author: LABARGA, C.J. POLSTON, J.,

text:
    Thomas DAUGHERTY, Petitioner, v. STATE of Florida, Respondent.
    No. SC14-860
    Supreme Court of Florida.
    [January 19, 2017]

      Donna Duncan and Steven Lauren Seli-ger of Sanders and Duncan, P.A., Apalachicola, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Consiglia Terenzio, Bureau Chief, and Jeanine Marie Germanow-icz, Assistant Attorney General, West Palm Beach, Florida; and Kristen Lynn Davenport, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   LABARGA, C.J.

Thomas Daugherty seeks review of the decision of the Fourth District Court of Appeal in Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012). Daugherty cited as authority the district court decisions in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), rev. granted, 61 So.3d 410 (Fla. 2011) (table), and Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla. 2011) (table), both of which were reversed by this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Upon review, we quash the decision of the district court and hold that where a defendant is convicted of second-degree murder after the jury is erroneously instructed on the lesser included offense of manslaughter by act, the one step removed analysis to determine fundamental error is not based on the order of the offenses on the verdict form. Rather, because manslaughter as a matter of degree is a next lesser offense of second-degree murder, giving an erroneous instruction on manslaughter by act constitutes fundamental error even if manslaughter is not listed immediately below second-degree murder on the verdict form. In this case, the error caused by a faulty instruction on manslaughter by act was not cured by the jury’s consideration of other offenses that were also one step removed. Thus, we remand this case with instructions that Daugherty be granted a new trial for the homicide of Norris Gaynor.

Additionally, because the jury convicted Daugherty of attempted second-degree murder after being erroneously instructed on attempted voluntary manslaughter, we remand this case with instructions that Daugherty be granted a new trial for the attempted homicides of Jacques Pierre and Raymond Perez.

FACTS AND PROCEDURAL BACKGROUND

Daugherty was convicted of one count of second-degree murder and two counts of attempted second-degree murder. These convictions stemmed from a series of three separate events during the early morning hours of January 12, 2006, when Daugherty and two codefendants beat three homeless men in Fort Lauderdale. Victim Norris Gaynor died from his injuries hours after the attack. Victims Jacques Pierre and Raymond Perez survived their injuries. Daugherty was seventeen years old at the time of the crimes.

At trial, multiple witnesses, including co-defendant William “Billy” Ammons, testified that Daugherty was present during the attacks on each victim. Ammons testified that after smoking marijuana and drinking at his home during the early morning hours of January 12, 2006, he, Daugherty, Brian Hooks, and Joey Griffith decided to ride to the beach. Ammons was the driver. While in the vicinity of Florida Atlantic University, either Daugherty or Hooks suggested that they “mess with” a man they saw sitting on a bench. All agreed, and Ammons parked his vehicle. Daugherty and Hooks took baseball bats with them and approached the man (Jacques Pierre). Daugherty and Hooks swung their bats at Pierre. Ammons testified that Daugherty’s swing missed Pierre, while Hooks hit Pierre in the shoulder. Immediately afterwards, Ammons, Daugherty and the others ran back to Ammons’ vehicle. The attack on Pierre was captured on surveillance video.

The group returned to Ammons’ home and began smoldng more marijuana and drinking. Each agreed to go out again and find another victim. While en route to another location, they rode past the location where they attacked Pierre and saw yellow crime tape. Ammons parked near the local performing arts center, and Hooks and Daugherty went in search of another person to attack. The group approached a man (Norris Gaynor) who was laying on a bench. Daugherty hit Gaynor in the head with a baseball bat while Ammons, who was armed with a paintball gun, fired it multiple times. Daugherty and Hooks ran away, but they reapproached Gaynor after seeing him try to get up from the bench. Hooks hit Gaynor with a rake and Daugherty again hit Gaynor with the bat.

Ammons .and Griffith left the area without Daugherty and Hooks, but later met up with them. They- all returned to Ammons’ home, and Griffith eventually departed from the others. Ammons, Daugherty, and Hooks continued to smoke marijuana and drink alcohol, after which they left Ammons’ home in search of a third person to attack. Hooks, who was driving this time, parked his vehicle and retrieved a golf club and a play sword -from inside the vehicle. Hooks gave Ammons the sword. Daugherty was armed with a baseball bat. The three started walking toward one man with the intent to attack him. However, they were distracted by another man, Raymond Perez, who was laying on the ground under a blanket. The three ran toward Perez. Ammons began hitting him with the sword, and Daugherty hit him with the bat. Perez started yelling, and the three ran away -and returned to ■ Ammons’ home.

Pierre and Perez suffered serious injuries but survived. Gaynor died from blunt force trauma several hours after the attack, despite being treated in an emergency room. Gaynor suffered five cracked ribs,’ as well as skull and facial ’fractures, internal bleeding, swelling, and cuts and bruises. His eyes and lips were swollen, his forehead was cut and bruised, and his nose was broken. The part of his brain beneath the fractured skull area was crushed and cut in the front. Gaynor’s face was also extensively fractured above his eyes. '

Daugherty and Hooks were both charged with one count of first-degree murder and two counts of attempted first-degree. murder. The .two defendants were tried together. Ammons pled guilty to third-degree murder and testified at the joint trial. In addition to an instruction on the charged offense of first-degree murder, Daugherty’s jury also received instructions on the lesser included, offenses of second-degree murder, third-degree felony murder, manslaughter, and aggravated battery, respectively. The manslaughter instruction contained not only the required instruction on manslaughter by act, but also a permissive instruction on manslaughter by culpable negligence. The instruction on manslaughter by act was consistent with the instruction later deemed fundamentally erroneous in this Court’s decision in State v. Montgomery, 39 So.3d 252 (Fla. 2010).

On appeal, Daugherty challenged his convictions. With respect to his conviction for second-degree murder, Daugherty argued that the faulty instruction on the lesser included offense of manslaughter by act constituted fundamental error. The parties also disputed whether the jury’s consideration of manslaughter by culpable negligence remedied the fundamental error caused by the manslaughter by act instruction.

The district court declined to conduct a fundamental error analysis. Instead, the court concluded that a harmless -error analysis applied because the lesser included offense of third-degree felony murder was placed on the verdict form between second-degree murder and manslaughter. According to the district court, as a result of the layout of the verdict form, the offense of manslaughter was two steps removed from the second-degree murder offense of which Daugherty was convicted. The court explained:

Even without considering that the jury received the manslaughter by culpable negligence instruction, we find that there is an independent reason why giving the manslaughter instruction, as a lesser included offense of the murder charge, was not fundamental error in this case. As our supreme court has explained, “When the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena v. State, 901 So.2d 781, 787 (Fla. 2005). Here, because the jury was also instructed on the lesser included offense of third-degree felony murder, manslaughter was actually two steps removed from second-degree murder under the facts of this case. See Echols v. State, 484 So.2d 568, 574 (Fla. 1985) (holding that manslaughter was a lesser included offense that was three steps removed from first degree murder where the jury, if inclined to exercise its “pardon” power, could have returned verdicts of second-degree or third-degree murder). If the jury had been inclined to exercise its pardon power, it could have returned a verdict of third-degree felony murder, which was the next lower crime on the verdict form; the evidence in this case would have supported a conviction for third-degree felony murder. We conclude that the error in the manslaughter by act instruction was harmless and did not constitute fundamental error.

Daugherty, 96 So.3d at 1078. Thus, the court concluded that Daugherty was not entitled to relief because the erroneously instructed crime of manslaughter did not immediately follow the offense of conviction, second-degree murder, on the verdict form, but was instead preceded by third-degree felony murder.

The district court affirmed Daugherty’s convictions. However, in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding unconstitutional mandatory sentences of life imprisonment without parole for juvenile offenders), it reversed Daugherty’s sentence of life imprisonment for second-degree murder. Additionally, the court certified “conflict with the contrary decisions of the other districts” regarding the attempted manslaughter instruction. Because it required the jury to find that the defendant intended to cause the death of the victim, it contained the same flaw as the manslaughter by act instruction. Daugherty 96 So.3d at 1079. In November 2012, Daugherty was resentenced to forty years in prison on the second-degree murder conviction.

ANALYSIS

Daugherty, who was convicted of second-degree murder, contends that he is entitled to relief because the jury instruction on the lesser included offense of manslaughter by act erroneously required that the jury find he intended to kill Gaynor. Daugherty argues that giving the erroneous instruction on manslaughter by act, an offense that is one step removed from second-degree murder, constituted fundamental error. In the proceedings below, the district court evaluated the error caused by the faulty manslaughter by act instruction. However, the court concluded the instruction did not constitute fundamental error because according to the layout of the verdict form, manslaughter was not one step removed, but rather, two steps removed from second-degree murder. Daugherty also asserts that his convictions for attempted second-degree murder are invalid because the jury instruction for the lesser included offense of attempted voluntary manslaughter, an offense one step removed from the offenses of conviction, improperly required the jury to find that he intended to cause the death of victims Pierre and Perez.

As we explain below, we disagree with the district court’s analysis of what constitutes a step removed. We therefore quash the decision of the Fourth District Court of Appeal and remand for a new trial on the homicide count. We further conclude that the instructions on attempted voluntary manslaughter constituted fundamental error and similarly remand for a new trial on those counts. We first address Daugherty’s conviction for second-degree murder.

Second-Degree Murder

State v. Montgomery

The erroneous manslaughter by act instruction in Daugherty’s case is consistent with that given in Montgomery, 39 So.3d 252. In Montgomery, the defendant was tried for first-degree premeditated murder, but was convicted of second-degree murder. The jury was instructed on first-degree murder and the required lesser included offenses of second-degree murder and manslaughter by act. On the verdict form, the charged offense of first-degree murder was listed first, followed by second-degree murder, and then manslaughter. Montgomery’s jury was properly instructed as to both first-degree and second-degree murder. However, at the time of the trial, the standard jury instruction on manslaughter by act erroneously required the State to prove that one, the victim was dead, and two, that the defendant “intentionally caused the death of [the] (victim).” Fla. Std. Jury Instr. 7.7 (2006). The jury was additionally instructed that: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.” Montgomery, 39 So.3d at 256 (quoting Fla. Std. Jury Instr. 7.7 (2006)). Montgomery did not preserve the error with an objection at trial.

Florida’s manslaughter statute, set forth in section 782.07, Florida Statutes (2005), “does not impose a requirement that the defendant intend to kill the victim.” Id. at 256. Guided by this statute, this Court concluded:

Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim. Thus, we conclude that under Florida law, the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.

Id.

After clarifying that under Florida law, the crime of manslaughter by act does not require the intent to kill, this Court evaluated the jury instruction given and concluded that the language “intentionally caused the death of (victim)” erroneously required the jury to find intent in order to convict Montgomery of manslaughter: “We agree with the district court’s observation ... that a reasonable jury would believe that in order to convict Montgomery of manslaughter by act, it had to find that he intended to kill [the victim].” Id. at 257. This Court further concluded that the additional language “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death” was “insufficient to erode the import of the second element: that the jury must find that the defendant intended to cause the death of the victim.” Id,

Having concluded that the crime of manslaughter by act did not require the intent to kill, and that the then-standard jury instruction erroneously required such a finding, the remaining inquiry in Montgomery was whether the giving of the erroneous instruction amounted to fundamental error. See id. at 257-58 (“Because Montgomery did not contemporaneously object to the manslaughter instruction, we apply a fundamental error analysis here.”). This Court explained that fundamental error could only occur where the erroneous instruction “was ‘pertinent or material to what the jury must consider in order to convict.’ ’’ Id. at 258 (quoting State v. Delva, 575 So.2d 643, 645 (Fla. 1991)). This Court further observed that manslaughter, a next lesser offense of second-degree murder, was one step removed from second-degree murder, and we evaluated the relationship between second-degree murder and manslaughter by act as follows: “If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Id. at 259 (quoting Pena v. State, 901 So.2d 781, 787 (Fla. 2005)). In sum, Montgomery was convicted of second-degree murder after the jury was erroneously instructed on the next lesser offense of manslaughter (a crime one step removed from second-degree murder), and the erroneous instruction was pertinent and material to what the jury had to consider in order to convict. Thus, the erroneous instruction constituted fundamental error.

Daugherty’s Manslaughter Instruction

Like defendant Montgomery, Daugherty was convicted of second-degree murder after the jury was erroneously instructed on manslaughter by act. Daugherty’s jury received the following instruction:

As to Count one in the Indictment, before you can find Thomas Daugherty to be guilty of the lesser included crime of manslaughter, the State must prove the following elements beyond a reasonable doubt. One, Norris Gaynor is dead. Two, Thomas Daugherty intentionally caused the death of Norris Gaynor, or the death of Norris Gaynor was caused by the culpable negligence of Thomas Daugherty.
* * *
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

While Montgomery and Daugherty were both convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter by act, there is a significant distinction between the two cases. In Daugherty, in addition to first-degree murder, second-degree murder, and manslaughter, the jury was also instructed on the lesser included offense of third-degree felony murder. For the district court, this distinction was outcome-determinative because of the order in which the lesser included offenses were listed on the verdict form.

This Court has explained that when drafting a verdict form, “[t]he charged crime should be followed on the verdict form by the determined lesser included offenses in descending order by degree of offense.” Sanders v. State, 944 So.2d 208, 207 (Fla. 2006). Lesser included offenses in Florida are divided into two categories: category one and category two. Category one lesser included offenses are required lesser included offenses on which the jury must be instructed. Second-degree murder (a first-degree felony), and manslaughter by act (a second-degree felony), are the category one lesser included offenses of first-degree murder. In addition to the category one, required lesser included offenses of first-degree murder, there are more than one dozen category two, permissible lesser included offenses. This Court has explained:

... when the commission of one offense always results in the commission of another, the latter offense is a category-one necessarily lesser included offense. If the lesser offense has at least one statutory element not contained in the greater, it cannot be a category-one necessarily lesser included offense. However, such a lesser offense may be a category-two permissive lesser included offense if its elements are alleged in the accusatory pleading and proven at the trial.

Taylor v. State, 608 So.2d 804, 805 (Fla. 1992) (citing State v. Weller, 590 So.2d 923 (Fla. 1991)). Third-degree felony murder is a category two lesser included offense of first-degree murder.

In Montgomery, the jury received instructions only on the category one lesser included offenses. Thus, the verdict form listed, in descending order of offenses: first-degree murder, then second-degree murder, then manslaughter, which are each progressively less severe in terms of degree. In Daugherty, while the jury was instructed on the category one lesser included offenses, the trial court also instructed the jury on the category two lesser included offense of third-degree felony murder.

This Court has consistently observed that manslaughter, a next lesser included offense of second-degree murder, is one step removed from second-degree murder. It is this relationship between the two offenses that undergirds this Court’s conclusion that the erroneous manslaughter instruction in Montgomery constituted fundamental error. However, this Court has previously concluded that third-degree felony murder—which, like manslaughter, is also a second-degree felony—is also one step removed from second-degree murder. See Herrington v. State, 538 So.2d 850, 851 (Fla. 1989). “Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jury instruction to that effect.” Green v. State, 475 So.2d 235, 236 (Fla. 1985).

One Step Removed

In determining whether the erroneous manslaughter instruction constituted fundamental error in Daugherty, the district court’s analysis focused on the order in which the lesser included offenses were listed on the verdict form. The court concluded that because the jury was infetruct-ed on third-degree felony murder, and because third-degree felony murder was placed on the verdict form between second-degree murder and manslaughter, manslaughter was not one step but was, instead, two steps removed from second-degree murder. Thus, the district court’s determination of whether a lesser included offense was one step removed from the offense of conviction was based solely on where the lesser included offense is listed on the verdict form. Applying this reasoning, had the verdict form listed second-degree murder, then manslaughter, then third-degree felony murder, Daugherty would have been entitled to relief. This reasoning cannot stand, as it would lead to disparate results from case to case.

We acknowledge that what constitutes a step removed has never been clearly defined. Historically, the cases that have come before this Court have not required a determination of what a step removed means. Because these cases involved lesser included offenses that were each progressively lesser than one another in terms of severity, their placement on the verdict form was consistent with that hierarchy. Thus, whether the interpretation of a step removed was based on: (1) the degree of the lesser included offense relative to the degree of the offense of conviction, or (2) the location of the lesser included offense on the verdict form relative to the location of the offense of conviction, the result was the same.

Here, however, this Court is confronted with a situation where there are multiple lesser included offenses of the same degree—manslaughter by act and third-degree felony murder. Thus, we must clarify what constitutes a step removed in order to evaluate whether Daugherty is entitled to relief. We must decide whether the fundamental error caused by the erroneous instruction on the lesser included offense of manslaughter—a next lesser offense of second-degree murder—can occur only when manslaughter is listed immediately below second-degree murder on the verdict form.

Daugherty argues that because third-degree felony murder and manslaughter are both second-degree felonies, the fact that third-degree murder separated second-degree murder and manslaughter on his verdict form should not deprive him of relief. We agree. The district court’s interpretation of what constitutes a step removed improperly focused on the appearance of the verdict form and based a defendant’s entitlement to relief on an arbitrary set of circumstances—which lesser included offense is listed first when drafting the verdict form. Wé conclude that the determination of what constitutes a step removed is not based on the layout of the verdict form, but rather, the relationship between the offense of conviction and the erroneous lesser included offense instruction.

Manslaughter, a second-degree felony, is a next lesser offense of second-degree murder. However, as we previously observed in Herrington, so is third-degree felony murder (also a second-degree felony). Daugherty’s jury was instructed on multiple next lesser included offenses of the same degree of severity, and Daugherty was entitled to a proper instruction on each. The placement of third-degree felony murder on the verdict form did not, by mere virtue of its location between second-degree murder and manslaughter, remedy the error caused by the faulty manslaughter instruction. To conclude otherwise would leave to mere chance a defendant’s entitlement to relief based on how the verdict form is fashioned.

Daugherty’s Case and Fundamental Error

Jury instructions are subject to the contemporaneous objection rule. In the absence of an objection at trial, a challenge can be raised on appeal only if fundamental error occurred. See Delva, 575 So.2d at 644. When evaluating fundamental error, there is a difference “between a disputed element of a crime and an element of a crime about which there is no dispute in the ease.” Reed v. State, 837 So.2d 366, 369 (Fla. 2002). “In other words, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ ” Id. at 370 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982)).

In the present case, where Daugherty was indicted and tried for first-degree murder and convicted of second-degree murder, we conclude that the issue of intent was pertinent or material to what the jury had to consider in order to convict. The problem with the manslaughter instruction was that it erroneously required a finding of intent. Indeed, “[a] homicide found to be unlawful is not automatically just one offense, but will be one of several possible homicide offenses depending upon the nature of the intent or the lack of any intent at the time of the homicide.” Griffin v. State, 160 So.3d 63, 68 (Fla. 2015).

“As we have explained, where the erroneous instruction pertains to an element that is material to the jury’s deliberation and is in dispute, fundamental error occurs, as our precedent indicates, if that offense is one step removed from the crime for which the defendant is convicted.” Haygood, 109 So.3d at 742 (emphasis added). “The result of incorrectly instructing on a necessarily lesser included offense ... is that the jury is deprived of all the tools it needs to reach a proper verdict in the case before it.” Id. at 743. Thus, fundamental error occurred where Daugherty was convicted of second-degree murder, intent was an issue at trial, and the instruction on manslaughter by act, an offense one step removed from second-degree murder, was pertinent or material to what the jury had to consider to convict.

What remains to be determined is whether the fundamental error caused by the faulty manslaughter by act instruction was cured by the giving of either the third-degree felony murder instruction or the culpable negligence instruction. These offenses—like manslaughter by act—are one step removed from second-degree murder. We conclude that in this case, where the record does not support a finding of culpable negligence, and the jury instruction on third-degree felony murder prevented the jury from a full and accurate consideration of that offense, it was not cured.

Manslaughter by Culpable Negligence

“Every case of manslaughter by culpable negligence must be determined upon the facts and circumstances peculiar to it.” Scarborough v. State, 188 So.2d 877, 877 (Fla. 2d DCA 1966) (citing Fulton v. State, 108 So.2d 473 (Fla. 1969)). “There is nothing mystical about culpability. It comprehends blame, censure or some aspect of erratic conduct.” Fulton, 108 So.2d at 475.

The culpable negligence instruction provided that in failing to act reasonably towards others, Daugherty must have been without any conscious intention to harm. Although Daugherty challenged whether he intended to kill Norris Gaynor, no reasonable jury could conclude that Daugherty lacked a conscious intention to harm when he hit Gaynor with a baseball bat. Daugherty’s intentional conduct of seeking a victim to attack with a baseball bat belies the very concept of negligence. Thus, the evidence in Daugherty’s case does not support a finding of manslaughter by culpable negligence. It does, however, support a finding of manslaughter by act— that Daugherty intended to commit an act that caused Gaynor’s death—which further underscores the harm caused by the erroneous manslaughter by act instruction.

Third-Degree Felony Murder

Moreover, given the circumstances of this case, the wording of the third-degree felony murder instruction would have prevented the jury from convicting Daugherty of third-degree felony murder. Consequently, the giving of the instruction did not remedy the fundamental error caused by the faulty manslaughter by act instruction.

Daugherty’s jury was instructed on third-degree felony murder, with aggravated battery as the underlying felony. Third-degree felony murder is a “catchall” felony murder crime, in that it may be based on any felony other than those enumerated in section 782.04, Florida Statutes. Aggravated battery is not one of the enumerated felonies, and as such, may form a basis for a conviction of third-degree felony murder.

While it appears that the jury could have reasonably found beyond a reasonable doubt that the facts supported the underlying felony of aggravated battery, the wording of the then-standard jury instruction on third-degree felony murder, “the death occurred as a consequen[ce] of and while Thomas Daugherty was engaged in the commission of aggravated battery” would have prevented the jury from so finding based on the evidence presented. Given this instruction, á jury could reasonably conclude that Daugherty could only be guilty of third-degree felony murder if Gaynor died during the attack. Gaynor did not die until hours after the attack and after seeking medical attention. Thus, the wording of this instruction would have prevented the jury from convicting Daugherty of third-degree felony murder. In fact, the standard jury instruction on third-degree felony murder was revised in 2014 in a manner that rectified this very concern and more accurately captured the State’s burden of proof. The current instruction now reads: “While engaged in the commission of a[n] (felony alleged), [ (defendant) ] [ (defendant’s accomplice) ] caused the death of (victim).” In re Std. Jury Inst, in Crim. Cases—Report No. 2013-03, 146 So.3d 1110 (Fla. 2014); Fla. Std. Jury Instr. (Crim.) 7.6 (2014).

Because the evidence would have supported a conviction of the properly instructed offense of manslaughter by act, the record does not support a conviction of manslaughter by culpable negligence, and the wording of the third-degree felony murder instruction prevented a full and accurate consideration of that lesser included offense, the jury was deprived of the tools necessary to reach a proper verdict on the homicide count. Daugherty is entitled to a new trial for the homicide of Norris Gaynor. We now turn to Daugherty’s convictions for attempted second-degree murder.

Attempted Second-Degree Murder

Daugherty was tried for two counts of attempted first-degree murder and was convicted of attempted second-degree murder on both counts after the jury was erroneously instructed on the lesser included offense of attempted voluntary manslaughter. Daugherty’s intent was in dispute. The jury instruction was consistent with the language that this Court deemed erroneous in Williams v. State. 123 So.3d 23 (Fla. 2013). In Williams, this Court held that the attempted voluntary manslaughter instruction, which also required the jury to find that the defendant intended to cause the death of the victim, constituted fundamental error where it was one step removed from the offense of conviction, and intent was disputed at trial. Id. at 30. The State argues that Daugherty is not entitled to relief because the jury was also instructed on the lesser included offense of aggravated battery. We disagree. “Simply stated, the defendant is entitled to an accurate instruction on the charged offenses and all lesser included offenses, and when the defendant is convicted of a crime not more than one step removed from the crime for which an erroneous instruction is given, fundamental error occurs if the instruction pertains to a disputed element of the crime.” Id. at 29. Daugherty is entitled to a new trial on these counts.

CONCLUSION

Fundamental error occurred as to each count charged in this case. Accordingly, we quash the decision in Daugherty and remand to the district court with instructions that Daugherty be granted a new trial on all counts.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur.

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

POLSTON, J.,

dissenting.

Because I do not believe fundamental error occurred, I would approve the Fourth District’s decision. See Haygood v. State, 109 So.3d 735, 746-52 (Fla. 2013) (Canady, J., dissenting).

CANADY, J., concurs.

      . See Haygood v. State, 109 So.3d 735 (Fla. 2013); Williams v. State, 123 So.3d 23 (Fla. 2013).

      . On the facts of this case, the jury should not have been allowed to consider aggravated battery as a non-homicide lesser included offense of first-degree murder. See Martin v. State, 342 So.2d 501, 503 (Fla. 1977) (stating that "we hold that where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide.”), superseded on other grounds by Fla. R. Crim. P. 3,490, While an instruction on a non-homicide lesser included offense may be permissible where there is evidence of an intervening cause of death, no such evidence exists here.

      . Since this Court issued Montgomery, the standard jury instruction has been amended to clarify the intent required for a conviction of manslaughter by act.

      . The standard jury instruction on attempted voluntary manslaughter was amended to remove the faulty intent language. Moreover, because the manslaughter statute does not define manslaughter as voluntary/involuntary, the jury instruction was renamed “attempted manslaughter by act.” See In re Amends, to Std. Jury Instrs. in Crim. Cases—Instr, 6.6, 132 So.3d 1124 (Fla. 2014).


source: Caselaw Access Project

author: PERLMAN, SANDRA J., Associate Judge.

license: Public Domain

text:
    PALM BEACH FLORIDA HOTEL and Office Building Limited Partnership, a Delaware limited partnership, Ashford TRS Lessee II, LLC, a Delaware limited liability company, Remington Lodging & Hospitality, LLC, a Delaware limited liability company, and Remington Lodging & Hospitality, LP, a Delaware limited partnership, Appellants, v. NANTUCKET ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 4D14-3450
    District Court of Appeal of Florida, Fourth District.
    [December 7, 2016]

      Elliot B. Kula and W. Aaron Daniel of Kula & Associates, P.A., Miami; and Timothy W. Schulz of Timothy W. Schulz, P.A., West Palm Beach, for appellants.
    Alan B. Rose and Gregory S. Weiss of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach; Dorothy F. Easley of Easley Appellate Practice, PLLC, Miami; and Patrick Ma-raist of the Maraist Law Firm, P.A., North Palm Beach, for appellee.
   PERLMAN, SANDRA J., Associate Judge.

Appellants, a collection of entities owning and operating a hotel (collectively referred to as “Landlord”), appeal from a final judgment holding Landlord liable for wrongful eviction and conversion. The central issue in this case is whether the trial court erred by directing a verdict in favor of the appellee, Nantucket Enterprises, Inc. (“Tenant”), on its claim for wrongful eviction. Landlord also appeals the damages awarded for -wrongful eviction and conversion. Tenant cross-appeals the trial court’s denial of prejudgment interest. We conclude that the trial court did not err in directing a verdict in Tenant’s favor. We further conclude that the wrongful eviction damages were based on competent substantial evidence. However, we reverse the award of conversion damages and the denial of prejudgment interest.

Tenant leased 20,281 square feet of space within an Embassy Suites Hotel from Landlord under the terms of a written lease agreement. The leased space was comprised of several distinct areas within Landlord’s hotel: (1) a restaurant area, lounge, and kitchen facility (8,730 square feet); (2) an atrium and gazebo (1,950 square feet); (3) a ballroom area (8,165 square feet); and (4) two boardrooms (1,436 square feet).

The parties’ lease provided that:

[I]f and whenever any Event of Default by Tenant shall occur, Landlord may after the continued Tenant default after the expiration of the time to cure ... at its option and without further written notice to Tenant, in addition to all other remedies given hereunder or by law or equity, do any one or more of the following: (i) terminate the Lease, in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord; (ii) enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant therefrom with or without having terminated the lease .... Landlord shall not be deemed to have violated any right of Tenant and shall not be deemed to be guilty of trespass, conversion or any other criminal or civil action as a resujt of such action.

Tenant began renovating the restaurant area but failed to acquire the correct building permits required by the City of Palm Beach Gardens. As a result, the City closed the restaurant and placed red tags on the doors, which indicated the restaurant was unsafe for occupancy. The same day, Landlord placed chains and locks on the doors to the kitchen area, the restaurant area, and Tenant’s back offices. A few days later, Landlord terminated the lease agreement and had the police escort Tenant’s employees from the restaurant. At that point, Tenant ceased to operate its business on the leasehold premises.

The parties filed multiple claims against each other. Ultimately, Landlord’s claim for breach of lease and Tenant’s claims for wrongful eviction and conversion were tried before a jury. During the trial, Tenant moved for a directed verdict on its wrongful eviction claim, arguing that Landlord improperly used self-help to lock Tenant out of the entire leased premises. The trial court entered a directed verdict, finding that Tenant was wrongfully evicted from the entire 20,281 square foot lease premises. Consequently, the jury was limited to a determination of damages, and awarded Tenant $8.8 million in damages on its wrongful eviction claim as well as $2 million on its conversion claim. The jury found in favor of Tenant on Landlord’s claim for breach of lease.

We write first to address Landlord’s argument that the lower court should not have entered a directed verdict in Tenant’s favor on the wrongful eviction claim.

A trial court’s ruling on a motion for directed verdict is reviewed de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999).

Landlord argues that the parties’ lease agreement authorized Landlord to engage in self-help. Section 83.06(2), Florida Statutes (2006), provides that:

(2) The landlord shall recover possession of rented premises only:
(a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined;
(b) When the tenant has surrendered possession of the rented premises to the landlord; or
(c) When the tenant has abandoned the rented premises.

(emphasis added).

Notably, the statute provides that a landlord may obtain possession of its leased premises only under the following conditions: (1) by court order granting a landlord possession; (2) when the tenant surrenders the premises to the landlord; or (3) when the tenant abandons the leasehold. See id. These are the “only” methods of recovering possession and it is undisputed that none of these methods occurred in this case. See Herrell v. Seyfarth, Shaw, Fairweather & Geraldson, 491 So.2d 1173, 1175 (Fla. 1st DCA 1986) (“The effect of the amendment to section 83.05 is to abrogate the landlord’s right to obtain possession—unless he files an action for possession under section 83.20, or other civil action—in every case in which the tenant remains on the premises after having been given the notice provided in section 83.20(2).”). Accordingly, Landlord was not entitled to use self-help even though it was authorized by the terms of the parties’ lease.

We likewise reject Landlord’s argument that its termination of the lease ended Tenant’s possessory interest in the leased premises. See Sheradsky v. Basadre, 452 So.2d 599, 603 (Fla. 3d DCA 1984) (stating that wrongful eviction is “a tort not dependent upon the existence of a valid ... lease”). Landlord’s termination of the lease did not serve to dispossess Tenant and relieve Landlord of its obligation to institute an action for possession and obtain a final determination that Landlord was entitled to possession.

Finally, in support of its argument that a directed verdict was improper, Landlord argues that the facts established only that Tenant was partially evicted because Landlord’s actions locked Tenant only out of the restaurant. Although the issue of whether a tenant can be “partially evicted” appears to be an issue of first impression in Florida, we need not address it here. The undisputed facts show Landlord asked the police to escort Tenant’s employees off of the leased premises without a court order. There was no evidence to support Landlord’s contention that it intended to allow Tenant to use that part of the leasehold beyond the restaurant, or that Tenant could still maintain its other business operations without the restaurant.

Next, we find that Landlord’s arguments as to the amount of damages awarded on the wrongful eviction claim to be without merit and affirm without further comment.

With regard to the damages on the conversion claim, Landlord argues the evidence did not support the jury’s $2 million award for conversion. Tenant responds that the jury could have based its award on the following: catering contracts worth $500,000; the newly remodeled space worth $1.7 million; exclusive food and beverage rights; various fixtures and personal property such as tables, chairs, and kitchen equipment; and food and liquor worth $45,000.

“Conversion is defined as ‘an act of dominion wrongfully asserted over, and inconsistent with, another’s possessory rights in personal property.’” Joseph v. Chanin, 940 So.2d 483, 486 (Fla. 4th DCA 2006) (quoting Goodwin v. Alexatos, 584 So.2d 1007, 1011 (Fla. 5th DCA 1991)). First, Landlord did not convert Tenant’s catering contracts because Landlord did not assert “dominion” over the catering contract. See id. Second, Landlord did not convert the newly remodeled space because real property cannot be converted. See Am. Int’l Land Corp. v. Hanna, 323 So.2d 567, 569 (Fla. 1975). Third, Landlord did not convert Tenant’s food and beverage rights because Tenant’s claim would be breach of contract, not conversion, and “an action in tort is inappropriate where the basis of the suit is a contract, either express or implied.” Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla. 4th DCA 1970). Finally, aside from the testimony that $45,000 of food and liquor had been converted, Tenant failed to offer any evidence as to the value of its fixtures and personal property when that property was converted. See Colangelo v. Stone Flex, Inc. of Fla., 551 So.2d 565, 566 (Fla. 4th DCA 1989) (reversing where the “record d[id] not contain evidence from which the court could determine the value at the time of the conversion of the items converted”).

For these reasons, we reverse the award of conversion damages. See Emerald Pointe Prop. Owners’ Ass’n v. Commercial Constr. Indus., Inc., 978 So.2d 873, 880 (Fla. 4th DCA 2008); see also Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (“Because there was no proof at trial under the correct measure of damages, we reverse the final judgment and remand for the entry of a judgment for the defendants.”). Granted, there was evidence that $45,000 in food and liquor was converted, but we nonetheless reverse because the general verdict form failed to indicate the jury awarded damages for the food and liquor. The Tenant may not now have a second opportunity to prove damages because its general verdict form combined what were in fact several distinct conversion claims. See Sheffield v. Superior Ins. Co., 800 So.2d 197, 202 (Fla. 2001) (“[A] party may not make or invite error at trial and then take advantage of the error on appeal.”) (citations omitted).

Finally, Tenant cross-appeals the lower court’s denial of prejudgment interest. Because this issue presents a pure issue of law, our review is de novo. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla. 2010).

“Florida has adopted the position that prejudgment interest is merely another element of pecuniary damages.” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla. 1985). “ ‘[I]t has long been the law in Florida that in contract actions, and in certain tort cases, once the amount of damages is determined, prejudgment interest is allowed from the date of the loss or the accrual of cause of action.’” Bosem, 46 So.3d at 46 (quoting Amerace Corp. v. Stallings, 823 So.2d 110, 116 (Fla. 2002) (Pariente, J., dissenting)).

In all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliquidated. ... [T]he plaintiff will not be fully compensated unless he receive, not only the value of what he has lost, but receive it as nearly as may be as of the date of his loss.

Id. (alteration in original) (quoting William B. Hale, The Law of Damages, § 67 (2d ed. 1912)). Where a party is entitled to prejudgment interest, the trial court is without discretion to deny it. See id. at 45.

In the present case, Tenant’s damages were “wholly pecuniary” and were “fixed” at the time of the wrongful eviction. See id. As such, Tenant was entitled to prejudgment interest and the trial court was without discretion to deny it.

In summary, we affirm the directed verdict and damages award for Tenant’s claim for wrongful eviction. However, we reverse the damages awarded for conversion. Finally, as to Tenant’s cross-appeal, we reverse and remand for a calculation of the prejudgment interest to be awarded.

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN and FORST, JJ., concur.

      . Appellants are Palm Beach Florida Hotel and Office Building, LP; Ashford TRS Lessee II, LLC; Remington Lodging & Hospitality, LLC; and Remington Lodging & Hospitality, LP.

      . The parties stipulated that no abandonment or surrender occurred.


author: Per Curiam.

text:
    Adbelaziz HAMZE, Appellant, v. Jermaine HALL, Appellee.
    No. 4D15-3126
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2016]
    René J. Murillo, Jacksonville, for appellant.
    Freeman A. Mark of Mei & Mark LLP, Boca Raton, for appellee.
   Per Curiam.

Having reviewed Appellant’s response to the Court’s order to show cause, this cause is sua sponte dismissed for lack of appellate jurisdiction. Appellant appeals the following trial court orders: an order granting Appellee’s motion to deem requests for admission admitted; an order denying Appellant’s motion to vacate default judgment; and an order granting Appellee’s motion for summary judgment as to liability. These orders do not, individually or together, dispose of all issues involved; in particular, we note that the issue of damages remains to be determined. See Canfield v. Cantele, 837 So.2d 371, 375 (Fla. 2002) (“A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary.”).

Relatedly, although an order granting summary judgment on liability alone is an interlocutory order, see Fla. R. Civ. P. 1.510(c), it is not an interlocutory order that may be independently appealed. See Fla. R. App. P. 9.130(a)(3) (listing non-final orders that are appealable to the District Courts of Appeal); see also Fla. Ins. Guar. Ass’n v. Murphy, 162 So.3d 1049, 1050 (Fla. 2d DCA 2015) (holding that an order granting summary judgment on liability where damages remained in dispute was not a final, appealable order). Furthermore, an order denying a motion to set aside a default judgment is not reviewable until a final judgment has been entered. Dawkins, Inc. v. Huff, 836 So.2d 1062, 1063-65 (Fla. 5th DCA 2003).

We therefore dismiss this case for lack of appellate jurisdiction, without prejudice for a timely appeal following the entry of an appealable final judgment or appealable non-final order under rule 9.130(a)(3).

Dismissed.

Levine, Forst and Klingensmith, JJ., concur.


text:
    Alexander Leo BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2844
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]
    Alexander Leo Brown, Live Oak, pro se.
    No appearance required for appellee.
   Per Curiam.

Alexánder Brown appeals the summary denial of his rule 3.850 motion for post-conviction relief. Without reaching the merits of Brown’s claim, we find that the motion was impermissibly successive because Brown has filed several prior rule 3.850 motions and he failed to allege good cause for his failure to assert the instant claim in his previous motions. See Fla. R. Crim. P. 3.850(h)(2). We therefore affirm the trial court’s summary denial of the motion.

Affirmed.

Ciklin, C.J., Gerber and Conner, JJ., concur.


author: Klingensmith, J.

text:
    Michael W. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2574
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Michael Allen (“appellant”) appeals the trial court’s revocation of his probation, and consequent prison sentence. Appellant alleges the court erred in finding that he violated his probation, and then violated his constitutional rights at sentencing when it required him to make an admission of guilt in exchange for a reduced sentence. Although there was sufficient evidence to support the court’s finding of a probation violation, we agree with appellant that his constitutional rights were violated during sentencing and reverse for a new sentencing hearing.

Following a motor vehicle accident, appellant was observed sitting in the driver’s seat of a car that crashed into a van. He was then observed exiting the car and walking away from the scene. Five minutes later, however, appellant was seen returning to his car and attempting to start it. After it failed to start, witnesses saw appellant exit the car and start to run, but bystanders detained him until police arrived.

Following this incident, the State filed a probation violation affidavit against appellant, claiming that he violated his probation by committing the criminal offense of DUI, refusing to submit to a DUI test, leaving the scene of a crash involving damage to property, and driving with a suspended license as a habitual traffic offender.

At the probation revocation hearing, a witness identified appellant as the same person she saw exiting the driver’s seat of the car after it crashed into her neighbor’s van. She testified that appellant was the only person sitting inside the car. Two police officers who later arrived on scene testified that they found appellant sweating profusely, his speech was slurred, and his eyes were glassy. A bottle of whiskey was found in the backseat of appellant’s car, and one officer noted that appellant had the odor of alcohol on his breath. That officer further testified that appellant’s normal faculties were impaired and he refused to submit to field sobriety exercises.

Appellant testified that his friend was driving the car and he was only a passenger when it crashed. He stated he could not open his door after the crash, so he waited and then exited the car through the driver’s side door before walking around. This is when, according to appellant, the bystanders started asking him questions until the police arrived. Appellant admitted that he smoked marijuana the night of the crash, but steadfastly denied he was the person driving the car.

Based on the testimony and evidence, the trial court found that appellant violated his probation. Then, as the court considered appellant’s sentencing, the following exchanges occurred:

THE COURT: Mr. Allen, I’m just telling you straight up right now. I’m going to max you out to the most it can be unless you tell me the truth right now. Run your mouth real well. You’re are [sic] very articulate.
One of the smartest most articulate defendants I’ve seen here in six months. You know how to spin a phrase, you know how to speak better than most lawyers in this courtroom. I’ve been listening. I have never seen anybody go toe to toe with [the prosecutor] as well [sic] you did.
Now, he scored a lot of points against you, but the fact of the matter is, you are a cool cucumber under pressure, and you know how to run your mouth. You’re articulate. You’re smart.
I’m telling you straight up, Fm going to max you out unless you tell me the truth. I’m not going to max you out if you come clean right now.
[COUNSEL]: Your Honor, before we get into that, may I just have a word with my client?
THE COURT: If he comes clean with me I’m going to shave some time off.
[COUNSEL]: I just want to explain the consequences of this.
THE COURT: I think he’s a smart man. You can do it, but he heard me straight up.
[COUNSEL]: Understood.
THE COURT: [Counsel], I don’t want you to have to sell him on anything. This has to be from his heart and he’s got to tell the truth. I want him to come clean. He comes clean, I’m going to shave some time off.
[COUNSEL]: I was just explaining the consequences for purposes of appeal if, for whatever reason he does admit to this. The different consequences.
[APPELLANT]: Your Honor, may I ask a question? Admitting to driving or driving under the influence.
[THE COURT]: I want the truth out of you, sir. If you testify to the truth right now. The truth is you were driving that car.
And you know you are in violation and you messed up. You relapsed on alcohol and pot. You were driving a car without a license.
The best is you’re doing your level best to try to weasel out of this. Just tell the truth about that. If you do, that’s your AA, 12 step program is the honesty program. It’s all about that. Tell the truth about that. And that’s my—in my way of thinking that’s worth something.
But if —so this is your last chance to have any kind of mitigation at all. You don’t have to do it. [Counsel] is right.
You can continue to beat that innocent drum and take an appeal, or you can admit now and tell the truth. And I’m going to shave some time off. I don’t know how much.
[APPELLANT]: May I please —
THE COURT: Not if you are going to piss on me and tell me it’s raining. I want the truth out of you.
[APPELLANT]: Yes, Your Honor.
THE COURT: Okay. Or say nothing.
[APPELLANT]: Yes, Your Honor. May I speak now?
THE COURT: One or the other.
THE COURT: Just say the truth. The truth will set you free.
THE COURT: It’s not going to set you free. I mean, it’s going to set you free from this torment you’re going through right now. You are going to prison, no matter what, the question is how long. Now, I’m going to shave more time off if you tell the truth. Were you driving that car or not?
[APPELLANT]: No, Your Honor I was not driving that car. I was not driving that car, Your Honor. I was in violation by being in contact with Debra.
I was in contact with the person that was a convicted felon. I know he had a gun. I know all these negative things. Yes, I did violate. But driving that car, Your Honor, no.
THE COURT: You tried to get in that car and start that car and drive off, didn’t you?
[APPELLANT]: No, Your Honor. No. No, Your Honor. No.
THE COURT: That’s your speech and you’re sticking to it?
[APPELLANT]: That car wasn’t going anywhere. It was done. Even if I thought about, my whole nose — that’s what I was going to say. May I speak? My nose was fractured. My whole mouth —
TIIE COURT: I understand. I heard that. What’s he score?

(Emphasis added).

Thereafter, when appellant’s counsel argued appellant should receive a reduced sentence because he had no history of substance abuse, the court responded, “I gave [appellant] an opportunity.” The court then sentenced him to four years imprisonment. This appeal followed.

We review a trial court’s decision on violations of probation for abuse of discretion. Ubiles v. State, 23 So.3d 1288, 1291 (Fla. 4th DCA 2010). “To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006). Here, there was sufficient evidence presented at the revocation hearing for the trial court to find that appellant was operating the car at the time of the accident. A witness testified that she heard the accident and saw appellant exiting the car from the driver’s seat. Although appellant testified someone else was actually driving the car, the “trial court, as the trier of fact, was free to weigh the conflicting evidence and reject defendant’s testimony as not credible.” Miller v. State, 661 So.2d 353, 355 (Fla. 4th DCA 1995).

Where a defendant asserts that the sentence imposed derived from a violation of constitutional rights, we review the trial court’s sentencing decision de novo. See Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008).

In determining whether appellant’s sentence was improperly influenced by his failure to admit guilt, we have considered the following: (1) appellant’s protestation of innocence after conviction, (2) the nature of the trial court’s attempt to secure an admission of guilt, (3) the degree of coercion used by the court to extract the admission, and (4) whether the court indicated either expressly or impliedly that an admission of guilt or remorse would result in better treatment or a reduced sentence. After considering these factors, we find that appellant’s sentence was improperly influenced by his unrelenting insistence of innocence.

In Holton v. State, 573 So.2d 284, 292 (Fla. 1990), the Florida Supreme Court explained that a trial court violates a defendant’s due process right against self-incrimination when it uses the defendant’s averment of innocence against him or her in sentencing:

A defendant has the right to maintain his or her innocence and have a trial by jury. Art. I, § 22, Fla. Const. The protection provided by the fifth amendment to the United States Constitution guarantees an accused the right against self-incrimination. The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase under article I, section 9 of the Florida Constitution.

Holton is in accord with a long line of cases decided by this court. See Davis v. State, 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) (holding that in imposing a sentence, “the trial court’s consideration of [the defendant’s] lack of remorse and failure to take ownership of his actions or apologize to the victims’ families constituted fundamental error”); Whitmore v. State, 27 So.3d 168, 172 (Fla. 4th DCA 2010) (ruling that fundamental error occurred when the court based its sentence on the defendant’s lack of remorse and refusal to accept responsibility); Donaldson v. State, 16 So.3d 314, 314 (Fla. 4th DCA 2009) (“[A]t sentencing the trial court expressly considered [the defendant’s] protestations of innocence and failure to show remorse in determining what sentence to impose. In so doing, the trial court violated [the defendant’s] due process right against self-incrimination.”); Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006) (“When a court predicates the length of a sentence on the defendant’s failure to show any inclination toward repentance, the court violates the defendant’s right not to be required to incriminate himself.”); Aliyev v. State, 835 So.2d 1232, 1234 (Fla. 4th DCA 2003) (“[T]he trial court could not impose a harsher sentence upon [the defendant] because he exercised his constitutional right to a jury trial, maintained his innocence, or failed to show remorse.”); Lyons v. State, 730 So.2d 833, 834-35 (Fla. 4th DCA 1999) (reversing sentence where court imposed lengthy sentence after defendant maintained his innocence and refused to answer court’s inquiry concerning where stolen property was located); Harden v. State, 428 So.2d 316, 317 (Fla. 4th DCA 1983) (“Where the court predicated the length of the sentence on the defendant’s failure to show any inclination toward repentance, which in ... context ... clearly meant failure to confess, the court violated the defendant’s right not to be required to incriminate himself.”).

Our sister courts have also consistently held that fundamental error occurs when the trial court expressly considers the defendant’s unwillingness to admit guilt as a factor in sentencing. See Williams v. State, 164 So.3d 739, 740 (Fla. 2d DCA 2015) (“When a sentencing court expressly considers the improper factors of a defendant’s assertions of innocence and refusal to admit guilt, the truthfulness of his testimony, or the failure to show remorse, fundamental error and a denial of due process occur.”); Mentor v. State, 44 So.3d 195, 196 (Fla. 3d DCA 2010) (reversing the defendant’s sentence because trial court considered the defendant’s protestation of innocence and lack of remorse in sentencing); Jiles v. State, 18 So.3d 1216, 1216 (Fla. 5th DCA 2009) (reversing the defendant’s sentence that was improperly based on defendant’s denial of involvement and failure to accept responsibility); Johnson v. State, 948 So.2d 1014, 1017 (Fla. 3d DCA 2007) (“[R]e-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence.”); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004) (“[I]t is constitutionally impermissible for [a sentencing court] to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.”).

Federal courts also prohibit trial judges from increasing a defendant’s sentence due to the defendant’s refusal to admit guilt after trial. Similarly to how the trial court in this case posed its ultimatum to appellant, the trial court in Thomas v. United States, 368 F.2d 941, 944 (5th Cir. 1966), insisted that the defendant in that case “come clean” at sentencing regarding his involvement in a bank robbery:

If you will come clean and make a clean breast of this thing for once and for all, the Court will take that into account in the length of sentence to be imposed. If you persist, however, in your denial, as you did a moment ago, that you participated in this robbery, the Court also must take that into account. Now which will it be?

When the defendant persisted in his claim of innocence, the trial court imposed the maximum possible sentence. Id. On appeal this was deemed improper, and the defendant’s sentence was reversed. Id. at 944-47.

Thus, it is well-established that trial courts are prohibited from penalizing a defendant for not admitting guilt at sentencing. This prohibition is designed to protect an individual’s right of appeal or prospects of post-conviction relief that might otherwise be jeopardized by rewarding a defendant’s admission of guilt following trial. Our legal system recognizes that even at the time of sentencing, a defendant has not been finally and irrevocably adjudged guilty. Several legal challenges to a conviction are still open to a defendant after adjudication, including the potential to move for a new trial, the opportunity to discover and present new evidence, and the right to pursue all avenues of appeal. Indeed, the appeal process is an integral part of the trial system for finally adjudicating the guilt or innocence of a defendant. Allowing a sentencing court to penalize a defendant for not admitting guilt after a conviction or adjudication would jeopardize various rights attached to these post-trial processes and chill a defendant’s right to remain silent.

A defendant’s rights are infringed when he or she is forced to make a choice to either remain silent at a sentencing hearing and risk that the court regard this silence as a failure to accept responsibility, or to make an incriminating statement upon the trial court’s prodding, or to falsely admit wrongdoing and risk a perjury conviction in hopes of securing a measure of leniency. Any defendant in such a situation is in a vulnerable position and faced with a Hobson’s choice. Even though a defendant has the option, and indeed the right to remain silent or maintain innocence, he or she may feel coerced under such circumstances to admit guilt, if for no other reason than to prevent receiving a harsher sentence.

While the evidence at the revocation hearing supported the allegation that appellant violated his probation, we must err on the side of protecting appellant’s constitutional rights with regard to the trial court fashioning an appropriate sentence. Here, the trial court repeatedly-threatened appellant with the maximum sentence unless he admitted guilt, while at the same time dangling the prospect of a reduced sentence if he “came clean.” Because the sentencing judge’s comments suggest that the sentence imposed was based on improper considerations, that sentence must be reversed even if it was not the maximum possible sentence that could have been given.

Accordingly, we affirm the trial court’s finding that appellant violated his probation, but reverse the sentence imposed and remand for new sentencing before a different judge. Donaldson, 16 So.3d at 314. Appellant is entitled to be present at the new sentencing hearing.

Affirmed in part, Reversed in part and Remanded.

Gerber and Levine, JJ., concur.

      . A Hobson's choice is a situation in which it appears that there are multiple options, but there is actually only one that is viable.


author: Warner, J.

text:
    Diamond Joneal ALLEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D15-2282 and 4D15-2400
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]

      Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Diamond Allen appeals an order revoking his probation. The trial court found that he had violated probation by changing his residence without informing his probation officer, fleeing and eluding law enforcement, committing burglary of a structure, and resisting arrest with violence. While we conclude that competent substantial evidence did not support finding him in violation for changing his residence, or resisting arrest with violence because the resistance, if any, was not against an officer but a police dog, we nevertheless affirm as it is apparent that the court would have revoked his probation even without those charges.

In 2013, Allen entered into a negotiated plea with the State, pled guilty to robbery with a firearm and burglary while armed with a firearm in one case, and pled guilty to dealing in stolen property and grand theft of a motor vehicle in another. Because he provided substantial assistance, adjudication was withheld, and he was sentenced to five years of probation in each case, running concurrently. Thereafter, a violation of probation (“VOP”) was filed in both cases. An agreed order was entered modifying his probation, and his probation was reinstated.

Subsequently, a new affidavit of VOP was filed in both cases, alleging as violations that he had changed his residence without the permission of his probation officer and that he failed to live at liberty without violating any law by committing the offenses of (1) resisting an officer with violence, (2) resisting an officer by fleeing and eluding a law enforcement officer, and (3) burglary of an unoccupied structure.

A hearing was conducted on the VOP. A Palm Beach County Sheriffs deputy testified that the deputies had obtained a warrant for Allen’s arrest for robbery, and the deputy had assisted in that arrest. Allen fled while the officers were trying to execute the arrest warrant. His vehicle was found crashed in a residential area, but he was not in it. A K-9 unit arrived, and the dog led police to the backyard of a nearby home. The officers spoke to the homeowner, who allowed them access to the fenced backyard containing a canopy tent structure. When the officer pulled up the tent’s tarp, he saw Allen sitting in a chair with his arms crossed. Allen refused several commands that he come out. The officer released the dog, and it took hold of Allen’s left leg to pull him out. The dog’s fangs were deep in Allen’s leg. As Allen was being pulled out of the tent, he was pushing on the dog’s head to get it off of his leg. The officer didn’t see Allen kick or punch the dog. The officer punched Allen several times in the head with a closed fist to get him to comply and handcuffed him. The dog then released Allen.

A probation officer testified to the facts of Allen’s violation for changing his address without notifying his probation officer. When Allen had been placed on probation, he was living at an address in Palm Springs. Allen did not show up to report for the month of September. The probation officer went to his address and knocked on the door, but no one answered. She went back to that address a few days later and looked through the wooden gate, which was locked. She could see the door, and it had a realtor’s lock (a lock box) on it. On cross-examination, the probation officer admitted that she was not a realtor and never went to the home again to see if Allen lived there. She never spoke to the owner from whom he had been renting the house. She spoke to Allen’s estranged wife, but the wife couldn’t tell the officer whether he had moved or not.

Allen’s counsel argued that Allen couldn’t be found to have resisted a law enforcement officer with violence because all Allen did was push the dog away from his leg. The court considered the dog as a substitute for the officer and found that Allen had violated probation by resisting with violence, as well as changing his residence, fleeing and eluding the officers, and burglary of a structure. The court revoked Allen’s probation and sentenced him on the charges for which he had been on probation, to twenty-five years on the robbery with a firearm charge, twenty-five years on the burglary with a firearm charge, fifteen years for dealing in stolen property, and five years for the grand theft of a motor vehicle. He appeals.

Allen argues that the trial judge erred in ruling that police dogs are the same as law enforcement-officers for purposes of resisting arrest with violence. Therefore, Allen could not be found to have resisted arrest with violence simply by pushing the dog’s head, as the court found. Section 848.01, Florida Statutes (2014), is entitled “Resisting officer with violence to his or her person” and states:

Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) ... personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree ....

§ 843.01, Fla. Stat.

Section 943.10, Florida Statutes, (2014), refers to “any person”- in defining who is. a police officer. § 943.10(1),,. Fla. Stat. A K-9 dog is not a person. Moreover, the statutes treat police dogs differently than, officers. Section 843.19, Florida Statutes (2014), provides that it is a third degree felony to cause great bodily harm, permanent disability or death to a police dog. § 843.19(2). Malicious touching, of a dog is categorized as a first degree misdemeanor. § 843.19(3), Fla. Stat. On the other hand, if those crimes are committed against a law enforcement officer, they have increased penalties. See § 775.0823, Fla. Stat. (2014). The plain meaning of section 843.01, Florida Statutes, compels a conclusion that this statute applies only to resisting persons, not animals. As noted in Bass v. State, 791 So.2d 1124, 1124-25, (Fla. 4th DCA 2000), “[t]he trial court is not correct that police dogs receive the same treatment as a police officer.”

. The State argues that the conviction of resisting arrest with violence could also be supported by evidence that Allen offered to do violence to the officers too, not just the dog. The State cites Wright v. State, 681 So.2d 852 (Fla. 5th DCA 1996), in which the court found that a defendant’s conviction for resisting a law enforcement officer with violence could be affirmed, because there was evidence that he struggled, kicked, and flailed his arms during the course of his apprehension. Id. at 853-54. However, we reject this argument as there is insufficient evidence that Allen struggled with or swung at a police officer, or took other action sufficient to show that he offered to do violence to the law enforcement officer. Moreover, the court made no such finding.

The court also found that Allen violated his probation by changing his residence without informing his probation officer. To sustain a violation of probation the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation. Mata v. State, 31 So.3d 257, 259 (Fla. 4th DCA 2010). There was insufficient evidence to support a finding that Allen had moved without his probation officer’s permission. When the officer came to the home the first time, no one answered the door. The second time she visited, she was stopped by a locked gate and could see a realtor’s lock on the door. She did not testify that the home was vacant or unfurnished. She did not call the owner, and her contact with Allen’s estranged wife did not provide any useful information as to whether he still lived at that address. A lock box does not necessarily mean that the renter no longer lives there. It may only have meant that a realtor was showing the house. Further, the fact that Allen was not present the two times the probation officer visited would not establish that he had moved. See Gary v. State, 987 So.2d 180, 181 (Fla. 2d DCA 2008) (“The fact that the probation officer did not find Gary at home when she visited did not prove that Gary had moved.”). The record does not contain competent substantial evidence to support this violation. Thus, the court erred in finding Allen had violated on this ground.

Nevertheless, we affirm the revocation of probation. In addition to the foregoing improper grounds for violation, the trial court found, and Allen does not challenge, violations based both on Allen’s act of fleeing and eluding police, as well as the burglary of a structure. When it is clear from the record that the trial court would have revoked based upon the proper grounds even without the improper grounds, this court need not reverse for reconsideration by the trial court. See McDoughall v. State, 133 So.3d 1097, 1100 (Fla. 4th DCA 2014). In sentencing Allen, the court did not even mention the charge of changing his residence without permission. The court focused on Allen’s multiple chances on probation, which he had previously violated, as well as his fleeing and eluding police who had a warrant for his arrest. Thus, we conclude that the court would have revoked Allen’s probation and entered the same sentence regardless of the improper grounds for violation.

Affirmed.

Gross and Forst, JJ., concur.


author: Forst, J.

text:
    Denton ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4270
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]

      Carey Haughwout, Public Defender, and Ben Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Denton Robinson appeals the trial court’s verdict finding him guilty of three counts of committing sexual battery on a child between twelve and eighteen years of age. On appeal, Appellant challenges the trial court’s jury instructions; on that issue, we affirm without discussion. Appellant also contends the State committed fundamental error in closing arguments. Although we agree, as discussed below, that the State’s prosecutor made several inappropriate comments during closing argument, we hold that these comments, both singularly and collectively, did not rise to the level of fundamental error. Accordingly, Appellant’s conviction is affirmed.

Background

The victim in this case was G.W., a seventeen-year-old female. Appellant had dated G.W.’s mother and had lived with the family since G.W. was eleven. At trial, G.W. recounted that Appellant was basically a step-father. But after G.W. turned seventeen, Appellant began approaching her in a sexual manner. Eventually, G.W. called the police. A detective interrogated Appellant and he admitted several times to having sexual relations with G.W. before she turned eighteen. He admitted to both digital and penile penetration. Appellant’s only argument in his defense was that the sexual relations were consensual. At trial, the State’s main evidence consisted of G.Ws testimony and Appellant’s confession recorded and played to the jury.

During closing argument, the State prosecutor described Appellant’s confession as “disgusting” and “disturbing,” and opined: “First of all, it is not consensual sex. That is bad enough. It is rape .... It is torture. He tortured her. He tortured her for weeks, and he had her keep his secrets.” The prosecutor continued, “we put on a lot of evidence that indicated this was not consensual in any way, shape or form. This was torture. This was rape. That is what makes it worse. That is what makes it a lot worse, a lot worse.”

The prosecutor implored the jury to “[f]ind [Appellant] guilty so [G.W.] can move on, try to repair her relationship with her mother, try to repair the rest of her life .... That is what she needs.” Last, the prosecutor asked the jury to imagine what really must have happened between Appellant and G.W.: “Gan you imagine what really must have happened? ... Can you imagine how bad it must have really been[?]”

Analysis

We review the trial court’s determination on whether the State prosecutor made impermissible arguments during closing for abuse of discretion. Braddy v. State, 111 So.3d 810, 837 (Fla. 2012). Here, because Appellant only objected to one of the State’s closing comments, we review the other questionable comments for fundamental error. “[F]undamental error in closing argument occurs when the prejudicial conduct, in its collective import, is so extensive that its influence pervades in trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Capron v. State, 948 So.2d 954, 956-57 (Fla. 5th DCA 2007).

We conduct a two-part inquiry to determine if closing comments comprise fundamental error. First, we determine whether the comments were impermissible. Generally, “[w]ide latitude is given [to] the parties so that they may ‘advance all legitimate arguments and draw logical inferences from the evidence.’” Rivera v. State, 840 So.2d 284, 286 (Fla. 5th DCA 2003) (quoting McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001)). However, closing argument “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence.” Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985).

Second, we must determine whether the impermissible comments rise to the level of fundamental error. As the Florida Supreme Court explained, such comments must “reach[ ] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)); see also Bell v. State, 108 So.3d 639, 650 (Fla. 2013) (finding cumulative effect of prosecutor’s improper comments “did not affect [the defendant’s] trial such that a guilty verdict could not have been obtained in their absence”). “Whether this [occurred] depends upon the facts of each case.” Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007).

Here, the State’s prosecutor made several impermissible comments during closing. In fact, as in a recent case before this Court, “[t]he transcript of the state’s closing argument reads like a primer for prosecutors entitled, What Not to Say During Closing Argument.’ ” Augustine v. State, 143 So.3d 940, 941 (Fla. 4th DCA 2014).

First, the State’s prosecutor inflamed the minds and passions of the jurors, attempting to play to their emotions. See Cochran v. State, 711 So.2d 1159, 1162-63 (Fla. 4th DCA 1998) (holding that the prosecutor committed fundamental error by appealing to the jurors’ emotions rather than to a rational review of the evidence). From the onset, she called Appellant’s confession “disgusting” and “disturbing.” She exclaimed, “First of all, it is not consensual sex. That is bad enough. It is rape. ... It is torture. He tortured her. He tortured her for iveeks, and he had her keep his secrets.” (emphasis added).

The prosecutor also asked the jury to render a guilty verdict so that the victim “can move on, try to repair her relationship with her mother, try to repair'the rest of her life .... That is what she needs.” (emphasis added). Besides again playing to the jurors’ emotions, the prosecutor was asking the jury to convict Appellant based on a reason other than a determination of guilt. See Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (holding that prosecutor’s request that the jury exercise sympathy for the victim was “clearly improper”); Northard v. State, 675 So.2d 652, 652-53 (Fla. 4th DCA 1996) (holding prosecutor erred by asking jury to render guilty verdict based on the “truth” of what actually happened even if the State failed to present evidence that defendant was guilty); Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989) (similar).

Additionally, the prosecutor improperly bolstered her argument. The prosecutor asked the jury, “Can you imagine what really must have happened? ... Can you imagine how bad it must have really been[?]” See Brinson v. State, 153 So.3d 972, 975-76 (Fla. 5th DCA 2015) (“Improper bolstering occurs when the State ... indicates that information not presented to the jury supports the witness’s testimony.” (alteration in original) (quoting Hutchinson v. State, 882 So.2d 943, 953 (Fla. 2004), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla. 2008))).

Notwithstanding the over-the-top nature of these closing statements, they do not comprise fundamental error. The State presented strong evidence that Appellant was guilty through the victim’s testimony as well as Appellant’s own confession. Appellant’s lengthy confession is telling. In it, he only contests whether the sexual relations with the victim were consensual. However, “willingness or consent of the victim” is not a consideration with respect to the crime of Sexual Battery upon a Child by a Person in Familial or Custodial Authority. § 794.011(8), Fla. Stat. (2013). In light of the overwhelming evidence of Appellant being guilty of the charges filed against him, the prosecutor’s statements were not prejudicial enough to “snatch defeat from the jaws of victory.” We cannot say that the errors reach down into the validity of the trial to the extent that a verdict of guilty could not have been obtained without the assistance of the prosecutor’s improper arguments.

Conclusion

We understand the reasons for the passion expressed by the prosecutor. However, our system is not one of passion, but one of law. It must be understood that there are two distinct components to a criminal trial—the determination of innocence or guilt and, if the latter, sentencing. The impact of the crime on the victim is best addressed at the sentencing hearing, with attention to proving the objective elements of the charges the focus of the trial itself. Here, the State made several impermissible comments during closing that (1) appealed to the jury’s emotions, (2) improperly bolstered its argument, (3) constituted personal opinion, and (4) misstated the jury’s obligation to find Appellant guilty beyond a reasonable doubt. Nonetheless, as discussed above, these errors in this case did not rise to the level of fundamental error. Accordingly, we affirm.

Affirmed.

Taylor and Klingensmith, JJ., concur.

      . Appellant made one objection during closing, following the prosecutor’s statement “it is hard as a member of a jury to think, now, I’m a person, I can’t believe a person did this to another human being, or thought he had the right to do this.” In objecting, Appellant maintained that this statement is “Golden Rule,” "[b]ecause [the prosecutor] placed the jury in a position of the defendant being the alleged victim in this case.” The trial court properly overruled this sole objection, stating that "[i]t is my understanding when you ask [the jury] to stand in the shoes of the victim, like man, this is happening to you, which is not the language she used.” The trial court was correct that Appellant mischaracterized the prosecutor’s statement, See, e.g., Garron v. State, 528 So.2d 353, 358, 359 n.6 (Fla. 1988) (holding statement asking jury to ”[i]magine the anguish and the pain that [the victim] felt as she was shot in the chest” violated Golden Rule and was clearly prohibited).