author: WARNER, J.

text:
    Jerry PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3890.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Jerry Pierre appeals his convictions for first-degree felony murder and robbery and his sentence to life in prison, arguing that the trial court erroneously denied his motion to suppress his statement to police. He claims that he unequivocally invoked his right to stop questioning, which was not honored by the police. Because the totality of circumstances shows that appellant unequivocally invoked his right to remain silent when he told the detective “I’m not saying anymore,” subsequent questioning by the detectives violated appellant’s Miranda rights. We reverse.

After receiving his weekly pay, the victim, Juan Paxtore, a Guatemalan, cashed his check and later went out riding his bike with $200 in his pocket. Meanwhile, Kinwend Taylor, Cordealria Collins, Edward Harris, a person known as “Black,” and appellant Pierre, all of whom lived in the same neighborhood and had known each other for a number of years, were hanging out near a store in Fort Pierce, Florida. Collins spotted Paxtore and said, “There go amigo,” meaning that they should rob him. Taylor grabbed Paxtore, and Collins hit him. The others, including Pierre, came from behind a building and also started hitting him, according to the co-defendants. The victim’s pockets were emptied, and the perpetrators left. Witnesses called the police who arrived to find Paxtore dead.

From their investigation, detectives determined that Pierre was a suspect in the robbery-murder. The police picked up Pierre and brought him to the station for questioning. In the interrogation, which was recorded, Pierre first denied any involvement whatsoever in the incident. However, Pierre eventually admitted being with the group and emptying the victim’s pockets of money ($3), but denied hitting the victim.

Pierre and four co-defendants were charged by indictment with first-degree murder and robbery. Pierre’s trial was severed from that of his co-defendants. The principal evidence against Pierre consisted of testimony by co-defendant Kin-wend Taylor, who had not yet been convicted but was not promised anything in exchange for his testimony, and Pierre’s own confession to police, which he unsuccessfully sought to suppress prior to trial. Pierre was found guilty as charged and sentenced to life in prison. He appeals.

Pierre contends that during his interrogation he twice unequivocally invoked his right to stop questioning, which the detectives ignored. He claims that his subsequent confession should have been suppressed, arguing that it was obtained in violation of his Miranda rights. The court’s detailed findings of fact in its order on suppression are based on the court’s viewing of the tape of the interrogation. The court found:

Findings of Fact
Defendant was questioned by Det. Tyrone Campbell and Det. Joseph Coleman in an interview room at the Fort Pierce Police Department. The entire interview was videotaped. Defendant was in custody. He was transported to the department in handcuffs, but the handcuffs were removed before the questioning started.
After obtaining some preliminary information concerning Defendant’s name, height, weight, age and social security number, Det. Campbell read Miranda warnings to Defendant. Defendant was given the warnings form to read, which he read to himself in a low voice. As the Miranda warnings were being discussed, Defendant gave responses indicating he clearly understood he had a right to have a lawyer present and could stop talking anytime. After he read the Miranda and indicated he understood them by moving his head up and down, the following exchange occurred (Transcript, page 5, lines 7-21):2
[Questioning by Det. Campbell]
Q Do you want to talk to us?
A I don’t even know why I’m in this.
Q You don’t know why you’re here?
[by Det. Coleman:]
Q You don’t know why you’re here?
A No.
[by Det. Campbell:]
Q So do you want to sign this [Miranda form] and tell us—
A Okay. Let me ask you — ■
[by Det. Coleman:]
Q Basically you’ve been accused of being involved in a robbery. Okay? And we want to talk to you about it.
A What robbery?
Q Robbery of a Mexican man, all happened over on 27th Street. Friday.
The exchange involves the detectives speaking over each other and Defendant.
Defendant testified at the hearing that when he said, “Let me ask you — ,” he was intending to ask for a lawyer to be present. However, upon viewing the exchange on the videotape, observing Defendant’s demeanor on the video, considering all of the statements during the interview, and observing Defendant’s demeanor while testifying at the hearing, the court does not find Defendant’s testimony on this issue to be credible. At no time during the interview did Defendant make any statements indicating he wanted a lawyer. From the context and flow of the conversation leading up to and following the above-quoted exchange, the court finds that the question Defendant wanted to ask is information about what offense he was being questioned about, rather than asking if he could have a lawyer present.
After Miranda warnings were given and Det. Coleman explained the subject of the interrogation was robbery of a Mexican man, Det. Campbell asked Defendant, “So do you want to talk to us then?” Defendant responded affirmatively by moving his head up and down. See, Transcript, page 6, lines 8-9. Viewing the videotape, it is obvious Defendant is responding affirmatively. Immediately thereafter, he cooperates with the interrogation by answering questions. The court finds that Defendant was given proper Miranda warnings, he understood the warnings, and he waived his right to remain silent and to have counsel present at that point.
During the hearing, Defendant contends there are two portions of the interview where he attempted to invoke his right to terminate questioning. The first portion of the transcript relied upon by Defendant is page 10, lines 21-25, however, the court determines that the context of the conversation is better understood by considering page 10, line 19, through page 11, line 3, in which the following exchange occurs:
[by Det. Campbell:]
Q What if I tell you that all of you guys going to be seeing each other soon?
A What do you mean, soon?
Q So you walk and say, hey, what’s up, bro.
A I don’t want to see no (inaudible) period. I don’t know what you’re talking about. So I’m just not going to talk anymore. I don’t know what you’re talking about. I was at home Friday night, waiting on my baby mama, me and my cousin, and I see those people.
Q Which Friday night?
A Friday night whenever that Meego night got killed.
Although Defendant makes the statement, “So I’m just not going to talk anymore,” he nonetheless continues speaking. It is obvious from viewing the videotape that Defendant is defensive about knowing the other co-defendants in this case, which is what Det. Campbell is questioning him about. The court finds the statement, “So I’m just not going to talk anymore,” is nothing more than an announcement at that point that Defendant was not going to admit to knowing the co-defendants and being friends with them, rather than an announcement that he wanted to terminate all questioning.
The second instance Defendant claims he wanted to stop all questioning occurs shortly after the first instance, according to the argument made at the hearing. Within a matter of minutes after Defendant first said, “So I’m just not going to talk anymore,” but continues talking, Det. Coleman advised Defendant he wanted to take his picture so that he can show it to witnesses to see if he can be identified by the witnesses. Det. Coleman took the pictures and then stepped out of the interrogation room. While he is out of the room, the following exchange occurs:3
[by Det. Campbell:]
Q Which shoes were you wearing?
A I was wearing some brown Dick-ies with a white shirt and some toast K-Swiss, brown and caramel, it’s dark brown and caramel strips going down. That’s only—
Q So when you were, when you were bragging
A —I wasn’t even — ■
Q the home boys in town did this Mexican—
A Did what? What are you talking about? I didn’t tell you nothing.
Q —did you laugh?
A You tripping, man. I didn’t say nothing. I was nowhere near them guys, I wasn’t with nobody. I was with my cousin, waiting on my baby mama. That’s where I was, 33rd Kentucky. I’m not saying anymore. [8 second pause before the next question] 4
Q Okay. Are your shoes at your house? Huh? [3 second pause] Are your shoes at your house? Jerry. [20 second pause] Jerry.
A (Det. Coleman returns to the room)
[by Det. Coleman:]
Q Okay. You’re Turtle.
A Turtle?
Q That’s you.
A I’m not Turtle.
The total length of time between when Defendant states, “I’m not saying anymore,” and he says, “I’m not Turtle,” is 50 seconds. During that time, Defendant appears to be somewhat irritated with Det. Campbell for saying he was bragging about “doing the Mexican.” Defendant starts the long pause by leaning over in his chair, presumably doing something with his shoes, then he starts staring up at the ceiling shaking his head from side to side in a somewhat disdainful manner. The State contended at the suppression hearing that immediately after Defendant states, “I’m not saying anymore,” he continues speaking as if muttering to himself. The State argues you can see Defendant’s lips moving as he continues to talk. The court does not perceive Defendant to be muttering to himself after he said he was not going to say anything more.
When Det. Coleman came back into the room claiming Defendant is “Turtle,” Defendant resumes answering questions put to him by Det. Coleman and Det. Campbell.5 The transcript goes on for a total of 59 pages. The entire interrogation lasted approximately one hour and 35 minutes. There are no other words uttered by Defendant which suggest that he wanted to stop the questioning.
During the entire interview, Det. Coleman and Det. Campbell spoke in calm, normal tones. Neither detective raised his voice or acted in an intimidating fashion toward Defendant. Defendant remained calm during the interview, although there were times he seemed a little exasperated by the detectives [sic] attempts to get him to say something incriminating. For most of the interview, Defendant remained steadfast in his denial of being involved in either robbing or killing the victim.
The first time Defendant spoke words to the effect “I am not talking anymore,” he immediately continued talking with no pause. From the flow of the conversation and the context of the words leading up to and after he said, “So I’m just not going to talk anymore,” the court finds that Defendant was merely indicating he wanted to change the subject so as to avoid admitting he knew his co-defendants.
It is true that there is almost a minute pause after the second time Defendant said, “I’m not saying anymore,” before he begins talking again, and it is obvious that Defendant is ignoring anything Det. Campbell is saying to him during that pause. Again, however, from the flow of the conversation and the context of the words leading up to and after the pause when Defendant ignores Det. Campbell’s questions, the court finds Defendant again was trying to change the subject and resist any admission that he was bragging about his involvement in the crime. When Det. Coleman comes back into the room and identifies Defendant to be “Turtle,” Defendant begins talking again, and thereafter makes no expression indicating he wants to stop the questioning. The court does not find that Defendant’s second statement “I’m not talking anymore,” followed by a minute of not speaking and ignoring the questions by Det. Campbell during that pause, is an unequivocally [sic] indication he wanted to terminate all questioning. The court finds the statement and the pause to be an attempt to avoid admitting Defendant bragged about his participation in the robbery and murder.
2. The transcript admitted as State’s Exhibit 2 refers to Det. Coleman as "First Interviewer.” In portions of the transcript typed in this order, the court is identifying the speaker as Det. Coleman, rather than "First Interviewer.”
3. The portion of the transcript relied upon by Defendant is page 13, lines 13-15, however, the court determines that the context of the conversation is better understood by considering page 13, lines 4-23.
4. The notation as to the length of the pauses is not in the transcript. The court watched the video and tracked the transcript with a timer to obtain the length of the pauses.
5. There was no argument made or evidence presented to suggest that Det. Coleman came back into the room and accused Defendant of being "Turtle” in an attempt to keep Defendant talking. From the evidence, it appears Det. Coleman was not aware that Defendant had indicated a second time words to the effect "I don’t want to talk.”

Based upon the foregoing facts, the court concluded that Pierre had not unequivocally invoked his right to remain silent, and the detectives’ questions after those statements were not a violation of his rights.

I. Standard of Review

As a general principle, when reviewing a ruling on a motion to suppress, an appellate court presumes the trial court’s findings of fact are correct and reverses only those findings not supported by competent substantial evidence. Cuervo v. State, 967 So.2d 155, 160 (Fla.2007). Review of the trial court’s application of the law to the facts is de novo. Id. As such, appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fifth Amendment and article I, section 9 of the Florida Constitution. Id.

The supreme court recognizes an exception to that standard where the trial court relies on evidence other than live witnesses. In Parker v. State, 873 So.2d 270, 279 (Fla.2004), the court stated:

Generally, in reviewing a trial court’s ruling on a motion to suppress, this Court accords a presumption of correctness to the trial court’s findings of historical fact, reversing only if the findings are not supported by competent, substantial evidence, but reviews de novo “whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling.” Connor v. State, 803 So.2d 598, 608 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). However, this deference to the trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony. Cf. Thompson v. State, 548 So.2d 198, 204 n. 5 (Fla.1989) (“[T]he clearly erroneous standard does not apply with full force in those instances in which the determination turns in whole or in part, not upon live testimony, but on the meaning of transcripts, depositions or other documents reviewed by the trial court, which are presented in essentially the same form to the appellate court.”).

In Cuervo, the supreme court reviewed the taped confession viewed by both the trial court and the Fifth District and, based upon its review, held that competent substantial evidence did not support the trial court’s findings that Cuervo did not invoke his right of silence. In this case, the trial judge’s findings of fact exclusively relied on the judge’s viewing of the tape of the interrogation. Because the tape is available to this court, and we have viewed it, we do not agree with the trial judge’s conclusions based upon his observations, and thus we do not accord those findings deference. There are also other facts which bear upon the issue.

II. Factual Analysis Shows Invocation of Right to Remain Silent was Unequivocal

Having been brought to the police station in handcuffs and leg irons, the officers first removed the handcuffs on Pierre but did not remove the leg irons. At the very beginning of the interrogation, Detective Coleman asked Pierre his name. Then he asked, “Are you the guy they call Turtle?”

Pierre denied that was his nickname. Coleman asked if Pierre knew who Turtle was, and Pierre said he did not. Then the detectives discussed Pierre’s Miranda rights with him. He specifically asked about and understood that he could stop the questioning whenever he wanted. After they discussed those rights, the detectives asked if Pierre wanted to talk, and Pierre responded, “I don’t really know why I’m in here.” Coleman then told him he was accused of being involved in the robbery of a Mexican man on the previous Friday. Pierre said that he was not there, claiming he was at home at the time. Pierre then signed the waiver of rights form and the detectives began their questioning.

Coleman asked Pierre if he knew Corey and Kinwend. Pierre said that he had heard of them but did not “mess” with them. Coleman left the room. After several more questions from Campbell about whether Pierre could identify the two boys, Pierre- then told Campbell he was not going to talk about it, but then proceeded to say that he was home. After that statement, Coleman re-entered the room with a camera. He told Pierre he was taking a picture of him. Coleman then told Pierre that the reason he was taking his picture was to show it to “to somebody, somebody who has made the accusations to make sure you’re that guy.... He says no, it ain’t you, you’re going home.” Detective Campbell added, “Yeah, but he just said to me a while that um, he met these guys and (INDISCERNIBLE) by their face, see them, how the clothes their [sic] wearing.” Detective Coleman took the picture and left the room.

After Detective Coleman left the room, Detective Campbell asked Pierre whether the clothes he was wearing were the clothes he wore on Friday night. Pierre described the clothes he was wearing on Friday. Campbell asked something indiscernible but ending with “did this Mexican,” to which Pierre responded, “Did what, what are you talking, I didn’t take nothing. You tripping, man, I didn’t say nothing. I was nowhere near them guys. I wasn’t with nobody, I was with my cousin waiting on my baby momma, that’s where I was, 33rd and Kentucky. I’m not saying anymore.” (Emphasis supplied). At that point, as the trial court notes in the findings of fact, Pierre says nothing further, even though Detective Campbell tries to ask another question. After that question, Detective Campbell sits silent as well. Pierre looks down, and then looks up at the ceiling. He appears to be muttering to himself. No sound is coming out. Pierre does do something with his feet, as the trial court noted, but it appears that he is adjusting the leg irons.

The silence lasts nearly a minute until Detective Coleman comes in and says in a firm, accusatory tone, “You’re Turtle.” His tone conveys that this is a statement of fact, as though whoever looked at the photo confirmed that nickname. Pierre then responds defensively.

MR. PIERRE: Turtle?
DETECTIVE COLEMAN: That’s you.
MR. PIERRE: I’m not Turtle.
DETECTIVE COLEMAN: That’s you. So are you gonna, are you gonna tell us what happened that night, (INDISCERNIBLE)?
MR. PIERRE: (INDISCERNIBLE). Tell you about what, I ain’t telling you, I didn’t do nothing, I was at my house.
DETECTIVE COLEMAN: Well, right now I got ...
MR. PIERRE: With my cousin.
DETECTIVE COLEMAN: I got 2 guys saying you were involved.

Pierre then responds to their questions for about forty-five minutes by continuing to deny involvement, sometimes sitting silent as the officers continued to try to get him to make a statement. Even when the officers told him there was video evidence from a store camera close to the location of the crimes which would show who was there, he maintained he was not there. The officers detailed what the other defendants had told them about Pierre’s involvement. They told Pierre he faced life in prison, yet he continued to maintain that he was not there. Only when Detective Campbell told Pierre that he would not see his child again for a while because he was going to jail for robbery and murder did Pierre then state that he did not stomp the victim. After several more questions, Pierre told them that the robbery was Edward’s idea and that Edward was the only one stomping the victim. Pierre took the money from the victim’s pockets. The interrogation continued for another twenty or thirty minutes, and Pierre made more incriminating statements until he finally said again, “I’m not talking anymore.” When Detective Coleman asked another question, Detective Campbell stopped him, telling Coleman, “He said he didn’t want to talk anymore, man.” The interrogation ended.

Generally, “if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop.” Cuervo, 967 So.2d at 161 (quoting Traylor v. State, 596 So.2d 957, 966 (Fla.1992)). The phrase “in any manner” simply means that there are no magic words that a suspect must use to invoke his rights. State v. Owen, 696 So.2d 715, 719 (Fla.1997). “[O]nce a defendant waives his or her right to remain silent, subsequent equivocal requests to terminate an interrogation do not automatically require police to cut off all questioning.” Cuervo, 967 So.2d at 161. “A suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” Owen, 696 So.2d at 718. “[A] determination of the issues of both the voluntariness of a confession and a knowing and intelligent waiver of Miranda rights requires an examination of the totality of the circumstances.” Lukehart v. State, 776 So.2d 906, 917 (Fla.2000).

From a review of the taped interrogation, there is no competent substantial evidence to support the trial court’s finding that Pierre’s near minute of silence, after telling the detective he was not going to say anything, was an effort by Pierre to change the subject of the questioning. In fact, Detective Campbell did change the subject, because he asked where Pierre’s shoes were located, and Pierre refused to answer. Then Detective Campbell himself fell silent and discontinued questioning. The only interpretation that can be made from the tape is that, as a reasonable police officer, Detective Campbell understood Pierre’s statement to be a demand that questioning cease.

III. State v. Owen is Distinguishable

The state relies on State v. Owen, 696 So.2d 715 (Fla.1997), reaffirmed in Owen v. State, 862 So.2d 687, 696-98 (Fla.2003), involving a March 24, 1984, burglary, sexual battery, and murder in Delray Beach. The supreme court found competent substantial evidence supporting the trial court’s determination that the defendant’s statements “I don’t want to talk about it” and “I’d rather not talk about it” were equivocal and did not require suppression of his confession. The state claims that Pierre’s statement “I’m not saying anymore” is virtually indistinguishable from those in Owen. However, the totality of the circumstances of that confession are far different than the present circumstances, and we find Owen distinguishable.

The detailed facts involved in Owen are found in Owen v. State, 560 So.2d 207 (Fla.1990). Owen had been picked up as a burglary suspect. While in custody, he initiated contact with the police to discuss various crimes, as well as a murder in Boca Raton. He wanted to clear up his involvement in several of these crimes. After confessing to numerous crimes, he invoked his right to silence with respect to the Boca murder, and the officers ceased questioning.

Several days later Owen reinitiated contact with the police and confessed to more crimes. Based upon his confessions, police were able to expand their investigation. Meanwhile, Delray Beach police obtained footprint evidence from the Delray murder scene linking Owen to that crime. Armed with physical evidence in the Boca murder, police informed Owen several days later that they were charging him with the murder. He confessed to the Boca murder.

Immediately thereafter, Delray police interrogated Owen with respect to the Del-ray murder. At first he denied involvement but then confessed to this murder as well. As the supreme court noted, a decided pattern developed in the multiple interrogation sessions with Owen. Owen would confess to crimes where he thought that the officers had sufficient proof to convict. Thus, the officers would present their proof to Owen in an attempt to convince him to confess to the crimes.

During the interrogation regarding the Delray murder, the police presented Owen with the footprint evidence as well as the close similarities between the Boca murder, to which Owen had confessed, and the Delray murder. Owen studied the footprint carefully and appeared to acknowledge its conclusiveness. When the officers questioned him on what the supreme court stated was an “insignificant detail,” Owen said, “I’d rather not talk about it.” Id. at 211. Police did not stop questioning, but implored him to clear matters up about this murder too. After several more questions, and again after a question on an insignificant detail, Owen again said, “I don’t want to talk about it.” Id. He then confessed to the Delray murder.

The court in Owen concluded that Owen’s statements were “at the least, an equivocal invocation of the Miranda right to terminate questioning.” Id. at 211. The court held that, based upon its understanding of federal precedent, even the equivocal invocation of rights by Owen required that the police clarify whether the suspect had indeed intended to invoke his right before additional questioning. The court thus reversed Owen’s conviction and death sentence and remanded for a new trial.

Prior to Owen’s retrial, the United States Supreme Court decided Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), in which the Court held that police did not have to stop questioning upon ambiguous or equivocal requests for counsel. The state sought to admit Owen’s confession in the second trial on the basis that Owen’s statement, indicating that he did not want to talk, was ambiguous. In State v. Owen, 696 So.2d at 719-20, our supreme court applied Davis and held that police did not have to ask clarifying questions when an invocation of a suspect’s right to terminate questioning was equivocal. Because the court found that Owen’s statement regarding the right to remain silent was equivocal, the court permitted the use of Owen’s confession.

Owen’s statement, “I don’t want to talk about it,” was equivocal or ambiguous under the circumstances. First, Owen had initiated several interrogation sessions with the police himself. Second, he had developed a pattern of confessing to crimes when the police produced enough evidence to convince him that they could prove his guilt, and he would continue the interrogation as the police produced evidence. Third, his refusal to talk about “it” followed a question about an insignificant detail of the crime. The “it” could have been the insignificant detail and not the crime itself. Given the fact that Owen had engaged in multiple interrogation sessions, seeking to answer the police questions, a reasonable police officer could have thought that Owen was not intending to cut off all questioning.

The facts of Owen are entirely different than the facts involved in Pierre’s demand to terminate questioning in this case. Here, unlike in Owen, Pierre’s statement that he was “not saying anymore,” followed by his actual silence for a period of nearly a minute, could not reasonably be interpreted as a desire to remain only “selectively silent” as to a particular line of questioning. Instead, Pierre’s conduct reflected an unequivocal invocation of Pierre’s right to remain silent. See, e.g., State v. Murphy, 342 N.C. 813, 467 S.E.2d 428, 433-34 (1996) (suspect’s statement “I got nothing to say” was a clear indication that he wished to terminate the interrogation and invoke his right to remain silent, which was not scrupulously honored); People v. R.C., 108 Ill.2d 349, 91 Ill.Dec. 606, 483 N.E.2d 1241, 1243-44 (1985) (minor suspect’s statement that he “did not wish to talk to” the investigating officer constituted an invocation of the right to remain silent).

IV. Police did not Scrupulously Honor Pierre’s Right to Terminate Questioning

Once Pierre invoked his right to silence, Miranda required that all questioning cease and that his right to cut off questioning be “scrupulously honored.” See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In Mosley, the Court found that the police honored the right by ceasing questioning once the suspect invoked his right.

When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. ...
This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.

Id. at 104-06, 96 S.Ct. 321. The Florida Supreme Court distilled five relevant factors from Mosley to determine whether the authorities scrupulously honored a defendant’s invocation of his right to silence:

First, Mosley was informed of his fights both times before questioning began. Second, the officer immediately ceased questioning when Mosley unequivocally said he did not want to talk about the burglaries. Third, there was a significant lapse of time between the questioning on the burglary and the questioning on the homicide. Fourth, the second episode of questioning took place in a different location. Fifth, the second episode involved a different crime.

Globe v. State, 877 So.2d 663, 670 (Fla.2004) (quoting Henry v. State, 574 So.2d 66, 69 (Fla.1991)). A variance of one or more factors is not dispositive, and each case requires a totality of the circumstances approach.

While Pierre received his complete Miranda warnings — satisfying the first Mosley factor — and Detective Campbell immediately ceased questioning Pierre, Detective Coleman’s assertion, upon reentering the room, that Pierre was Turtle amounted to interrogation under the analysis of Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005). Thus, the officers did not cease questioning after Pierre’s unequivocal invocation of his right to silence.

In Origi, a suspect invoked his right to remain silent after he was arrested in a traffic stop and read his Miranda rights. The officers searched the vehicle and discovered a large amount of illegal drugs. On the way to the jail, an officer said to Origi, “That’s a lot of drugs you had.” Id. at 70. Origi responded, “I have to make money and make a living.” Id. Origi moved to suppress his response on the ground that it was a violation of Miranda. This court relied on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), to determine what constituted interrogation. Innis explained:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent....
[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have knoum were reasonably likely to elicit an incriminating response.

Innis, 446 U.S. at 300-02, 100 S.Ct. 1682 (footnotes omitted) (emphasis in original).

Applying Innis, we held that the officer’s statement was the functional equivalent to interrogation because: (1) the officer directed the statement to Origi, not some other person; (2) the comment was accusatory and was intended to elicit a response from Origi (“The statement assumed that Origi possessed the drugs, and called for him to comment on the quantity. Confronting Origi about the drugs added an element of compulsion to the case.”); and (3) there was an element of physical coercion attendant to the statement in that the officer had Origi in his grasp. Origi, 912 So.2d at 73.

Similarly, Detective Coleman’s statement to Pierre that “[y]ou’re Turtle” was directed at Pierre, not to another person. The statement was accusatory, because Coleman had already told Pierre that he was taking his picture to show to witnesses who could identify the participants in the robbery-murder, and at the beginning of the interrogation Coleman had already asked if Pierre was Turtle. It seems clear that witnesses had pointed out Turtle as a participant in the crime. Listening to the tape and the tone of the voice, Coleman’s assertion that Pierre was Turtle, immediately after he re-entered the room after the photo identification session with witnesses, was intended to evoke a response. Therefore, in line with Origi, Detective Coleman’s assertion constituted questioning in violation of Miranda.

That Detective Coleman may not have known that Pierre had invoked his right of silence does not avoid Miranda. Detective Campbell heard Pierre invoke his right and stopped questioning. Either Detective Coleman should have inquired as to whether Pierre was still answering questions before continuing the questioning, or Detective Campbell should have alerted Detective Coleman to Pierre’s invocation. In fact, when Pierre again invoked his right to terminate questioning later in the interview, by using the identical language to his prior invocation — “I’m not talking anymore,” — Campbell did stop Coleman from continuing questioning. Campbell should have stopped Coleman earlier when Coleman re-entered the room. As the Supreme Court said with respect to observance of the invocation of a right to an attorney, “custodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel.” Arizona v. Roberson, 486 U.S. 675, 687, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). This same admonition should apply to an invocation of the right to remain silent. If that is not the rule, then a suspect’s Miranda rights could very easily be thwarted.

Returning to the Mosley factors, we conclude that Pierre’s invocation of the right to remain silent was not scrupulously honored. While Detective Campbell ceased questioning, Detective Coleman did not. Only about a minute passed between Pierre’s termination of questioning and Detective Coleman’s continuation of the interrogation, hardly a significant lapse of time. Pierre was never reread his Miranda rights, and the questioning continued in the same location before the same detectives. Moreover, even after Pierre responded to Detective Coleman that he was not Turtle, Pierre continued to deny involvement in the activity and tried to avoid the questions. Unlike Mosley, this was a case “where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423 U.S. at 105-06, 96 S.Ct. 321. That is exactly what occurred in the interrogation of Pierre.

Because Pierre unequivocally invoked his right to terminate questioning, which right was not scrupulously honored, the trial court erred in denying the motion to suppress Pierre’s statement to police. We reverse and remand for a new trial during which the confession is excluded.

GROSS, C.J., and CIKLIN, J., concur.

      . The tape viewed was a VHS tape admitted at the hearing on the motion to suppress.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elias ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-959.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Elias Rosado, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his motion for post conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part.

The defendant was sentenced pursuant to a written negotiated plea agreement that did not mention habitual sentencing or restitution. In the rule 3.850 motion, he sought to withdraw his plea for a number of reasons. In the order to show cause, this court asked the state to address the allegation that defense counsel never advised the defendant of the sentence he would receive or that he would have to pay restitution. He alleged that neither the plea form nor colloquy established he agreed to be sentenced to ten years as a habitual felony offender for each offense. He also alleged he was not provided with notice, a hearing, or evidence concerning restitution. The state agrees that these grounds should be remanded to the trial court for further consideration and possibly an evidentiary hearing.

To the extent the trial court on remand may determine that the motion is facially insufficient for failing to expressly allege that, but for the alleged errors, the defendant would not have entered the plea, the defendant should be given at least one opportunity to reffle his motion to correct the insufficiency, if he can do so in good faith. See Spera v. State, 971 So.2d 754 (Fla.2007); Williams v. State, 844 So.2d 700 (Fla. 2d DCA 2003).

Accordingly, we reverse and remand the summary denial in part. We affirm the summary denial as to the balance of the motion.

Affirmed in part, reversed in part, and remanded.

POLEN, STEVENSON and MAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    John L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4615.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

This appeal emanates from a search incident to an arrest in which John L. Smith was found to have cocaine in his possession ultimately leading to the charge of possession of cocaine with intent to sell within 1000 feet of a school. Smith filed a motion to suppress on the grounds that there was no probable cause to arrest him for violating the open container ordinance. The trial court denied the motion, after which Smith entered a no contest plea to the charge, reserving his right to appeal the trial court’s denial of his motion to suppress. We affirm.

In this case, the officer observed Smith walk out onto a public sidewalk with a plastic cup in hand, take a couple of sips, and then walk back behind an apartment stairwell approximately four times. The officer testified that he briefly lost sight of Smith when he disappeared behind the stairwell. After observing this behavior, the officer decided to approach Smith. When he approached, he could smell the odor of an alcoholic beverage emanating both from Smith and his cup. He then placed Smith under arrest for violating the open container ordinance. During the police officer’s search of Smith incident to his arrest, the contraband leading to the drug charge was discovered.

Based on this evidence, the trial court did not err in determining that the officer had probable cause to believe that there was alcohol in the beverage at the time he stepped on the public sidewalk in violation of the open container law. Although the officer briefly lost sight of Smith when he walked behind the stairwell, it was not unreasonable for the officer to believe that the beverage in the cup contained alcohol the entire time and that he did not add alcohol to the beverage after stepping behind the stairwell. See Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000) (“A finding of probable cause does not require absolute certitude. The test for probable cause is whether the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been committed.”). Accordingly, the trial court properly denied the motion to suppress.

Affirmed.

MAY and CIKLIN, JJ., concur.


text:
    J.G., the Father, and R.G., the Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D09-29, 4D09-69.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Roger Ally of Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant J.G.
    Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellee.
    Annette M. Lizardo, Statewide Guardian Ad Litem Office, Tavares, guardian ad li-tem for the minor child.
   WARNER, J.

A father and a mother appeal the trial court’s final judgment terminating their parental rights as to their child, R.G. On appeal, the parents claim that their procedural due process rights were violated and raise various issues related to the sufficiency of the evidence against them. We affirm, concluding that the termination of parental rights was supported by competent substantial evidence.

There is a multi-step process inherent in the statutory scheme for termination of parental rights. First, the trial court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2007), has been established. Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). Second, the trial court shall consider the manifest best interests of the child by evaluation of all relevant factors, including those set out in section 39.810. Id. In addition, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. In re G.C., 6 So.3d 643, 648 (Fla. 2d DCA 2009). While a trial court’s decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whether competent substantial evidence supports the trial court’s judgment. See T.C. v. Dep’t of Children & Families, 961 So.2d 1060, 1061-62 (Fla. 4th DCA 2007).

In a well-reasoned order, the trial court found that the parents, who had been involved in the dependency system for six years while attempting to address their continuing pattern of substance abuse, domestic violence, and other criminal conduct: (1) failed to substantially comply with their case plans; (2) demonstrated a pattern of substance abuse, criminal activity, and inappropriate decisions pertaining to the child, which would continue irrespective of the provision of services; and (3) engaged in “episodic abandonment” in that the parents were given multiple opportunities to reunite with their child but had “botched” these events by committing crimes and being incarcerated, leaving the child to languish in the foster care system for years. The court found that termination of the parental rights was in the manifest best interest of the child, considering the factors set forth under section 39.810, and that termination was the least restrictive means of protecting the child. Our review of the record shows that the trial court’s findings are supported by competent substantial evidence. See C.M. v. Dep’t of Children & Families, 953 So.2d 547, 550 (Fla. 1st DCA 2007) (“A trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.”). Notwithstanding the natural parents’ love for their child, there is competent substantial evidence in the record to support the trial judge’s finding by clear and convincing evidence that the parents engaged in “episodic abandonment” of the child. See M.M. v. Dep’t of Children & Families, 867 So.2d 573 (Fla. 3d DCA 2004). Finally, the parents’ claim that their procedural due process rights were violated under the Rules of Juvenile Procedure was raised for the first time in this appeal, and therefore was not preserved for appellate review. Accordingly, we affirm the trial court’s judgment.

Affirmed.

FARMER and LEVINE, JJ., concur.


author: MAY, J.

text:
    DR. NAVARRO’S VEIN CENTRE OF the PALM BEACH, INC. and Zoraida Catherine Navarro, M.D., Petitioners, v. Toni MILLER, Respondents.
    No. 4D09-2407.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      David W. Craft of David W. Craft, P.A., West Palm Beach, for petitioner.
    Philip G. Thompson of Thompson & Thomas, P.A., West Palm Beach, for respondent.
   MAY, J.

The defendants petition this court for a writ of certiorari seeking review of an order denying a motion to dismiss the plaintiffs complaint for non-compliance with the medical malpractice presuit requirements of section 766.106(2), Florida Statutes (2008). We grant the petition, quash the trial court’s order, and remand the ease to the trial court for entry of an order of dismissal.

The plaintiff filed a complaint against the defendant doctor and her professional association for damages arising from a laser hair removal procedure. The plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns. The complaint specifically alleged that the doctor was not performing medical treatment, but rather cosmetic electrolysis as defined by section 478.42(5), Florida Statutes (2008).

The doctor and her P.A. moved to dismiss the complaint, arguing that laser hair removal is not governed by chapter 478, and that the plaintiff failed to comply with the presuit screening requirements of the medical malpractice act in chapter 766. Alternatively, the defendants argued that the complaint failed to state a cause of action.

In their memorandum of law, the defendants indicated that the doctor was a health care provider as defined in section 766.202(4) and was licensed under chapter 458. The defendants argued that the practice of medicine encompasses the treatment of physical conditions, which includes hair on a woman’s face and neck. They further argued that the complaint did not allege a tort independent of the doctor’s treatment of the plaintiff and thus fell within the purview of medical negligence.

The trial court denied the motion based upon the allegations in the complaint, which specifically alleged that the doctor did not provide medical treatment, but rather had performed a cosmetic procedure. From this order, the doctor and her P.A. filed this petition for writ of certiora-ri.

To obtain certiorari relief, the petitioner must show that the order: (1) departed from the essential requirements of law; and (2) will cause a material and irreparable injury that cannot be remedied on final appeal. See Am. Express Travel Related Servs., Inc. v. Cruz, 761 So.2d 1206, 1208 (Fla. 4th DCA 2000) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) and Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996) (en banc)). Orders denying a motion to dismiss on similar grounds have met this standard. Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla. 5th DCA 1995); see also Pearlstein v. Malunney, 500 So.2d 585, 587 (Fla. 2d DCA 1986).

In their petition, the doctor and her P.A. argue the order departs from the essential requirements of law because the trial court failed to consider that the con-clusory allegations of negligence are belied by the reality of the alleged facts. They further argue that to allow the case to go forward without determining whether the cause of action is based on simple or medical negligence will cause irreparable harm that the presuit screening process was designed to protect against. The plaintiff responds that the trial court is bound by the four corners of the complaint, which alleges a claim of simple negligence. We agree with the doctor and her P.A.

The well-accepted general rule is that the allegations of a complaint must be accepted as true for purposes of a motion to dismiss. Gowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999). However, when the factual allegations belie the conclusory legal allegations, the trial court is permitted to, indeed must, apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence. Brandon v. Pinellas County, 141 So.2d 278, 279 (Fla. 2d DCA 1962) (“Mere statements of opinions or conclusions unsupported by specific facts will not suffice.”).

Under chapter 766, a claim for medical malpractice or negligence is defined as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(l)(a)., Fla. Stat. (2008). Laser hair removal is a medical procedure because it must be performed by a physician or a non-physician supervised by a physician. See § 458.348(3), Fla. Stat. (2008); see also Fla. Admin. Code R. 64B8-56.002.

The complaint alleges, and there is no doubt, that the doctor is a licensed physician. It further alleges that the doctor performed the laser hair removal. And lastly, the complaint alleges that the procedure caused the plaintiffs injury. The trial court failed to parse the factual allegations from the legal conclusions alleged by the plaintiff. McRae v. Douglas, 644 So.2d 1368, 1373 (Fla. 5th DCA 1994) (“only well pleaded allegations are accepted”); Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61, 63 (Fla. 3d DCA 1978) (“motion must be decided on questions of law only, keeping to the allegations contained within the complaint”). In failing to do so, the court deviated from the essential requirements of the law. Thus, despite the plaintiffs creative dance around the obvious, this complaint alleges a claim of medical negligence. As such, the plaintiff must comply with the presuit screening process.

While we normally do not review orders denying motions to dismiss because there is an adequate remedy at law in the final appeal, declining to do so in this case would cause irreparable harm. The Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis. To allow this case to proceed to a possible judgment, only to be reversed would eliminate the very cost-saving procedures for which the Act was created. Here, “relief by direct appeal would be no relief at all.” Pearlstein, 500 So.2d at 587. We therefore find the requisite irreparable harm.

We grant the petition, issue the writ, quash the order, and remand the case to the trial court for dismissal of the plaintiffs complaint for failure to comply with the presuit screening process of section 766.106(2).

Petition Granted.

CIKLIN and LEVINE, JJ„ concur.

      . This is not a case where the alleged injuries arose either before or after the procedure. See, e.g., Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 219 (Fla. 4th DCA 2005) (concluding the medical treatment had not begun when the plaintiff was hit in the head with a dental x-ray machine). Nor is it a case "[w]here the nub of the plaintiff's claim is a theory of negligence apart from medical malpractice.” See, e.g., O'Shea v. Phillips, 746 So.2d 1105, 1108 (Fla. 4th DCA 1999) (sexual battery by a neurologist), receded from on other grounds, Burke v. Snyder, 899 So.2d 336 (Fla. 4th DCA 2005); see also Tenet St. Mary's Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) (a hospital employee kicking a patient constituted a claim of simple negligence against the hospital).


author: POLEN, J.

text:
    ALLIANT INSURANCE SERVICES, INC., Petitioner, v. RIEMER INSURANCE GROUP, Respondent.
    No. 4D09-3594.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Jon Polenberg and Jude C. Cooper of Polenberg Cooper, P.A., for petitioner, for petitioner.
    Luke C. Savage and Susan Potter Norton, Allen, Norton & Blue, P.A., Coral Gables, for respondent.
   POLEN, J.

The petitioner, Alliant Insurance Services, Inc. (“Alliant”), seeks certiorari review of an order granting a motion to compel the production of documents over Alliant’s assertion of attorney-client privilege. We grant the petition, quash the trial court’s order, and remand for further proceedings because the trial court did not conduct an in camera inspection of the documents at issue and did not define the scope of any waiver of the privilege.

The respondent, Riemer Insurance Group (“Riemer”), employed Matthew Tu-retsky as an account executive in 2004. Turetsky signed a non-compete agreement with Riemer that was to extend for two years beyond Turetsky’s period of employment with Riemer. In November 2008, Turetsky left Riemer and began working for Alliant, a competitor.

Riemer sued Alliant, Turetsky, and Je~ rold Hall, Alliant’s Chief Operating Officer, for tortious interference with contract and breach of the non-compete agreement. Thereafter, Riemer served a request to produce documents and sought to compel production of documents. The discovery request, directed at Alliant, sought “[a]ny and all documents, including but not limited to electronic mail and other correspondence constituting, or relating to, any communication between Defendant Turetsky and any employee, agent or representative of Defendant Alliant Insurance Services, Inc.” Riemer alleged that Alliant and the other defendants waived any claim of privilege as to communications regarding the non-compete agreement because Ken Zak, Alliant’s general counsel, swore in an affidavit that he had provided legal advice to Turetsky about the non-compete agreement. Alliant objected on the grounds of irrelevance, overbreadth, and attorney-client privilege, claiming that the correspondence between Zak and its upper-level employees was privileged.

The trial court held a hearing on the motion to compel, at which the parties disputed the scope of the waiver of attorney-client privilege. Riemer argued that Zak’s affidavit had waived the attorney-client privilege between him and Alliant’s officers, directors and employees. Alliant stated that it was not asserting the attorney-client privilege as to documents or communications between Zak and Turet-sky. Rather, Alliant asserted the attorney-client privilege regarding the communications between Zak as general counsel for Alliant and the managers, directors and officers of Alliant. Riemer also suggested that for those documents outside of the waiver of privilege it was arguing, the court should conduct an in camera review.

The trial court granted Riemer’s amended motion to compel, but did not define the scope of any waiver of privilege or conduct an in camera inspection of the documents claimed to be privileged. Alli-ant moved for reconsideration, but its motion was not heard, and Alliant has petitioned this court for a writ of certiorari.

For certiorari to lie, a petitioner must demonstrate that the trial court departed from the essential requirements of law resulting in material harm of an irreparable nature. S & I Investments v. Payless Flea Market, Inc., 10 So.3d 699, 701 (Fla. 4th DCA 2009); see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). A trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari. S & I Investments, 10 So.3d at 701; see also Allstate, 655 So.2d at 94.

If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure. See Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected by both the attorney-client privilege and the work-produet doctrine, the petitioners are entitled to an in camera review of the documents by the trial court prior to disclosure); see also Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (stating that the trial court should have conducted an in camera inspection of documents before compelling disclosure when a discovery request, on its face, required disclosure of attorney-client communications); Zanardi v. Zanardi, 647 So.2d 298, 298 (Fla. 3d DCA 1994) (stating that the petitioner is entitled to an in camera review for the trial court to determine whether the assertion of attorney-client privilege is valid).

Similarly, if attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on the same matter. Courville v. Promedco of Southwest Fla., Inc., 743 So.2d 41, 42 (Fla. 2d DCA 1999); see also Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 511 (Fla. 2d DCA 2006). If the parties disagree as to the scope of the privilege waiver, a trial court must delineate the scope of the waiver before it may compel discovery of information. See Courville, 743 So.2d at 42-43.

Alliant has demonstrated that the trial court departed from the essential requirements of law by broadly granting the amended motion to compel without first conducting an in camera review or delineating the scope of the privilege waiver. The trial court should have conducted an in camera review of the allegedly privileged documents pursuant to Old Holdings Ltd. and delineated the scope of the waiver pursuant to Courville.

Certiorari granted, trial court order quashed, and remanded to the trial court for further proceedings.

DAMOORGIAN and CIKLIN, JJ., concur.

      . A motion for rehearing is not authorized from an interlocutory or non-final order. Wagner v. Bieley, Wagner & Assoc., Inc., 263 So.2d 1, 3 (Fla.1972). While such a motion does not toll the time for petitioning for cer-tiorari relief, this does not mean that trial courts are precluded from considering rehearing.


text:
    CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD., a/a/o Evelyn Deshommes, Petitioner, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Respondent.
    No. 4D09-1457.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Dean A. Mitchell, Ocala, for petitioner.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, Fort Lauderdale, and Matthew D. Heilman of Matthew Heilman, P.A., Plantation, for respondent.
   PER CURIAM.

Central Magnetic Imaging Open MRI of Plantation, Ltd. (Central Magnetic) petitions this court for second-tier certiorari review of an appellate decision of the circuit court. We deny the petition but write to address one of the issues raised.

On March 5, 2005, the insured, Evelyn Deshommes, was involved in an auto accident. In the ninety days that followed, she received forty-seven chiropractic treatments at Advanced Chiropractic and Medical Center (Advanced Chiropractic), many times on successive days and up to four days in a row. Then, just before treatment was terminated, Advanced Chiropractic ordered an MRI at Central Magnetic. Central Magnetic, as assignee of Deshommes’s personal injury protection (PIP) benefits, submitted a bill for the MRI.

Deshommes’s insurer, State Farm Fire and Casualty Insurance Company (State Farm), had a doctor review Deshommes’s treatment and billing records. Based on his review of the records, the doctor submitted a report opining that the MRI was unreasonable, unrelated to the accident at issue, and medically unnecessary. State Farm refused to pay Central Magnetic’s bill.

Central Magnetic filed suit in county court for breach of Deshommes’s insurance contract. State Farm argued that the MRI was not reasonable, related, or necessary to any injury arising from the accident. Central Magnetic moved for summary judgment arguing that State Farm could not contest the MRI bill because it had failed to comply with section 627.736(7)(a), which requires an insurer to obtain a report from a qualified physician before withdrawing payment of a treating physician without the injured person’s consent. Central Magnetic argued that the report obtained by State Farm was invalid because the report was based solely on review of treatment records and not based on an independent medical examination (IME) of the insured.

The county court granted summary judgment in Central Magnetic’s favor. On appeal, the circuit court reversed, concluding that the statute does not require an IME before payment can be denied and that State Farm had obtained a valid report before denying payment. Central Magnetic seeks second-tier certiorari review of this decision.

The circuit court applied the correct law and afforded procedural due process, so we deny the petition. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (explaining the standard of review in second-tier certiorari proceedings from appellate decisions of the circuit court).

The issue that warrants discussion in this case is whether section 627.736(7)(a), Florida Statutes, requires an insurer to obtain an IME before denying a PIP claim or whether a “valid report” under the statute may be based on an expert’s review of the claimant’s treatment records, a so-called “peer review report.” Circuit and county court judges have interpreted the “valid report” requirement of the PIP statute differently. We conclude, in line with the Third District Court of Appeal, that the “valid report” required by the statute does not require an insurer to order an IME before denying a claim for PIP benefits. See United Auto. Ins. Co. v. Metro Injury & Rehab Ctr., 16 So.3d 897 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008), receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So.3d 60 (Fla. 3d DCA 2009) (en banc).

The disagreement among the lower courts arises from the 2001 amendment to section 627.736(7)(a). See Ch. 2001-271, § 6, Laws of Fla. This amendment added the following underlined language to this subsection:

An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.

§ 627.736(7)(a), Fla. Stat. (2008) (emphasis added). The plain language of the statute permits a report to be based on review of treatment records. “A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person ....” § 627.736(7)(a), Fla. Stat. (2008) (emphasis added).

Our case law before the 2001 amendment clearly permitted “peer review reports” and squarely held that an insurer was not required to obtain an IME before denying a PIP claim. Nationwide Mut. Fire Ins. Co. v. Se. Diagnostics, Inc., 766 So.2d 229 (Fla. 4th DCA 2000) (holding that a report under section 627.736(7)(a) can be based on review of medical records and need not be based on a physical examination). This court explained:

We can find no language in the [statute] that requires the medical report to be based upon a physical examination of the insured. Without express language from the legislature, there is no reason to conclude that a physical examination is required. We can envision many instances in which a competent physician upon reviewing medical records could conclude without the benefit of a physical examination that a treatment or test was not “reasonable, related, or necessary.” If we follow Southeast’s reasoning to its logical conclusion, every time a treating physician to whom a PIP carrier has paid benefits either conducted a diagnostic test or referred an insured for diagnostic testing, no matter how unconventional or medically unsound, a physical examination would be required before the payment could be refused.

Id. at 230-31 (emphasis added). We adhere to this sound reasoning and do not believe that the 2001 amendment requires otherwise.

The circuit court applied the correct law when it held that an IME is not required before a PIP claim may be denied. None of the other arguments raised in the petition merit any relief or discussion.

The petition for writ of certiorari is denied.

STEVENSON, GERBER and LEVINE, JJ., concur.

      . Although the issue was not raised in this case, we note that other districts have held that the valid report requirement of section 627.736(7)(a) does not apply at all in a case such as this. State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 18 So.3d 1059 (Fla. 2d DCA 2008) (holding that section 627.736(7)(a) applies only to a withdrawal of "treatment authorization” not a mere denial of payment of a single PIP charge); accord Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Eduardo, 22 So.3d 120 (Fla. 3d DCA 2009); Santa Fe Medical, 21 So.3d at 67. The insurer conceded that the valid report requirement applied to the claim in this case.


text:
    Ramon CATALAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-956.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.

      Ramon Catalan, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Ramon Catalan (“Catalan”) appeals from an order revoking his probation. The trial court revoked Catalan’s probation solely on the basis of new charges filed against him. However, the written revocation order lists other violations of probation. Accordingly, because the order does not conform to the trial court’s oral pronouncement, we reverse and remand for entry of a corrected order. See Matthews v. State, 897 So.2d 523, 524 (Fla. 3d DCA 2005). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded with instructions.


author: SALTER, J.

text:
    MIAMI-DADE COUNTY, Petitioner, v. TRANSPORT WORKER’S UNION OF AMERICA, LOCAL 291, Respondent.
    No. 3D09-2990.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lee Kraftchick, Assistant County Attorney, for petitioner.
    Phillips & Richard, and Mark Richard and Kathleen M. Phillips, Miami, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SALTER, J.

Miami-Dade County has filed a petition to vacate a stay of a collective bargaining impasse process entered by the Florida Public Employees Relations Commission (“PERC”). We grant the petition.

The County finds itself in the midst of a fiscal crisis. It is proposing over five percent in wage reductions from all of its unions, including the Transport Worker’s Union of America, Local 291 (“TWU”). TWU was requesting a bonus and a salary increases over the next two years. The County asserts that it is not in a position to meet this demand. The parties have attempted to resolve this difference. During the negotiations, the County is required to .honor existing wage provisions. After several months of negotiations, the parties were unable to resolve their differences; an impasse was reached.

The County instituted proceedings for resolving such an impasse, requesting a hearing before a special master, as provided in section 447.403, Florida Statutes (2009). PERC appointed a special master, and a hearing was scheduled. TWU then filed an unfair labor practice charge with the PERC alleging that the County had not bargained sufficiently over the compensation issues. Based on that charge, PERC stayed the impasse-resolution proceedings (by a 2-1 vote, the Chair dissenting).

The prompt resolution of this collective bargaining dispute is in everyone’s best interest: the County needs to balance its budget; the TWU and its members need a bottom line; and County citizens need the security of knowing that services are not interrupted, but are being delivered at costs that can be met under current financial circumstances. To promote prompt resolution, section 447.403 provides for resolution of bargaining impasses. In fact, it is an unfair labor practice to avoid resolution of disputes through the impasse procedure. See City of Orlando v. Int’l Ass’n of Fire Fighters, Local 1365, 384 So.2d 941 (Fla. 5th DCA 1980). In this case, however, the impasse procedure was properly invoked by the County and should not have been stayed by the PERC.

There is no record support for PERC’s finding that the immediate resolution of the impasse is not critical. § 120.68(7)(b), Fla. Stat. (2009); Cagle v. St. John’s County School Dist., 939 So.2d 1085 (Fla. 5th DCA 2006). The record shows that maintaining wages at the level of current contract provisions is grossly detrimental to the County’s fiscal well-being. The need to resolve the impasse is critical. Negotiations, though ongoing for quite some time, have been unsuccessful. The impasse proceedings were properly invoked, and the stay was erroneously granted.

Based on the foregoing, we grant the petition, vacate the stay and remand for further proceedings consistent with this opinion.


author: SUAREZ, J.

text:
    Manuel LENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2455.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   SUAREZ, J.

Manuel Lena appeals from the trial court’s summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on three (3) counts of Sexual Battery on a Child Less than Twelve, and two (2) counts of Lewd and Lascivious Molestation of a Child. We affirm on grounds two through seven, nine through eighteen, twenty, twenty-three, and twenty-five through twenty-nine. For the following reasons, we remand grounds eight and nineteen for proper record attachment, and reverse grounds twenty-one and twenty-two so that the defendant is afforded the opportunity to amend his motion.

Lena raised twenty-nine (29) counts of ineffective assistance of counsel. The trial court denied all grounds. The trial court found grounds two through six, and twenty, were preserved for purposes of direct appeal and had already been appealed. Grounds seven through nine were preserved on the record, and they were the basis of the direct appeal, which had already been ruled on by this Court. Ground ten was preserved on the record and should have been raised on direct appeal. Grounds eleven and twelve failed to show how Lena was prejudiced and how the outcome of the case would have been different. Ground thirteen failed to demonstrate some basis of fact as well as prejudice in the outcome. Grounds fourteen through sixteen failed to show how Lena was prejudiced and how the outcome of the case would have been different. Ground seventeen was found to have no factual verity, and ground eighteen was preserved on the record and should have been argued on direct appeal.

Ground nineteen was preserved on the record and should have been brought up on direct appeal. Ground twenty was litigated in an extensive pre-trial evidentiary hearing, and was already appealed to this Court. The trial court found the issues were preserved for purposes of direct appeal. Grounds twenty-one and twenty-two failed to provide a legal basis under which such testimony would be deemed admissible under the Florida Rules of Evidence. Ground twenty-three did not demonstrate any prejudice. Ground twenty-four was preserved and should have been brought up on appeal. Ground twenty-five was conclusively refuted by the record; therefore, Lena failed to state a basis for relief. Grounds twenty-six through twenty-nine failed to show how Lena was prejudiced and how the outcome of the case would have been different.

We agree with the trial court’s assessment of the issues presented. Grounds eight and nineteen, however, are remanded to the trial court for proper record attachment. The State concedes that the proper record for ground eight should have been Ms. Rodriguez’s cross-examination at pages 259-60 of the record, and that the proper record for ground nineteen should have been Exhibit “J,” which contains Ms. Silverman’s testimony.

We review grounds twenty-one and twenty-two under the abuse of discretion standard. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). The trial court held that Lena failed to provide a legal basis under which certain testimony would be deemed admissible under the Florida Rules of Evidence. It then found that Lena could not show how his counsel was ineffective based on the allegations in the motion. The Supreme Court of Florida, however, held “when a defendant’s initial rule 8.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Spera, 971 So.2d at 761. This decision focused on facially insufficient motions. Id. at 762. The Court also found, however, that if a trial court denies relief because there is conclusive evidence in the record that refutes the allegations, the trial court does not have to permit amendments to the pleadings. Id. This was Lena’s first postconviction motion under Rule 3.850, and the record does not conclusively refute the allegations contained in grounds twenty-one and twenty-two. Pursuant to Spera, we find that the trial court abused its discretion in not striking the motion with leave to amend and reverse with instructions to allow Lena to do so only as to grounds twenty-one and twenty-two.

Affirmed in part; reversed in part; and remanded for further proceedings.


text:
    Davon FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2761.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009); Graham v. State, 974 So.2d 440 (Fla. 2d DCA 2007); State v. S.V., 958 So.2d 609 (Fla. 4th DCA 2007); Hutchinson v. State, 731 So.2d 812 (Fla. 5th DCA 1999).


text:
    Johnny SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2912.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2009.
    Johnny Santiago, Blountstown, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Johnny Santiago appeals the summary denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because the motion is legally insufficient.

Santiago’s motion alleged that he is entitled to ten days of additional jail credit on an Orange County felony case. An error in a trial court’s award of jail credit can be raised at any time in a motion filed pursuant to rule 3.800(a). However, the motion must affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conclusory allegation that the answer lies in the record is insufficient to satisfy the pleading requirements of the rule. Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998). At a minimum, a rule 3.800 motion should state where in the record the information can be located and explain how the record demonstrates entitlement to relief. Alfonso v. State, 901 So.2d 939, 939 (Fla. 4th DCA 2005); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998). That was not done here, as Santiago merely alleges, without any reference to the record, that he is entitled to additional jail credit.

If the claim cannot be resolved from the face of the record without resorting to fact-finding, Santiago must file a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Maynard v. State, 763 So.2d 480, 481 (Fla. 4th DCA 2000). We affirm without prejudice so that Santiago can file a legally sufficient motion.

AFFIRMED WITHOUT PREJUDICE.

GRIFFIN, ORFINGER and TORPY, JJ., concur.

      . If Santiago's motion was facially sufficient, we would be obligated to reverse the trial court’s order because it failed to attach any records to refute Santiago's claim. Brown v. State, 912 So.2d 61, 62 (Fla. 2d DCA 2005).


author: DAVIS, Judge.

text:
    Andrea D. SWOR, Appellant, v. G. Michael SWOR, Appellee.
    No. 2D08-3244.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 2009.

      Joan H. Donnelly, Sarasota, and Jan Schneider, Sarasota, for Appellant.
    Michael Moran and Gene M. Strebel of Law Offices of Michael Moran, Sarasota, and George R. McLain of George R. McLain, Chartered, Sarasota, for Appellee.
   DAVIS, Judge.

Andrea D. Swor (the Former Wife) challenges the trial court’s final judgment, which granted permanent primary residential custody of the parties’ three minor children to G. Michael Swor (the Former Husband). We reverse and remand for further proceedings.

The parties married in 1983 and divorced in 2000. There were six children born of the marriage. As part of the parties’ marital settlement agreement that was incorporated into the final judgment of dissolution, the Former Wife was named the primary residential parent of the parties’ minor children. Subsequently, the parties negotiated a modification of the final judgment with regard to financial issues, which resulted in the trial court entering a “Final Judgment of Modification.”

Apparently unhappy with certain financial aspects of that agreement, the Former Wife then filed a “Motion to Vacate Final Judgment of Modification or, in the Alternative, for Enforcement and Entry of an Order of Contempt,” alleging that the Former Husband was refusing to pay certain school-related costs for one of the couple’s sons as was required by the Final Judgment of Modification. The Former Husband responded by filing a counterpetition, seeking modification of the final judgment of dissolution by abating his alimony obligation and appointing him primary residential parent. In October 2006, before the trial court could address the parties’ pleadings, the Former Husband sought an emergency hearing on the issue of primary residential parent. Following that hearing, at which the Former Wife was not present, the trial court entered an order appointing the Former Husband as the primary residential parent “on a temporary basis.” At that time, the Former Husband also stopped making his monthly alimony payments and filed a second motion to abate that obligation.

The trial court held a two-day hearing in August and October 2007, after which it entered an order (1) denying the Former Husband’s motion to abate alimony, (2) finding the Former Husband in willful contempt for failing to pay court-ordered alimony, (3) directing counsel for the Former Wife to prepare a “Final Judgment for Unpaid Alimony with interest to accrue at the legal rate,” (4) declaring the Former Wife the prevailing party for the purpose of attorney’s fees, and (5) reserving jurisdiction “to determine the fees and costs due to the Former Wife” and “to modify and enforce this Order and to make additional findings regarding any additional alimony arrearage the Former Husband has incurred since” the hearing took place. That order also stated, “Unless specifically modified by this Order, the provisions of all prior final judgments or orders remain in full force and effect.”

The order did not address in any way the Former Husband’s request in his coun-terpetition to modify the final judgment of dissolution by appointing him primary residential parent. In fact, at the hearing on the motions, when counsel for the Former Husband raised the issue of making the temporary order permanent, the trial court specifically replied, “At this point, we are not going to address that.” When pressed by counsel for the Former Husband for a clarification on whether the temporary order was “going to be permanent with the understanding that mom could, at any time in the future, file a petition trying to modify that,” the court responded, “I won’t say it’s permanent, it’s temporary. It’s in place until further order of the Court or by stipulation of the parties.”

However, on May 20, 2008, the trial court signed a final judgment modifying divorce decree, which stated:

Upon the evidence presented, the Court finds it would be in the best interests of the minor children to change primary custody from the Mother to the Father. The Former Husband shall be primary residential parent of the remaining minor children.... At this juncture, the Court is concerned over the welfare of the children and the Former Wife shall have supervised visitation only.

On appeal, the Former Wife argues that the final judgment is erroneous on its face because it does not contain certain required findings of fact and that she was denied due process because the trial court ruled on the custody issue after refusing to address it at the hearing below. We agree with both arguments.

A final divorce decree providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree.

Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005).

The trial court’s order here contained no such findings. In fact, the parties never presented evidence regarding the issue of primary residential parent once the trial court made it clear that the temporary order would remain in place and that “we are not going to address” making it permanent. The Former Husband argues on appeal that it was not necessary for the trial court to make the required findings because the Former Wife conceded the issue when her counsel stated at the hearing below that “the mother obviously cannot challenge the temporary custody at this time.” However, when read in context, it is clear that the Former Wife’s position below was that the temporary order should remain in place until the court had the opportunity to address the alimony issue. During the exchange, counsel for the Former Wife noted that the reason she could not challenge the temporary order at that time was because “[t]he father ceased all alimony without a court order last October, so she doesn’t have the funds to maintain herself or her house.”

Because the record does not support the Former Husband’s contention that the Former Wife conceded the issue of making permanent the temporary designation of the Former Husband as primary residential parent, it was error for the trial court to modify that portion of the final judgment of dissolution without fully litigating the issue and making the required findings. See Conville v. Conville, 942 So.2d 924, 926 (Fla. 5th DCA 2006) (“In order to conduct a proper inquiry into the substantial change of circumstances and the best interests of the children, both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify. Indeed, the failure to [do so] is a denial of due process.” (internal citation and quotation marks omitted)). We therefore reverse the trial court’s final judgment and remand for further proceedings.

Reversed and remanded.

CASANUEVA, C.J., and SILBERMAN, J., Concur.

      . Although the issue actually before the trial court was the modification of the portion of the final judgment of dissolution which designated the primary residential parent, the parties' appellate briefs and the trial court’s final judgment refer to "custody” of the minor children.

      . Because we are reversing the final judgment on this basis, we need not address the other issues raised on appeal by the Former Wife.


author: HANKINSON, J., Associate Judge.

text:
    Lonzo Thomas CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3878.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   HANKINSON, J., Associate Judge.

Defendant Lonzo Thomas Carter challenges the denial of his oral motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i) (2008). The defendant argues that since the motion was based on a conflict of interest with his court-appointed attorney, the trial court reversibly erred by failing to appoint conflict-free counsel. We agree and reverse for the trial court to appoint substitute counsel to represent the defendant on his motion.

The defendant moved to withdraw his plea immediately after sentencing. He argued that his counsel had coerced him into pleading guilty by refusing to provide him with a transcript of his co-defendant’s deposition, which the defendant claimed contained exonerating information. The defendant’s counsel denied that such inducement had occurred. The defendant’s counsel claimed he had simply explained to the defendant that the co-defendant’s deposition contained no “useful” information, and that the defendant had chosen to plead on his own accord. The trial court denied the motion to withdraw the plea without comment.

In Sheppard v. State, 17 So.3d 275 (Fla.2009), the Supreme Court detailed the procedure to be followed when a represented defendant brings a pro se rule 3.170(l) motion based on conflict with counsel:

[W]hen a represented defendant files a pro se rule 3.170(7) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea ... the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

This language sets out a two-step process by which a defendant may obtain substitute counsel for his/her rule 3.170(7) motion: (1) a hearing must be held to determine whether the conflict alleged in the motion has arisen; and (2) the trial court must ensure the defendant’s allegations are not “conclusively refuted” by the record.

Sheppard’s two-part process clarifies at least two misimpressions concerning when conflict-free counsel should be appointed.

First, it corrected any misimpression, drawn from broad language in our caselaw, that the substitution of counsel should be automatic whenever a rule 3.170(7) motion is filed. See Grier v. State, 14 So.3d 252, 253 (Fla. 1st DCA 2009) (stating “[t]his Court has consistently held that trial courts must appoint conflict-free counsel once a defendant indicates his desire to avail himself to the rule 3.170(7) procedure”); Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002).

Second, Sheppard corrected the misim-pression, also conveyed in our caselaw, that a defendant can receive conflict-free representation without first justifying his/ her request in a hearing. See Holifield v. State, 717 So.2d 69 (Fla. 1st DCA 1998) (stating substitute counsel must be appointed following the mere filing of a motion to withdraw a plea alleging “misrepresentation, coercion or duress by defense counsel”).

Sheppard also clearly states that a general allegation of a conflict of interest with counsel is not sufficient to warrant a hearing. The motion must contain specific allegations showing an adversarial relationship “such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” Sheppard, 17 So.3d at 275.

It is clear from the record in the instant case that an adversarial relationship had developed between the defendant and his counsel. At the conclusion of the sentencing hearing, the defendant moved to withdraw his no-contest plea, claiming he had entered the plea only because his counsel had refused to provide him with a transcript of his co-defendant’s deposition. When given the chance to respond, the defendant’s counsel denied any wrongdoing and claimed the deposition would have been useless to the defense. Since the defendant and his counsel were each given the opportunity to discuss the rule 3.170(i) motion, and considering that the defendant’s allegations were not conclusively refuted by the record, the trial court should have appointed conflict-free counsel on the defendant’s motion to withdraw his plea. See Nelson v. State, 18 So.3d 1190, 1191-92 (Fla. 1st DCA 2009).

Given the foregoing, we reverse the open-court denial of the oral motion to withdraw the plea and remand for the trial court to effectuate the defendant’s right to conflict-free representation.

REVERSED and REMANDED.

HAWKES, C.J., and CLARK, J., concur.


author: WETHERELL, J.

text:
    Neal PALMER, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D08-0670, 1D08-0671.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.

      Nancy A. Daniels, Public Defender and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Carlos A. Ivanor, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant raises two issues in this direct appeal: 1) whether the trial court erred by not giving him the proper amount of jail credit, and 2) whether the trial court erred in finding him in violation of probation (VOP). We affirm the second issue without discussion, and for the reasons that follow, we reverse the first issue and remand for further proceedings.

In August 2007, pursuant to a plea agreement, Appellant was sentenced to a total of 10 years of probation in Case Nos. 2006-438-CF and 2007-104-CF. The judgment and sentence in those cases reflect that Appellant was awarded 210 days of jail credit in the 2006 case and 138 days of jail credit in the 2007 case.

On October 2, 2007, Appellant was arrested for a VOP. He remained in jail until the VOP hearing on January 16, 2008, at which the trial court found him guilty of the VOP, revoked his probation, and sentenced him to five years in prison followed by five years of probation with credit for time served. There was confusion at the VOP hearing regarding the amount of jail credit to which Appellant was entitled, and the trial court reserved ruling on the issue.

The judgment and sentence entered after the VOP hearing included the notation “to be submitted by separate order” on the line for jail credit. Similar language was included in the orders revoking Appellant’s probation. No separate order on jail credit was entered by the trial court before this appeal was filed.

Appellant filed a motion to correct his sentence pursuant to rule 3.800(b)(2) while this appeal was pending. The motion requested “seven (7) months in 06-CF-670 [sic]; and four (4) months and 28 days jail credit in 07-CF-104,” and an additional 107 days of credit in both cases for the time served by Appellant between his arrest and the VOP hearing.

The trial court denied the motion, but awarded Appellant 129 days of credit in the 2006 ease and 248 days of credit in the 2007 case. It is unclear how the trial court came up with those figures. The trial court’s order stated that “Defendant’s motion fails to facially demonstrate how he is entitled to jail credit in excess of the stipulated credits of 129 days credit on 06-438 and 248 days credit on 07-0104,” but we cannot find such a stipulation in the record.

Jail credit cannot be rescinded after it has been awarded, even if the award was made in error. See Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004). Without the stipulation referenced by the trial court, the record does not refute Appellant’s claim that the trial court failed to award him the proper amount of jail credit. Accordingly, we reverse and remand for further proceedings for the trial court to award Appellant all of the jail credit that he has earned.

AFFIRMED in part; REVERSED in part; and REMANDED.

HAWKES, C.J., and WOLF, J., concur.

      . The following colloquy was had on this issue during the sentencing portion of the VOP hearing:
      The Court:.... As to the matter of credit for time served, has there been any calculation for credit for time served?
      [Defense counsel]: Yes, sir.I believe on the initial arrest he had 210, and then he has 106 since he has been in jail on the violation, which comes out to be — I am sure they can verify — that is what [Appellant] just told me.
      [Prosecutor]: I am going with 270 calculation, Judge. He doesn’t get credit for his time in Alachua, which he may be trying to add in.
      [Appellant]: I had 210 days when I was sentenced here in August. And, I have been locked up in the county jail since October 2nd.
      [Prosecutor]: Judge, I have a copy of the certified copy of his judgment and sentence. The court awarded him on August 18th of '07, 138 days credit for time served.
      [Appellant]: That was on the driving charge.
      The Court: At this time he will have credit for time served to be established by subsequent order that will be presented with documentation by the State for agreement or objection by the defense. And .it will be established by subsequent order.

      . It is unclear how Appellant calculated these figures. Assuming a 30-day month, the “seven (7) months” requested in the 2006 case would equate to the 210 days awarded in the original judgment and sentence, but the "four (4) months and 28 days” requested in the 2007 case would be 148 days rather than the 138 days awarded in the original judgment and sentence. Additionally, as recognized by Appellant’s counsel at the VOP hearing, there are only 106 days between October 2, 2007, and January 16, 2008.