text:
    Ira Bernard SPRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3232.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Carey Haughwout, Public Defender, and Richard V. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his convictions for robbery with a deadly weapon and aggravated battery. He argues the court erred in two respects: (1) restricting defense counsel’s voir dire of prospective jurors concerning their views on convicted felons, and (2) denying a motion to suppress. We find no merit in the voir dire issue, but do find merit in the second issue concerning the motion to suppress. We reverse.

Pertinent Facts and Trial Court Proceedings

The defendant approached the victim as he stood outside his car and demanded money. When the victim refused to give up his money, the two began fighting. As the victim tried to leave in his car with the door open, the car became stuck in the sand. He suddenly felt a pain in his side and noticed he was bleeding. The victim then passed out. A 911 call placed by the defendant brought help, but the defendant was not present when the help arrived.

Two days later, a police officer noticed the defendant’s vehicle missing the side-view mirror on the driver’s side. The officer conducted a traffic stop. When he asked for the defendant’s driver’s license, the defendant responded that he did not have it on him. The officer ran the defendant’s name and date of birth, learning his license was suspended. The officer arrested the defendant for driving with a suspended license.

A search incident to arrest revealed a blank check with the victim’s name on it in the left front pocket of the defendant’s pants and two pocket knives in his right rear pocket. The officer also noticed possible blood stains on the trunk of the car.

Prior to trial, the defendant moved to suppress the check and knives seized during the traffic stop. At the hearing, the officer testified that he stopped the vehicle due to the missing sideview mirror on the driver’s side. Regarding whether the vehicle was unsafe, the officer testified:

Q And why did you feel that the car was unsafe?
A Well, it was missing the sideview mirror on the driver’s side. If you need to turn lanes, you need to use your mirror.
Q Did you feel that it was endangerment to any person or property?
A Sure.

The officer arrested the defendant for driving on a suspended driver’s license and cited him for improper equipment under section 816.610, Florida Statutes (2011) (making it illegal to drive a vehicle that is unsafe or not equipped as required by law). At the suppression hearing, the State argued the facts also supported the officer making a stop pursuant to section 316.294, Florida Statutes (2011) (requiring “a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle....”). The trial court denied the motion to suppress, finding the missing mirror justified the traffic stop.

The jury found the defendant guilty. From his conviction and sentence, the defendant now appeals.

Appellate Analysis

The suppression issue turns on the validity of the traffic stop and the officer’s reliance on safety equipment statutes. As the ruling on a motion to suppress is a mixed question of law and fact, we have a mixed standard of review. The trial court’s fact-finding is presumed correct if supported by competent substantial evidence, but we review the legal issue de novo. Dixon v. State, 72 So.3d 171, 174 (Fla. 4th DCA 2011) (quoting Connor v. State, 803 So.2d 598, 605 (Fla.2001)).

We begin by exploring our supreme court’s decision in Hilton v. State, 961 So.2d 284 (Fla.2007). There, law enforcement stopped the defendant’s car because of a crack in the windshield. The officers found marijuana on the defendant and arrested him. The defendant moved to suppress the marijuana, arguing the stop was illegal because the cracked windshield did not obstruct his vision. The trial court denied the motion, finding the cracked windshield an objectively reasonable basis to stop the vehicle. Id. at 287.

Our supreme court wrote that:

[i]t is a question of statutory interpretation as to whether section 316.610 of the Florida Statutes permits a stop for a cracked windshield on the basis that the crack renders the windshield ‘not in proper adjustment or repair,’ even if the crack does not otherwise render the vehicle unsafe. Statutory interpretation is a question of law subject to de novo review.

Id. at 288 (quoting BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003)).

The court held that because Florida law did not prohibit a vehicle from operating with a cracked windshield, law enforcement could stop the vehicle only if the crack created a safety hazard. Id. at 290. An objectively reasonable standard is used to make that determination. The court held the State had failed to meet its burden of demonstrating the vehicle was unsafe. Id. at 297.

Here, the defendant claims his car did not violate section 316.294 because the statute requires that a vehicle only have “a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle.” The defendant relies on two circuit court appellate decisions, Veltri v. State, 17 Fla, L. Weekly Supp. 435b (Fla. 17th Cir.Ct.2009), and State v. Clancey, 16 Fla. L. Weekly Supp. 1112a (Fla. 6th Cir.Ct.2009) in support of this argument. No evidence was presented that the defendant’s vehicle did not have a rearview mirror mounted on the windshield.

The State responds that section 316.2954(2), Florida Statutes (2011), requires rearview mirrors on both sides of a vehicle. Subsection (2) specifically provides:

A person shall not operate any motor vehicle upon any public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides that meet the requirements of s. 316.294.

Id. Further, the officer testified that the missing mirror rendered the vehicle unsafe, pursuant to section 316.610. We disagree with the State.

First, the State’s reliance on section 316.2954(2) is misplaced. That provision requires the back window to be “nontransparent” as a prerequisite to the requirement of two mirrors. There was no testimony in this case that the defendant’s back window was nontransparent.

Second, the testimony of the arresting officer was insufficient to objectively show the vehicle was unsafe. The officer correctly observed that a rearview mirror is needed to safely change lanes, but there was no evidence the vehicle did not have a rearview mirror.

We find the decisions in Veltri and Clan-cey helpful on whether missing mirrors render a vehicle unsafe under the objectively reasonable standard. In Veltri, the circuit court held law enforcement was unjustified in stopping a vehicle for having only one rearview passenger side mirror. “There was no evidence introduced that would support a finding of probable cause that Appellant violated this statute.” 17 Fla. L. Weekly Supp. at 435. In Clancey, the court similarly held that the fact that the vehicle “had a wooden bumper and no exterior side mirror did not provide a lawful basis for a traffic stop.” 16 Fla. L. Weekly Supp. 1112.

Because section 316.294 requires that a vehicle have “a” mirror capable of viewing 200 feet behind the vehicle, the absence of a single mirror on the exterior of the car neither violates the statute nor renders the vehicle unsafe by an objectively reasonable standard, without proof there was no other sideview or rearview mirror on the vehicle. We therefore find the stop to have been illegal. The motion to suppress should have been granted.

We reverse the defendant’s convictions and sentences and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded for a new trial.

MAY, C.J., TAYLOR and CONNER, JJ., concur.

      . The vehicle was also missing a passenger’s rear window.

      . The defendant also argues there was no requirement for the vehicle to have an intact rear side window or permit a traffic stop for not wearing a seat belt at the time of the defendant's arrest. The State does not dispute these arguments.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Luke PETRUSCHKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-883.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Luke Petruschke, appeals his convictions for two counts of lewd and lascivious molestation committed upon C.V., a three-year-old boy. We reverse for a new trial because the prosecutor made improper remarks that deprived appellant of a fair trial. We also write to address evidentiary issues that are likely to arise on retrial.

By way of background, appellant was a good friend of C.V.’s father and frequently came over to C.V.’s family’s house. According to C.V.’s mother, appellant was always “very, very nice” to C.V. and seemed concerned about him. When C.V. was alone in his room watching movies, sometimes appellant would go in and sit with him with the door open.

On the evening of the alleged incident, appellant was at C.V.’s family’s home, drinking and partying with C.V.’s father and another adult relative of C.V. Between 9 and 11 p.m., C.V.’s mother put C.V. to bed in his grandmother’s room, which was the room closest to the living room. Appellant stayed over at C.V.’s house and eventually went to sleep on the couch in the living room. At some point in the night, C.V.’s father went to check on C.V. and saw appellant lying down next to C.V. near the foot of the bed. The father told appellant to come back to the living room. The father thought “nothing of it” and did not have any suspicions that appellant had done anything.

The next morning, C.V.’s mother developed a gut feeling that something might have happened to C.V. She testified that she felt this way because when her adult male neighbor came over that morning, C.V. jumped in his lap and hugged him, which the mother believed was unusual.

When appellant was gone, the mother asked C.V. if anyone had ever touched him in his private areas. C.V. answered: ‘Wes. Luke did last night.” When the mother asked C.V. to show her how appellant touched him, C.V. put his hands in the front of his pants and again in the back. The mother told C.V. that this was serious and he could not lie about it. C.V. said, “Mommy, I wouldn’t lie to you about that.” The mother then had C.V. repeat the allegations to his father. C.V. again said that appellant touched “his butt and his PP” and then demonstrated to his father how appellant touched him.

When appellant returned, C.V.’s father confronted him, asking him why he would touch a boy. Appellant’s reaction was “like a deer in the headlights” and appellant left without saying anything. Shortly thereafter, C.V.’s father again confronted appellant and screamed, “You like to touch boys?” C.V.’s father started coming toward appellant, and appellant said, “I’m sorry.” Appellant ran into his car and locked the door, but C.V.’s father broke the car window with a rock and started beating him. C.V.’s father was arrested and charged with aggravated battery; he spent about thirty days in jail and was ultimately placed on probation for the offense.

A detective spoke to C.V.’s mother and then conducted a taped interview of C.V. In the interview, C.V. told the detective that appellant touched his PP and his butt underneath his clothing for a “little bit” of time “yesterday ... [i]n my room.”

Following these allegations, appellant was charged by information with two counts of lewd or lascivious molestation committed upon a child under twelve-years of age.

The case proceeded to trial. The jury heard evidence of the facts set forth above, including testimony from C.V. about the incident. Additionally, the state elicited testimony from both parents — over appellant’s objections that the evidence was irrelevant, prejudicial, and unsupported by expert testimony — that, after the incident, C.V. wet his bed almost every night, woke up crying in terror, and went to counseling. Although the father was in jail for about a month following his arrest for attacking appellant, both parents denied that this could have caused C.V.’s behavior. The father talked to C.V. every day on the phone, saw him once a week at the jail, and told him he would be coming home soon. The mother stated that C.V.’s bed wetting continued after the father got out of jail.

After the parties gave their closing arguments, which will be discussed in greater detail below, the jury found appellant guilty as charged on both counts. This appeal ensued.

Improper Prosecutorial Comments

We first address appellant’s argument that the state’s improper comments deprived him of a fair trial.

A trial court’s rulings on objections to improper argument are reviewed under the abuse of discretion standard. Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007). In order to require a new trial based on improper prosecutorial comments, the prosecutor’s comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. Anderson v. State, 863 So.2d 169, 187 (Fla.2003).

Here, we agree with appellant that the prosecutor made numerous improper comments. Specifically, we find that the following comments the prosecutor made, over objection, were improper: 1) claiming that C.V. lacked the mental ability to fabricate the allegations; and 2) repeatedly referring to appellant as a “pedophile” and suggesting that a pedophile would “touch a kid whenever he feels like it.”

1) Remark that C.V. Lacked the Mental Ability to Fabricate the Allegations

A prosecutor “is prohibited from commenting on matters unsupported by the evidence produced at trial.” Fenster v. State, 944 So.2d 477, 479 (Fla. 4th DCA 2006). Closing argument must be confined to record evidence and reasonable inferences from that evidence. Spoor v. State, 975 So.2d 1233, 1235 (Fla. 4th DCA 2008).

Here, although the trial court initially sustained defense counsel’s objection to the prosecutor’s argument that a three-year-old does not have the capacity to fabricate allegations of sexual abuse, the court ultimately denied appellant’s motion for mistrial and then ruled that the prosecutor could argue that a three-year-old does not have the mental ability to fabricate allegations of sexual abuse. Allowing this type of argument was an abuse of discretion.

Contrary to the state’s argument in this appeal, the prosecutor’s remark was not a “fair inference” from the evidence. There was absolutely no evidence presented at trial that a three-year-old child lacks the mental ability to fabricate allegations of sexual abuse. The prosecutor simply invented this claim in closing argument.

While it might be permissible for a prosecutor to argue that a child of three would be unlikely to fabricate allegations of sexual abuse out of self-interest, there was no evidence to support a blanket assertion that a three-year old lacks the ability to fabricate allegations of sexual abuse. Here, the allegations of sexual abuse were not spontaneous, but rather were in response to questioning by an adult, and there was no evidence presented at trial that a three-year-old child lacks the mental ability to fabricate allegations of sexual abuse in such circumstances. In short, the prosecutor’s argument that C.V. lacked the mental ability to fabricate the allegations was unsupported by the evidence and was not a reasonable inference from the evidence. It was therefore improper.

2) Repeatedly Calling Appellant a “Pedophile”

Arguments that have no purpose but to inflame the minds of jurors are prohibited, as are general attacks on the defendant’s character. Chambers v. State, 924 So.2d 975, 978 (Fla. 2d DCA 2006). For example, a prosecutor’s references to a defendant as a “sadistic, selfish bully,” a “criminal,” a “convicted felon,” a “rapist,” and a “chronic liar” were held to fall into the realm of improper character attacks. See Pacifico v. State, 642 So.2d 1178, 1183 (Fla. 1st DCA 1994). Similarly, our court has found that a prosecutor’s thirty references to the defendant as a “condom-carrying masturbator” or a “masturbator” were designed to inflame the prejudices of the jury and constituted an impermissible general attack on the defendant’s character, even though some evidence supported the comments in that the defendant admitted to masturbating in a bathroom stall. See Elisha v. State, 949 So.2d 271, 273 (Fla. 4th DCA 2007).

In a case where the facts were similar to those in this case, the Fifth District held that a prosecutor’s reference to the defendant as a pedophile in the closing argument of the defendant’s trial for sexual battery upon a child was improper because, in addition to suggesting that the defendant had committed prior illegal sexual acts involving children, it also improperly suggested a profile-type argument that, if the defendant had certain traits which fit the offender profile, he must have abused the victim. See Hudson v. State, 820 So.2d 1070, 1071-72 (Fla. 5th DCA 2002).

Here, the prosecutor’s repeated references to appellant as a pedophile were clearly designed to inflame the prejudices of the jury and constituted an impermissible general attack on appellant’s character. Referring to appellant as a pedophile improperly suggested that he may have committed prior illegal sexual acts involving children and further suggested an improper “pedophile profile” argument. Although defense counsel objected only to the first reference to appellant as a pedophile, the court immediately overruled that objection, making it clear that the prosecutor would be permitted to pursue that line of argument. Cf. Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983) (“Here a timely objection to the argument was immediately overruled by the court without comment, which ruling stamped approval on the argument, thereby aggravating the prejudicial effect.”).

To be sure, defense counsel himself used the term “pedophile” in his closing argument and tried to suggest that appellant’s conduct was inconsistent with what a pedophile would do, but it is important to note that defense counsel made this argument only after the prosecutor, over defense objection, was permitted to characterize appellant as a pedophile. Furthermore, the prosecutor’s remarks during rebuttal closing argument, although somewhat responsive to defense counsel’s remarks, were simply too inflammatory to constitute a fair reply to defense counsel’s argument. We conclude that the prosecutor’s remarks were an impermissible attack on appellant’s character.

Harmless Error Analysis

The improper comments cannot be considered harmless. “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.” Metayer v. State, 89 So.3d 1003, 1008 (Fla. 4th DCA 2012) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)).

The accusations against appellant came from a three-year-old, there were no other witnesses to the alleged touching, and there was no physical evidence against appellant. Further, although appellant made the incriminating statement that he was “sorry,” this statement does not necessarily constitute a “confession.” Appellant made this statement as C.V.’s father was about to assault him. On this record, the prosecutor’s numerous improper remarks were collectively so egregious that appellant was deprived of a fair trial. We caution the state to avoid these types of improper arguments on retrial.

Double Jeopardy

Because we are reversing appellant’s convictions and remanding for a new trial, we need not address appellant’s double jeopardy argument. See, e.g., Thomas v. State, 547 So.2d 989, 990 (Fla. 1st DCA 1989) (finding it unnecessary to address double jeopardy claim where defendant’s convictions were reversed on another ground and case was remanded for a new trial). We find it appropriate, however, to address the evidentiary issues on appeal that are likely to arise again on retrial.

Evidence of C.V.’s Behavior After the Alleged Abuse

Appellant argues that the trial court erred in admitting testimony from C.V.’s parents that, after the alleged offense, he wet his bed more often, woke up crying with terror, and began counseling. He asserts that the evidence was irrelevant and unduly prejudicial and that the evidence was speculative because no expert testified that sexual abuse could have been the cause of C.V.’s distress. We disagree. The trial court did not abuse its discretion in admitting this evidence.

Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2010). Generally, any evidence relevant to prove a fact at issue is admissible unless precluded by a specific rule of exclusion. See State v. Williams, 992 So.2d 380, 333 (Fla. 3d DCA 2008); see also § 90.402, Fla. Stat. (2010). However, even if evidence is relevant, it is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2010). “In weighing the probative value against the unfair prejudice, it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.” State v. McClain, 525 So.2d 420, 422 (Fla.1988) (quoting 1 C. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed. 1984)).

Here, contrary to appellant’s argument, evidence of C.V.’s behavioral changes following the alleged sexual abuse was probative of a material fact in the case — namely, the issue of whether C.V. was, in fact, sexually abused. In Elysee v. State, 920 So.2d 1205 (Fla. 4th DCA 2006), which involved a prosecution for attempted sexual battery of a teenage victim, we held that the trial court did not abuse its discretion in admitting testimony by the victim’s mother as to the victim’s morose behavior in the days following the incident with the defendant. We did caution, however, that the prejudicial impact of this type of evidence could, under different circumstances, outweigh its probative value. Id. at 1208.

In this case, similar to Elysee, the evidence of C.V.’s behavioral changes was relevant to corroborate C.V.’s allegations, where appellant’s theory of defense — at least implicitly — was that the alleged abuse may have been planted in C.V.’s mind by his concerned mother. Hypothetically, if C.V. had acted completely normally after the incident, such evidence undoubtedly would have been relevant to the defense. It follows that the opposite is also true. Where an alleged victim of sexual abuse behaves in a manner that is out of the ordinary, such evidence is probative of the veracity of the victim’s allegations. While there is a risk of unfair prejudice in that the evidence could elicit sympathy for the victim, the probative value of such evidence here was not substantially outweighed by the risk of unfair prejudice. The state’s need for the evidence was strong given that the alleged victim was only three years old and there were no other witnesses to the alleged touching.

Appellant’s reliance upon cases such as Johnson v. State, 40 So.3d 883 (Fla. 4th DCA 2010), and Aho v. State, 393 So.2d 30 (Fla. 2d DCA 1981), is misplaced. In those cases, the appellate courts reversed convictions for sexual crimes where the state elicited evidence that the complainants were suicidal after the alleged abuse.

For example, in Johnson, a prosecution for lewd and lascivious battery, we held that it was error to admit evidence of the alleged victim’s suicide attempts, because the minimal probative value of the evidence was substantially outweighed by the danger of unfair prejudice. 40 So.3d at 887. There, the trial court determined that the evidence of the suicide attempts tended to both prove and disprove the alleged sexual conduct; the alleged victim may have been suicidal because the allegations of sexual abuse were true, but she also could have been suicidal because she was in turmoil after making false allegations. Id. at 886. On appeal, we concluded “if the evidence ‘cuts both ways,’ its probative value is minimal at best.” Id. We further found that the testimony had a substantial likelihood of inflaming the jurors and appealing to their emotions. Id. at 887. We reversed the defendant’s convictions, concluding that the error in admitting the testimony about the suicide attempts was not harmless. Id. at 887-88.

Here, evidence that the victim often wet the bed and woke up crying in the days and weeks after the alleged abuse is far less prejudicial than the evidence in Johnson and Aho that the alleged victims were suicidal. Moreover, Johnson involved a situation where there were two equally plausible reasons for the alleged victim’s suicide attempts. By contrast, it cannot be said that the evidence “cut both ways” in this case.

Evidence is not inadmissible merely because there is more than one possible inference to be made from that evidence. Although the defense argued that C.V.’s behavior could have been caused by his father’s incarceration, the state presented evidence that C.V.’s behavioral issues continued even after the father returned home. This makes the defense explanation for C.V.’s behavior less plausible than the state’s theory. Because the evidence supported the state’s theory more strongly than the defense theory, the evidence had significant probative value regarding the issue of whether the alleged sexual abuse occurred.

Moreover, contrary to appellant’s argument, the state was not required to offer “pure opinion” expert testimony to establish a foundation for the relevance of evidence of C.V.’s behavioral changes or for the prosecutor to suggest in closing argument that C.V.’s behavior was caused by something “traumatic.” Expert testimony is unnecessary “when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions.” Frances v. State, 970 So.2d 806, 814 (Fla.2007).

We recognize that “pure opinion” expert testimony may be required when the state seeks to show that behavior which seems, in common experience, to be inconsistent with sexual abuse is, in fact, indicative of abuse. But the opposite is not true. Common sense dictates that sexual abuse can cause emotional distress in children. Therefore, the state is free to present evidence of a child’s behavior after an alleged incident of sexual abuse if a reasonable inference can be made, within the common knowledge of jurors, that the alleged victim’s behavior could have been caused by sexual abuse. For example, in Elysee, this court found that evidence of the teenage complainant’s “morose” behavior following an attempted sexual battery was relevant. Notably, the Elysee court never suggested that expert testimony was necessary to establish that the alleged victim’s “morose” behavior was consistent with someone who was the victim of sexual abuse.

In sum, the evidence of C.V.’s behavioral changes was relevant, the relevancy of the evidence was not substantially outweighed by unfair prejudice, expert testimony was unnecessary to lay a foundation for the admission of the evidence, and the state’s argument in closing that the evidence established that something “traumatic” happened to C.V. was a permissible inference to argue to the jury. The trial court did not abuse its discretion in admitting this evidence.

Exclusion of Evidence of C.V.’s Father’s Cocaine Use

Appellant also challenges the trial court’s ruling granting the state’s motion in limine to exclude evidence that C.V.’s father ingested a large quantity of cocaine on the night appellant allegedly molested C.V.

The right of full cross-examination is absolute and the denial of that right may easily constitute reversible error. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Coxwell v. State, 361 So.2d 148, 152 (Fla.1978); Coco v. State, 62 So.2d 892, 894-95 (Fla.1953). As our supreme court explained in Coco:

[A] fair and full cross-examination of a witness upon the subjects opened by the direct examination is an absolute right, as distinguished from a privilege, which must always be accorded to the person against whom the witness is called and this is particularly true in a criminal case....

62 So.2d at 894-95.

Evidence of a witness’s drug use for the purpose of impeachment is admissible to impeach the witness if “(a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (e) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.” Ed wards v. State, 548 So.2d 656, 658 (Fla.1989).

This case falls under rule (a) in Edwards, because the father admitted during his deposition to using cocaine throughout the night C.V. was allegedly molested. This evidence was admissible because the father’s cocaine use occurred “at or about the time of the incident which is the subject of the witness’s testimony.” Id. The father testified that he saw appellant lying down next to C.V. at the foot of the bed in C.V.’s grandmother’s room and he told appellant to return to the living room. Evidence of the father’s heavy cocaine use at that time was relevant to his ability to observe and perceive matters that occurred on the night of the incident. Although defense counsel failed to make a proffer and could have made a more cogent argument to the trial court regarding the relevance of this evidence, we find the issue was adequately preserved because the substance of the evidence was made known. See Hammett v. State, 908 So.2d 595, 597 (Fla. 2d DCA 2005). Further, it was unnecessary for the defense to offer expert evidence regarding the effect of cocaine on the father’s ability to perceive. See Felton v. State, 949 So.2d 342, 344 (Fla. 4th DCA 2007) (“In precluding the evidence [of the witness’s drug use], the trial court focused on the lack of expert testimony showing the effects of methadone on a person’s ability to perceive; however, expert testimony is not necessary when the witness used drugs ‘at or about the time of the incident which was the subject of the witness’s testimony.’ ”) (quoting Hammett, 908 So.2d at 597).

We direct that, on retrial, the defense shall be permitted to inquire into the father’s cocaine use on the night appellant allegedly molested C.V.

Conclusion

We reverse appellant’s convictions because of the prosecutor’s improper closing argument and remand for a new trial consistent with this opinion.

Reversed and Remanded.

MAY, C.J., and CONNER, J., concur.

      . There were several prosecutorial comments that were not objected to below, but which appellant challenges on appeal. We need not address the propriety of the unobjected-to remarks, as the comments made over objection are egregious enough to warrant reversal of appellant’s convictions. Nonetheless, we caution the prosecution to avoid any arguments on retrial that could be construed as ridiculing the defense, making improper appeals to sympathy, or shifting the burden of proof.

      . However, the Hudson court found the error harmless because 1) the prosecutor made only a single reference to the word "pedophile” in closing, 2) the defendant made a highly incriminating statement to the victim's grandfather that he had "just used [his] finger to her,” and 3) there was physical evidence that corroborated the victim's testimony. 820 So.2d at 1072.

      . In Florida, scientific-expert testimony that an alleged victim of sexual abuse exhibits symptoms consistent with one who has been sexually abused may not be used in a criminal prosecution for sexual abuse, as such testimony currently does not pass the Frye test. See Hadden v. State, 690 So.2d 573, 580-81 (Fla.1997) (a psychologist’s opinion that a child exhibits symptoms consistent with what has come to be known as "child sexual abuse accommodation syndrome” (CSAAS) may not be used in a criminal prosecution for child abuse, as it has not been proven to be generally accepted by a majority of experts in psychology). However, the Fiye standard "is not applicable to an expert's pure opinion testimony which is based solely upon the expert’s training and experience." Id. at 579-80. Thus, expert testimony on typical behaviors of sexually abused children is admissible in a sexual battery prosecution where it is based on the expert’s training and experience, it is carefully couched solely in relation to his professional experience, and the expert does not directly testify about the victim. See Oliver v. State, 977 So.2d 673, 677 (Fla. 5th DCA 2008). Here, the state did not violate the rule in Hadden, because the state never offered scientific-expert evidence that C.V. suffered from CSAAS or posttraumatic stress disorder that was caused by sexual abuse. The parents’ testimony was essentially in the nature of factual observations. Further, their testimony that C.V.'s behavior was not caused by the father’s incarceration was in response to defense counsel's questioning, not the state’s questioning.


author: PER CURIAM.

text:
    Richard WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-628.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Richard Warren, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal, Richard Warren challenges the trial court’s denial of his motions filed pursuant to rule 3.850 through which he presented more than twenty points. Warren was convicted of burglary with a battery, kidnapping, aggravated battery, grand theft auto, armed burglary, and possession of a concealed weapon by a convicted felon. The trial court sentenced him to concurrent life terms for counts I, II and V, concurrent thirty-year terms for counts III and VI, and a concurrent ten-year sentence for count IV.

The trial court summarily denied a majority of Warren’s claims, and held an evi-dentiary hearing to address others. We affirm on all but one point. We agree with Warren that the jury found him guilty of the non-existent crime of possession of a concealed weapon by a convicted felon, and that the error was perpetuated through the adjudication and judgment. See Williams v. State, 48 So.3d 192 (Fla. 2d DCA 2010); James v. State, 16 So.3d 322 (Fla. 4th DCA 2009); Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006). We recognize that, in this case, the jury was instructed on the proper offense; however, we cannot overlook the erroneous verdict and judgment. Consequently, we reverse in part and remand with instructions that the conviction and sentence for possession of a concealed weapon by a convicted felon be vacated. See James, 16 So.3d at 326-27.

Affirmed in Part, Reversed in Part, and Remanded.

POLEN, STEVENSON and GROSS, JJ., concur.


author: POLEN, J.

text:
    Nadia CHARLEY and Elysee Charley, Appellants, v. GREEN TREE SERVICING, LLC, Appellee.
    No. 4D11-551.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    James Jean-Francois of James Jean-Francois, P.A., Hollywood, for appellant.
    Roy A. Diaz, Diana B. Matson and Kathleen E. Angione of Smith Hiatt & Diaz, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

The defendants appeal the trial court’s order granting summary judgment of foreclosure in favor of Green Tree. We reverse summary judgment because we find there were genuine issues of material fact, including, but not limited to, the issue of whether Green Tree had standing to foreclose.

Standing to foreclose may be established by either an assignment or equitable transfer of the mortgage prior to the filing of the complaint. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “[T]he plaintiff must prove that it had standing to foreclose when the complaint was filed.” Id. We reverse because we find that there were genuine issues of material fact, including, but not limited to, the issue of whether Green Tree had standing to foreclose at the time the complaint was filed in this action. Id.; see also Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA 2012).

Although it is not necessary to address the other issues on appeal, we find it problematic that two different plaintiffs filed separate actions to foreclose on the same mortgage. Once aware that there were two separate foreclosure actions on the same mortgage, it would be wise to consolidate these actions. Even so, the defendants were able to adequately litigate the instant action, which is the only case on appeal in this court. Contra Ruscalleda v. HSBC Bank USA 43 So.3d 947 (Fla. 3d DCA 2010) (reversing on the grounds that the confusion caused by two banks simultaneously attempting to foreclose on the same mortgage resulted in the defendants not filing a timely answer in the case on appeal). Nonetheless, and because we hold there were genuine issues of material fact below, we reverse the trial court’s entry of final summary judgment.

Reversed and Remanded.

GROSS, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


author: GROSS,J.

text:
    MARBLE UNLIMITED, INC., a Florida profit corporation, Appellant, v. WESTON REAL ESTATE INVESTMENT CORPORATION, a Florida profit corporation, Weston Real Estate Development, LLC, a Florida Limited Liability Company, and Robert and Maureen Baus, individuals, Appellees.
    No. 4D11-3113.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.

      Jose D. Sosa of Law Office of Jose D. Sosa, P.C., Palm Beach Gardens, for appellant.
    James Henderson, Allan P. Whitehead and Erika J. McBryde of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for appellees.
   GROSS,J.

We reverse an order of the circuit court dismissing a mechanic’s lien claim because the lienor failed to file a notice to owner. The lienor signed a contract with the corporate owner of the property and began work; the corporate owner then transferred the property to an affiliated corporation, which was the owner at the time suit was filed. Under these circumstances, the lienor was not required to file the notice to owner required by Chapter 713.

Marble Unlimited, Inc. is a granite coun-tertop subcontractor. Beginning in 2003, Marble contracted with Weston Real Estate Investment Corporation (“Weston Investment”) to renovate buildings within a condominium complex. From 2003 to 2007, Marble completed the renovations on buildings 3 through 8 and received payment from Weston Investment.

In August 2006, Marble entered into two separate contracts for work on building 9 of the complex. As with the prior contracts, the owner identified in both contracts was Weston Investment. The contracts were signed by John Genoni, Jr., an officer of Weston Investment. Marble performed under the contracts and in 2008 filed claims of lien against various units, referencing its contracts with Weston Investment. Notices of contest of lien were filed by one John Genoni on behalf of the two corporations identified as owners— Weston Investment and Weston Real Estate Development, LLC (“Weston Development”).

Marble filed a complaint in the circuit court for breach of contract and to foreclose the mechanic’s liens on building 9’s individual units. The complaint brought suit against both Weston Investment and Weston Development, the latter being the owner of the units at the time the suit was filed. The case proceeded to a jury trial, and the jury awarded Marble $112,237.29 in damages against Weston Investment on the contract claims.

The lien claims were decided non-jury. The circuit judge dismissed the lien claims against Weston Development because Marble had not served a notice to owner on Weston Development pursuant to section 713.06, Florida Statutes (2010).

A lienor who is in privity with the owner is not required to serve a notice to owner, as required by section 713.06. § 713.05, Fla. Stat. (2010); King v. Brickellbanc Sav. Ass’n, 551 So.2d 604, 605 (Fla. 5th DCA 1989). Whether privity exists is a factual inquiry requiring “both knowledge by an owner that a particular subcontractor is supplying services or materials to the job site and an express or implied assumption by the owner of the contractual obligation to pay for those services or materials.” C.L. Whiteside & Assocs. Constr. Co., Inc. v. Landings Joint Venture, 626 So.2d 1051, 1052-53 (Fla. 4th DCA 1993) (citing Harper Lumber & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21 (1929)). Here, at the time work commenced, Marble was in privity with Weston Investment, having signed two contracts where Weston Investment had identified itself as an owner, similar to the way Marble had completed renovations on the previous six buildings. Marble was therefore not required to file a section 713.06(2)(a) notice to owner after it commenced work on building 9.

After it contracted with Marble as the owner, Weston Investment could not trigger a duty on the part of Marble to file a notice to owner by transferring ownership of the condominium units to a related corporation, Weston Development. That the corporations were related is evident in the record — John Genoni filed notices of contest on behalf of both corporations and John Genoni, Jr. signed the original contracts on behalf of Weston Investment. To affirm the judgment of dismissal under these circumstances would be to allow corporate owners to play a shell game with ownership and frustrate the valid claims of contractors who complete work on real property.

The principle of fairness that compels the result in this case is almost identical to the situation where “a common identity exists between the owner and the contractor.” Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 282 (Fla.1992). The concept of common identity “was established in order to allow a lienor, who serves notice to an individual serving in a dual corporate capacity for both the owner and general contractor, to enforce its lien when no prejudice exists for failing to serve the owner.” Fla. Wood Servs., Inc. v. Osprey Links Joint Venture, 720 So.2d 591, 593 (Fla. 5th DCA 1998) (stating that the purpose of the common identity exception is to “prevent ... related parties from reaping a windfall”).

For example, in Boux v. Fast Hillsborough Apartments, Inc., 218 So.2d 202, 202 (Fla. 2d DCA 1969), the corporate owner of the property against which a lien was claimed was wholly owned by the corporate contractor, which had contracted directly with the subcontractor. Emphasizing that “[t]he purpose of the notice [requirement] is to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid,” the second district held that the failure to file notice to owner was not fatal to the lien claim against the corporate owner, since the same husband and wife were officers of both the owner-corporation and the contractor-corporation. Id.; see also Broward Atl. Plumbing Co. v. R.L.P., Inc., 402 So.2d 464, 466 (Fla. 4th DCA 1981) (finding privity, and therefore no notice requirement, where it “[wa]s undisputed that the three owners ... were also the principals in the contracting corporation”).

For these reasons, we reverse the final judgment of dismissal and remand for the entry of a mechanic lien foreclosure judgment against Weston Development.

DAMOORGIAN, J., and HANZMAN, MICHAEL, Associate Judge, concur.

      . As stated by the Florida Supreme Court:
      The word "privity” as used in the lien statute, providing for the acquisition of liens by persons in privity with the owner, against the latter’s real property, is not employed in the technical sense of the common law, but implies special knowledge showing active consent or concurrence.

        Foley Lumber Co. v. Koester, 61 So.2d 634, 639 (Fla.1952) (quoting First Nat’l Bank of Tampa v. S. Lumber & Supply Co., 106 Fla. 821, 145 So. 594, 596 (1932)).

      . We also note that in opposition to the motion for rehearing, Weston Development filed the 2011 annual report for both Weston Investment and Weston Development, which showed that Genoni, Jr. was affiliated with both corporations and that the corporations shared the same principal address and mailing address.


author: GROSS, J.

text:
    Charlyn BRADSHAW and Kenneth Bradshaw, her husband, Appellants, v. BOYNTON-JCP ASSOCIATES, LTD., d/b/a Boynton Beach Mall and Simon Property Group, Inc., Appellee.
    No. 4D11-4242.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach and Todd R. Falzone of Kelley Uustal, PLC, Fort Lauderdale, for appellants.
    James P. Waczewski of Luks, Santaniel-lo, Petrillo & Jones, Tallahassee, for appel-lees.
   GROSS, J.

We reverse a final judgment awarding attorney’s fees pursuant to an offer of judgment because ambiguities in the offer prevent its enforceability. See § 768.79, Fla. Stat. (2007); Fla. R. Civ. P. 1.442.

The offer was apostrophe-challenged, creating ambiguities as to whether the drafter intended references to singular or plural defendants or plaintiffs. The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff (s)” to “execute a stipulation,” and “Plaintiffis)” to “execute” a general release of “Defendant(s).”

In applying Rule 1.442, the Supreme Court has stated,

The rule intends for a proposal for judgment to be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions. Furthermore, if accepted, the proposal should be capable of execution without the need for judicial interpretation. Proposals for settlement are intended to end judicial labor, not create more.

State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006) (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002)). The issue is not whether it is “fair or logical to apply the requirements” of rule 1.442(c) in a given case. Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371, 374 (Fla. 4th DCA 2006). The rule requires that “the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Nichols, 932 So.2d at 1079.

Reversed.

WARNER J„ and STONE, BARRY J„ Senior Judge, concur.


text:
    Kevin JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5101.
    District Court of Appeal of Florida, First District.
    April 30, 2013.
    Kevin Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 30, 2012, judgment and sentence, in Gadsden County Circuit Court case number 2010-656-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Steven Allen TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2197.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Steven Allen Taylor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: SHEPHERD, C.J.

text:
    BRIARWOOD CAPITAL, etc., et al., Petitioners, v. LENNAR CORPORATION, etc., et al., Respondents.
    No. 3D12-2319.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Grumer & Macaluso and Keith T. Grumer and Jason N. Goldman, Fort Lauder-dale, for petitioner.
    Bilzin Sumberg Baena Price & Axelrod and David M. Gersten and Lori P. Lustrín; O’Melveny & Myers and Daniel Petrocelli, David Marroso and Kathryn Cahan, Los Angeles, CA, for respondent.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   ORDER IMPOSING SANCTIONS ON BRIARWOOD CAPITAL, LLC AND NICOLAS MARSCH III, AND THEIR COUNSEL

SHEPHERD, C.J.

On September 7, 2012, in conjunction with the denial of Briarwood Capital, LLC’s Petition for Writ of Prohibition on the merits, this court sua sponte ordered the petitioners and their counsel to show cause why they should not be sanctioned for filing a frivolous petition. Having reviewed the response, the court finds the petition to be frivolous and remands this case to the trial court for the award of a reasonable attorney fee, including prejudgment interest, to be paid one-half by the petitioners and one-half by Keith T. Grumer, Esquire, and Jason N. Goldman, Esquire, to the respondents, Lennar Corporation and Lennar Homes of California, Inc., for their defense of the petition and necessary participation in this proceeding.

This case arises out of an action filed in September 2008 by Lennar Corporation and Lennar Homes of California, Inc. against Barry Marsch III and his affiliated company, Briarwood Capital, LLC (the Marsch defendants), and Barry Minkow and his affiliated company, the Fraud Discovery Institute (the Minkow defendants), seeking damages for engaging in a scheme of extortion, and other fraudulent and wrongful conduct arising principally from the manipulation of the public stock price of Lennar Corporation. On June 29, 2012, Keith T. Grumer, Esquire, of the law firm of Grumer and Macaluso, P.A., succeeded to the representation of the Marsch defendants, assisted by law firm associate Jason N. Goldman, Esquire.

Soon after their appearance in this case, counsel for the Marsch defendants learned of a Stipulated Final Judgment between the Minkow defendants and the Lennar plaintiffs in the sum of $588,573,600. In the stipulated facts, the Minkow defendants expressly implicated the Marsch defendants in the scheme. The Marsch defendants had no participation in the stipulation and apparently did not know of the Final Judgment themselves until after it was entered. Nevertheless, the Marsch defendants, through the Grumer law firm, moved to dismiss the action against them for lack of subject matter jurisdiction on the ground the Final Judgment did not expressly reserve jurisdiction in the Lennar plaintiffs to proceed against the Marsch defendants.

After the trial court correctly denied the motion to dismiss — see Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994) (citing Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927) (advising subject matter jurisdiction concerns a court’s power to deal with a class of cases to which a particular case belongs, not an individual case)); Godfrey v. Reliance Wholesale, Inc., 68 So.3d 930, 932 (Fla. 3d DCA 2011) (“Subject matter jurisdiction ‘means no more than the power lawfully existing to hear and determine a cause.’ ”) (quoting Malone v. Meres, 91 Fla. 709, 725, 109 So. 677, 683 (1926)) — the Marsch defendants filed a petition for the issuance of a writ of prohibition to the circuit court on the same ground. The petition was frivolous. See JP Morgan Chase Bank, N.A. v. Hernandez, 99 So.3d 508, 513 (Fla. 3d DCA 2011) (citing Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000) (defining as frivolous an appeal that presents no justiciable issue and is so devoid of merit on the face of the record that there is little prospect that it will ever proceed)).

It is axiomatic that a final judgment that resolves claims as to one or more defendants does not adjudicate claims against co-defendants who are not mentioned in the final judgment. See, e.g., Marks v. Wertalka, 475 So.2d 273, 274 n. 4 (Fla. 3d DCA 1985) (stating defendants whose names were omitted from final judgment entered pursuant to settlement remained in lawsuit); Walker v. Santa Rosa Island Auth., 689 So.2d 281, 282-83 (Fla. 1st DCA 1996) (concluding defendants not mentioned in final judgment remained in the lawsuit). Moreover, the Stipulated Final Judgment states the Min-kow defendants stipulated to final judgment only on the First, Third, Fourth, and Fifth Counts of the operative complaint. Excluded from the Stipulated Final Judgment is Count II for intentional interference with contractual and economic relations asserted solely “[ajgainst the Marsch parties.” The existence of that count alone defeats the Marsch parties’ jurisdictional argument in this case. See Mang v. Country Comfort Inn, Inc., 559 So.2d 672, 673 (Fla. 3d DCA 1990) (concluding count not adjudicated in trial court’s order remains for disposition by the trial court); In re Guardianship of Thomas, 353 So.2d 666, 666 (Fla. 1st DCA 1978) (affirming judgment and holding that crossclaim and third-party claim not mentioned in or adjudicated by judgment on appeal could be considered by the trial court).

Finally, it is plain the position articulated by the Marsch defendants in this case was made in bad faith. The trial court expressly ruled in the Stipulated Final Judgment that: “Nothing in the paragraphs above shall be deemed to release any individual or entity other than the Minkow Defendants.” Marsch counsels’ failure to mention or address this provision in their Petition is inexplicable. See Freedom Commerce Ctr. Venture v. Ranson, 823 So.2d 817, 822 (Fla. 1st DCA 2002) (concluding tactical and improper use of facts constitutes bad faith warranting an award of attorney fees as a sanction).

This is not the first time lead counsel, Keith T. Grumer, Esquire, has been sanctioned for a frivolous filing in the courts of this state. See Danziger v. Alternative Legal, Inc., 987 So.2d 694, 695 (Fla. 4th DCA 2008) (stating Grumer and his clients “knew or should have known that their claims were not supported by material facts”). For this reason, we order the clerk of the court to forward a copy of this opinion and this court’s file to The Florida Bar for consideration of such disciplinary proceedings as might be appropriate concerning Keith T. Grumer, Esquire, and Jason N. Goldman, Esquire.

Remanded for proceedings in compliance with this opinion.

      . Both Mr. Grumer and Mr. Goldman signed the Petition for Writ of Prohibition in this case. See Fla. R. Jud. Admin. 2.515(a) ("The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other document” and "that to the best of the attorney’s knowledge, information, and belief there is good ground to support it.”); see also Fla. Houndsmen Ass’n v. State, -So.3d -, 2012 WL 2018848 *1, *1 (Fla. 1st DCA June 6, 2012) (rejecting counsel's suggestion that signing a single pleading is insignificant). We pause to bring to the attention of young lawyers Rule 4-5.2 of the Rules Regulating the Florida Bar, which states "[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” See also Jay v. Mahaffey, 218 Cal.App.4th 1522, 161 Cal.Rptr.3d 700 (2013) ("[E]very attorney admitted to practice in this state has independent duties that are not reduced or eliminated because a superior has directed a certain course of action.”).

      . The Marsch attorneys engaged in the same legerdemain before the trial court. In an attempt to write the Marsch defendants into the Stipulated Final Judgment against the Minkow defendants, the Marsch attorneys declared to the trial court (and to this court as well) that the judgment stated:
      IT IS ADJUDGED that Plaintiffs ... recover jointly and severally from Defendants ... for which sum let execution issue.
      As Lennar pointed out in its Response in Opposition to the Petition, the Minkow Judgment actually reads:
      IT IS ADJUDGED that plaintiffs Lennar Corporation and Lennar homes of California, Inc., 700 Northwest 107th Avenue, Miami, Florida 33172, recover jointly and severally from defendants Barry Minkow, present address unknown, and Fraud Discovery Institute, Inc., 9770 Carroll Center Road, Suite F, San Diego, California, 92126, the sum of $583,573,600 with costs in the sum of $0, making for a total of $583,573,600, that shall bear interest at the legal rate, for which sum let execution issue.
      (emphasis added).
      This patently false assertion by Marsch counsel is antithetical to the ethical obligation lawyers with the privilege to pass before the bar to address a court have to the judges before whom they appear. Marsch counsel might as well have cast a dagger into the heart of the rule of law. See R. Regulating Fla. Bar 4-3.3(a)(1) ("A lawyer shall not knowingly ... make a false statement of fact or law to a tribunal....”).


text:
    Gabby TENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1231.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Rehearing Denied Oct. 29, 2013.
    Gabby Tennis, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Gabby Tennis appeals the denial of a rule 3.850 motion which challenged the voluntariness of his postconviction sentencing bargain. Tennis was convicted of first degree felony murder and sentenced to death. On appeal, the Florida Supreme Court reversed and remanded for a new trial. Tennis v. State, 997 So.2d 375 (Fla.2008). On retrial, Tennis was again convicted of first degree felony murder, and the jury recommended death. In response, the defense proposed a postconviction sentencing agreement to the State. At defense counsel’s suggestion, Tennis entered a postconviction sentencing bargain agreeing to waive his right to appeal and to allege ineffective assistance of counsel in postconviction proceedings in exchange for a life sentence.

Tennis previously moved under rule 3.170(Z) to withdraw his agreement as involuntary. His motion was treated as a rule 3.850 motion and denied. On appeal, this court affirmed. See Tennis v. State, 84 So.3d 328 (Fla. 4th DCA 2012).

He subsequently filed this rule 3.850 motion again alleging his agreement was involuntarily entered. The trial court treated this as a successive rule 3.850 motion and denied relief. We affirm for different reasons.

“No Florida rule of criminal procedure directly controls a post-conviction sentencing bargain.” Leach v. State, 914 So.2d 519, 522 (Fla. 4th DCA 2005); see also Stahl v. State, 972 So.2d 1013, 1015 (Fla. 2d DCA 2008). We analogize a motion to withdraw from a sentencing bargain to a motion to withdraw from a plea. Leach, 914 So.2d at 523. As a result, in determining whether there is a reasonable probability appellant would not have entered the agreement, we consider the totality of the circumstances, including the likelihood of success on direct appeal if he had not waived his appellate rights. See Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004).

Here, Tennis failed to establish a reasonable probability that he would not have entered this postconviction sentencing agreement. Contrary to the claims in the instant motion, Tennis alleged in his 3.170(£) motion that he entered an agreement with the State in part out of fear of being put to death. The alleged misadvice he received from counsel about the substantive offense did not affect an issue that could be raised on appeal. The other alie-gations in this rule 3.850 motion do not show that Tennis’ trial was unfair or that the grounds he wanted to raise had any likelihood of succeeding on direct appeal. As a result, he has not shown that his decision to waive his appellate and post-conviction rights in exchange for a life sentence was involuntary.

Affirmed.

GROSS, GERBER and CONNER, JJ., concur.


text:
    FEMME COIFFURE HAIR SPA, INC., etc., et al., Appellants, v. JOSLOFF INVESTMENTS, LLC, etc., et al., Appellees.
    No. 3D12-2932.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Rehearing Denied Nov. 22, 2013.
    Keith D. Silverstein, Bay Harbor Islands, for appellants.
    Becker & Poliakoff and Kevin Markow and JoAnn Nesta Burnett and Evan B. Berger, Fort Lauderdale, for appellees.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Khawly v. Reboul, 488 So.2d 856 (Fla. 3d DCA 1986); § 608.4211(2), Fla. Stat. (1999).


author: SALTER, J. ROTHENBERG, J.

text:
    CITY OF MIAMI, Appellant, v. Jorge MARTINEZ-ESTEVE, Appellee.
    No. 3D12-1150.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 19, 2013.

      Julie O. Bru, City Attorney, and Iliana Forte and John A. Greco, Assistant City Attorneys, for appellant.
    Alice Elizabeth (“Betsy”) Warwick, Miami, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   SALTER, J.

The City of Miami appeals a final judgment and summary judgment in favor of Jorge Martinez-Esteve regarding his employment classification and layoff in October 2009. We affirm.

Martinez-Esteve was initially hired by the City in 2002 as a project representative in the Department of Economic Development. He had an undergraduate and graduate degree in economics from the University of Miami, and he had worked for over thirty years in the areas of economic development and financial analysis. In November 2003, he became a permanent civil service employee. In December 2004, he was promoted by the City to the position of business development coordinator.

In December 2006, the City advised Martinez-Esteve (in a memo entitled “Return to Former Classification”) that, “in accordance with Civil Service Rules and Regulations, you are being rolled back to Project Representative.” Thereafter, however, Martinez-Esteve met with City officials, and the City rescinded the “roll back” memo effective June 1, 2007. Martinez-Esteve was transferred at that date from his former position as business development coordinator in the Department of Economic Development to a position as project manager in the City Building Department, at the same salary. Throughout his years of service, Martinez-Esteve received positive evaluations and reviews. After his first year of work for the City, he was recommended for the highest possible merit increase.

In a City layoff in October 2009, however, Martinez-Esteve was notified that his employment was terminated. The letter advising him of this made no reference to his civil service status or to any “roll back” right to be restored to his former position. The letter also did not provide a written statement of reasons for the layoff within five days, and an invitation to respond to that statement, as required by the Miami City Charter for “classified” employees.

Martinez-Esteve requested a grievance hearing before the City’s Civil Service Board. At that hearing (October. 20, 2009), the City denied the request, asserting that Martinez-Esteve was an unclassified employee - whose position had been abolished (and not because of any disciplinary reason). Martinez-Esteve’s entitlement to such a hearing was considered by the Civil Service Board in November 2009. The Board voted unanimously to restore Martinez-Esteve to his position as project manager with back pay, concluding that Martinez’s position as a project manager was a classified, not an unclassified, position for purposes of the City Charter. The Board’s written decision was rendered in December 2009.

Over five months later, the City Manager rejected the Board’s ruling, asserting that the position could not be characterized as “classified” because it had not been filled from an eligibility list. Martinez-Esteve established, and the City did not dispute, that the City itself had treated his project manager position as if it was unclassified and had never created an eligibility list for the position.

A month after receiving the City Manager’s ruling, Martinez-Esteve filed a complaint for declaratory judgment, injunctive relief, and monetary damages against the City in the circuit court. Martinez-Esteve and the City ultimately filed cross-motions for summary judgment. Martinez-Es-teve’s motion was granted and final judgment was entered in his favor in April 2012. The City’s cross-motion for summary judgment was denied. The City then initiated this appeal.

Analysis

Each of the City’s arguments on appeal is an issue of law appropriate for summary judgment below and de novo review here. The City’s first argument is that Martinez-Esteve’s circuit court lawsuit should have been dismissed, and that the exclusive venue for his claims of wrongful termination by the City Manager would have been the appellate division of the circuit court. If the quasi-judicial determination by the Civil Service Board had been the controlling ruling, the City would be correct that the determination should be reviewed by the appellate division of the circuit court. Miami-Dade Cnty. v. Moreland, 879 So.2d 28 (Fla. 3d DCA 2004). But the Board’s ruling was not the governmental- action that precipitated Martinez-Esteve’s independent lawsuit.

Rather, the City Manager’s executive action — the unfounded rejection of, and refusal to abide by, the Board’s ruling — was the subject matter of the independent lawsuit, as in City of Miami v. Huttoe, 38 So.2d 819 (Fla.1949). Had the City Manager and City sought review of the Board’s quasi-judicial action by the circuit court appellate division, the City’s argument would be persuasive, and an independent lawsuit by Martinez-Esteve would have been subject to dismissal. But that is not what happened.

The City’s second argument is that Martinez-Esteve cannot be rolled back to a “classified” position because he never applied for, and was never placed on, the eligibility register for a classified position. Section 36(d) of the City Charter requires the City to establish an eligibility list for certain “competitive” classified positions. No such list is required for “noncompetitive” and “labor” classified positions. In the present case, the City simply failed to characterize the position of project manager as competitive or noncompetitive, and it never advised Martinez-Esteve that he would need to apply or be placed on an eligibility list for the position. This fact distinguishes Martinez-Esteve’s case from the holding in Bloodworth v. Suggs, 60 So.2d 768 (Fla.1952) (finding that employees placed into positions in violation of competitive hiring process accrue no rights or entitlement to benefits). In Martinez-Esteve’s case, the position was noncompetitive because the City made it noncompetitive. The City offered, and Martinez-Esteve accepted, the position of project manager in 2007 as a solution to Martinez-Esteve’s concern about the City’s memo returning him to his prior position of project representative in the Department of Economic Development.

Over five years before Martinez-Esteve received his termination notice from the City, the circuit court had ruled in another case that, as a matter of law, the City Charter required the specification of positions that are to be treated as “unclassified,” and that all other positions are “classified.” § 36(c), Miami City Charter. In that case, the court warned the City that it was impermissibly treating many classified positions as unclassified. The City did not amend the pertinent Charter provisions after that ruling, and it did not include Building Department “project manager” in the list of unclassified positions.

Because the Charter did not and does not list the position in question, “project manager,” as an unclassified position, it is a classified position. Id. The Civil Service Board found that Martinez-Esteve was entitled to be rolled back to his position as project manager, and that right (section 8.13, Civil Service Rules and Regulations) applies even if the employee is later promoted into an unclassified position.

So the real question before the trial court and this Court is whether, having failed to comply with its own Charter, the City may now refuse to afford Martinez-Esteve the benefits of the classified position because of the City’s lapses. We agree with Martinez-Esteve that the City is estopped from claiming any advantage based on its own acts and omissions. Timoney v. City of Miami Investigative Panel, 990 So.2d 614, 620 (Fla. 3d DCA 2008).

Conclusion

The City is obligated to comply with its own Charter provisions. Martinez-Esteve properly invoked the jurisdiction of the circuit court to address executive action by the City Manager in contravention of the applicable Charter provisions and the Civil Service Board’s determination. Martinez-E steve’s improper termination has now been revoked, and he has been reinstated to a position that the City Charter concedes is a classified position.

Accordingly, the final judgment and summary judgment in favor of Martinez-Esteve are affirmed, as is the order denying the City’s cross-motion.

SHEPHERD, C.J., concurs.

ROTHENBERG, J.

(concurring, in part, dissenting, in part).

The majority affirms the final judgment and summary judgment entered in favor of Jorge Martinez-Esteve (“Martinez-Es-teve”) in his circuit court lawsuit against the City of Miami (‘City”) regarding his layoff in October 2009. Although I agree with the majority’s conclusion that Martinez-Esteve properly invoked the jurisdiction of the circuit court, I disagree with the majority’s affirmance of the trial court’s ruling that requires the City to “roll back” .Martinez-Esteve to the position of project manager or to a comparable position within the City.

The primary issue addressed in the trial court was whether Martinez-Esteve was entitled to the benefits afforded classified employees after he was laid off by the City from a classified position he obtained without complying with the requirements specified by the City of Miami Charter (“City Charter”). Despite Martinez-Esteve’s failure to comply with the City Charter’s requirements for placement in a non-competitive classified position when he was placed in the classified position of a project manager, the trial court entered a final judgment in favor of Martinez-Esteve, granting him the benefits of a qualifying classified employee, and ordering the City to reinstate him to the classified position he held when he was laid off as a project manager, and, if that position was not available, to reinstate him to a comparable position at the same rank and pay grade.

In addressing this issue, the majority determined, and I agree, that the position of project manager in the City’s Building Department is a “classified,” not an “unclassified,” position because the position is not listed as “unclassified” in section 36(c)(1) of the City Charter, and therefore, by default, the position is deemed to be “classified.” § 36(c), City of Miami Charter (“Unclassified and classified service. The civil service of the city is hereby divided into the unclassified and the classified service.”); § 36(c)(1), City of Miami Charter (specifically listing positions included in the unclassified service); § 36(c)(2), City of Miami Charter (“The classified services shall include all positions not specifically included by this City Charter in the unclassified service.... ”).

Pursuant to the Civil Service Rules and the City Charter, to be considered for a classified position, the applicant must comply with certain eligibility requirements, which include submission of an application, screening, arid if the applicant is determined to be qualified and “eligible,” placement on an “eligibility register,” which remains active for one year. Competitive classified positions also require a written examination and the eligibility register for classified positions places the list of qualified applicants in the order of how well the applicant performed on the written examination. If the classified position is a noncompetitive classified position, the ranking and order of the names appearing on the eligibility list is determined by the scores assessed during the interview process. The position Martinez-Esteve held as a project manager was a non-competitive classified position. Thus, he was required to go through the interview process, be ranked, and placed on a noncompetitive eligibility list in order to be considered for and placed in the classified position of project manager. It is undisputed that Martinez-Esteve did not go through the interview process, he was not scored and ranked, and he was not selected from an eligibility list when he was placed in the project manager position. He was simply selected by the City Manager to serve in that capacity, and he served as a project manager for approximately two-and-one-half years before he was laid off.

Section 36(c)(2)(A)-(C) of the City Charter provides that “classified service” consists of three distinct and defined “classes” — competitive, noncompetitive, and labor. The majority correctly acknowledges that under the City Charter, the City is required to establish an “eligibility list” for “competitive” classified positions. The majority, however, incorrectly asserts that the .City Charter does not require the City to establish an “eligibility list” for “noncompetitive” and “labor” classified positions. Section 36(d) of the City Charter provides that the “chief examiner shall ... maintain lists of eligibles of each class of the services of those meeting the requirements of said regulations,” and the “[pjositions in the classified service shall be filled from such eligible lists upon requisition from and after consultation with the city manager.” (emphasis added). Section 36(d) does not distinguish between the three classes within the “classified service,” and therefore, contrary to the majority’s assertion, all classified positions, even “noncompetitive” and “labor” classified positions, are to be filled from an eligibility list. Because Martinez-Esteve was never placed on an eligibility list, his placement into the position of project manager clearly violated the City Charter.

Thus, the question before this Court is whether Martinez-Esteve, who was placed in a classified position without satisfying the requirements of the City Charter, should receive certain benefits afforded to classified employees, which in this case are seniority credits, during the period he worked as a project manager. Based on the Florida Supreme Court’s decision in Bloodworth v. Suggs, 60 So.2d 768 (Fla.1952), the answer to that question is “no.” Martinez-Esteve, who did not comply with the City Charter when obtaining his classified position, is not entitled to the benefits afforded to classified employees, and therefore, the final judgment under review should be reversed.

In Bloodworth, the Florida Supreme Court addressed a similar situation. When the civil service rules were adopted, members of the police force, except for the Chief, were required to be selected from a “list of eligibles prepared by the civil service board.” Id. at 768. However, in 1946, the Civil Service Board discontinued the examination process for the position of detective, and commencing in 1947, the City Manager, with the Civil Service Board’s approval, assigned seventeen patrolmen to plain-clothes duty in the Detectives Bureau. Id. These plain-clothed patrolmen did not receive any additional pay, but they were provided with a monthly clothing allowance, and they were notified they “may at any time be assigned back to duty as a Uniformed Patrolman.” Id.

In 1951, the Civil Service Board decided to re-establish the system of open competitive examinations for filling open detective positions and to abolish the City Manager’s practice of assigning policemen to detective positions without selecting them from an eligibility list prepared by the Civil Service Board. Id. Thereafter, the City Manager informed the Executive Secretary of the Civil Service Board that he was granting “permanent detective appointment” to those individuals who had served as detectives for one year or more. Id. The seventeen policemen who had previously been assigned to the Detectives Bureau without being placed on an eligibility list or taking an examination had served for varying time periods of from one to four years in the Detectives Bureau.

In response, the Civil Service Board and J.P. Suggs, on behalf of civil service employees of the police department, filed suit against the City Manager, Mr. Blood-worth, seeking invalidation of these appointments. Id. The trial court invalidated the appointments, and the City Manager appealed. Id.

In affirming the trial court’s invalidation of the appointments, the Florida Supreme Court noted that the City Charter required that all “members of the police force, other than the Chief, shall be selected from the list of eligibles prepared by the civil service board ...,” and that the City Manager acknowledged that the patrolmen he gave permanent detective status to, did not, as was required, take a competitive examination and they were not placed On an eligibility list prior to their assignment to the Detectives Bureau. Id. at 769. The Florida Supreme Court therefore concluded that, although the seventeen policemen involved demonstrated “outstanding proficiency and ability in the performance of the duties of detectives, and they could no doubt continue to perform these duties with the same degree of efficiency,” id. at 770, because they received their positions without complying with the existing rules, they were not entitled to permanent appointment as detectives. Specifically, the Florida Supreme Court noted the following:

This is, however, a government of laws and not of men, and we are compelled to recognize that, under the present law, these 17 policemen-regardless of their outstanding record of achievement-have not yet obtained a right to permanent appointment as ‘detectives,’ under the civil service laws and rules now existing and controlling.

Id.

Bloodworth and the instant case are factually similar in that the policemen in Bloodworth and Martinez-Esteve in the instant ease were all given positions without requiring them to comply with the competitive hiring process specified in the City Charter. Specifically, in both cases, the employees were never placed on a “list of eligibles” prior to being placed into their respective positions. Thus, based on Bloodworth, because Martinez-Esteve obtained his classified position without complying with the hiring process required by the City Charter, he accrued no rights or entitlement to benefits generally granted to classified service employees. See also King v. Harris, 49 So.2d 803 (Fla.1951) (holding that a Panama City employee who was employed without qualifying for civil service status under Panama City’s Civil Service Act, was not entitled to civil service status; noting that to hold that the employee “was entitled to civil service status would flout the mandatory requirements of [the Civil Service Act]”).

The majority’s reliance on Timoney v. City of Miami Investigative Panel, 990 So.2d 614, 620 (Fla. 3d DCA 2008), for the proposition that the City should be es-topped from denying Martinez-Esteve the benefits of the classified position he received without complying with the City Charter because the City offered Martinez-Esteve the position without requiring him to comply with the City Charter, is also respectfully misplaced. In King, the Florida Supreme Court concluded that, although King had served in his position as a civil service employee for two years, and section 22 of the Civil Service Act of Panama City provided that if the employee was not discharged within a six-month probationary period, the employee’s promotion, appointment, or employment in the civil service position would be deemed complete and entitle him to the associated benefits, because King did not comply with the qualifying requirements for such a position, he was not entitled to civil service status. In other words, although Panama City placed King in a civil service position without requiring him to comply with the eligibility requirements, and allowed him to stay in that position for two years, well past the six-month probationary period, Panama City was not estopped from raising King’s ineligibility. Thus, Panama City’s firing of King was upheld.

To conclude otherwise would ignore the fact that Martinez-Esteve knew he was required to be selected from an eligibility list to be placed in and to receive the benefits of a classified position. Because the City treated the project manager position as an unclassified position, when Martinez-Esteve accepted the position he believed it was an unclassified position for which he would not receive any of the benefits afforded employees serving in classified positions. Thus, Martinez-Esteve should be equally es-topped from receiving benefits he did not qualify to receive and which he never expected to receive.

Accordingly, the trial court’s final judgment reinstating Martinez-Esteve to the position of project manager or to a comparable position and awarding him monetary relief was error, and it is in direct conflict with the Florida Supreme Court’s holdings in Bloodworth and King. I, therefore, respectfully dissent from the portion of the majority’s opinion which affirms the final judgment.

      . Under section 36(c) of the City Charter, civil servants occupy "unclassified” or "classified” positions. Unclassified positions are specifically listed in section 36(c)(1) (including the City Manager ánd staff, department heads and assistants, certain police and fire officials, and City attorneys, for example). City employees who are not in "unclassified” positions are, by definition and in section 36(c)(2), in "classified” positions.

      . The final judgment awarded back wages, accrued sick leave and vacation hours, wages through the time of reinstatement, prejudgment interest, medical and dental expenses incurred for Martinez-Esteve and his spouse, and pension benefits calculated for the period between layoff and reinstatement.

      . Section 36(c)(2) of the City Charter provides that "competitive” classified positions are those "for which it is practicable to determine the merit and fitness of applicants by competitive examinations.” "Noncompetitive” classified positions are those "requiring peculiar and exceptional qualifications of a scientific, city managerial, professional, or educational character, as may be determined by the rules of the board.” Finally, "labor” classified positions are those for "ordinary unskilled labor.”

      . Martinez-Esteve is also correct that this is not a case in which other applicants for the "project manager” position, having been determined to be eligible, are appealing the employment of an applicant who was not eligible.

      . The trial court “reinstated” Martinez-Es-teve to the position he held when laid off in October 2009 (project manager) or to a comparable position at the same rank and pay. In addition to reinstatement, the trial court awarded Martinez-Esteve monetary relief, such as back pay.

      . This interpretation is consistent with the testimony of the City's Senior Personnel Officer.


text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for the Certificate Holders Cwalt, Inc. Alternative Loan Trust 2005-31 Mortgage Pass-Through Certificates, Series 2005-31, Appellant, v. Stuart W. DECKER, Jennifer J. Keenan, Maravilla Condominium Association, Inc., Maravilla Master Association, Inc., Appellees.
    No. 1D13-2956.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2013.
    Rehearing Denied Nov. 22, 2013.

      Bart Heffernan of Marinosci Law Group, Fort Lauderdale, for Appellant.
    John Cottle, of Becker & Poliakoff, P.A., Fort Walton Beach, for Appellees.
   PER CURIAM.

DISMISSED. See Massachusetts Life Ins. Co. v. Crapo, 918 So.2d 393 (Fla. 1st DCA 2006).

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Alejandro D. BENABE-RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-500.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2013.
    Rehearing and Rehearing En Banc Denied Nov. 15, 2013.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Affirmed. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003) (holding that “[f]or defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal”).

PALMER, ORFINGER and BERGER, JJ., concur.


text:
    Christan STARKES, Petitioner, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, and Jacksonville Sheriffs Office, Respondents.
    No. 1D13-4410.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Rehearing Denied Nov. 21, 2013.
    Christan Starkes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

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

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Robert Craig MacLEOD, Appellant, v. CITIBANK, N.A., et al., Appellee.
    No. 5D13-3121.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2013.
    Rehearing Denied Nov. 4, 2013.
    Robert Craig Macleod, Palm Coast, pro se.
    Maureen G. Pearcy of Hinshaw & Culbertson LLP, Coral Gables, for Appellees, Citibank N.A. and Zakheim & Lavrar, P.A.
    Christopher P. Hammon and Gregory R. Hawran of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Miami, for Appel-lee Publix Super Markets, Inc.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Appellee, State of Florida.
    Michael K. Winston, Dean A. Morande and Donna L. Eng of Carlton Fields, P.A., West Palm Beach, for Appellee, Wells Fargo Bank, N.A.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.