author: BLACK, Judge.

text:
    Terry TSAFATINOS, individually; and Sigma TAF Management, Inc., Appellants, v. FAMILY DOLLAR STORES OF FLORIDA, INC.; David C. Sugas; and Barbara D. Sugas, Appellees.
    No. 2D12-3621.
    District Court of Appeal of Florida, Second District.
    June 21, 2013.

      Thomas Valdez and Jeanette Bellon of Quintamos, Prieto, Wood & Boyer, P.A., Tampa, for Appellants.
    Jonathan E. Lewerenz and David R. Bolen of Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Tampa, for Appellee Family Dollar Stores of Florida, Inc.
    No appearance for remaining Appellees.
   BLACK, Judge.

Terry Tsafatinos and Sigma TAF Management, Inc., appeal the trial court’s order dismissing Mr. Tsafatinos’ third-party claims for common law indemnity and for breach of contract against Family Dollar Stores of Florida, Inc. We affirm in part and reverse in part.

I. Background

Family Dollar Stores of Florida, Inc. (Family Dollar), leased its business premises from Terry Tsafatinos, individually. On December 26, 2008, David Sugas, an employee of Family Dollar, allegedly stepped on an uneven concrete floor in the backroom of the Family Dollar store, fell, and injured his knee. As a result, Family Dollar has been providing workers’ compensation benefits to Mr. Sugas.

Mr. Sugas and his wife filed a three-count amended complaint against Mr. Tsa-fatinos and Sigma TAF Management, Inc. (Sigma), alleging the incident occurred during the course and scope of Mr. Sugas’ employment, Mr. Tsafatinos owned the property, and both Mr. Tsafatinos and Sigma negligently maintained the property by failing to adequately repair the floor in the backroom. It was further alleged that Mr. Sugas was injured and suffered damages as a result of the fall at the negligently maintained premises.

Mr. Tsafatinos was granted leave to file a third-party complaint against Family Dollar for common law indemnification and for breach of contract. Regarding the indemnity claim, Mr. Tsafatinos alleged that there was a special relationship between the parties by virtue of the lease agreement. It was further alleged that although Mr. Tsafatinos was the property owner, Family Dollar leased and maintained possession of the property, making Mr. Tsafatinos’ liability, if any, solely vicarious, constructive, derivative, or technical in nature. Mr. Tsafatinos alleged that as such, Family Dollar was wholly at fault and hable to the Sugases for any and all injuries suffered as a result of the fall.

Mr. Tsafatinos based his breach of contract claim on the pertinent insurance provision of the lease agreement, paragraph 11(b):

Tenant shall maintain a commercial general liability policy with a minimum single limit of $1,000,000 for bodily injury, death and property damage insuring Tenant with respect to occurrences on the demised premises. Landlord shall be named as an additional insured under the policy but only for claims arising out of the acts or omissions of Tenant or arising out of the manner of Tenant’s use of the demised premises.

He alleged that Family Dollar breached the lease agreement by failing to name him as an additional insured on its commercial general liability policy or on its “self-insurance policy,” which Mr. Tsafati-nos alleged Family Dollar maintained in lieu of a commercial general liability policy.

The Sugases objected to the filing of the third-party complaint, arguing that the workers’ compensation benefits paid by Family Dollar to Mr. Sugas acted as the exclusive remedy against Family Dollar, including any liability of Family Dollar to third parties. The Sugases further argued that their claims did not fall under Family Dollar’s insurance policy but rather under Florida’s Workers’ Compensation Law, the exclusive remedy against, and likewise the exclusive liability of, Family Dollar.

In its motion to dismiss the third-party complaint, Family Dollar argued that the indemnity count was improperly pleaded. Family Dollar also asserted that because the right of contribution has effectively become obsolete due to the abolition of joint and several liability, it necessarily follows that third-party claims for common law indemnity are no longer available in negligence cases. Further, Family Dollar argued that since the Sugases alleged no negligence against Family Dollar, Mr. Tsa-fatinos may not do so in the third-party complaint. Pursuant to the pertinent language of the insurance provision of the lease agreement, Family Dollar argued that the breach of contract count was legally impermissible because the amended complaint contained no allegation of negligence against Family Dollar, and thus Mr. Tsafatinos would not be an additional insured under the policy Family Dollar was required to maintain.

After a hearing, the trial court granted the motion to dismiss with prejudice. This appeal followed.

II. Discussion

The standard for reviewing a trial court’s order granting a motion to dismiss with prejudice is de novo. Value Rent-A-Car, Inc. v. Grace, 794 So.2d 619, 620 (Fla. 2d DCA 2001). When reviewing the trial court’s decision, this court is limited to the four corners of the complaint. Id.

A.Workers’ Compensation Immunity

Mr. Tsafatinos’ third-party complaint was not barred by workers’ compensation immunity. Sunspan Engineering & Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975), is controlling. In Sunspan, the Florida Supreme Court held that section 440.11(1), Florida Statutes, the exclusive remedy provision of the Workers’ Compensation Law, was unconstitutional as applied to bar a third-party plaintiffs common law action for indemnification against a negligent employer who paid its injured employee workers’ compensation benefits. Id. at 7-8. Thus, a third party’s claim for common law indemnification against a negligent employer is not barred by section 440.11(1). Id.; see also L.M. Duncan & Sons, Inc. v. City of Clearwater, 478 So.2d 816, 818 (Fla.1985); Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 721 So.2d 1254, 1256 (Fla. 5th DCA 1998). Further, section 440.11(1) is also unconstitutional to the extent that it functions to immunize an employer from liability to a third party where the employer contracted to indemnify the third party for losses resulting from its negligence. City of Clearwater v. L.M. Duncan & Sons, Inc., 466 So.2d 1116, 1118 (Fla. 2d DCA), affd, 478 So.2d 816 (Fla.1985).

The Sugases cited Zeiger Crane Rentals, Inc. v. Double A Industries, Inc., 16 So.3d 907 (Fla. 4th DCA 2009), in support of their objection to Mr. Tsafatinos’ motion for leave to file a third-party complaint, contending that workers’ compensation benefits are the exclusive remedy against Family Dollar. Zeiger, which involved same-project contractors, is distinguishable because it stands for the proposition that a subcontractor is not liable to the employees of another contractor; rather, the subcontractor is protected by the exclusive liability provisions of section 440.11. Zeiger, 16 So.3d at 913; see also § 440.10(1)(e).

B. Allegations in Underlying Action Not Determinative

Despite Family Dollar’s contentions, Mr. Tsafatinos is not restricted by the allegations in the Sugases’ amended complaint, namely, that Mr. Tsafatinos was actively negligent, or by the fact that the Sugases did not allege negligence on the part of Family Dollar.

“Rule 1.180, RCP, allows the defendant, third-party plaintiff, charged with active negligence in the original complaint to place his own characterization upon the events and maintain a third party claim alleging active negligence on the part of the third party defendant and only passive negligence, if any, on his own part. The purpose of the rule is to settle the controversy in a single action, and it would be unfair to the defendant-third party plaintiff to confine it to the version of facts asserted by the plaintiff in the first instance.”

Broward Marine, Inc. v. New England Corp. of Del., 386 So.2d 70, 73 (Fla. 2d DCA 1980) (quoting Cent. Truck Lines, Inc. v. White Motor Corp., 316 So.2d 579, 580 (1975) (internal quotation marks omitted)); see also Welch v. Complete Care Corp., 818 So.2d 645, 651 (Fla. 2d DCA 2002) (“A party seeking indemnity is not locked in by the injured person’s allegations against it in the underlying lawsuit.”).

C. Common Law Indemnity Claim

Though a third party has a right to sue an employer, the claim must be viable in the first place. Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 494 n. 4 (Fla.1979). Common law indemnity “arises out of obligations imposed through special relationships.” Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 65 (Fla. 2d DCA 2005). To state a claim for common law indemnity, a party must allege that he is without fault, that another party is at fault, and that a special relationship between the two parties makes the party seeking indemnification vicariously, constructively, derivatively, or technically liable for the acts or omissions of the other party. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 781 So.2d 638, 642 (Fla.1999); Houdaille, 374 So.2d at 493.

Mr. Tsafatinos did not properly plead a claim for common law indemnity because he failed to show the existence of any special relationship between himself and Family Dollar that would make Mr. Tsafatinos vicariously, constructively, derivatively, or technically liable to the Su-gases because of Family Dollar’s negligence or fault. See Welch, 818 So.2d at 649; Marino v. Weiner, 415 So.2d 149, 150-51 (Fla. 4th DCA 1982). Mr. Tsafati-nos, as landlord and property owner, is not liable for injuries that result from dangerous conditions on the property because

liability is not predicated on the ownership of the property, but on the failure of the possessor of the property to use due care. The duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property. This right is usually in the hands of the tenant, who is in possession and control. Thus, if a lessor completely surrenders possession and control of a premises to a lessee, the lessor will not be liable for injuries to third persons that occur on the property.

Welch, 818 So.2d at 649 (citations omitted); see also Bovis v. 7-Eleven, Inc., 505 So.2d 661, 662-64 (Fla. 5th DCA 1987) (noting same). As Mr. Tsafatinos alleged in his complaint, Family Dollar was in possession of the property, and thus Mr. Tsafatinos could not be vicariously, constructively, derivatively, or technically liable for the Su-gases’ injuries. Without vicarious liability, Mr. Tsafatinos’ claim for common law indemnity against Family Dollar is not viable in the first place.

It is true, as Mr. Tsafatinos contends, that when a complaint appears to be capable of being amended to properly state a cause of action it should not be dismissed with prejudice, as it was here, without affording the third-party plaintiff the chance to amend. See Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998). However, Mr. Tsafatinos’ claim for common law indemnity is not capable of amendment to state a cause of action as Mr. Tsafatinos previously asserted in his pleadings that he was not in possession or control of the property and thus he cannot be vicariously liable for the Sugases’ injuries. Therefore, the trial court correctly dismissed this count of Mr. Tsafatinos’ complaint. See Welch, 818 So.2d at 649.

Family Dollar’s reliance on T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc., 11 So.3d 411 (Fla. 2d DCA 2009), holding that the abolition of joint and several liability acts to defeat all third-party causes of action for contribution, is misplaced. The court in Wink reasoned that because judgment is now entered purely on a pro rata finding of fault, there is no longer a need to seek recovery from a non-party joint tortfeasor. Id. at 411. Mr. Tsafatinos filed a third-party complaint for common law indemnification, not contribution, and common law indemnification is a legal remedy wholly apart from contribution. See Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla.1977). In an action for indemnification, the defendant is liable for the entire amount, while in an action for contribution, the defendant is only liable for his pro rata share. Id. Thus, unlike in a case involving contribution, the concept of “weighing of the relative fault of tortfeasors” is simply inapplicable in an indemnity action as the party seeking indemnity must be without fault. Houdaille, 374 So.2d at 493.

D. Breach of Contract Claim

Mr. Tsafatinos alleged that Family Dollar breached its lease by failing to name him as an additional insured on its commercial general liability policy or its “self-insurance policy,” pursuant to the lease agreement. We agree that the plain language of the lease required Family Dollar to name Mr. Tsafatinos as an additional insured on the policy, However, since we find that Mr. Tsafatinos’ claim for common law indemnification failed to state a cause of action, the related claim for breach of contract may not be maintained as a third-party claim. See Fla. R. Civ. P. 1.180(a); Dacryn Corp. v. Peacock, 630 So.2d 1169, 1170 (Fla. 2d DCA 1993); see also Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So.2d 240, 241-42 (Fla. 2d DCA 1989) (holding that the 1984 amendment to rule 1.180(a) was meant to permit a claim “in addition to but not in the absence of a claim for indemnification, subrogation or contribution”).

Though this claim may not be maintained as a third-party action, since the plain language of the lease does not unambiguously establish that Family Dollar did not breach its duty, the court erred in dismissing the third-party claim for breach of contract with prejudice. See Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001). This claim may be asserted by Mr. Tsafatinos in a separate action against Family Dollar. The dismissal with prejudice would bar such an action.

For the reasons stated herein, we affirm the dismissal with prejudice of the claim for common law indemnification and we affirm the dismissal of the claim for breach of contract. We reverse the dismissal of the breach of contract claim to the extent that such dismissal is with prejudice.

Affirmed in part and reversed in part.

CASANUEVA and SLEET, JJ„ Concur.

      . In count three of the amended complaint, Mrs. Sugas alleged loss of consortium.

      . See § 440.11(1), Fla. Stat. (2008).

      . The lease agreement may lend itself to a third-party claim for contractual indemnification. However, we express no opinion as to the viability of such claim.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Ronald McINTOSH, Appellee.
    No. 5D11-4430.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals an order granting Appellee, Ronald McIntosh’s, motion to suppress. McIntosh was originally arrested for aggravated assault with a firearm but was ultimately charged with possession of a firearm by a convicted felon and improper exhibition of a firearm. He filed a motion to suppress alleging the officers did not have probable cause to search his vehicle, which officers searched after his arrest and contained a firearm owned by McIntosh.

The case began when McIntosh’s girlfriend placed a call to 9-1-1 stating that her boyfriend threatened her with a firearm relating to a domestic dispute. Officers responded to the girlfriend’s residence and found McIntosh and the girlfriend talking calmly with each other. One officer initially secured McIntosh with handcuffs for officer safety, as there were allegations a firearm was used in the dispute, but did not place him under arrest at that time. In a sworn statement to the officer, the girlfriend stated that McIntosh pulled a firearm from the shelf and made a threatening statement to her that placed her in fear. After receiving the sworn statement, the officer determined he had probable cause to arrest McIntosh for aggravated assault with a firearm. The officer placed McIntosh under arrest and secured him in the police ear.

The girlfriend informed the officer that she saw McIntosh place the firearm in his car, but she was not sure if he had placed it in the back seat or the trunk. Upon receiving that information, the officer obtained McIntosh’s keys and opened the car and the trunk, ultimately finding the firearm and ammunition in the trunk. It was later determined that McIntosh was a convicted felon, which resulted in additional charges against him.

At the suppression hearing, the two officers involved with the arrest and investigation testified. There were no other witnesses. The judge granted the motion to suppress, finding that there was no probable cause for McIntosh’s arrest and, therefore, no probable cause to search his car. The court also found that the girlfriend did not see what McIntosh had done with the weapon. We disagree with the trial court’s findings and conclusions. We find that there was probable cause to arrest McIntosh for aggravated assault and, more importantly, probable cause to search his car without a warrant under the “automobile exception.” We, therefore, reverse.

There is no evidence in the record that supports the finding of the trial judge that the girlfriend did not see where McIntosh placed the firearm. The only mention of that fact is the argument made by the defense attorney. See Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (noting that counsel’s representations not made under oath are not evidence). The girlfriend never stated that she did not see where McIntosh placed the firearm. She stated, on more than one occasion, that she saw McIntosh place the firearm in the car, but she was uncertain if the firearm was in the back seat or the trunk. It was the location within the car that she was uncertain about, not whether the firearm was in the car. Also, the girlfriend’s sworn statement established probable cause to arrest McIntosh for aggravated assault with a firearm because McIntosh displayed the firearm in a threatening manner, threatened his girlfriend, and placed her in imminent fear.

McIntosh cites Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), as a reason to suppress the evidence; however, Gant is not applicable because it concerns a search incident to arrest. After Gant, warrantless searches of automobiles are still reasonable if supported by probable cause when the offense is a crime that might yield physical evidence. See Brown v. State, 24 So.3d 671, 681 (Fla. 5th DCA 2009) (“[W]e hold that when the offense of arrest of an occupant of a vehicle is, by its nature, for a crime that might yield physical evidence, then as an incident to that arrest, police may search the passenger compartment of the vehicle, including containers, to gather evidence, irrespective of whether the arrestee has access to the vehicle at the time of the search.”). Furthermore, the automobile exception to the warrant requirement, irrespective of an arrest, permits a warrant-less search supported by probable cause “based on the inherent mobility of vehicles, as well as the reduced expectation of privacy in a vehicle.” Harris v. State, 71 So.3d 756, 765 (Fla.2011) (citing Pennsylvania v. Labron, 518 U.S. 938, 990, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)), rev’d on other grounds, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013).

McIntosh’s case is more akin to United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and Crump v. State, 622 So.2d 963 (Fla.1993), wherein warrantless searches of vehicles are addressed. In Crump, the supreme court held the lower court correctly denied a defendant’s motion to suppress evidence obtained without a warrant from his pickup truck, stating:

Under the vehicle exception to the warrant requirement “[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.”
Carney, 471 U.S. at 394, 105 S.Ct. at 2071 (quoting United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)). In the instant case, the relevant question is whether the police unreasonably seized and searched Crump’s truck. We find that this search was not unreasonable because it was plainly one that a magistrate could authorize. Here, the record shows that the police officers relied on a witness’s description and identification of Crump’s truck as the vehicle that Smith entered on the night of her murder and the unique features of the truck with its amber rotating light which was broken on the passenger side, dark tinted windows, and large tires. The facts establish that probable cause existed to seize Crump’s truck, thus we find that a magistrate could have authorized a warrant. We hold that the trial court correctly denied Crump’s motion to suppress the evidence.

Crump, 622 So.2d at 970.

Here, the search was based on the girlfriend’s statements that she was a victim of aggravated assault and the firearm used in the aggravated assault was placed in the vehicle. The officers had probable cause to search the entire vehicle without a warrant based upon the victim’s statement. See Chaney v. State, 956 So.2d 535, 537-38 (Fla. 4th DCA 2007) (discussing probable cause determination based on totality of circumstances). Although an arrest occurred, the search was conducted pursuant to the girlfriend’s statements, not incident to the arrest. Therefore, we find the officer’s search of McIntosh’s car reasonable because probable cause existed to justify the search.

The trial court’s finding that there was no probable cause for the initial arrest was not argued by either party, and is not supported by the record in this case. The order granting the motion to suppress is reversed and vacated, and the matter is remanded for further proceedings.

REVERSED and REMANDED for further proceedings.

TORPY and EVANDER, JJ„ and JACOBUS, Senior Judge, concur.


author: DAVIS, Judge.

text:
    Richard FIGUEROA-SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1312.
    District Court of Appeal of Florida, Second District.
    June 26, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Richard Figueroa-Santiago challenges his conviction and sentence for using electronic communication to further the interest of a criminal gang. He entered a negotiated no contest plea to the offense, which is a violation of section 874.11, Florida Statutes, and the trial court sentenced him pursuant to agreement to two years’ probation. Prior to entering his plea, Figueroa-Santiago filed a motion to dismiss the charge, arguing that section 874.11 is unconstitutional. In entering his plea, he specifically reserved the right to challenge the facial constitutionality of the statute. Based on Enoch v. State, 95 So.3d 344 (Fla. 1st DCA 2012), and the Florida Supreme Court’s having declined to accept jurisdiction to review the constitutional issue addressed therein, 108 So.3d 654 (Fla.2013), we reverse, finding only one portion of section 874.11 unconstitutional on its face. But because we do not find the entire statute to be facially unconstitutional, we remand the matter to the trial court to reconsider Figueroa-Santiago’s motion to dismiss in light of the conclusions reached in this opinion. We certify conflict with Enoch to the extent that it found the entire statute unconstitutional.

Figueroa-Santiago admits that he placed images referencing The Latin Kings or elements thereof online through his MySpace.com account. He also admits that The Latin Kings are a gang and that he knows members of the gang, but he claims that he is not a member. One of the images posted by Figueroa-Santiago depicts a faux street sign, indicates the area is a “drive-by shooting” area for the gang, and shows someone shooting from a vehicle. Other images are of members of “Eastside,” a known subgroup of The Latin Kings. Figueroa-Santiago acknowledges that the images in question promote the gang. The limited record on appeal does not provide sufficient facts to determine the scope or audience of the posts or whether the images were accompanied by other specifically threatening language or gestures.

Section 874.11, Fla. Stat. (2008), provides in relevant part:

Any person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication to intimidate or harass other persons, or to advertise his or her presence in the community, including, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree ....

On its face, the statute provides two independent means of using electronic communications for benefiting, promoting, or furthering the interests of a gang that could qualify for sanctions: intimidating or harassing others and advertising one’s presence in the community. The State’s information against Figueroa-Santiago alleged both possibilities.

In Enoch, the First District concluded that section 874.11 violates the First Amendment and does not pass the strict scrutiny test because on its face it prohibits communication related to noncriminal gang activity. 95 So.3d at 357-58. The First District focused on the “[a]ny person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication” portion of the statute, concluding that this language is not narrowly tailored to focus only on those interests of the gang that are criminal in nature. Id. at 858. The court noted that the statute “contains no express requirement of knowledge of the gang’s criminal activity.” Id. However, the court determined that reading an intent element into the language of this portion of the statute would not necessarily render the statute constitutional because knowingly using electronic communications to further the interest of noncriminal gang activity still would be prohibited under the statute and would criminalize otherwise innocent, constitutionally-protected speech designed to advertise or promote oneself in a community. Id. The First District concluded that because the statute is not narrowly tailored to prevent only advertising oneself through the knowing promotion of a gang’s criminal activity, it is unconstitutional. Id.

We find no fault with the reasoning of Enoch in this regard and agree that as it is currently written, the portion of section 874.11 related to the using of electronic communications to benefit or promote a gang by advertising oneself in the community is unconstitutionally overbroad on its face. But we note that the addition of language by the legislature to limit the statute to preclude such advertising only as related to a gang’s criminal activity would sufficiently narrow the language of the statute to overcome a facial challenge on this basis.

When addressing a facial challenge to a statute, courts should construe the statute using a construction that is constitutional whenever it is possible to do so without rewriting the statute. Enoch, 95 So.3d at 349-50. Thus our acceptance of the Enoch reasoning is limited to the “benefiting, promoting, or furthering the interests of a criminal gang ... to advertise his or her presence in the community ” prong of the statute. See § 874.11 (emphasis added). But while nothing about the advertising prong ties the electronic communication to a criminal activity, the prong that criminalizes “benefiting, promoting, or furthering the interests of a criminal gang ... to intimidate or harass other persons ” prohibits identifiable criminal conduct on its face. Id. (emphasis added); see, e.g., § 784.048, Fla. Stat. (2012), (prohibiting the harassment of a specific person using electronic communications). Furthermore,

[w]hen a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the [l]eg-islature would have passed the one without the other [and], (4) an act complete in itself remains after the invalid provisions are stricken.

Smith v. Dep’t of Ins., 507 So.2d 1080,1089 (Fla.1987) (quoting Cramp v. Bd. of Pub. Instruction of Orange Cnty., 137 So.2d 828, 830 (Fla.1962)). Here, because the two prongs of the statute are independent, when the portion of the overbroad “advertising” prong of the statute is removed, a statute that is narrowly tailored to prevent the furtherance of the interests of a gang by using electronic communications to intimidate or harass others remains. Whether the gang’s interests that are being furthered under this prong of the statute are criminal in nature makes no difference because the identifiable intimidation or harassment of others itself constitutes a prohibitable criminal act without also criminalizing otherwise innocent, protectable speech.

The same severability argument applies to Enoch’s determination that section 874.11 violates the due process clause by criminalizing innocent conduct. See 95 So.3d at 363-64. In Enoch, the First District concluded that the two clauses of the statute “cannot be viewed in isolation. Rather, the language must be construed together — within the entire context of the provision and the stated legislative concerns and understood intent — in a manner that will neither attribute an absurd intent to the [^legislature nor lead to an absurd result.” Id. at 363 (citing Kasischke v. State, 991 So.2d 803, 813-14 (Fla.2008)). But we conclude that the type of analysis set forth in Kasischke is not applicable to the statute that we are addressing because severing these clauses would render neither the legislature’s intent nor the result absurd.

For these reasons we find one portion of the statute unconstitutional on its face in reliance on Enoch but save the remaining portion under the principle of severability. Accordingly, we reverse the judgment and sentence entered following Figueroa-Santiago’s plea and remand the matter to the trial court for further consideration consistent with this opinion. On remand the trial court should reconsider the motion to dismiss in relation to the remaining portion of the statute if the State wishes to pursue charges based on the remaining portion of the statute.

We note that Figueroa-Santiago raises a facial challenge to the statute based on vagueness which Enoch also addresses as an issue of standing. See 95 So.3d at 364-66. The record before us in the instant case, however, does not supply the facts that would be necessary for us to address the standing issue in the way discussed by Enoch. Furthermore, based on our remand for consideration of whether the State may choose to proceed with the charges against Figueroa-Santiago under the remaining portion of the statute, addressing the vagueness issue as applied to Figueroa-Santiago at this time would be premature.

Reversed and remanded; conflict certified.

KHOUZAM and BLACK, JJ., Concur.

      . It is not clear why Figueroa-Santiago did not present an as-applied challenge to this statute, but for whatever reason, he only challenged the statute's constitutionality on its face before the trial court. Furthermore, in entering his plea, he specifically reserved the right to challenge the facial constitutionality of the statute and raised only facial challenges in his appellate briefs.

      . " 'At common law, the general rule was that guilty knowledge or mens rea was a required element in the proof of every crime.' Wegner v. State, 928 So.2d 436, 438 (Fla. 2d DCA 2006). In fact, 'because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored.' State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004).” Franzone v. State, 58 So.3d 329, 334 (Fla. 2d DCA 2011).

      . We note that the language of section 874.11 would not necessarily have to limit the intimidation or harassment of others for the purpose of benefiting or promoting the gang to the specific individuals identified by section 784.048 in order to overcome this facial challenge and constitute a statute that is narrowly tailored to prevent an identifiable crime.

      . In Kasischke, the analysis involved whether a qualifying clause applied only to the antecedent clause or to the other provisions of the statute, and the determination included the significance in the placement of a comma. 991 So.2d at 812. These details do not apply to section 874.11, and we conclude that Ka-sischke does not limit our ability to view the clauses as independent prongs.


author: EMAS, J.

text:
    John C. MERRONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2126.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, and Thomas Regnier, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nicholas A. Merlin, Miami, Assistant Attorney General, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

John Merrone was arrested and charged with false imprisonment, sexual battery and aggravated battery. Following a jury trial, he was found guilty of false imprisonment and two counts of simple battery, and sentences were imposed. Merrone appeals his convictions and sentences. The issue is whether the court erred in denying a defense request to call a witness to rebut an express or implied charge of improper influence, motive or recent fabrication by another defense witness. For the reasons that follow, we hold that the trial court committed reversible error, and reverse and remand for a new trial.

Merrone was a merchant marine/charter boat captain in the Florida Keys and a frequent customer of Hog Fish Bar and Grill on Stock Island (“Hog Fish”). On the evening of March 3, 2011, Merrone was drinking at Hog Fish and engaged in casual conversation with one of the bar waitresses, Melissa Aiello. Aiello had finished her shift and was having some beers and shots of liquor. Aiello testified at trial that she explained to Merrone that she was looking for an apartment close to Hog Fish, and Merrone indicated he had a room available for rent in his apartment next door. The two left Hog Fish and went to Merrone’s apartment.

Once inside Merrone’s apartment, Aiello testified she told Merrone she was not interested in renting the room, and wanted to leave, but Merrone prevented her from leaving by blocking her passage. At some point thereafter, Aiello found herself on Merrone’s bed with all her clothes off and Merrone on top of her. Aiello said that Merrone then forcibly raped her with his arms against her neck, despite her saying she did not want to do this. Aiello said she told Merrone she was going to be sick and he allowed her to go to the bathroom, where she forced herself to vomit, but he blocked her exit from the bathroom. Upon her return to the bedroom, Aiello said Merrone sexually assaulted her, and prevented her from reaching her cell phone to call for help by grabbing her toe and breaking it. After breaking her toe, Aiello said, Merrone raped her again. She eventually fought him off and ran out of the apartment with her belongings, but without her cell phone.

Aiello ran to her trailer, changed clothes, and then ran a mile further to the home of Tyler Veach, a man with whom she was acquainted. She told Veach that she had been raped, but insisted he not call the police. Aiello spent the night at Veach’s, and the next day (March 4) went back to work at Hog Fish.

Aiello said she told a couple of people at work what happened to her, and then called her sister, who lived out of state. Aiello continued to state that she did not want to report the rape to police. Notwithstanding this, Aiello’s sister called the police, and a deputy came to Hog Fish to speak with Aiello about the incident. Aiel-lo told the officer she was “okay” and did not want to file a report.

On Saturday morning, March 5, Mer-rone went to Hog Fish and returned Aiel-lo’s cell phone to Lee Cerda, another Hog Fish employee. Aiello came into work later that day, and told Cerda everything that had happened. That same day, Cerda relayed the story to her fiancé, Val Winter, and Winter, an assistant state attorney, called 911 to report the incident. Winter and Cerda then drove Aiello to the Lower Keys Medical Center emergency room and reported she had been sexually assaulted. Beverly Huckabay, the registered nurse on duty, filled out examination forms, wherein she documented her observation of bruises on Aiello’s arm, swelling and bruising to a middle toe, abrasions, red eyes and some redness on her neck.

Detective Manny Cuervo of the Monroe County Sheriff’s Office was assigned to investigate the case. He first met with Aiello at the emergency room on March 5. Detective Cuervo testified that he observed Aiello was shaky, had bruises on her arms, and redness in her eyes. Detective Cuervo later interviewed Aiello at his office.

The next day (March 6), Detective Cuer-vo interviewed Merrone, at which time Merrone admitted having sexual intercourse with Aiello on the night in question, but told Detective Cuervo that it was consensual. Merrone told Detective Cuervo that he and Aiello never talked about renting a room in his apartment, but instead left the bar for the sole purpose of having sex. Detective Cuervo noticed bruises on Merrone’s chest and arm. He arrested Merrone, and then spoke to Merrone’s roommate and business associate, Frank Silver.

While Merrone was in jail awaiting trial, Silver ran Merrone’s charter boat business. However, Silver was not paid in full during this time. At some point prior to trial, Silver demanded Merrone pay him for his work in running the business. Silver even threatened to sue Merrone if Merrone did not pay him. Approximately two weeks before trial, Merrone paid Silver $2,100 for his services in operating the charter business while Merrone was in custody awaiting trial.

In opening statement, the prosecutor told the jury that Frank Silver would testify he was in the apartment on the night of the rape and heard nothing unusual. The prosecutor cautioned the jurors, however, that they would have to consider Silver’s bias or motive for his testimony on behalf of Merrone:

It’s also anticipated that the defense will call the defendant’s roommate, a Frank Silver, who alleges that he was at the apartment that night, the night that this occurred. And Mr. Silver, it is believed, will allege that he heard people come in and he heard — what he heard that night was nothing that alarmed him. That he heard noises, but didn’t see anything, because he was in his room.... [B]ut what bias or motives does the witness, Mr. Silver, have? And I ask you to keep that in mind when he testifies. And I ask that you keep that in mind when Mr. Silver, the defendant’s employee, who you will learn demanded that he get paid $2000 for money he believed he was owed before he would come and testify. Think about that when you’re listening to the testimony of Mr. Silver.

Aiello testified at trial that the sex was not consensual and that Merrone prevented her from leaving his apartment. However, this issue was hotly contested by Merrone, and both the State and defense presented expert witnesses whose testimony regarding Aiello’s injuries supported their respective versions of the incident.

Nurse Huckabay testified as to the details of her examination of Aiello when she came to the ER nearly forty-eight hours after the incident. Huckabay testified that Aiello had bruises on her arm, redness on her neck, abrasions and swelling and bruising on one of her toes. Huckabay and the doctor treated Aiello for her injuries, including taking an x-ray of her toe, which was broken. Huckabay also testified that when she asked Aiello the cause of her injuries, Aiello said she was at a bar and someone named Captain John told her he had an apartment for rent. When she went to look at the apartment, Aiello told Huckabay, she was sexually assaulted by Captain John, and tried to fight him off.

Tyson Veach testified that when Aiello came to his home on the night in question, she appeared sweaty, panicking, scared and crying. Over defense objection, Veach testified that Aiello told him she had been raped by someone named John and that she eventually escaped by fighting him off.

During the defense case, Frank Silver testified that he was in the apartment the night of the alleged rape; that he heard two people having sex; and that the woman sounded happy. Silver said he would have come out of his room if he thought anyone was being hurt. Silver also testified about the money he was owed by Merrone for the work he did running the charter business while Merrone was in custody, and acknowledged that he was finally paid the money he was owed two weeks before trial. Silver insisted that the payment did not affect his willingness to testify, and that he had already accepted the subpoena before he was paid.

On cross-examination, the prosecutor questioned Silver about his demand to be paid the money he was owed, and Silver admitted he had threatened to sue Mer-rone if he wasn’t paid. However, he testified that he left town on May 6, assuming he would not be paid and never told anyone that he would not testify unless he was paid. Silver testified on redirect that he told the police on the night of Merrone’s arrest he was present during the incident and it sounded like Merrone and the woman with him were having a good time.

Following Silver’s testimony, defense counsel asked to recall Detective Cuervo to the stand to testify to what Silver told him on the night of Merrone’s arrest. The State objected on hearsay grounds. The defense argued the State’s cross examination of Silver suggested improper influence and recent fabrication by Silver, and asked to recall Detective Cuervo in order to establish that Silver’s prior statement to the police was consistent with his trial testimony, was made just a few days after the incident, and was made before Silver was owed any money by Merrone (and therefore before the existence of any improper influence or motive to fabricate). The State objected and the trial court sustained the objection, finding there was never any assertion that Silver suddenly made up the story because he was paid money by Merrone.

Although the trial court permitted the defense to recall Detective Cuervo to testify about other matters, the trial court did not permit the defense to elicit the substance of Silver’s prior consistent statement to Detective Cuervo on the night of Merrone’s arrest.

During closing argument, the prosecutor reminded the jury that Silver “remarkably” had been paid $2,100 by Merrone two weeks before trial.

The jury found Merrone guilty of false imprisonment as charged, but on the counts of sexual battery and aggravated battery, found him guilty of the lesser-included offenses of simple battery. The defense moved for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Merrone was sentenced to two years’ prison for false imprisonment, followed by three years’ probation, and two consecutive one-year terms of probation for the two battery counts.

Merrone appealed, contending, inter alia, that the trial court erred in not permitting the defense to recall Detective Cuervo to testify that Silver gave a prior statement a few days after the incident, consistent with the substance of his trial testimony.

We review for an abuse of discretion the trial court’s decision not to allow Detective Cuervo to testify about Silver’s prior consistent statement. Kelley v. State, 486 So.2d 578 (Fla.1986). “Prior consistent statements are generally inadmissible to corroborate or bolster a witness’s trial testimony, because such statements are usually hearsay.” Peterson v. State, 874 So.2d 14, 16 (Fla. 4th DCA 2004). However, section 90.801(2)(b), Florida Statutes (2011) provides:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is:
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.

To qualify for admission under this provision, a “prior consistent statement admitted to rebut a charge of bias, corruption or improper motive must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption or other motive to falsify.’ ” Jenkins v. State, 547 So.2d 1017, 1020 (Fla. 1st DCA 1989) (quoting McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982)).

Although the court allowed the defense to recall Detective Cuervo to testify about statements made by Aiello during a police interview, it did not permit testimony about Silver’s prior consistent statement because it found “there was never an implication that Silver suddenly made up the story because he was paid.”

Merrone argues that Detective Cuervo should have been allowed to testify to what Silver told him on the night of Merrone’s arrest because the State suggested, in opening and in cross-examination (and later in closing), that Silver’s testimony was motivated by the fact that, just two weeks before trial, he was paid $2100 owed by Merrone. As earlier discussed, the prosecutor stated in opening that when listening to Silver’s anticipated testimony the jury should consider

what bias or motives does the witness, Mr. Silver, have? And I ask you to keep that in mind when he testifies. And I ask that you keep that in mind when Mr. Silver, the defendant’s employee, who you will learn demanded that he get paid $2000 for money he believed he was owed before he would come and testify. Think about that when you’re listening to the testimony of Mr. Silver.

Silver testified exactly as the prosecutor had predicted — that he was in the apartment the night of the alleged rape, that he heard Merrone having sex with a woman, and that the woman sounded like she was having a good time. Silver also testified that, following Merrone’s arrest (and after Silver had already given his statement to Detective Cuervo) he helped run the charter business while Merrone was in custody. Silver testified about the money he was owed by Merrone for his work, and acknowledged that he was finally paid the $2100 two weeks before trial.

On cross-examination, the State questioned Silver regarding inconsistencies between his prior statement to Detective Cuervo and his trial testimony; the fact that he was owed $2100 by Merrone for his work running the business; that he had threatened to sue Merrone if he was not paid; and that he allegedly refused to accept service of his witness subpoena unless he was first paid the $2100 he was owed.

On redirect, Silver testified that, on the night of Merrone’s arrest, he gave a statement to Detective Cuervo, telling him the same thing he told the jury. However, the defense was denied the opportunity to call Detective Cuervo to elicit the content of the statement Silver had given the detective within two days of the incident.

In its rebuttal closing, the State again argued:

And, yes, you have the ear witness, this ear witness, Frank Silver, who did not see anything. He didn’t see anything. He’s owed money. He testified there were absolutely no assurances made by the defendant’s father in April that he was going to get paid. He had a conversation about being paid the monies owed, but he was given no assurances. He did not believe he was going to get paid. But two weeks before the trial remarkably he receives his $2,100 that he is owed.

We hold that the trial court abused its discretion in not permitting the defense to elicit from Detective Cuervo what Silver had told the detective on the day of Mer-rone’s arrest, to establish that this prior statement was consistent with Silver’s testimony at trial, and was made before Silver was ever owed (or paid) any money by Merrone. Once the State suggested or implied Silver’s testimony at trial was improperly influenced, was improperly motivated, or was recently fabricated, the defense should have been permitted to show, through the testimony of Detective Cuer-vo, that Silver had provided an earlier consistent statement and that this prior consistent statement was made “prior to the existence of a fact said to indicate bias, interest, corruption or other motive to falsify.” Jenkins, 547 So.2d at 1020. We cannot know whether the jury harbored any doubt about whether Silver was telling the truth or simply providing testimony favorable to Merrone because he had been paid money just before trial. However, it is certainly reasonable to conclude that the testimony from Detective Cuervo would have aided substantially in eliminating any such doubt, and the failure to permit the testimony under these circumstances was an abuse of discretion. See Tumblin v. State, 29 So.3d 1093 (Fla.2010); Fleitas v. State, 3 So.3d 351 (Fla. 3d DCA 2008); Briscoe v. Celebrity Cruises, Inc., 894 So.2d 294 (Fla. 3d DCA 2005).

The State argues that there was never any claim or suggestion that Silver’s testimony was fabricated, only that his willingness to testify at trial was motivated by the fact that he was paid $2100 by Mer-rone just before trial. We find this hairsplitting argument unpersuasive. If the State concedes that the substance of Silver’s testimony was true (i.e. that he was in fact in the next room during the incident, heard what went on inside, and believed from what he heard that Merrone and Aiello were having a good time), then the fact that Merrone paid Silver $2100 two weeks before trial is irrelevant, and the State would have had no reason to make such an argument during trial. It seems quite apparent (and the jury surely could reasonably have understood) that the State was questioning not simply Silver’s motive for coming to court to testify, but the substance and veracity of his testimony as well. This conclusion is further supported by the cross-examination of Silver, in which the State questioned Silver not only about the money owed (and his refusal to testify unless paid), but also about a number of claimed inconsistencies between his trial testimony and his prior statement to Detective Cuervo. There was an implied, if not express, charge of improper influence or recent fabrication, making relevant and probative the proffered testimony of Detective Cuervo, who would have confirmed that Silver gave an account, just a few days after the incident which was consistent with the substance of Silver’s testimony at trial.

The State also argues that any error was harmless. We cannot agree. We reject the State’s contention that the error was harmless because Silver testified that he had given police a prior statement consistent with his trial testimony. This is hardly the evidentiary equivalent of Detective Cuervo himself verifying this and testifying to the content of the prior statement made by Silver. Given that Detective Cuervo testified (twice) during trial and was not asked (on either occasion) about the existence and substance of Silver’s prior statement, the jury might well have doubted whether Silver was telling the truth when he said he gave a statement to Detective Cuervo on the night of Merrone’s arrest that was consistent with his testimony at trial.

Further, this case involved a sexual encounter which the victim testified was committed against her will, and which the defendant contended was consensual. Both sides presented expert witnesses on this central issue, who offered competing opinions on the nature and cause of Aiello’s condition and injuries. Silver was Mer-rone’s roommate and, as the prosecutor indicated in his closing, the only “ear witness” to the events that night. Silver’s credibility, as the only other witness present during the incident, was critical. The State suggested through its opening statement, its cross-examination, and its closing argument, that Silver’s presence at trial, as well as the substance of his testimony, was motivated by his demands for (and eve-of-trial receipt of) a $2100 payment by Merrone for services rendered. The defense was entitled to show that Silver provided the same version of events to the police before he ever rendered these services to, or was owed money by, Merrone. If this prior consistent statement (and Detective Cuervo’s testimony confirming it) had been presented to the jury, it could well have mitigated, or eliminated altogether, the State’s suggestion that Silver was improperly influenced or motivated and that his testimony was not to be believed.

Reversed and remanded for a new trial.,

      .The defense called a former medical examiner as an expert witness to rebut the State witness’ testimony regarding the nature and cause of Aiello's injuries. The defense expert opined that the broken toe was consistent with someone stubbing their toe on an object, rather than the toe being pulled.

      . At trial, evidence was presented that Mer-rone is known as "Captain John.”

      . Defense counsel objected when the prosecutor asked Huckabay what Aiello had told her was the cause of her injuries and the trial court overruled the objection, stating "Well, I believe this falls within the exception of the hearsay [rule], so I’m going to overrule the objection." No further discussion was had, and Huckabay went on to testify as to what Aiello had told her during the exam.

      . The trial court ruled that Aiello’s statements to Veach were excited utterances because her testimony and Veach's testimony established that her state and condition were part of a continuous sequence of events from the time of the incident until she arrived at Veach’s home and told Veach what had happened at Merrone’s apartment.

      . Silver, who was from North Carolina, decided to move back home when it became clear that there was not enough money coming in to keep Merrone’s business running.

      . In fact, during the discussion with the court over whether the defense would be permitted to recall Detective Cuervo to elicit this prior consistent statement, the defense stated that if the State were willing to stipulate (and the jury instructed) that Silver had in fact made the prior statement to Cuervo on the night of Merrone's arrest, the defense would not seek to recall Detective Cuervo for that purpose. However, the State refused to stipulate.

      . The State insists the jury must have given Silver’s testimony credence because it found Merrone not guilty of sexual assault and aggravated battery, and instead found him guilty of the lesser charges of simple battery. We do not know why the jury returned the verdicts in this case. What we do know is that the State has failed to establish beyond a reasonable doubt that this error did not contribute to those verdicts. See Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (reaffirming that "[i]f the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)).

      . At a new trial, the State can proceed against Merrone on the original charge of false imprisonment. However, the State may not proceed on the original charges of sexual battery or aggravated battery, but only on the two lesser-included offenses of battery for which he was found guilty. Price v. Georgia, 398 U.S. 323, 327, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (holding that conviction of a lesser-included offense constitutes an acquittal of the greater offense, and double jeopardy principles bar a prosecution on the greater offense upon retrial). See also Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943), opinion after remand, 154 Fla. 511, 18 So.2d 478 (1944); Jackson v. State, 449 So.2d 411 (Fla. 2d DCA 1984).

      . Although not necessary to our decision, because this case is remanded for a new trial we add the following: Merrone raises another evidentiary claim-the erroneous admission of testimony by Nurse Huckabay (approximately two days after the incident) regarding what Aiello told her. The trial court ruled that her testimony was admissible as an exception to the hearsay rule, but failed to specify the precise exception and failed to consider the different aspects of this testimony. Statements made for purposes of medical diagnosis or treatment are admissible as an exception to the hearsay rule, see section 90.803(4), Florida Statutes (2011) (providing for the admissibility of "[sjtatements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ... which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment"), but the exception generally does not extend, for example, to a declarant’s statement identifying the person committing the acts causing the injury (unless such identification is shown to be relevant to the medical diagnosis or treatment). See Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988); State v. Frazier, 753 So.2d 644 (Fla. 5th DCA 2000).


text:
    Trinmard FUDGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1042.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Trinmard Fudge, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See O’Neill v. State, 6 So.3d 630 (Fla. 2d DCA 2009); Joseph v. State, 835 So.2d 1221 (Fla. 5th DCA 2003).


text:
    Gary WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-730.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.

      Gary White, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Gary White appeals the trial court’s order denying his motion for postconviction relief following an evidentiary hearing. We affirm.

In 2010, White filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, White claimed, inter alia, that his trial counsel rendered ineffective assistance by failing to investigate and present defense witnesses at trial. The trial judge summarily denied the motion as legally insufficient. On appeal, we reversed the trial court’s summary denial, holding that, where the motion is legally insufficient as pled, the court should not deny the motion, but rather strike or dismiss the motion, with leave to amend within a reasonable period of time. See White v. State, 62 So.3d 1156, 1158 (Fla. 3d DCA 2011) (citing Spera v. State, 971 So.2d 754 (Fla.2007)). Thus, an order that dismisses or strikes, as legally insufficient, a timely rule 3.850 motion, and provides the defendant with leave to amend the motion within a specific time, is a nonfinal, nonappealable order.

Upon remand, the successor trial judge entered an order striking White’s initial motion for postconviction relief as legally insufficient, and granted leave to amend the motion with thirty days. Thereafter, White timely filed his amended motion and the trial court, determining that the amended motion was legally sufficient, held an evidentiary hearing on White’s claim of ineffective assistance of counsel. Following the evidentiary hearing, the trial court entered an order denying White’s motion.

Having reviewed the record, the hearing transcript, and the trial court’s order, we affirm the order denying relief.

      . It should be noted that the Florida Supreme Court recently adopted amendments to Rule 3.850, consistent with the procedure outlined in Spera, to provide the trial court with additional guidance in the proper disposition of a timely but legally insufficient motion under that rule. See In Re: Amendments to the Florida Rules of Criminal Procedure and the Florida Rules of Appellate Procedure, 112 So.3d 1234 at *1248 (Fla.2013) (effective July 1, 2013) (providing "[i]f the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfi-nal, nonappealable order allowing the defendant 60 days to amend the motion. If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice.”)

      . Because an order dismissing or striking a timely but legally insufficient motion, with leave to amend within a time certain, is a nonfinal, nonappealable order, the trial court ordinarily need not (and should not) include in such an order a notification that the defendant has thirty days within which to appeal. Inclusion of such language only adds confusion and results in the defendant seeking appellate review of a nonfinal, nonappealable order, instead of (or simultaneous with) filing an amended and legally sufficient motion.


author: ROTHENBERG, J.

text:
    Victoriano PEREZ-SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D12-341.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Victoriano Perez-Sanchez, appeals the trial court’s final order of revocation of probation. We affirm, but remand with directions to enter a corrected order of revocation of probation.

Having reviewed the record and the briefs submitted by both parties, we find that the defendant’s arguments concerning the revocation of his probation are without merit. We, therefore, affirm the trial court’s order revoking the defendant’s probation.

However, we agree with the defendant that the written order of revocation of probation must be corrected to accurately reflect the trial court’s oral pronouncements at the revocation hearing. We, therefore, remand with directions to enter a corrected order deleting the finding that the defendant willfully violated the following conditions of probation: (1) failure to report; (3) failure to pay drug fees; and (12) unlawful contact with the victim. Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009).

Affirmed, but remanded with directions.


text:
    Gianni SPAGNOLO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3670.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Gianni Spagnolo, Crawford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Gianni Spagnolo, filed a petition alleging ineffective assistance of appellate counsel. In October 2009, Petitioner was found guilty, following a jury trial, of murder in the third degree (Count I) and “child abuse/neglect” causing great bodily harm (Count II). At trial, the child’s mother testified that Petitioner watched the child while she worked. On April 28, 2008, the child’s mother called Petitioner to check on the child. He informed the mother that the child was groggy, had a red mark on his head, and may have fallen out of bed or was possibly feeling ill due to an ear infection. That evening the child’s mother went to pick up the child and tried to awaken him. The child stirred but did not wake up and appeared to have no muscle control. The child was taken to a hospital where it was determined that the child had a head trauma and was airlifted to another hospital. The child died from his injuries.

Petitioner informed detectives that the child had accidentally bumped his head. Petitioner explained that he was playing “bouncy” on the bed when he tossed the child in the air, causing the child to strike his head on the ceiling, a wooden night stand, and ultimately the concrete floor. The medical examiner testified that the child died from blunt force trauma to the head, and that the injuries could not have been caused by either a fall from a bed, or a fall from the ceiling onto a nightstand and then onto the concrete floor. Rather, the medical examiner testified that the injuries were consistent with grabbing a child at the ankles and swinging him around in circles, culminating in slamming the child’s head against a wall. The medical examiner opined that the death was a homicide. The jury found Petitioner guilty as charged. Petitioner was sentenced to fifteen years on each count, to be served consecutively.

Petitioner appealed his judgment and sentence. Appellate counsel filed an initial brief raising two issues for review:

1. The trial court erred in admitting an irrelevant photographic array of the deceased which needlessly inflamed the senses of the jury panel, causing one juror to openly weep and resulting in a miscarriage of justice
2. Mr. Spagnolo was denied due process of law when the trial court evinced bias against defense counsel, Mr. Spagnolo, and the victim’s mother whom the trial judge personally impugned during sentencing

This Court affirmed Petitioner’s judgment and sentence. Spagnolo v. State, 49 So.3d 261 (Fla. 5th DCA 2010).

Petitioner then filed a rule 3.850 motion in which he alleged that trial counsel was ineffective for 1) failing to file a motion to disqualify the trial judge; 2) failing to move for a mistrial when a detective testified at trial and made statements that amounted to medical opinions; 3) failing to object to comments made by the prosecutor during closing argument; and 4) allowing his medical condition to interfere with his participation at trial. Petitioner also included a cumulative error claim. The trial court denied the motion, and this Court affirmed that decision on appeal. Spagnolo v. State, 90 So.3d 303 (Fla. 5th DCA 2012). Petitioner also appealed an order denying a rule 3.800(a) motion in which he argued that his convictions violated the prohibition against double jeopardy. This Court affirmed the trial court’s order denying relief. Spagnolo v. State, 101 So.3d 856 (Fla. 5th DCA 2012).

In September 2012, Petitioner filed this petition, alleging appellate counsel was ineffective for failing to raise several issues on appeal. We find merit only in one of the issues raised in the petition. The information charged Petitioner as follows:

COUNT I
MURDER IN THE THIRD DEGREE
782.04(4)
[Petitioner] did unlawfully, and without any premeditated design to effect death, while feloniously engaged in the perpetration of, or attempt to perpetrate Child abuse, kill and murder [A.S.] a human being, by inflicting force trauma [sic] causing the death of [A.S.], in violation of Florida Statute 782.04(4);
COUNT II
CHILD ABUSE — GREAT BODILY HARM ETC
827.03(1)
[Petitioner] did knowingly, willfully, or by culpable negligence abuse or neglect [A.S.], date of birth: 10/25/2006, a child under the age of 18 years by inflicting force trauma [sic], brain injury and/or failing to immediately seek treatment for said injuries, causing great bodily harm, permanent disability or permanent disfigurement, in violation of Florida Statute 827.03(3)(b)....

(Emphasis added). The problem thus began with the articulation of the charge in Count II and culminated in an erroneous jury instruction.

The jury was instructed as follows:

7.6 FELONYMURDER-THIRD DEGREE
§ 782.04(4), Fla. Stat.
To prove the crime of Third Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:
1. [A.S.] is dead
2. The death occurred as a consequence of and while GIANNI SPAG-NOLO was engaged in the commission of CHILD ABUSE
3. GIANNI SPAGNOLO was the person who actually killed [A.S.]

(Emphasis added). Petitioner was entitled to an instruction on the definition of “child abuse” as the underlying felony. Instead, consistent with the Count II charge, the jury was instructed:

16.5 CHILD ABUSE/NEGLECT
Fla. Stat. 827.03(3)(b)
To prove the crime of Child Abuse/Neglect, the State must prove the following four elements beyond a reasonable doubt:
1. GIANNI SPAGNOLO willfully or by culpable negligence failed or omitted to provide [A.S.] with care, supervision, and services necessary to maintain [AS.’s] physical or mental health.
2. In so doing, GIANNI SPAGNO-LO caused great bodily harm, permanent disability, or permanent disfigurement to [A.S.]
3. GIANNI SPAGNOLO was a caregiver for [A.S.]
4. [A.S.] was under the age of 18 years.

The verdict form on Count I read “The defendant is guilty of MURDER IN THE THIRD DEGREE, as charged in the information,” and on Count II it read, “The defendant is guilty of CHILD ABUSE/NEGLECT, as charged in the information.”

Section 782.04(4), Florida Statutes (2008), provides:

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
(h) Aggravated child abuse
is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added).

As used in section 827.03, Florida Statutes (2008), “child abuse” means:

1. Intentional infliction of physical or mental injury upon a child;
2. An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
3. Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

“A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” Id.

“Child neglect” means:

1. A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or
2. A caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.
Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

§ 827.03(3)(a), Fla. Stat. (2008). “A person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” § 827.03(3)(b), Fla. Stat. (2008).

“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same 'penalty.” Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999) (emphasis added). “As a rule, ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)). “[A] conviction for third-degree murder requires an underlying felony and a jury determination of the existence of such a felony.” State v. Sigler, 967 So.2d 835, 844 (Fla.2007). If the defendant is acquitted of the underlying felony, the defendant cannot be convicted of the third-degree felony murder. Noel v. State, 705 So.2d 648, 649 (Fla. 4th DCA 1998).

Petitioner contends that the State constructively amended the information at trial to allow him to be convicted of third-degree murder by child neglect. A constructive amendment of a charging document allows the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment. Stanley v. State, 57 So.3d 944, 947 (Fla. 4th DCA 2011). “This is a due process violation which constitutes fundamental error.” Id. at 947 (citing Crain v. State, 894 So.2d 59, 69 (Fla.2004)).

Petitioner was charged in Count I with third-degree murder while engaging in child abuse, and in Count II with child abuse or neglect by inflicting “force trauma” or failing to obtain medical treatment. It appears from the limited record that the State merged the definitions of child abuse and child neglect into one definition. Petitioner urges that the trial court failed to instruct the jury on the underlying offense of child abuse and instead allowed the State to mislead the jury by suggesting that child abuse and child neglect were the same; likewise, the verdict form did not differentiate between offenses. The State responds that when there is a discrepancy between the title of an offense and the body of the offense in an information, the offense described in the body is the one with which a defendant is charged. The State further asserts that despite the technical defect in the information, there was no “blending of the elements” of child abuse and child neglect where the jury was only instructed on child neglect. The State argues “it is clear that the generic term child abuse included in the verdict form in conjunction with the word neglect (‘CHILD ABUSE/NEGLECT’) was not being used in the disjunctive as an offense charged in the alternative.”

Although the elements of the “underlying felony need not be explained with the same particularity that would have been required if it had been the primary crime charged, it is essential that it be defined sufficiently to ensure the accused a fair trial.” State v. Jones, 377 So.2d 1163, 1164 (Fla.1979). The complete failure to give any instruction on the elements of the underlying felony is fundamental error. Id. at 1165. The offenses of child abuse and child neglect are manifestly separate and distinct crimes, even though both are found in section 827.03, Florida Statutes. Moore v. State, 916 So.2d 940 (Fla. 4th DCA 2005). “Child abuse under section 827.03(l)(a) requires intentional infliction of physical or mental injury upon a child and is a third-degree felony, whereas neglect of a child under section 827.03(3)(b) is a crime of omission constituting a second-degree felony.” Griffis v. State, 848 So.2d 422, 427 (Fla. 1st DCA 2003).

Despite the State’s assertions that child abuse is a generic term and that the body of the information controls, the body of the information in Count II includes both abuse and neglect. To the extent that Petitioner argues that the information on Count II was defective, the defect in the information should have been raised prior to trial. However, it was error for the State to merge these two offenses together, in an attempt to argue child neglect is a form of child abuse. The information only charged Petitioner with third-degree murder while engaging in child abuse by inflicting “force trauma,” yet, the jury was only instructed on the underlying felony of child neglect. Instead of instructing the jury on the underlying felony of child abuse, the court merely titled the instruction for child neglect as “CHILD ABUSE/NEGLECT.” It is not clear if the jury found Petitioner committed third-degree murder by inflicting blunt force trauma on the child, as was charged in the information, or whether the jury followed the child neglect instruction and found the Petitioner committed third-degree murder by failing to obtain medical treatment for the child, which was not charged in the information under Count I. The failure to instruct the jury in Count I only on the underlying felony of child abuse and the commingling of the two offenses of child abuse and child neglect are jury instruction errors that rise to the level of fundamental error, which should have been raised on appeal.

Therefore, we grant the petition for ineffective assistance of appellate counsel and remand for a new trial on the charge of third-degree murder only.

PETITION granted; REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    Freddie Owen FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2521.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Freddie Felder [“Felder”], appeals his sentence of life in prison as a dangerous sexual offender after conviction of lewd and lascivious battery on a person twelve years of age, but less than sixteen years of age, in violation of section 800.04(4)(a), Florida Statutes (2010).

The victim woke up to some noise around five in the morning with a masked man in her bedroom who put a knife to her face and threatened to kill her if she did not take off her clothes and have sex with him. When she refused he started choking her. There were marks, scratches and bruising on the victim’s throat. He then forcefully penetrated her vagina with his penis. A windowpane was on the victim’s bed in her room, and the DNA collected from the victim matched the sample taken from Felder. Felder initially told the detective that he was out of town when the incident occurred and then changed his story to consensual sex when informed of the DNA match.

Felder was charged with lewd and lascivious battery, two counts of sexual battery (deadly force), including allegations that Felder used or threatened to use a pocket knife or used physical force likely to cause personal injury, and burglary with an assault or battery while armed with a knife. Shortly before the scheduled trial, however, the State again amended the information and charged Felder in one count only with lewd and lascivious sexual battery of a person over twelve years of age, but under sixteen years of age, with the further allegation that Felder had previously been convicted of attempted sexual battery in 1999, thereby qualifying him for sentencing under section 794.0115, Florida Statutes (2010) (“dangerous sexual felony offender”). Upon amendment of the information, Felder elected to plead nolo con-tendere. It was his position that his attempted sexual battery conviction was not a qualifying offense under section 794.0115, Florida Statutes.

The purpose of the Dangerous Sexual Felony Offender Act is to provide enhanced sentences for repeat sex offenders. State v. Mason, 979 So.2d 301 (Fla. 5th DCA 2008). An offender qualifies as a dangerous sexual offender by conviction of a listed offense under the statute if he also meets one of five enumerated criteria:

(a) Caused serious personal injury to the victim as a result of the commission of the offense;
(b) Used or threatened to use a deadly weapon during the commission of the offense;
(c) Victimized more than one person during the course of the criminal episode applicable to the offense;
(d) Committed the offense while under the jurisdiction of a court for a felony offense under the laws of this state, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state; or
(e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.0125(2) or (3); s. 827.071(2), (3), or (4), s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph.

§ 794.0115(2), Fla. Stat. (2010); Espinoza-Montes v. State, 113 So.3d 847 (Fla. 2d DCA 2011).

By virtue of the amendment to the charge against Felder, the State was limited to subsection (e). Felder had not been convicted in 1999 of an enumerated felony, however, only an “attempt.” The State argued below:

And, Judge, like I said, the State’s argument is we believe he qualifies under the Dangerous Sexual Felony Offender Act under Subsection (e), because he’s previously been convicted under the attempted sexual battery charge.
And under Section (e) it states, of any offense under a former statutory designation, which is similar elements to an offense described in this paragraph, or any offense that is a felony in the jurisdiction or would be a felony if that were committed in this state and which is similar in elements to the offense described in this paragraph.

The court below found Felder to be a dangerous sexual felony offender, relying on the facts from this, as well as the facts from the prior offense. Specifically, for this offense, the court found that, based upon the evidence that Felder used a knife, choked the victim and threatened her that her cousin would be next.

An “attempt” is committed when a person fails in the perpetration of, or is intercepted in, or prevented from the execution of an offense. § 777.04(1), Fla. Stat. (2010). It requires the State to prove that the defendant intended to commit a crime, committed an overt act towards its commission and failed to successfully complete the crime. Carlton v. State, 103 So.3d 937 (Fla. 5th DCA 2012); Bist v. State, 35 So.3d 936 (Fla. 5th DCA 2010).

Felder argued that section 794.0115, amended in 2003, excluded prior convictions for attempted sexual battery from consideration and thus, Appellant did not meet the requirements to be sentenced as a dangerous sexual felony offender. Section 794.0115, Florida Statutes (1999), as originally enacted, provided for mandatory minimum sentencing for repeat sexual batterers and provided:

(1) As used in this act, “repeat sexual batterer” means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in subsection (3), if it finds that:
(a) the defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:
1. Any felony offense in violation of s.794.011(2)(b), (3), (4) or (5), or an attempt of conspiracy to commit the felony offense.

(Emphasis added).

In the 2003 legislative session, section 794.0115 was substantially amended and retitled “Dangerous Sexual Felony Offender Act.” The “attempt or conspiracy” language was removed. Felder contends that the deletion by the Legislature of the “attempt” language clearly represents an intent to exclude a prior conviction for an “attempted” offense. Felder appears to be correct. First, the language employed in subsection (e) suggests that it is intended to apply to previous versions of current statutes or parallel statutes from other jurisdictions, not attempts. Additionally, the 2003 revisions to section 794.0115 suggest a legislative intent not to include “attempts” among the criminal convictions that would qualify for this very severe sentencing alternative. This was the conclusion recently reached by the Fourth District Court of Appeal in Tambriz-Ra- mirez v. State, 112 So.3d 767 (Fla. 4th DCA 2013).

The facts adduced during the sentencing hearing about Felder’s 1999 crime are chilling:

THE COURT: [T]he defendant unlawfully and against her will forced [a young girl] ... into a[car] ... by pulling her by the hair and threatening to kill her if she yelled. The car was occupied by three other black males.
When [the victim] refused [his sexual demands], he strangled her.... He drug her out of the car by her hair. He beat her about the head and chest. He forced her to remove her pants, pushed her down and had sex with her. During that fight, he beat her and repeatedly told her he was going to kill her. He ran off when a car came. She required treatment at the hospital for her injuries.

Apparently, however, he was allowed to plead to this crime as an “attempt.” There may be no doubt, as argued below by the State, that Felder is a dangerous sexual felony offender, but he does not qualify for enhanced sentencing under section 794.0115 because his prior offense is not a qualifying crime.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . In Tambriz-Ramirez, the “attempted sexual battery” was the current offense, not the previous offense, but, given the structure of the statute, the analysis is the same.


text:
    Clarence WHEELER, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3471.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Christian Conrad of Christian Conrad, PLLC, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Clarence Wheeler, III, appeals his jury conviction for first-degree murder. Wheeler contends that the court erred by denying his motion to suppress his confession, given after he invoked his right to remain silent. For the reasons that follow, we agree with Wheeler and reverse and remand for a new trial.

Authorities suspected Wheeler of shooting and killing John Rivera during a drug deal on May 22, 2008. On May 30, 2008, authorities arrested Wheeler on a violation of probation warrant. After Homicide Detective Christopher Williams was informed Wheeler was in custody, Detective Williams interrogated Wheeler for thirty minutes. During the interrogation, the detective issued Miranda warnings to Wheeler, they discussed Wheeler’s girlfriend, and Wheeler requested to remain silent. Due to a recording error, the thirty-minute interrogation was not recorded.

Detective Williams returned to the interrogation room and began recording a subsequent interrogation. The detective inquired if he previously issued the Miranda warnings and attempted to re-record responses he elicited before Wheeler invoked his right to silence. Shortly into the recorded interrogation, Wheeler reinvoked his right to remain silent by saying he did not want to talk any more about the situation. Detective Williams attempted to press forward multiple times. Wheeler reiterated at least three times that he did not want to answer questions. At about 8:45 p.m., Detective Williams terminated the interrogation for a second time and left the interrogation room.

Wheeler remained in the interrogation room in possession of his mobile phone and attempted to call Ezekiel Harris, a mentor in the local community. Detective Williams confiscated Wheeler’s phone and, already familiar with the name and number, contacted Harris, who requested to come to the station. About two hours later, Harris came to the station, briefly conversed with Detective Williams, and asked to speak with Wheeler. Detective Williams consented and did not tell Harris what to say or do in the interview room. At around 7:00 p.m., Harris spoke with Wheeler in the interrogation room for about twenty-five minutes. Detective Williams asked to participate. Harris responded, “go ahead,” while Wheeler sat in silence.

In Wheeler’s presence, Detective Williams conversed with Harris and noted that Harris saw Wheeler in the location of the neighborhood on the day of the shooting. Detective Williams, with previous knowledge that the shooter was wearing a splint from an eyewitness’s statement, discussed Wheeler’s splint on his hand and asked Harris about it. At some point in the conversation, Detective Williams believed Wheeler wanted to talk and directed his questions toward Wheeler. At 9:45 p.m., Wheeler confessed.

After a person in custody has invoked his right to cease questioning, the admissibility of any subsequent statement depends on whether the right to remain silent was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Where the police interrogation ceased after invocation of the right to remain silent, as it did here, the analysis turns on which party — Detective Williams or Wheeler — reinitiated the dialogue. See State v. Hunt, 14 So.3d 1035, 1039 (Fla. 2d DCA 2009). To determine who reinitiated, this Court must look to whether a suspect’s question to police “evinced a willingness and a desire for a generalized discussion about the investigation [and] was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Often, it appears the party who reinitiates is the one who speaks first. See, e.g., O’Brien v. State, 56 So.3d 884, 888 (Fla. 1st DCA 2011).

Here, Wheeler did not ask a question or make a statement to the police after invoking his right to silence. Compare Pirzadeh v. State, 854 So.2d 740, 743 (Fla. 5th DCA 2003) (indicating that detective reinitiated by approaching suspect in jail after suspect invoked his Miranda rights), with Welch v. State, 992 So.2d 206, 214 (Fla.2008) (finding defendant reinitiat-ed after invoking Miranda by asking “What is going to happen to me now?” at water cooler). Unlike cases where the defendant asks a question to law enforcement, we find the custodial interrogation in this case resumed because the questions were designed to deliberately elicit an incriminating response.

Courts employ an objective test to determine whether police should know a statement is reasonably likely to evoke an incriminating response and, therefore, amount to interrogation. Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Here, the circumstances surrounding Detective Williams’ questions to Harris while Wheeler was in the interrogation room are those that an officer should know are likely to lead to an incriminating response. Detective Williams knew that Harris saw Wheeler with a splint on his hand and saw Wheeler in the area at the time of the murder. Furthermore, Detective Williams knew that the driver who escaped and reported the incident indicated the shooter had a splint on his hand. Finally, this was the same line of questioning from which Wheeler indicated he did not want to answer further questions earlier in the day. Detective Williams’ testimony at the suppression hearing did not support any reason why Wheeler wanted to continue the interrogation other than a conclusory statement that Wheeler was reengaging.

To determine whether Wheeler’s right to remain silent was scrupulously honored after Detective Williams reinitiat-ed, we examine:

(1) whether the suspect was informed of his or her Miranda rights at the outset of each interrogation, (2) whether the police immediately ceased questioning after the suspect invoked the right, (3) whether there was a sufficient lapse of time between the invocation of the right and the resumption of questioning, (4) whether questioning resumed at a different location, and (5) whether the two rounds of questioning concerned different crimes.

Hunt, 14 So.3d at 1039 (citing Mosley, 423 U.S. at 106, 96 S.Ct. 321).

We find that the circumstances, in totality, show Wheeler’s invocation was not scrupulously honored. Detective Williams did not readminister the Miranda, warnings before the interrogation with Harris in the room. Furthermore, Detective Williams did not immediately cease questioning during the recorded interrogation after Wheeler’s request. To persuade Wheeler to continue with questioning around 3:45 p.m., Detective Williams attempted an appeal to: (1) the type of questions — yes or no; (2) whether it is wrong to answer the questions; (3) the simplicity of the questions; (4) the fact that they had previously been answered; (5) whether Wheeler was going to act like a man; and (6) whether Wheeler was mad at Detective Williams. The questioning in the present case occurred in the same location where Wheeler previously invoked — the interrogation room. The record does not indicate Wheeler spent any time anywhere other than the interrogation room for seven hours before he confessed. Furthermore, the interrogation concerned the same crime and resumed with conversations about the splint — the same line of questioning Wheeler requested to cease earlier in the day.

Accordingly, we hold the trial court erred when it denied Wheeler’s motion to suppress his confession because Wheeler’s right to remain silent was not scrupulously honored and, therefore, was violated.

REVERSED and REMANDED for a new trial.

TORPY and EVANDER, JJ„ and JACOBUS, Senior Judge, concur.

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

      . We note that in certain circumstances, the lapse of time between Wheeler's recorded invocation of his right to remain silent at 3:45 p.m. and Detective Williams’ reengaging at approximately 7:30 p.m. may be sufficient. However, in the present case, the other factors guide our judgment.


text:
    Herman DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3928.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Herman Davis appeals his convictions for possession of a controlled substance and possession of drug paraphernalia. We affirm these convictions without further comment.

Davis also appeals the circuit court’s judgment adjudicating him guilty of a civil traffic infraction arising from the same incident that led to the criminal charges. Davis contends that the circuit court did not have jurisdiction to consider the civil traffic infraction. The State offers no argument to the contrary.

The circuit court’s jurisdiction in this matter was limited to the felony and any misdemeanor that arose from the same incident. See § 26.012(2)(d), Fla. Stat. (2012). Section 26.012(2)(d) does not grant authority to the circuit court to consider the civil traffic infraction, even though the infraction arose from the same circumstances as the charged felony. Consequently, we vacate the judgment adjudicating Davis guilty of the civil traffic infraction and imposing fines.

AFFIRMED in part; VACATED in part.

ORFINGER, C.J., PALMER and TORPY, JJ., concur.


text:
    Jonathan DISSTON, Appellant, v. Shelbey HANSON, Appellee.
    No. 5D12-4026.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Joseph C. Knape, of The 850-Call-Joe Law Firm, PA, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Jonathan Disston appeals a domestic violence injunction against him in favor of his former live-in girlfriend, Shelbey Hanson. Because there is competent substantial evidence in the record to support the injunction, we affirm. While the evidence was in sharp contrast, the credibility of the witnesses is within the trial court’s exclusive purview. We cannot reweigh the evidence. See Oliva v. Unemployment Ap peals Comm’n, 63 So.3d 890, 891 (Fla. 5th DCA 2011).

AFFIRMED.

ORFINGER, C.J., EVANDER, J., and JACOBUS, Senior Judge, concur.


text:
    Jennifer MULLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-519.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Jennifer Muller, Quincy, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. ll-CF-2314 and 11-CF-2230, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, TORPY, JJ„ and JACOBUS, Senior Judge, concur.


text:
    Jessie J. CADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-892.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Jessie J. Cade, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (stating that tipsy coachman doctrine allows an appellate court to affirm a ruling by the trial court that reached the right result, but for the wrong reason).

ORFINGER, C.J., PALMER and COHEN, JJ„ concur.


text:
    Robert A. DIVELY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2078.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Robert A. Dively, Crawfordville, pro se.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 15, 2012, denial of petitioner’s rule 3.850 motion, filed in Case No.2009-CF-5267, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER, EVANDER, JJ., concur.