. 3d DCA 1985))); Tomlin v. State, 333 So.2d 500, 501 (Fla. 2d DCA 1976) (“[T]he evidence was subject to the reasonable hypothesis of appellant’s innocence in that the marijuana [as the appellant argued] may have been in the possession of one of the persons who was renting a room in the house.” citing Harris v. State, 307 So.2d 218, 220 (Fla. 3d DCA 1974) (“We are of the opinion that the facts sub judice are supportive of reasonable hypotheses of the defendant’s innocence.... ”)).

By way of the present misapprehension that the State committed impermissible burden shifting, the State is being unduly penalized. This record supports a conclusion that because the State successfully refuted Warmington’s hypothesis of his innocence by proving every element of grand theft, the jury returned its guilty verdict. Conversely, the majority’s view that Detective Abolsky’s testimony alone may have led the jury to conclude that Warm-ington had a duty to produce exculpatory evidence is overreaching and ignores the impact Warmington’s defense had during the adversarial process en route to the jury’s guilty verdict.

The Trial Court Committed No Error

Finally, even if this Court had jurisdiction for discretionary review in this case, I respectfully disagree that the trial court’s ruling that allowed the jury to consider Detective Abolsky’s testimony constituted harmful error. To the contrary, I do not agree that the trial judge’s ruling constituted any error at all. However, even assuming arguendo that the trial judge’s ruling at issue was erroneous, in light of precedent, the trial judge’s ruling was harmless beyond a reasonable doubt because the State provided legally sufficient proof for every element of the crime for which Warmington was charged. See generally DiGuilio, 491 So.2d at 1135 (“The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967))). The majority concludes that the State did not carry its burden as the beneficiary of the supposed error.

The prejudicial effect of the testimony elicited by the State was magnified by the fact that Detective Abolsky, a detective with the Economic Crimes Bureau who presumably possesses a strong understanding of what evidence is relevant in proving theft, testified that he arrested Warmington immediately following Warmington’s failure to produce the exculpatory documents. Indeed, after inquiring into whether Warmington could produce exculpatory documents, the State asked “[w]hen you had that conversation with Mr. Warmington, what happened?” ' Detective Abolsky responded, “I placed him under arrest.” The State then ended the direct examination.
This chronology conveyed to the jury the distinct impression that Warmington was arrested as a direct result of failing to provide Detective Abolsky with evidence proving his innocence. Given that Detective Abolsky portrayed Warming-ton’s failure to produce exculpatory documents as the reason for his arrest, it is ■ very likely that a jury could have inferred that Warmington had a duty to produce such evidence because, if Warmington did not have any such duty, the arrest would not have occurred immediately following his failure to produce the exculpatory documents.

Majority op. at 656.

I disagree with the majority’s view on this point, because such a view departs from our caution in DiGuilio that “[h]armless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.” DiGuilio, 491 at 1139; Majority op. at 655. Here, the majority appears to substitute itself in the role of trier-of-fact by its assumption that the jury inferred that Warmington had a duty to produce exculpatory evidence. Nevertheless, there are ample grounds for drawing the opposite inference. Namely, a reasonable person could infer that the jury assumed that-Warmington had no duty to produce exculpatory evidence, in light of the trial judge’s repeated explanations to the jury that Warmington was not required to present evidence or prove anything.

Furthermore, the trial judge provided instruction concerning an out-of-court statement attributed to Warmington that was placed before the jury. Specifically, the trial court instructed the jury to carefully weigh the statement, and that it should make certain that the out-of-court statement was freely and voluntarily made. (Trial Transcript vol, VI at 910.) After the State rested, the trial court considered arguments from the parties concerning Warmington’s motion for mistrial based on Detective Abolsky’s testimony and ultimately denied it.

As the Third District aptly stated:

[W]e are not moved by the fact Warm-ington was arrested immediately after he told Detective Abolsky he did not have a copy of the mortgage documents. This again is a matter of historical fact. The testimony, taken as a whole, was prejudicial to Warmington. However, all defendants are arrested at some point, and the fact of arrest regularly makes its way into testimony at trial. The State at all times had the burden to prove the case against Warmington beyond a reasonable doubt. We do not believe this burden was lessened by Detective Abolsky’s testimony.

Warmington, 86 So.3d at 1192. Clearly, Warmington’s apparent theft of a large sum of money from the Pistols was the reason for his arrest.

The majority speculates about the impact of the detective’s testimony, asserting that “we cannot conclude, beyond a reasonable doubt, that the impermissible burden-shifting testimony did not affect the jury’s verdict.” Majority op. at 656. By such a view, I infer that the majority concludes that the trial court should have granted Warmington’s motion for mistrial based on the assertion of impermissible burden shifting. However, I see nothing in this record that shows the trial court’s ruling to deny Warmington’s motion for mistrial was erroneous.

Conclusion

Because there was no impermissible burden shifting during Warmington’s trial, there is no basis for concluding that the Third District’s decision affirming his direct appeal expressly and directly conflicts with any of the identified appellate decisions. Therefore, I would dismiss for lack of jurisdiction. Furthermore, even if this Court had jurisdiction for this present review, I cannot agree that the trial court committed any error. Accordingly, I respectfully dissent.

      . Although the trial record indicates that the court made this statement, it appears that this statement was erroneously attributed to the court and, based on the content, was actually made by defense counsel.

      . The majority correctly states that Warming-ton never asserted an affirmative defense that implicated the Hayes exception. Majority op. at 654-55 (citing Hayes, 660 So.2d at 265 ("[W]e recognized an exception to the general rule that the prosecutor may not comment on the failure of the defense to call any witnesses when the defendant raises an issue for which the defense carries some burden of proof.” (citing Jackson, 575 So.2d at 188))).
      We have previously explained that "[a]n affirmative defense does not concern itself with elements of the offense at all; it concedes them. In effect, an affirmative defense says, ‘Yes, I did it, but I had a good reason.’ " State v. Cohen, 568 So.2d 49, 51-52 (Fla.1990). Moreover, " ‘[a]n affirmative defense is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question.’ ” Herrera v. State, 594 So.2d 275, 277 (Fla.1992) (quoting Cohen, 568 So.2d at 51).
      There is no evidence in this record that Warmington asserted any affirmative defense. He instead presented a hypothesis of his innocence. Moreover, the State did nothing to lead the jury to believe that Warmington should have asserted an affirmative defense. Therefore, I agree that the Hayes exception is not implicated in this case.

      . Notably, the trial court explicitly instructed the jury about Warmington’s presumption of innocence under the law:
      The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant's presumption of innocence the State has the burden of proving: the crime with which the defendant is charged was committed and the defendant is not required to present evidence or prove anything.
      (Trial Transcript vol. VI, 908, Feb. 16, 2010.)


source: Caselaw Access Project

author: QUINCE, J. CANADY, J.,

license: Public Domain

text:
    Debra LAFAVE, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-2232.
    Supreme Court of Florida.
    Oct. 16, 2014.

      Howard L. Dimmig, II, Public Defender, and Julius Joseph Aulisio, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Robert Jay Krauss, Bureau Chief, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in State v. LaFave, 113 So.3d 31 (Fla. 2d DCA 2012). In its decision, the district court ruled upon the following question and certified it to be of great public importance:

IN THE ABSENCE OF A STATUTORY RIGHT TO APPEAL, MAY THE STATE SEEK CERTIORARI REVIEW OF AN ORDER TERMINATING PROBATION WHERE IT CAN SHOW THAT THE CIRCUIT COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF THE LAW BY VIOLATING THE PLEA AGREEMENT BETWEEN THE STATE AND THE DEFENDANT WHICH CALLED FOR NO EARLY TERMINATION?

Id. at 37. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons stated below, we answer the certified question in the negative and quash the decision of the Second District Court of Appeal which reinstated LaFave’s probation pursuant to the terms and conditions of her negotiated plea agreement and original sentence. Because we determine that the Second District lacked jurisdiction to review the circuit court’s order terminating LaFave’s probation, we do not reach the merits of its decision.

FACTS AND PROCEDURAL HISTORY

As summarized by the district court below, the facts in this case are:

Debra LaFave, a school teacher, was charged in Hillsborough County with two counts of lewd or lascivious battery, see § 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. She was also charged in Marion County for committing additional incidents of sexual battery against the same child in that county.
Her two Hillsborough County charges, both second-degree felonies, were each punishable by up to fifteen years in prison. See § 775.082(3)(c), Fla. Stat. (2003). However, under the Criminal Punishment Code, her lowest permissible sentence was 15.1875 years in prison. See §§ 921.0024(2), .00265(1), Fla. Stat. (2003).
Pursuant to a negotiated plea agreement with the State, LaFave pleaded guilty in 2005 to the Hillsborough County charges in exchange for a nonprison sentence of supervision, which was a downward departure from the prison requirements of the Criminal Punishment Code. The circuit court accepted her plea, according to the agreement, and sentenced her to three years of community control to be followed by seven years of sex offender probation. As an ■ express condition of her plea agreement, LaFave agreed to serve her entire sentence and to not seek early termination of probation. This agreement was ratified and confirmed by the circuit court by virtue of its acceptance of her negotiated plea. Subsequent to her plea in Hillsborough County, the State Attorney’s Office in Marion County dropped the Marion County charges against her, deeming the matter resolved by the Hillsborough County disposition.[]
Six years into her ten-year nonprison sentence, LaFave unabashedly sought early termination of her probation in 2011 in direct violation of her plea agreement. She asked the circuit court to terminate her sex offender probation four years early. On October 3, 2011, over objections from both the state attorney and the Department of Corrections [ (DOC) ], the circuit court granted her motion and terminated her probation as requested.

Id. at 33-34.

LaFave’s Motion

At the hearing on LaFave’s Motion to Terminate Probation, LaFave argued that under section 948.05, Florida Statutes (2011), the trial court has inherent jurisdiction to hear the motion and to reward defendants based on their successful completion, or substantial completion, of such strict probationary and community control terms, regardless of what the parties may have agreed to. The State argued that the trial court did not have jurisdiction to hear the motion, in light of the “no early termination” provision. The State further argued that if the court in fact had jurisdiction, that the motion should be dismissed on the merits, as the DOC and the victim strongly opposed LaFave’s release from probation. The trial court granted La-Fave’s motion. The State filed a petition for common law writ of certiorari with the Second District Court of Appeal, which the Second District granted.

The Second District’s Discussion - of Jurisdiction

The Second District acknowledged that the State had no right of appeal in this case, as section 924.07(1), Florida Statutes (2011), and its procedural counterpart, Florida Rule of Appellate Procedure 9.140(c), set forth the limited circumstances in which the State has a right to appeal and neither the statute nor the rule specifically provides the State with a right to appeal a circuit court’s order granting early termination of probation. LaFave, 113 So.3d at 34. The Second District observed that the trial court’s order terminating LaFave’s probation “is not a type of interlocutory or pretrial order that has been held to be reviewable by certiora-ri.... [b]ut ... does not fall into the category of ‘final orders of dismissal’ that are not subject to certiorari review.” Id. at 36-37.

The Second District decided that the trial court’s order “is a rare, postsentenc-ing order which ... constitutes a violation of the plea agreement ... [is] extremely prejudicial to the State, and the ability of the State to seek certiorari review of such an order, where there is no other avenue for relief, is crucial ‘to the fair administration of criminal justice’ and necessary ‘to correct an erroneous and highly prejudicial ruling.’ ” Id. at 37 (citing State v. Pettis, 520 So.2d 250, 253 (Fla.1988)). The district court concluded its discussion of jurisdiction by stating, “we rely on the rationale of Harris, Pettis, and Wilson and hold that in this rare instance, the State may seek certiorari review of the circuit court order terminating LaFave’s probation[,]” and certified the question presented to this Court. Id. at 37 (footnote omitted).

ANALYSIS

I. Standard of Review

The district court certified a question of great public importance to this Court. Because this is a question of law arising from undisputed facts, this Court reviews the district court’s decision de novo. Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010).

II. Jurisdiction

Jurisdiction of Florida District Courts of Appeal

The Florida Constitution provides district courts with the authority , to hear appeals from trial court final orders and to review interlocutory orders of trial courts as provided by the procedural rules. Art. V, § 4(b)(1), Fla. Const. The constitution also allows district courts to issue writs of certiorari “necessary to the complete exercise of its jurisdiction.” Art. V, § 4(b)(3), Fla. Const.

Florida Rule of Appellate Procedure 9.030(b)(1) — (3) more fully outlines the appellate and certiorari jurisdiction of our district courts of appeal and provides:

(b) Jurisdiction of District Courts of Appeal.
(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal
(A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court, including county court final orders declaring invalid a state statute or provision of the state constitution;
(B) non-final orders of circuit courts as prescribed by rule 9.130;
(C) administrative action if provided by general law.
(2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review
(A) non-final orders of lower tribunals other than as prescribed by rule 9.130;
(B) final orders of circuit courts acting in their review capacity.
(3) Original Jurisdiction. District courts of appeal may issue writs of mandamus, prohibition, quo warranto, and common law certiorari, and all writs necessary to the complete exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habe-as corpus returnable before the court or any judge thereof, or before any circuit judge within the territorial jurisdiction of the court.

Fla. R.App. P. 9.030(b)(1) — (3) (footnotes omitted). The jurisdictional dispute before the Second District centered on the parties’ disagreement over how to reconcile subsections (b)(2)(A) and (b)(3) of Florida Rule of Appellate Procedure 9.030. La-Fave argued that because subsection (b)(2)(A) explicitly limits the certiorari jurisdiction of district courts to review non-final orders entered by lower courts, the reference to the original jurisdiction of the district courts to issue writs of certiorari is also limited to cases involving non-final orders. The State, however, argued that such a reading would render the two subsections redundant and does not reflect the true meaning of the rules. Instead, the State argued that subsection (b)(3) provides a district court with original jurisdiction to issue a writ of certiorari, in accordance with its duty to review decisions of lower courts, with no requirement that the order be a non-final one.

The district court did not explicitly agree with either jurisdictional argument, but nonetheless found that it had jurisdiction to hear the case. We find that the jurisprudence of this Court does not support the district court’s jurisdictional analysis and we, therefore, quash the decision of the district court.

The State’s Right to Petition for Common Law Certiorari

In 1962, this Court granted jurisdiction in State v. Harris, 136 So.2d 633 (Fla.1962), where the State petitioned this Court for a writ of certiorari based on an alleged conflict of decisions, after the district court reversed the defendant’s conviction. Id. at 634. This Court questioned “whether the [Sjtate has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the [Sjtate and favorably to an accused,” and ordered the parties to file supplemental briefs. Id. This Court determined that section 924.07 restricted the State from directly appealing to this Court following an adverse decision of a district court in a criminal proceeding, but that section 924.07 did not limit the State’s right to seek certiorari review in this Court. Id. at 634-35.

In 1985, this Court decided three cases which implicated the State’s right to petition a district court for certiorari review: State v. C.C., 476 So.2d 144 (Fla.1985); State v. G.P., 476 So.2d 1272 (Fla.1985); and Jones v. State, 477 So.2d 566 (Fla.1985). In C.C., the district court consolidated four appeals brought by the State, all involving juvenile defendants, but in various postures when the State sought appellate review. 476 So.2d at 144. The district court dismissed all appeals by the State, reasoning that the State does not have a constitutional right to appeal, only statutory appellate rights. State v. C.C., 449 So.2d 280, 280 (Fla. 3d DCA 1983). The district court further noted its determination that article V, section 4(b)(1) of the Florida Constitution “permits interlocutory review only in cases in which appeal may be taken as a matter of right.” Id.

On review, this Court approved the decision of the district court, finding no constitutional right for the State to appeal adverse final orders of a circuit court, including in juvenile cases, and also determining that section 924.07, Florida Statutes (1981), which provided the State the right to appeal certain adverse criminal dispositions, does not apply to juvenile proceedings. C.C., 476 So.2d at 145.

This Court’s holding in State v. G.P., 476 So.2d 1272 (Fla.1985), was another decision based on an opinion from the Third District, where the State sought review of an adverse decision and had been denied relief by the district court. The district court determined that because the State had no statutory right under section 39.14, Florida Statutes (1981), to appeal an order dismissing a delinquency petition based on a violation of the juvenile’s constitutional right to speedy trial, “it also has no right to have a juvenile order reviewed by writ of certiorari.” G.P., 476 So.2d at 1273 (citing State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983)). In a very brief opinion, this Court approved the district court’s decision. Id. In an extensive dissenting opinion, in which Justices Alderman and Erlich joined, Chief Justice Boyd reiterated his concurring in part and dissenting in part opinion in C.C., in which he determined that section 924.07 provides the State with the right to appeal in juvenile delinquency cases; on this premise, he reserved judgment on the issue regarding the State’s right to seek a writ of certiorari. Id. at 1275 (Boyd, J., dissenting).

That same year, in Jones, this Court reviewed the decision of the Fourth District in State v. Jones, 433 So.2d 564 (Fla. 4th DCA 1983). In Jones, the trial court dismissed probation violation charges against Jones. 477 So.2d at 566. The State appealed the trial court’s decision to the Fourth District, despite the lack of a statutory right to appeal this type of decision. Jones, 433 So.2d at 564; see also § 1, ch. 90-239, Law of Florida (adding language which grants the State the right to appeal the dismissal of a violation of probation, set to become effective July 2, 1990). The Fourth District treated the appeal as a petition for writ of certiorari and quashed the trial court’s order. 433 So.2d at 564. Upon review of the Fourth District’s decision, this Court stated the issue to be resolved as “whether an appellate court can afford review to the [Sjtate by way of certiorari when the [Sjtate has no statutory or other cognizable right to appeal the judgment sought to be reviewed.” Jones, 477 So.2d at 566. In a brief opinion, this Court determined that “[t]he district court erred in the instant case ... in reviewing by certiorari a case it could not review by appeal.” Id. This Court quashed the decision of the Fourth District and directed the dismissal of the petition for writ of certiorari. Id.

Chief Justice Boyd, concurring specially, wrote an extensive opinion, in which he sought to clarify the majority’s decision and “caution against a possible erroneous interpretation of the Court’s decision: it could be read as holding that when there is no appeal available, certiorari is never available.” Id. at 567 (Boyd, C.J., concurring specially). He further stated, “I simply do not believe that by its recent decision in [G.P.] ... this Court intended to overturn many decades of well-established common-law doctrine on the subject of the writ of certiorari.” Id. (citation omitted). Chief Justice Boyd acknowledged the accuracy of the majority’s decision that a writ of certiorari cannot be used as a substitute for a lack of appellate rights, but cautioned that “it would be an erroneous misinterpretation of the Court’s holding to conclude that when there is no entitlement to an appeal, certiorari is ipso facto not available as a remedy.” Id.

No Right to Seek Certiorari Review of Final Orders

Three years later, in Pettis, this Court decided that the statements made in C.C., G.P., and Jones “that no right of review by certiorari exists in criminal cases if no right of appeal exists are limited to orders of final dismissal. These cases shall not be construed to prohibit district courts of appeal from entertaining state petitions for certiorari from pretrial orders in criminal eases.” 520 So.2d at 253 (footnote omitted). In Pettis, this Court granted review to resolve a conflict between the Fourth District in State v. Pettis, 488 So.2d 877 (Fla. 4th DCA 1986), and the Second District in State v. Wilson, 483 So.2d 23 (Fla. 2d DCA 1985). Id. at 251. In Pettis the State filed a petition for writ of certiorari with the Fourth District, following the denial of its pretrial motion in limine. Id. The Fourth District granted certiorari and quashed the order denying the motion in limine. Id. Thereafter,

Pettis filed a motion for rehearing, asserting that because the [Sjtate could not appeal the order denying the motion in limine, it had no authority to seek review of the order by petition for common law certiorari. As a consequence, the district court of appeal on rehearing withdrew its prior opinion and stated:
The petition for writ of certiorari is denied upon authority of Jones v. State, 477 So.2d 566 (Fla.1985). See also R.L.B. v. State, 486 So.2d 588 (Fla.l986).[]

Pettis, 520 So.2d at 251 (quoting Pettis, 488 So.2d at 877).

In Wilson, the State filed a petition for writ of certiorari, requesting that the Second District Court of Appeal review a non-appealable interlocutory order of the trial court, which denied the State’s pre-trial motion in limine. 483 So.2d at 24. While Wilson was pending before the Second District, this Court decided Jones, G.P., and C.C. In deciding Wilson, the Second District determined that these three decisions “appear to hold that the state may not seek certiorari review of any interlocutory or final order for which a statutory right to appeal has not been granted.”

Wilson, 483 So.2d at 24. The district court distinguished its decision by stating,

We ... read the decisions to mean that the state may not use the petition for writ of common law certiorari to obtain appellate review of an order that is only renewable, if at all, by direct appeal. If there is no statutory right to appeal, then certiorari cannot be used to supply the right. On the other hand, we do not believe the above decisions preclude the state from seeking common law certiora-ri review, as opposed to statutory appellate review, of an interlocutory order (such as the denial of its motion in li-mine in this case) which departs from the essential requirements of law and for which the state would have no other avenue of review.

Id. at 24-25.

This analysis was approved by this Court in Pettis. See 520 So.2d at 251-52. After granting review to resolve the conflict between Pettis and Wilson, this Court agreed with the reasoning of Wilson, in which the Second District concluded that “it had the authority to grant certiorari to review the denial of the State’s pretrial motion in limine,” Pettis, 520 So.2d at 251, “which departs from the essential requirements of law and for which the state would have no other avenue of review.” Id. at 252 (quoting Wilson, 483 So.2d at 25). This Court clarified that its statements in C.C., G.P., and Jones “that no right of review by certiorari exists in criminal cases if no right of appeal exists are limited to orders of final dismissal.”' Id. at 253. This Court concluded by reiterating the requirement for “a departure from the essential requirements of law,” when deciding whether to grant a petition for writ of certiorari, and determined that no such showing was made. Id. at 254.

The Third District in State v. Jordan, 783 So.2d 1179, 1183 (Fla. 3d DCA 2001), addressed the jurisdictional issue presented in this case, and reached a decision contrary to the Second District. .In Jordan, the district court dismissed a petition for writ of certiorari filed by the State, following the trial court’s failure to sentence a criminal defendant pursuant to a substantial assistance agreement previously approved by the trial court. Id. at 1181. In expressly receding from its prior opinion in State v. Cure, 760 So.2d 243 (Fla. 3d DCA 2000), to the extent that it addressed the merits of the State’s argument in Jordan, Judge Green, writing for the majority, acknowledged the inequity involved where a district court is prohibited from exercising jurisdiction to enforce a negotiated plea agreement:

We recognize that our lack of jurisdiction over this matter gives both the criminal defendant and trial court the unfettered discretion to completely disregard the terms and conditions of plea and/or substantial assistance agreements. We find this especially troubling given the fact that such agreements are a matter of contract law, State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997) (rules of contract law are applicable to plea agreements); Madrigal v. State, 545 So.2d 392 (Fla. 3d DCA 1989) (contract principles are to be applied to plea agreements); see also Offord v. State, 544 So.2d 308 (Fla. 4th DCA 1989) (contract principles applied to substantial assistance agreements), but the legislature has left us no choice. We strongly urge the Florida legislature to study this issue and consider an appropriate amendment to section 924.07 in light of the factual scenario presented in this case.[]

Jordan, 783 So.2d at 1183.

Chief Judge Schwartz, joined by Judge Shevin, wrote a specially concurring opinion, where he “entirely concurred] with Judge Green’s opinion that [the district court had] no jurisdiction over this proceeding and that it must therefore be dismissed.” Id. at 1183 (Schwartz, J., specially concurring). He, however, opined that a trial judge has the discretion not to enforce a sentencing agreement.

The Trial Court’s Order

Florida law supports the conclusion that the State may only use a writ of certiorari to review a non-final order, or to review a final order of a circuit court acting in its review capacity. The Second District distinguished the order in this ease from a “final” order and classified it as a “rare, postsentencing order.” La-Fave, 113 So.3d at 37. This distinction is not persuasive. “A final judgment or order is one that disposes of the cause on its merits leaving no question open for further judicial action except for the matter of enforcement.” Philip J. Padovano, Florida Appellate Practice § 4:3 (2013 ed.) (internal quotation marks omitted). The general test of finality is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” Id.; S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). The order granting LaFave’s motion to terminate her probation meets this definition.

Although we recognize the perceived inequality that the Second District sought to remedy, the district court lacked jurisdiction to grant the State’s petition for writ of certiorari where the trial court’s order is a final order and where the State had no statutory right to appeal the order. We find that although the district court’s order terminating LaFave’s probation may be classified as a “rare, postsentencing order,” it is a final order nonetheless.

CONCLUSION

We answer the certified question in the negative and find that the State did not have the right to petition the district court for certiorari review in this case. Our jurisprudence dictates that a final order, such as the one presented here, is not reviewable by common law certiorari where there is no statutory right to appeal. We quash the decision of the Second District, as it lacked jurisdiction to review the circuit court’s order terminating LaFave’s probation.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

dissenting.

I would approve the result reached by the Second District Court of Appeal on the ground that the trial court’s order terminating probation — an order that violates the law — was subject to review and correction under section 924.07(l)(e), Florida Statutes (2011). I therefore dissent from the majority’s decision, which unjustifiably precludes review and correction of the trial court’s erroneous order.

Here — as the Second District cogently explains — the trial court, without any col-orable legal justification, abrogated a valid and binding plea agreement provision that precluded the defendant from seeking early termination of her probation. The trial court’s order granting early termination of the term of the defendant’s probation unlawfully deprives the State of a benefit for which it specifically bargained. But Ms. LaFave retains the benefit she derived from the plea bargain — avoidance of exposure to a lengthy prison sentence after trial. Nothing in the law granted the trial court the discretion to set aside a provision of Ms. LaFave’s valid plea agreement over the objection of the State. The trial court’s decision to permit Ms. LaFave prematurely to walk away from the probationary supervision to which she had agreed and to which she had been sentenced is inconsistent with the requirements of the law. The order illegally curtailed the sanction imposed under the plea agreement. The order should be treated as a “sentence” that is appealable by the State under section 924.07(l)(e) “on the ground that it is illegal.”

The unduly restrictive interpretation contained in our caselaw of the State’s right of appeal under section 924.07(l)(e) flows from a category mistake by which the definition of “illegal sentence” under Florida Rule of Criminal Procedure B.800 is imported into the wholly dissimilar context of section 924.07, and the plain meaning of the statute is thereby cast aside. See State v. McMahon, 94 So.3d 468, 479 (Fla.2012) (Canady, C.J., dissenting). The Court has never provided a plausible explanation for the transposition to the section 924.07 context of the illegal sentence definition developed under rule 3.800.

For the reasons expressed in my dissent in McMahon, I would recede from McMahon. Accordingly, I would restate the certified question as follows:

MAY THE STATE OBTAIN REVIEW OF AN ORDER TERMINATING PROBATION THAT VIOLATES THE PROVISIONS OF A VALID PLEA AGREEMENT EXPRESSLY PROVIDING THAT EARLY TERMINATION OF PROBATION MAY NOT BE SOUGHT BY THE PROBATIONER?

This question should be answered in the affirmative, and the result reached by the Second District should be approved. Failing to uphold the Second District’s correction of the trial court’s error in this case works a miscarriage of justice.

POLSTON, J., concurs.

      . At the hearing on LaFave’s motion, the State informed the court that the Marion County State Attorney's Office agreed to be bound by the plea agreement in Hillsborough County. However, the judge assigned to the case in that county rejected the plea agreement. Therefore, the Marion County State Attorney’s Office had to decide whether to quickly resolve the case, as requested by the victim’s family, and proceed to trial, or drop the charges against LaFave, thereby forgoing the right to supervise any further proceeding in the case. The Marion County State Attorney’s Office chose to drop the charges against LaFave.

      . State v. Harris, 136 So.2d 633 (Fla. 1962).

      . State v. Wilson, 483 So.2d 23 (Fla. 2d DCA 1985).

      . In R.L.B., in a very brief opinion, this Court stated "Petitioner challenges the Fifth District's ruling by arguing (1) that the State has no right to appeal an adverse order in a juvenile proceeding, and (2) that an appellate court cannot afford review to the State by way of certiorari when the State has no statutory or other cognizable right to appeal. We have recently and unequivocally endorsed both contentions raised by petitioner. R.L.B., 486 So.2d at 589 (citing D.A.E. v. State, 478 So.2d 815 (Fla.1985); Jones; G.P.; and C.C.]).” Chief Justice Boyd wrote separately and argued that "[t]he district court ... was in error in holding that the State had a right to an appeal. But the court had authority to ■ treat the appeal as a petition for certiorari on the ground of departure from the essential requirements of law." Id. at 591 (Boyd, C.J., concurring in part, dissenting in part) (citation omitted).

      . The Second District in LaFave acknowledged conflict with the Third District's decision in Jordan, but declined to certify conflict, citing distinguishable facts. See LaFave, 113 So.3d at 37 n. 2.

      . In Cure, after the trial court refused to sentence the defendant pursuant to the terms of a "boot camp agreement,” that the defendant violated, the State appealed to the Third District. The Third District bypassed the jurisdiction issue and decided the case on its merits: "On this appeal — the maintainability of which is in some doubt but will be assumed arguendo — the state contends that the agreement must be enforced as written. There is no merit whatever to this claim. Although the defendant could not complain if he had been sentenced as agreed ... this does not mean that the state may interfere with or challenge an exercise of the trial court's sentencing discretion not to enforce it.” 760 So.2d at 243-44 (citations omitted).

      . But see Hashem v. State, 61 So.3d 1290 (Fla. 3d DCA 2011), in which the Third District reversed the denial of the appellant-defendant's 3.850 motion and petition for habeas corpus, where he argued that the DOC’s allocation of credit for time served awarded by the trial court effectually violated the sentence that was imposed under his plea agreement. Id. at 1290. The district court remanded the case with instructions for the trial court to "either resentence [the defendant] in a manner that effectuates the plea agreement ... or allow him to withdraw his plea.” Id. (citing Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007)).