author: LEWIS, J.

text:
    Francis WONG, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-2192
    Supreme Court of Florida.
    [March 2, 2017]

      Howard L. Dimmig, II, Public Defender, and Dane Kristofor Chase, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and John M. Klawikof-sky, Bureau Chief, and Brandon Robert Christian, Assistant Attorney General, Tampa, Florida, for Respondent
   LEWIS, J.

Petitioner Francis Wong seeks review of the decision of the Second District Court of Appeal in Wong v. State, 184 So.3d 1122 (Fla. 2d DCA 2015), on the basis that it expressly and directly conflicts with the decision of this Court in State v. Heathcoat, 442 So.2d 955 (Fla. 1983), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Further, we accepted jurisdiction. Wong v. State, No. SC15-2192, 2016 WL 934487, *1 (Fla. Mar. 9, 2016). We now quash the decision below.

FACTUAL AND PROCEDURAL BACKGROUND

Wong was convicted of two counts of lewd or lascivious molestation against a victim less than twelve years of age, § 800.04(5)(b), Fla. Stat., three counts of lewd or lascivious molestation against a victim between twelve and sixteen years of age, § 800.04(5)(c)(2), Fla. Stat., and one count of lewd or lascivious battery against a victim less than sixteen years of age, § 800.04(4)(b), Fla. Stat. With regard to the five lewd or lascivious molestation counts, the final amended information filed alleged that Wong “did intentionally touch in a lewd or lascivious manner the genitals and/or genital area” of each of three victims—P.C., C.C., and S.N.—over the course of differing time periods from 2000 to 2011. In addition, with regard to a lewd or lascivious battery count involving S.N., the information alleged Wong “plae[ed] the victim’s penis in his mouth .... ”

During trial, each victim testified that Wong had at least once grabbed or rubbed the victim’s penis, making skin-to-skin contact for at least ten seconds. In addition, S.N. testified that Wong placed S.N.’s penis in his mouth.

On the second day of trial, November 20, 2013, the trial court conducted the only jury charge conference of the case. During this conference, the following exchange between the Court and the attorneys occurred:

[State:] Are you asking for any lessens?
[Defense Counsel:] Let me look at them.
[State:] There aren’t any category one.
[Defense Counsel:] No.
[State:] There’s cat two lessens, but I don’t have my book out in front of me what they are.
The Court: These are the witnesses that were supposed to be here this morning?
[Defense Counsel:] Yes, Your Honor. [Wong’s sister] cannot make it. She’s in the hospital.
The Court: Okay.
[State:] I just found this out today.
The Court: Only. Here’s the verdict form. The verdict.
[State:] Okay.
The Court: If you find the defendant guilty as charged in the information or not guilty, if you return a verdict of guilty, it should be proven beyond a reasonable doubt. If you find no offense has been proven beyond a reasonable doubt or—only one verdict may be returned.
[State:] May I approach?
The Court: Yes.
[State:] I’ll grab yours, [defense counsel.]
[Defense Counsel:] Your Honor, I’m looking at 11.8, committing unnatural act and lascivious act. 11.8. I don’t know if [the State] has a copy of that.
[State:] Of the category two?
The Court: Here’s weighing the evidence.
[State:] May I approach?
The Court: Yeah. How much time do you think you need for closing?
[Defense Counsel:] 45 minutes to an hour.
[State:] We would go probably on the low side of that total. If he wants 45, we’ll take 45.
The Court: 30 and 15? Something like that?
[State:] We can do that.
[Defense Counsel:] She gets 30, I get 15? I’m just kidding.
Your Honor, I don’t know if the State’s in agreement with me on this, category two of a lesser is committing natural—unnatural and lascivious act. I think the evidence does support a lesser of this charge. Defendant is charged, the act was unnatural and lascivious, and unnatural means not in accordance with nature or with normal feelings of behavior, and lascivious, we’ve got the same as lascivious. I would ask for this instruction also to be given as a lesser.
The Court: I don’t have to give a lesser for category two.
[Defense Counsel:] I understand. I’m asking you. I’m pleading.
The Court: I’m going to give your witnesses until 4 o’clock. I’ve been waiting for 25 minutes now.
[Defense Counsel:] May I go make a phone call?

(Emphasis added.) The exchange then transitioned to a discussion concerning some of the defense’s upcoming witnesses and limiting their testimony insofar as it concerned character. No further discussion occurred with regard to the jury instructions. The defense eventually rested and the trial court went into recess until the next morning. During the third and final day of trial, the State and defense presented closing remarks.

Following closing remarks, the trial court instructed the jury. The judge did not instruct the jury with regard to the offense of unnatural and lascivious act. See § 800.02, Fla. Stat. (“A person who commits any unnatural and lascivious act with another person commits a misdemeanor of the second degree .... ”). The copy of instructions that went into the jury room also did not contain such instructions. Wong did not reassert his objection to the lack of the requested instructions at that time.

After deliberating, the jury found Wong guilty of all six counts. In so finding, the jury returned a special verdict form in which it specifically found that Wong touched the genitals or genital area of each victim with regard to each count and that Wong did “encourage, force or entice the penis of S.N. to penetrate the defendant’s mouth.” The trial court ultimately sentenced Wong to life imprisonment for both counts involving a victim under the age of twelve years old and fifteen years’ imprisonment for each of the other counts.

On appeal before the Second District, Wong challenged the trial court’s failure to include the jury instructions he had requested for each count pertaining to the lesser included offense of unnatural and lascivious act. Wong, 184 So.3d at 1123. The State contended that Wong failed to preserve his claim for appeal. Specifically, the State asserted that the exchange between the trial court and defense counsel during the charge conference was insufficient to satisfy the contemporaneous objection rule because counsel failed to obtain a specific ruling or object further. Id. at 1125 n.4.

The Second District affirmed. Id. at 1126. The district court held that Wong failed to preserve his claim for appeal because “the trial court did not rule on the request and defense counsel did not object to the court’s failure to give the instruction.” Id, It further explained that “the standard is whether the trial court, clearly, explicitly, and unequivocally denied the request.” Id. Judge Wallace, however, concluded that Wong’s request and the trial court’s response were sufficient to preserve the issue for appeal without a subsequent objection. Id. at 1133 (Wallace, J., concurring in part, dissenting in part). Judge Wallace further noted that if the issue was preserved for appeal, the State conceded that the trial court erred in failing to include such instructions for each charge. Id. at 1128, 1133. Wong petitioned for review in this Court, and this review follows.

ANALYSIS

Where the facts are undisputed, whether an issue is properly preserved for appellate review is a question of law that this Court reviews de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla. 2010). Requests for jury instructions in a criminal trial are governed by section 918.10, Florida Statutes, which provides:

918.10 Charge to jury; request for instructions.—
(1) At the conclusion of argument of counsel, the court shall charge the jury. The charge shall be only on the law of the case and must include the penalty for the offense for which the accused is being charged.
(2) All charges to the jury shall be delivered orally and shall be taken by the court reporter, transcribed, and filed.
(3) At or after the close of the evidence, a party may file written requests that the court instruct the jury on the law as stated in the requests. The court shall inform counsel of its proposed action on the requests before their arguments to the jury.

§ 918.10, Fla. Stat. (2013). Florida Rule of Criminal Procedure 3.390(d) specifically governs the preservation of claims for appellate review with regard to jury instructions:

(d) Objections. No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the presence of the jury.

Fla. R. Crim. P. 3.390(d). This rule has been the subject of many cases, including Heathcoat, 442 So.2d 955.

In Heathcoat, defense counsel requested a jury instruction on the defense of intoxication and explained the grounds for the request:

THE COURT: What do you want on the record as your objections to instructions as given?
[DEFENSE COUNSEL:] At this time, I would request for Heathcoat, the instruction on intoxication on the following grounds: That all four counts of the information are specific intent crimes.
The evidence from the victim, Vera Batton, testified or it was read from the deposition in impeachment, that my client was highly intoxicated, that she had never seen him this intoxicated before.
She also testified that she had known John for some period of time and had specifically socialized with he and his girl friend, and I will quote from Page 7, beginning at Line 11, of her deposition, which I had to use for impeachment:
“Had you ever seen John before intoxicated?
“Answer: I have seen—I have saw him drinking, but I have never seem him that intoxicated well to that degree. I saw him drink a beer.”
Therefore, with the introduction of intoxication, I would request that instruction.
THE COURT: Let’s take care of that, Bob.
[STATE:] Basically, the same argument we interposed before, that being that he is trying to introduce deposition testimony on direct testimony, then on cross, then again on redirect. ...

Id. at 956. Ultimately, the jury was not instructed with the requested instruction. Without quoting the judge’s denial, we simply noted that “[djefense counsel failed to object to the judge’s denial of the requested instruction.” Id.

Against those facts, we held that a further objection was not required by either rule 3.390(d) or other precedent because the objectives of the contemporaneous objection rule “are accomplished when the record shows clearly and unambiguously that a request was made for a specific instruction and that the trial court clearly understood the request and just as clearly denied the request.” Id. We further explained that “there was a timely request for [an intoxication defense jury] instruction, the judge fully understood the reasons for and nature of the instruction, and that with full understanding, he denied the request.” Id at 957.

We fully agree with Wong that the decision below is in conflict with Heathcoat—holding that a similar request for instructions was insufficient for preservation purposes. Specifically, trial counsel requested a category two permissive lesser included offense instruction, specifically referring the trial court and the State to Florida Standard Jury Instructions (Criminal) 11.8, Unnatural and Lascivious Act. Next, trial counsel explained that the charging document and evidence supported the giving of the instruction:

[Defense Counsel:] Your Honor, I’m looking at 11.8, committing unnatural act and lascivious act. 11.8. I don’t know if [the State] has a copy of that.
[Defense Counsel:] ...
Your Honor, I don’t know if the State’s in agreement with me on this, category two of a lesser is committing natural—unnatural and lascivious act. I think the evidence does support a lesser of this charge. Defendant is charged, the aet was unnatural and lascivious, and unnatural means not in accordance with nature or with normal feelings of behavior, and lascivious, we’ve got the same as lascivious. I would ask for this instruction also to be given as a lesser.

The trial court immediately responded, “I don’t have to give a lesser for category two.” Ultimately, the trial court did not include’ the requested instructions in its instructions to the jury and defense counsel did not voice further objection.

We would conclude that the trial court “clearly understood [Wong’s] position, and further argument or objection would have been futile.” Thomas v. State, 419 So.2d 634, 636 (Fla. 1982). Indeed, in this case, further argument and objection that occurred immediately after the trial court’s declaration were futile, as the judge simply changed the subject:

[Defense Counsel:] I understand. I’m asking you. I’m pleading.
The Court: I’m going to give your witnesses until 4 o’clock. I’ve been waiting for 25 minutes now.

Following that exchange and the trial court’s subsequent failure to give the requested instruction, we do not agree that the trial court’s statement, “I don’t have to give a lesser for category two,” in response to the request and the subsequent failure to instruct were not a clear denial of a specific request.

Nevertheless, the decision below held that Wong failed to preserve his jury instruction request for appellate review. In so holding, the district court quoted the correct language for the standard, “[T]he objectives of [the contemporaneous objection] rule are satisfied “when the record shows clearly and unambiguously that a request was made for a specific instruction and that the trial court clearly understood the request and just as clearly denied the request.’ ” Wong, 184 So.3d at 1124 (alterations in oxiginal) (quoting Bryant v. State, 932 So.2d 408, 410 (Fla. 2d DCA 2006)). However, in application, the decision below departed from that standard by imposing a higher standard. Specifically, the district court held that the issue was not preserved because the trial court failed to make an explicit ruling and Wong failed to subsequently further object. See id. at 1125-26 (“Although the dissent focuses primarily on the adequacy of the request, the adequacy of the request itself has no bearing on our holding. Instead, it is defense counsel’s failure to object in the absence of an explicit ruling on the request that results in waiver. ... Rather, the standard is whether the trial court clearly, explicitly, and unequivocally denied the request.”).

Not only did the higher standard imposed by the district court in this case conflict with Heathcoat, but it was .contrary to nearly uniform Florida precedent. See Spurlock v. State, 420 So.2d 875, 877 (Fla. 1982) (“The trial judge was aware of petitioner’s objection regarding jury instructions and had an opportunity to rule thereon. The missing ‘magic words’ do not concern us because the necessary substance was present.”); Thomas, 419 So.2d at 636 (“[I]t is not necessary to say, ‘I object,’ and state the grounds therefor where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.”); Bryant, 932 So.2d at 410 (holding request preserved “despite the fact that counsel arguably did not specifically protest the trial court’s denial of that request”); Henig v. State, 820 So.2d 1037, 1039-40 (Fla. 4th DCA 2002); Rodriguez; v. State, 789 So.2d 513, 514 (Fla. 5th DCA 2001); Gainer, 633 So.2d at 481; Rigdon v. State, 621 So.2d 475, 478 (Fla. 4th DCA 1993); Fernandez; v. State, 570 So.2d 1008, 1010 (Fla. 2d DCA 1990); Flint v. State, 463 So.2d 554, 555-56 (Fla. 2d DCA 1985); Hubbard, 411 So.2d at 1314-15.

Our research yielded just one case in which a jury instruction request for a lesser included offense was not preserved, Walker v. State, 473 So.2d 694, 697-98 (Fla. 1st DCA 1985). There, the First District concluded that defense counsel’s request was insufficient and defense counsel failed to object when the jury was instructed. See id. Defense counsel referenced verdict forms, but not- specific jury instructions:

DEFENSE COUNSEL: All right. The other thing I wanted to ask the Court was on your verdict forms on your lesser included, I would ask the Court to include also the lesser included on Page 101 of the improper exhibition of a weapon and verdict form—or the lesser included on 102, discharging a firearm in public.
THE COURT: I’m not going to give them. Anything further gentlemen? Any specific instructions?

Id. at 698. The First District concluded that “[djefense counsel’s comments were, at best, a request for an instruction, and did not constitute an objection to the court’s failure to give the requested instruction. Certainly such comments did not satisfy the requirement that counsel state distinctly the matter to which he objects and the grounds of his objection.” Id. Although we believe the First District may have reached the correct result in Walker because it concerned a request for a verdict form rather than a jury instruction, we disapprove of any extraneous discussion in Walker to the extent that it conflicts with this opinion.

Finally, we also address two of the reasons the district court and the State asserted in support of their respective positions. First, the district court- suggested that counsel’s response to the trial court’s ruling indicates the trial court failed to make a ruling:

Taken in context, when defense counsel stated, “I' understand,” the most logical interpretation is that he acknowledged and agreed with the court’s general statement of law that instructing the jury on category two lesser is not mandatory. We know this to be the case because defense counsel continued, “I’m asking you. I’m pleading.” Defense counsel obviously understood that there was no ruling by the court to this point because he continued to ask and even “plead” to the court for a favorable ruling. Drawing any other conclusion from the record would be impermissible speculation into the undisclosed mental processes of defense counsel. There was no further discussion of the matter, there was no ruling by the court on the request, and there was no contemporaneous objection.

Wong, 184 So.3d at 1124. However, this reliance on the response of counsel was error. Not one of the decisions referred to above analyzed the reaction of defense counsel to inform the determination of whether the trial court understood the relevant request or issued a ruling. Second, the State contends that Wong failed to preserve his claim because “[djefense counsel never urged' the court that it was required to give the instruction, even though [several First District opinions] held that the instruction was required as a permissive lesser included offense on similar facts.” Ans. Br. at 21. However, in every case referred to above, trial counsel did not present case law following the denial of their respective requests—they simply made a request. Indeed, in Rigdon, 621 So.2d 475, the district court considered and declined the same contention the State asserted here. All that is required is that a specific request be made with reasoning set forth and that the judge understands the request and denies it.

Therefore, consistent with uniform Florida legal precedent, we hold—once again—that a request for a lesser included offense jury instruction is preserved where trial counsel makes a specific request, trial counsel sets forth the required grounds for the request, the judge understands the request, and the judge denies the request. Although we always encourage a more detailed discussion that will better serve the machinery upon which our judiciary operates, nothing more is required.

We further conclude that . Wong clearly preserved the denial of his request for a permissive lesser included offense jury instruction. Defense counsel referred to the Florida Standard Jury Instructions and requested a specific instruction, and clearly expressed all the required grounds: (1) the information contained the necessary elements; (2) there was evidence in the record to support the giving of the instruction; and (3) the instruction was listed as a permissive, category two instruction. The State, apparently in agreement, did not make any contentions to the contrary. Finally, the trial court made a ruling on the request: “I don’t have to give a lesser for category two.” As evidenced by the omission of the requested instruction from the trial court’s actual instructions to the jury, the trial court’s statement was not a mere exercise in superfluity, but its ruling—a denial of the requested jury instructions.

Because we conclude that Wong has sufficiently preserved his request for a lesser-included offense instruction, we now turn to the merits of his claim. See Savoie v. State, 422 So.2d 308, 312 (Fla. 1982) (“[O]nce this Court has jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised in the appellate process, as though the case had originally come to this Court on appeal.”). As this question- involves a legal determination based upon undisputed facts as to whether a jury instruction is a permissive lesser included offense, our review is de novo. See Khianthalat v. State, 974 So.2d 359, 360-61 (Fla. 2008).

The law is well settled on this issue. “A permissive lesser included offense exists when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’ ” Sanders v. State, 944 So.2d 203, 206 (Fla. 2006) (alterations in original) (quoting State v. Weller, 590 So.2d 923, 925 n.2 (Fla. 1991)). A defendant is entitled to an instruction on a permissive lesser included offense upon request where two conditions are met: “(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.” Khianthalat, 974 So.2d at 361 (quoting Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996)); see also Fla. R. Crim. P. 3.510(b) (“Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of: ... (b) any offense which as a matter of law is ... a lesser included offense of the offense charged in the indictment or information and is supported by the evidence.”). When those conditions are met, this Court has held that the failure to give a requested permissive lesser included offense instruction constitutes reversible error. See Amado v. State, 585 So.2d 282, 283 (Fla. 1991). Whether the evidence of guilt pertaining to the greater offense is overwhelming makes no difference. See id. Finally, when a trial court reversibly errs in this fashion, the proper remedy is to vacate the judgment of guilt and order a new trial. See id.; Horn v. State, 120 So.3d 1,3 (Fla. 1st DCA 2012).

Applying that law, we hold that Wong was entitled to the unnatural and lascivious act jury instructions he requested. As trial counsel explained to the judge, the information alleged all of the elements of unnatural and lascivious act. Specifically, all six counts of the information in this case alleged that Wong made oral and skin contact with the sexual organ of another person. Likewise, as trial counsel explained, there was some evidence to support those allegations—the testimony of the victims.

Invariably, when the sexual conduct alleged did not include sexual intercourse, Florida courts have held that the offense of committing an unnatural and lascivious act is a category two permissive lesser included offense of both lewd or lascivious molestation and lewd or lascivious battery. See Funiciello v. State, 179 So.3d 388, 391 (Fla. 5th DCA 2015) (lewd or lascivious battery involving digital penetration); Horn, 120 So.3d at 2 (lewd or lascivious molestation involving the defendant’s placement of his head between the victim’s exposed breasts); Sherrer v. State, 898 So.2d 260, 261 (Fla. 1st DCA 2005) (lewd or lascivious molestation involving touching); see also Schuster v. State, 17 So.3d 304, 304 (Fla. 4th DCA 2009) (affirming conviction of unnatural and lascivious act as a lesser-ineluded offense of a charge of lewd or lascivious molestation for male to male sexual conduct); Leveille v. State, 927 So.2d 1008, 1009-10 (Fla. 4th DCA 2006) (affirming conviction of unnatural and lascivious act as a lesser-ineluded offense of lewd or lascivious battery involving penetration of a child’s vagina with an object). Furthermore, unnatural and lascivious act is listed as a category two permissive lesser included offense for both lewd or lascivious molestation and lewd or lascivious battery. See Fla. Std. Jury Instr. (Crim.) 11.10(b); Fla. Std. Jury Instr. (Crim.) 11.10(c). Here, Wong was charged with both lewd or lascivious battery and lewd or lascivious molestation. Moreover, none of the charges involved sexual intercourse. As a result, upon request, Wong was entitled to the unnatural and lascivious act instruction with regard to each count of the information. The trial court was without discretion to rule otherwise. See Khianthalat, 974 So.2d at 361 (“Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: ‘(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.’” (quoting Jones, 666 So.2d at 964)). Wong is entitled to a new trial. See Funiciello, 179 So.3d at 389; Horn, 120 So.3d at 2.

CONCLUSION

In light of the express and direct conflict between the decision below and our decision in Heathcoat, we quash the decision below and remand to the district court for further proceedings consistent with this opinion.

It is so ordered.

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

POLSTON, J., concurs in result.

CANADY, J., dissents.

LAWSON, J., did not participate.

      . Wong also contends that the decision below was in conflict with the decisions of other district courts in Calhoun v. State, 721 So.2d 1180 (Fla. 1st DCA 1998), Gainer v. State, 633 So.2d 480 (Fla. 1st DCA 1994), Hubbard v. State, 411 So.2d 1312 (Fla. 1st DCA 1981), dismissed, 424 So.2d 761 (Fla. 1982), and LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978). In light of conflict with our decision in Heathcoat, 442 So.2d 955, we need not address whether conflict exists with these decisions.

      . Aside from section 800.04(5)(b) reclassifying the offense as a life felony in 2005, see ch. 2005-28, § 5, Laws of Fla.; ch. 2008-182, § 3, Laws of Fla., the three statutes Wong was charged with violating did not change throughout the relevant time periods.

      . Section 800.02 has remained the same at all relevant times.

      . With regard to standard jury instructions, an oral request on the record is sufficient for purposes of preservation. See Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA 1982) ("We hold, however, that the requirement of written jury instructions is inapplicable -when a Florida standard jury instruction is requested 'on the record.”); see also Pieczynski v. State, 516 So.2d 1048, 1050 (Fla. 3d DCA 1987) (citing Holley, 423 So.2d 562).

      . See also Floyd v. State, 850 So.2d 383, 400 (Fla. 2002); Franqui v. State, 804 So.2d 1185, 1195-96 (Fla. 2001); Higgs v. State, 948 So.2d 1024, 1025 (Fla. 2d DCA 2007); Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998); Holland v. State, 634 So.2d 813, 816 (Fla. 1st DCA 1994); Hicks v. State, 622 So.2d 14, 17 (Fla. 5th DCA 1993); Hewitt v. State, 575 So.2d 273, 274 (Fla. 4th DCA 1991); De Parias v. State, 562 So,2d 434, 435 (Fla. 3d DCA 1990); cf. Carpenter v. State, 785 So.2d 1182, 1199 (Fla. 2001) (significant charge conference discussion); Davenport v. State, 429 So.2d 1352, 1353 (Fla. 2d DCA 1983) ("Appellant's attorney then specifically asked that die record reflect his objection to the court’s apparent refusal to give the instruction on battery.”); Rivers v. State, 425 So.2d 101, 103-05 (Fla. 1st DCA 1982) (comparing specificity of various requests for instructions throughout proceedings, but ultimately finding request marginally preserved despite ineptness of language). But cf. Marquard v. State, 850 So.2d 417, 433 (Fla. 2002) (holding challenge to instruction not preserved in context of ineffective assistance of appellate counsel where trial court sustained objection to certain instructions during charge conference, trial court later read the instructions anyway, and trial counsel failed to object to trial court's breach of charge conference agreement).

      . Although the State conceded that Wong was entitled to relief on the merits before the district court, the State now retracts that concession on the basis of a perceived conflict. However, because the State’s allegation of conflict involves the application of the offense of unnatural and lascivious act to conduct involving sexual intercourse, we need not reach that question today. This case does not involve sexual intercourse.


source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    Joyce C. SHAW, et al., Petitioner, v. Mark A. HUNTER, Sheriff, etc., et al., Respondent.
    No. SC16-118
    Supreme Court of Florida.
    [March 9, 2017]
    George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, Florida, for Petitioners
    Jason Vail of Jolly, Peterson & Trueken-brod, P.A., Tallahassee, Florida, for Respondent Mark A. Hunter, Sheriff
    Pamela Jo Bondi, Attorney General, and Rachel Erin Nordby, Deputy Solicitor General, Tallahassee, Florida, for Amicus Curiae the State of Florida
    Robert Wayne Evans and Matthew D. Stefany of Allen, Norton & Blue, P.A., Tallahassee, Florida, for Amicus Curiae Florida Sheriffs Association
   QUINCE, J.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Hunter v. Shaw, 182 So.3d 784 (Fla. 1st DCA 2015), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

NO MOTION FOR REHEARING WILL BE ALLOWED.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE and LEWIS, JJ., dissent.


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    Bryan v. State
    2D16-4029
    09/29/2016
   Belated App.gr.


text:
    Burgess v. State
    2D16-2655
    09/28/2016
   Proh.den.


text:
    Burrows v. State
    2D16-3042
    09/29/2016
   Belated App. dism.


text:
    Carrasquillo v. State
    2D16-3002
    10/26/2016
   App.dism.


text:
    Castanedo v. State
    2D16-3706
    11/02/2016
   Mand.dism.


text:
    Chayim 1818, L.L.C. v. Alexander Kurtz 7 Associates, LLC
    2D16-1090
    11/16/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Clark v. Miller
    2D16-4402
    10/27/2016
   App.dism.


text:
    Combs v. State
    2D16-3837
    10/26/2016
   Mand.dism.


text:
    Cook v. State
    2D15-3675
    11/18/2016
   Aff.

Cir. Ct. (Lee)


text:
    Cooper v. State
    2D16-3230
    10/10/2016
   Pet. den.


text:
    Cromartie v. State
    2D16-984
    09/19/2016
   Mand.den.


text:
    Curry v. State
    2D16-3170
    09/26/2016
   Pet.den.


text:
    Davis v. State
    2D15-5364
    11/16/2016
   Aff.

Cir. Ct. (Polk)


text:
    Degregorio v. State
    2D16-3043
    10/26/2016
   Mand.dism.


text:
    Degregorio v. State
    2D16-2786, 2D16-2787
    09/20/2016
   Prob.den.


text:
    Desir v. State
    2D16-2760
    09/27/2016
   Mand.den.


text:
    Eddy v. State
    2D16-692
    10/04/2016
   App.dism.


text:
    Fechter v. State
    2D16-1490
    08/03/2016
   Belated App. dism.


text:
    Fowler v. State
    2D16-1180
    10/26/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Foy v. State
    2D16-3041
    09/22/2016
   Belated App.gr.


text:
    G.W. v. Department of Children and Families
    2D16-1777
    10/27/2016
   App.dism.


text:
    Gaal v. James B. Nutter & Co.
    2D16-64
    10/27/2016
   App.dism.


text:
    Grider v. State
    2D16-3537
    09/28/2016
   Mand.dism.


text:
    Griffin v. State
    2D16-211
    11/04/2016
   Aff.

Cir. Ct. (Polk)


text:
    Haupt v. Schieke
    2D16-1465
    09/28/2016
   Mand.den.


text:
    Holder v. State
    2D16-1649
    09/27/2016
   Mand.den.


text:
    Howard v. Bank of America, N.A.
    2D15-5091
    11/16/2016
   Aff.

Cir. Ct. (Pinel-las)


text:
    Irizarry v. Department of Revenue
    2D16-3273
    10/21/2016
   App.dism.


text:
    J.M. v. Department of Children and Families
    2D16-2698
    10/27/2016
   App.dism.


text:
    Jackson v. State
    2D16-3050
    10/10/2016
   Pet.dism.


text:
    James B. Nutter & Co. v. Estate of Johnston
    2D16-3277
    10/21/2016
   App.dism.


text:
    Johnson v. State
    2D16-2532
    09/26/2016
   Pet.dism.


text:
    Kersey v. State
    2D16-420
    09/27/2016
   Mand.den.


text:
    Langman v. State
    2D16-2811
    08/03/2016
   Belated App.gr.


text:
    Lawless v. Pennymac Loan Services, LLC
    2D16-2094, 2D16-2521
    10/26/2016
   App.dism.


text:
    Lebron v. State
    2D16-2343
    09/28/2016
   Mand.dism.


text:
    Link v. State
    2D16-386
    11/16/2016
   Aff.

Cir. Ct. (Lee)


text:
    Luna v. Florida Ins. Guar. Ass’n
    2D15-2814
    11/16/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Martinez v. State
    2D16-3117
    09/28/2016
   Mand.den.


text:
    Massey v. Kraning
    2D14-3005
    10/21/2016
   Aff.

Cir. Ct. (Polk)


text:
    Massey v. Kraning
    2D14-557
    10/21/2016
   Aff.

Cir. Ct. (Polk)


text:
    Matthews v. State
    2D16-676
    11/02/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Metz v. State
    2D16-4069
    09/29/2016
   Belated App. den.


text:
    Miller v. State
    2D16-4231
    10/19/2016
   Proh.dism.


text:
    Mobley v. State
    2D15-2763
    11/16/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Montalvan v. State
    2D13-5581
    11/16/2016
   Aff.

Cir. Ct. (Lee)


text:
    Munt v. State
    2D16-2877
    09/27/2016
   Mand.den.


text:
    Nabi v. Alami-Binani
    2D16-4150
    10/19/2016
   Cert.dism.; Proh.dism.


text:
    Oxford Investments, Ltd. v. RADC/CADC Venture
    2D16-1788
    10/19/2016
   App.dism.


text:
    Patel v. State
    2D16-3305
    09/29/2016
   Belated App. dism.


text:
    Payne v. Payne
    2D16-2253
    10/27/2016
   App.dism.


text:
    Pedraza v. Department of Revenue
    2D16-2907
    10/19/2016
   App.dism.


text:
    Perez v. Urena
    2D16-4401
    10/19/2016
   App.dism.


text:
    Perrotti v. Perrotti
    2D14-5203
    10/19/2016
   App.dism.


text:
    Phillips v. Bank of New York Mellon
    2D16-3978
    10/19/2016
   App.dism.


text:
    Pressley v. State
    2D16-3877
    09/22/2016
   App.dism.


text:
    Preston v. State
    2D16-4220
    10/10/2016
   Hab.Corp.den.


text:
    Puente v. State
    2D14-5453
    10/21/2016
   Aff.

Cir. Ct. (Lee)


text:
    Rupena v. State
    2D16-2729
    08/03/2016
   Belated App. den.


text:
    Seymour v. State
    2D16-3472
    10/26/2016
   Mand.dism,


text:
    Shelley v. State
    2D16-3445
    09/28/2016
   Mand.dism.


text:
    Shiriaev v. Wells Fargo Bank, N.A.
    2D15-1805
    11/23/2016
   Aff.

Cir. Ct. (Lee)


text:
    Smith v. State
    2D16-3033
    09/26/2016
   Pet. den.


text:
    Snell v. State
    2D16-3949
    09/29/2016
   Belated App. den.


text:
    Solomon v. State
    2D16-3789
    09/28/2016
   Proh.den.


text:
    Spaulding v. State
    2D15-2672
    11/02/2016
   Aff.

Cir. Ct, (Lee)


text:
    State v. Da Andre Barnes
    2D16-4518
    10/21/2016
   App.dism.


text:
    Synergy Sales & Leasing, LLC v. Buddy’s Franchising & Licensing, LLC
    2D16-2835
    10/25/2016
   App.dism.


text:
    T.H. v. Department of Children & Families
    2D16-2797
    10/27/2016
   App.dism.


text:
    Thomas v. State
    2D16-2236
    11/02/2016
   Aff.

Cir. Ct. (Lee)


text:
    Tidwell v. State
    2D16-3631
    09/28/2016
   Belated App. den,


text:
    Troupe v. State
    2D16-3565
    09/22/2016
   App.dism.


text:
    Vasseur v. State
    2D16-936
    08/03/2016
   Belated App. den.


text:
    Wade v. State
    2D16-624
    09/29/2016
   Belated App. den.


text:
    Walker v. State
    2D16-2629
    08/03/2016
   Belated App. den.


text:
    Waugh v. Whidden
    2D16-3392
    09/28/2016
   Mand.den.


text:
    Wells Fargo Bank, N.A. v. Weinberg
    2D15-4944
    10/27/2016
   App.dism.


text:
    Wilborn v. State
    2D16-3577
    09/22/2016
   Belated App.gr.


text:
    Wilder v. State
    2D16-2363
    09/27/2016
   Mand.den.


text:
    Williams v. State
    2D16-2061
    08/03/2016
   Belated App. dism.


text:
    Williams v. State
    2D16-4178
    10/26/2016
   Mand.dism.


text:
    Williams v. State
    2D16-702
    09/29/2016
   Belated App. den.


text:
    Wingfield v. State
    2D16-1085
    10/21/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    THIRD DISTRICT
    Aiken v. State
    3D16-2409
    11/01/2016
   Pet,den.


text:
    Alco Handling Service Corp. v. Coto
    3D16-1321
    11/10/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Alvarez v. State
    3D15-1186
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Amato v. City of Miami Beach
    3D16-2032
    11/22/2016
   App.dism.

PERC


text:
    Barahona v. State
    3D16-2238
    10/20/2016
   Pet.den.


text:
    Benitez v. Lima
    3D16-2480
    11/23/2016
   App.dism,

Cir. Ct. (Miami-Dade)


text:
    Borda v. State
    3D16-135
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Buntin v. State
    3D16-2506
    11/10/2016
   Pet. transferred


text:
    Cabeza v. Deutsche Bank Nat. Trust Co.
    3D16-0707
    11/02/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Clark v. State
    3D16-188
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Craft Const. Co., LLC v. Diakiwski
    3D16-2132
    11/18/2016
   Vol.dism.


text:
    Dante v. State
    3D16-1498
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Desouza v. Bank of New York Mellon
    3D16-1410
    11/22/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Duarte v. State
    3D16-0717
    11/02/2016
   App.dism.

Cir. Ct. (Miami-Dade) .


text:
    Dupree v. Department of Revenue ex rel. Valladares
    3D16-2204
    10/18/2016
   App.dism.

Dept, of Revenue


text:
    Good v. Rosenfeld
    3D16-1768
    10/18/2016
   Motion den.


text:
    Hagege v. Bank of America, N.A.
    3D16-2438
    11/15/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Herrera v. U.S. Century Bank
    3D16-674
    11/23/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Lawrence v. Marina Tower of Turnberry Isle
    3D15-885
    11/23/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Lopez v. State
    3D16-2280
    10/13/2016
   Pet.den.


text:
    Maqueira v. State
    3D16-2416
    11/01/2016
   Pet.dism.


text:
    Martin v. NEMA, Corp.
    3D16-1299
    11/15/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Medero v. State
    3D16-0955
    11/15/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Mejia v. Advocates of Children and Families
    3D16-1515
    11/21/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Milian v. State
    3D15-2585, 3D15-2171
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Moore v. State
    3D16-2263
    10/20/2016
   Pet.dism.


text:
    Moreno v. Tower Hill Signature Ins. Co.
    3D16-1253
    11/15/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Off v. Dollar Tree Stores, Inc.
    3D16-2194
    10/20/2016
   Pet. den.


text:
    PennyMac Corp. v. Autrey
    3D16-1866
    11/16/2016
   Vol.dism.

Cir. Ct. (Monroe)


text:
    Pirela v. State
    3D16-2511
    11/14/2016
   App. transferred

Cir. Ct. (Miami-Dade)


text:
    Primehealth Physicians, LLC v. Lopez
    3D16-1062
    11/10/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Ramirez v. Ark Loan Solutions, LLC
    3D15-2693
    11/10/2016
   Vol.dism,

Cir. Ct. (Miami-Dade)


text:
    Ramos v. Ramos
    3D16-0411
    11/08/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Rose v. Brandao
    3D 16-2588
    11/22/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Soto v. State
    3D16-2520
    11/14/2016
   Vol.dism.


text:
    T.B. v. Department of Children
    3D16-1721
    10/18/2016
   App.dism.

Cir. Ct. (Monroe)


text:
    Urbina v. Sanchez
    3D16-2140
    11/22/2016
   Vol.dism.

Cir, Ct. (Miami-Dade)


text:
    Valdes v. Sainz
    3D16-1234
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Wright v. State
    3D16-0552
    11/02/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    FOURTH DISTRICT
    Adelman v. Chase Home Finance, LLC
    4D15-454
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Alisme v. State
    4D14-3508
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Arnaboldi v. Department of Revenue
    4D15-3587
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Banner v. Law Office of David J. Stern, P.A.
    4D14-1440
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Berkley v. State
    4D15-4143
    06/30/2016
   Aff.

Cir, Ct. (Martin)


text:
    Bompartito v. State
    4D16-388
    06/30/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Bradford v. State
    4D16-1344
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Bradford v. State
    4D16-945
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Brown v. State
    4D16-916
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Burse v. State
    4D16-1463
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Chadwick v. Sporrong
    4D15-3309
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Cheri v. State
    4D15-1339
    06/30/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Corley v. State
    4D15-370
    06/16/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    D.S. v. State, Dept. of Children and Families
    4D16-553
    06/14/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Dazile v. State
    4D14-4884
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Dempsey v. State
    4D15-3436
    06/23/2016
   Aff.

Cir. Ct. (Martin)


text:
    Diaz v. State
    4D16-1062
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Dietrich v. JPMorgan Chase Bank Nat. Ass’n
    4D15-2211
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Dombrowski v. State
    4D15-3692
    06/16/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Dorval v. Real Estate Mortg. Network, Inc.
    4D15-3311
    06/30/2016
   Aff.

Cir, Ct. (Bro-ward)


text:
    Douglas v. State
    4D15-1072
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Dunois v. State
    4D15-2719
    06/16/2016
   Aff.

Cir, Ct. (Palm Beach)


text:
    ERP Operating Ltd. Partnership v. Sanders
    4D09-5188
    06/28/2016
   Motion gr.


text:
    Fazio v. Jones
    4D15-2697
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Finnegan v. State
    4D15-3122
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Fredrick v. State
    4D14-4205
    06/30/2016
   Aff.

Cir. Ct, (Bro-ward)


text:
    Gallagher v. Wells Fargo Bank, N.A.
    4D15-616
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward) '


text:
    Garcia v. State
    4D16-128, 4D16-206
    06/09/2016
   Aff.

Cir, Ct. (Bro-ward)


text:
    Gardner v. Bank of New York Mellon
    4D14-4322
    06/09/2016
   Aff.

Cir. Ct. (Martin)


text:
    Garrison v. Everbank
    4D15-1262
    06/09/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Giniebra v. State
    4D16-1008
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Greenblatt v. L & E Intern., Ltd.
    4D15-1787
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Griffin v. State
    4D15-7
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Haddad v. Bank of New York Mellon
    4D15-2077
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Haldane v. Marsh Harbour Maintenance Ass’n, Inc.
    4D15-203
    06/09/2016
   Aff.

Cir. Ct, (Palm Beach)


text:
    Hennix v. State
    4D15-2139
    06/30/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Hernandez v. State
    4D16-1267
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Higgins v. State
    4D16-0317
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Hill v. State
    4D14-4512
    06/16/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Hostzclaw v. State
    4D15-4847
    06/16/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Houck v. State
    4D13-4512
    06/30/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Isokangas v. JPMorgan Chase Bank, Nat. Ass’n
    4D15-956
    06/30/2016
   Aff

Cir. Ct. (Palm Beach)


text:
    J.M. v. Department of Children and Families
    4D16-778
    06/13/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Jackson v. State
    4D16-943
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Janoura Partners, LLC v. Palm Beach Imports, Inc.
    4D16-109
    06/09/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Jeanty v. Deutsche Bank Nat. Trust Co.
    4D15-2275
    06/09/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Jones v. State
    4D14-1797
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Juvonen v. United Property and Cas. Ins. Co.
    4D15-2577
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    JP Morgan Bank, Nat. Ass’n v. Suarez
    4D15-2751
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Kane v. Bank of NY Mellon
    4D15-1785
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Keitel v. D'Agostino
    4D15-25
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Kemp v. State
    4D15-1511
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Larios v. State
    4D16-1528
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Leonardo v. Bank of New York Mellon
    4D15-1240
    06/30/2016
   Aff.

Cir. Ct, (Bro-ward)


text:
    Levine v. Levine
    4D14-1255, 4D14-1655
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Lopez v. State
    4D15-2725
    06/16/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Love v. Bank of America, N.A. ex rel. BAC Home Loans Servicing, LP
    4D15-2929
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    M.G. v. Department of Children and Families
    4D16-1112
    06/16/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Maebry v. State
    4D15-3100
    06/23/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Mangano-Perez v. State
    4D16-825
    06/16/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    McCurrie v. State
    4D15-2393
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    McDonald v. State
    4D14-2993
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


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    06/30/2016
   Aff

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    4D16-56
    06/09/2016
   Aff.

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    06/30/2016
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    06/09/2016
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    06/16/2016
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Cir. Ct. (Bro-ward)


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    06/30/2016
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Cir. Ct. (Palm Beach)


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    06/30/2016
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    06/30/2016
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Cir. Ct. (Bro-ward)


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    06/30/2016
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Cir. Ct. (Palm Beach)


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    Ponce v. Wells Fargo Bank, N.A.
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    06/09/2016
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Cir. Ct. (Bro-ward)


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    06/30/2016
   Aff.

Cir. Ct. (Martin)


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    06/30/2016
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    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


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    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


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    Rivero v. Wilmington Trust, N.A.
    4D15-823
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Roberts v. Roberts
    4D15-669
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Roberts v. State
    4D14-4536
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Robinson v. State
    4D16-977
    06/23/2016
   Aff.

Cir. Ct. (St. Lu-cie)


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    4D16-1549
    06/09/2016
   Aff.

Cir. Ct. (Bro-ward)


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    Rosier v. State
    4D14-2984
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    S.O. v. State, Dept. of Children and Families
    4D16-653
    06/14/2016
   Aff.

Cir. Ct. (St. Lu-cie)


text:
    Salorio v. Branch Banking and Trust Co. (BB&T)
    4D14-4787
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Samuel v. State
    4D16-826
    06/16/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Savoie v. Pinto Drive LLC
    4D15-1767
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Sears v. State
    4D15-882, 4D15-937, 4D15-938, 4D15-939,
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Singer v. Singer
    4D15-0091
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Sleem v. State
    4D14-4739, 4D14-4740
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Stanley v. State
    4D16-1203
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Talley v. State
    4D15-388
    06/23/2016
   Aff.

Cir.' Ct. (St. Lu-cie)


text:
    Taylor v. Gannon
    4D15-662
    06/09/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Taylor v. State
    4D15-2726
    06/30/2016
   Aff.

Cir. Ct. (Bro- ' ward)


text:
    Telfort v. State
    4D16-1169
    06/30/2016
   Aff.

Cir. Ct, (Bro-ward)


text:
    Thompson v. Deutsche Bank Nat. Trust Co.
    4D15-696
    06/30/2016
   Aff,

Cir. Ct. (Bro-ward)


text:
    Topps v. Wells Fargo Bank, N.A.
    4D15-3297
    06/30/2016
   Aff.

Cir, Ct. (Bro-ward)


text:
    Tumblin v. State
    4D16-979
    06/23/2016
   Aff,

Cir. Ct. (Bro-ward)


text:
    Whittingham v. Bank of New York Mellon
    4D15-1749
    06/30/2016
   Aff.

Cir. Ct, (Bro-ward)


text:
    Williams v. State
    4D14-328
    06/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Williams v. State
    4D13-1919
    06/23/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Zepeda v. State
    4D16-882
    06/30/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Zunin v. State
    4D14-4528
    06/30/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    FIFTH DISTRICT
    Artist v. State
    5D15-1979
    12/08/2015
   Aff.

Cir. Ct, (Marion)


text:
    Balmes v. State
    5D15-770
    12/08/2015
   Aff.

Cir, Ct. (Orange)


text:
    Barrios v. State
    5D15-172
    09/01/2015
   Aff.

Cir. Ct. (Orange)


text:
    Bernard v. State
    5D15-1117
    12/08/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Boone v. State
    5D15-2543
    10/27/2015
   Aff,

Cir. Ct, (Bre-vard)


text:
    Borges v. State
    5D15-1432
    09/08/2015
   Aff.

Cir. Ct. (St. Johns)


text:
    Boudreaux v. State
    5D15-2904
    12/08/2015
   Aff.

Cir. Ct. (Marion)


text:
    Brown v. State
    5D15-2340
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Butler v. State
    5D14-2716
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Butler v. U.S. Bank Nat. Ass’n
    5D14-2923
    12/15/2015
   Aff.

Cir. Ct. (Seminole)


text:
    Carrion v. State
    5D15-2091
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Cox v. State
    5D15-2656
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Cummings v. State
    5D14-4596
    12/08/2015
   Aff.

, Cir. Ct, (Bre-vard)


text:
    Ferrell v. Ellis
    5D14-3813, 5D14-4291
    08/11/2015
   Aff.

Cir. Ct. (Bre-vard)


text:
    Gendron v. State
    5D15-726
    09/08/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Good Times Billiard, Inc. v. U.S. Bank Nat. Ass'n
    5D14-3965
    12/15/2015
   Aff.

Cir. Ct. (Osceola)


text:
    Grabham v. State
    5D14-3772
    09/01/2015
   Aff.

Cir. Ct. (Volu-sia)


text:
    Grant v. State
    5D15-1802
    09/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Hackney v. State
    5D14-3591
    12/08/2015
   Aff.

Cir. Ct. (St. Johns)


text:
    Harmon v. State
    5D15-1497
    09/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Hayman v. Rumberger, Kirk & Caldwell, P.A.
    5D15-2319
    12/15/2015
   Aff.

Cir. Ct. (Volu-sia)


text:
    Horne v. State
    5D15-3095
    12/08/2015
   Aff.

Cir. Ct. (Seminole)


text:
    J.S. v. Department of Children and Families
    5D15-1959
    11/17/2015
   Aff.

Cir. Ct. (Orange)


text:
    Jackson v. State
    5D14-3168
    12/08/2015
   Aff.

Cir. Ct. (St. Johns)


text:
    Johnson v. State
    5D14-4267
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Johnson v. State
    5D15-355
    12/08/2015
   Aff.

Cir. Ct. (Seminole)


text:
    Johnson v. State
    5D15-2207
    12/08/2015
   Aff.

Cir. Ct. (Bre-vard)


text:
    K.W. v. Department of Children and Families
    5D15-3076
    11/23/2015
   Aff.

Cir. Ct. (Volu-sia)


text:
    L.H. v. Department of Children and Families
    5D15-3070
    11/13/2015
   Aff.

Cir. Ct. (Marion)


text:
    L.S. v. State
    5D15-1615
    12/08/2015
   Aff.

Cir. Ct. (Bre-vard)


text:
    Lamkin v. State
    5D15-328
    09/08/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Luiz v. State
    5D15-1459
    12/08/2015
   Aff.

Cir. Ct. (Seminole)


text:
    Miller v. Office of Public Defender Putnam County
    5D15-2981
    12/15/2015
   Aff.

Cir. Ct. (Putnam)


text:
    Palmer v. State
    5D14-4485
    09/01/2015
   Aff.

Cir. Ct. (Bre-vard)


text:
    Parrish v. State
    5D15-766
    12/08/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Price v. State
    5D14-3979
    12/08/2015
   Aff.

Cir. Ct. (Bre-vard)


text:
    Roache v. State
    5D14-4435
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Roberts v. State
    5D15-734
    12/08/2015
   Aff.

Cir. Ct. (Marion)


text:
    Roberts v. State
    5D15-1489
    12/08/2015
   Aff.

Cir. Ct. (Marion)


text:
    Rodriguez v. State
    5D14-2749
    11/10/2015
   Aff.

Cir. Ct. (Orange)


text:
    Rodriguez-Hernandez v. State
    5D15-1890
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Sapp v. State
    5D15-1528
    09/01/2015
   Aff.

Cir. Ct, (Bre-vard)


text:
    Sharkey v. State
    5D14-2771
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    State v. Baskin
    5D14-1516
    12/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Walker v. State
    5D15-2045
    09/08/2015
   Aff.

Cir. Ct. (Orange)


text:
    Williams v. State
    5D15-2694
    10/06/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Wooleyhan v. State
    5D14-3299
    10/20/2015
   Aff.

Cir. Ct. (St. Johns)


text:
    Zimmerman v. American Integrity Ins.
    5D14-2485
    08/18/2015
   Aff.

Cir. Ct. (Lake)


text:
    Zimmerman v. NBC Universal Media, LLC
    5D14-2644
    12/01/2015
   Aff.

Cir. Ct. (Seminole)


author: Forst, J. Taylor, J.,

text:
    Steven ORTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1540
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Steven Orton was convicted of delivery of Methylone and possession of cannabis. He was sentenced to approximately forty-two months in prison. The sole issue on appeal is whether the trial court reversibly erred in allowing testimony concerning typical beliefs of drug dealers. Finding that this issue was not properly preserved below, we are compelled to affirm.

Background

As part of an undercover drug investigation, a Fort Lauderdale detective approached a man at a motel bar and asked where he could get some drugs. The man introduced the detective to Appellant. The detective then asked both men for drugs. Appellant replied that “I’m not going to give you [expletive]. I’m going to give it to [the other man] and he is going to give it to you.” Appellant gave five pills to the other man, who set four down for the detective to pick up in exchange for fifty dollars. Appellant was subsequently arrested and it was determined that the pills were Methylone.

At trial, the detective was questioned as to why Appellant had given the drugs to the other man rather than directly to the purchaser, and whether having an intermediary was common. Before he could answer, Appellant’s counsel objected on the grounds that the question called for speculation. The trial court overruled the objection “on those grounds.” Appellant did not attempt to raise relevancy or any other reason for why the trial court should exclude the evidence. The detective then answered the question by stating that drug dealers typically believe that “if they don’t hand it to you then they are in the free.”

On appeal, Appellant argues that the trial court reversibly erred by allowing testimony concerning the typical beliefs of drug dealers because such testimony was irrelevant. However, as noted above, Appellant failed to object to the testimony on relevancy grounds in the trial court and instead objected only on speculation grounds.

Analysis

“The standard of review for admissibility of evidence is abuse of discretion. However, a trial court’s discretion is limited by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (citation omitted); see also Jones v. State, 908 So.2d 615, 620-21 (Fla. 4th DCA 2005) (“Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” (quoting Ray v. State, 755 So.2d 604, 610 (Fla. 2000))).

A. Preservation of Appellant’s Objection to the Detective’s “Typical Beliefs” Testimony

“Appellate review is ... limited to the specific grounds for objection raised at trial.” Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (emphasis added). “[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ ” Chamberlain v. State, 881 So.2d 1087, 1100 (Fla. 2004) (quoting Spann v. State, 857 So.2d 845, 852 (Fla. 2003)). “[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982)); see also Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985))); Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (“[A]n objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.”); Datus v. State, 126 So.3d 363, 365 (Fla. 4th DCA 2013) (“[A]n objection on relevance grounds only will not preserve an argument of unfair prejudice on appeal.”).

Appellant’s claim that a speculation objection and a relevancy objection are identical is without merit. He relies on Martinez v. State, 125 So.3d 985 (Fla. 4th DCA 2013), to support this proposition, but that case involved an objection on relevancy and a separate objection (later withdrawn) that raised both grounds. Id. at 988. Nowhere in the opinion does this Court suggest that an objection to speculation alone would have also been considered an objection to relevancy. Moreover, such an argument was addressed and rejected by this Court in Jones. In that case, defense counsel objected at trial to a witness’s testimony because it “calls for speculation and conclusion. That’s the jury’s decision to decide what is meant by that.” Jones, 908 So.2d at 621. We held that “the issue is preserved with respect to speculation, but the issue is not preserved with respect to relevance because Jones did not raise that specific argument below.” Id.

Furthermore, Appellant’s argument is unpersuasive because the two objections have their foundations in two separate evi-dentiary statutes. A relevancy objection is rooted in sections 90.401 -402, Florida Statutes, which define relevant evidence and then state that all relevant evidence is admissible unless otherwise excluded. See Martinez, 125 So.3d at 989 (citing section 90.401, Florida Statutes, when describing the merits of the relevance objection). On the other hand, a speculation objection is rooted in section 90.604, Florida Statutes, which requires a witness to have personal knowledge of any matter testified to. See Victorino v. State, 127 So.3d 478, 490 (Fla. 2013) (examining possible ineffective assistance of counsel for failure to object to speculation and relying on section 90.604, Florida Statutes, for the basis of that objection).

B. Any Error in Rejecting the “Speculation" Objection Was, at Most, Harmless

The dissenting opinion notes that “[i]t is undeniable that appellant’s speculation objection was preserved for appellate review.” This is true; however, as discussed above, Appellant’s initial brief did not argue that the trial court erred in overruling his “speculation” objection— Appellant’s arguments on appeal address an objection that was not made below, “relevance.” Although Appellant’s issue statement, quoted by the dissent, may have been able to apply equally well to an appellate argument relating to speculation, this is not the argument actually made. “When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.” Polyglycoat Corp. v. Hirseh Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). “[I]t is not the function of the Court to rebrief an appeal.” Id.

In any case, assuming arguendo that Appellant has not abandoned his argument that the detective’s testimony was “speculative,” we find that, as in Hargrove v. State, 431 So.2d 732, 733 (Fla. 4th DCA 1983), such error was, “on balance,” harmless. See also Armalin v. State, 884 So.2d 458, 460 (Fla. 4th DCA 2004) (holding that police officer’s testimony concerning the “general criminal behavior” of holding pieces of crack cocaine in the dealer’s mouth prior to sale was “inadmissible,” but “not prejudicial in the face of the evidence that the officer bought drugs from [the defendant] that were tested and found to be crack cocaine ... [and] the testimony was not used to defeat a defense or establish an element of the crime.”). Here, the detective gave direct testimony of the drug transaction and Appellant’s role in the transaction, including his providing the drugs to the intermediary.

Moreover, the detective’s challenged testimony was akin to closing argument in Reyes v. State, 700 So.2d 458 (Fla. 4th DCA 1997), which we found not to be inadmissible. In that opinion, we distinguished between testimony “of generalized common practices among drug dealers” that the State inadmissibly uses as “proof of guilt,” in contrast to “assertions of logical inferences.” Id. at 460. The dissenting opinion discusses Reynolds v. State, 74 So.3d 541 (Fla. 4th DCA 2011). That opinion held the trial court erred in admitting testimony concerning “general crime behavior,” when the testimony was “that the defendant’s act of leaning into the vehicle was consistent with the conduct of someone engaging in a drug transaction.” Id. at 545. In the instant case, the detective’s testimony at issue wasn’t offered to establish that an indirect sale was “consistent with the conduct of someone engaging in a drug transaction”; it was offered more as an “assertion of a logical inference” to explain Appellant’s actions.

Conclusion

Because the objection made in the trial court (“speculation”) was insufficient to preserve the claim of error on the basis of relevancy on appeal, we are unable to address Appellant’s relevance argument. Having found no abuse of discretion with respect to the trial court’s admission of the challenged statement when presented only with a speculation objection, and in the absence of any preserved issues raised by Appellant on appeal, we affirm. Alternatively, to the extent that the “speculation” challenge is not deemed to have been abandoned on appeal, we find any error to be harmless.

Affirmed.

Ciklin, C.J., concurs.

Taylor, J., dissents with opinion.

Taylor, J.,

dissenting.

I respectfully dissent. I would hold that the trial court reversibly erred in admitting the officer’s testimony regarding the typical beliefs of drug dealers as evidence of appellant’s guilt. This type of testimony is clearly inadmissible and highly prejudicial, and the error in admitting it cannot be considered harmless.

In Reynolds v. State, 74 So.3d 541 (Fla. 4th DCA 2011), we held that the trial court reversibly erred in admitting, over the defendant’s speculation objection, an officer’s testimony regarding general criminal behavior as evidence of the defendant’s guilt. We explained: “Although general criminal behavior testimony is usually objected to on the basis of relevancy, we note that such testimony was deemed inadmissible in a case concerning common behavior of drug dealers where the testimony was objected to at trial as speculative.” Id. at 542 n.l (citing Petion v. State, 48 So.3d 726, 728 (Fla. 2010)). Thus, in Reynolds, we necessarily decided that a speculation objection was sufficient to preserve the issue for appellate review.

A speculation objection is inherently founded on relevance. Speculative evidence is another form of irrelevant evidence. “[T]he prohibition against an examiner’s question that calls for an answer based on speculation and conjecture is also founded on the concept of relevancy. Such testimony is irrelevant, because it does not have a tendency in reason to prove or disprove the disputed issue on which the testimony is proffered.” People v. Rodriguez, 58 Cal.4th 587, 168 Cal.Rptr.3d 380, 319 P.3d 151, 185-86 (2014) (citation and internal quotation marks omitted). Likewise, under Florida law, speculative testimony is not relevant evidence, because it does not tend “to prove or disprove a material fact.” § 90.401, Fla. Stat. (2014).

I recognize that in Jones v. State, 908 So.2d 615 (Fla. 4th DCA 2005), we treated a speculation objection as being insufficient to preserve a relevance argument for appellate review, explaining: “[T]he issue is preserved with respect to speculation, but the issue is not preserved with respect to relevance because Jones did not raise that specific argument below.” In my view, this approach draws too fine a distinction and elevates semantics over substance.

But even in Jones, we addressed the merits of the speculation objection on appeal, recognizing that “[tjestimony based on speculation should be excluded as inadmissible.” Id. at 621. Here, appellant lodged an objection based on speculation at trial, but the majority does not meaningfully address the merits of whether the trial court abused its discretion in overruling appellant’s speculation objection.

It is undeniable that appellant’s speculation objection was preserved for appellate review. Although appellant’s initial brief treats speculation and relevance as synonymous objections, appellant did not abandon the argument that the officer’s testimony was speculative. Indeed, appellant’s initial brief phrases the issue on appeal as follows: “The trial court abused its discretion and erred in overruling appellant’s speculation objection to [the officer’s] direct examination testimony concerning typical beliefs of other drug dealers.”

Even treating appellant’s speculation objection as wholly distinct from a relevancy objection, appellant’s speculation objection should have been sustained. “The law seems well established that testimony consisting of guesses, conjecture or speculation—suppositions without a premise of fact—are clearly inadmissible in the trial of causes in the courts of this country.” Draekett Products Co. v. Blue, 152 So.2d 463, 465 (Fla. 1963). “[A] witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” § 90.604, Fla. Stat. (2014). Moreover, “[wjhile a witness may describe another person’s appearance and mental state, he should not testify to that person’s undisclosed intent or motive.” Bryant v. State, 17 So.3d 713, 715-16 (Fla. 4th DCA 2009). Here, the prosecutor’s question called for the officer to speculate as to appellant’s undisclosed intent based upon the typical beliefs of drug dealers. The officer had no personal knowledge of appellant’s undisclosed intent. Therefore, the trial court abused its discretion in overruling appellant’s speculation objection.

In short, regardless of whether the objection below was phrased as “speculation” or “relevance,” the trial court should have sustained it. The officer’s testimony concerning the subjective beliefs of drug dealers was clearly inadmissible and highly prejudicial. As we have emphasized many times, “[gjeneral criminal behavior testimony is not allowed as substantive proof of a defendant’s guilt because every defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certain classes of criminals in general.” Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997) (citation and internal quotation marks omitted); see also White v. State, 971 So.2d 972, 973 (Fla. 4th DCA 2008); Hargrove v. State, 431 So.2d 732, 733 (Fla. 4th DCA 1983). Here, appellant had the right to be tried based on the evidence against him, not on the beliefs of certain classes of criminals in general. This testimony, which was offered to prove appellant’s undisclosed intent, was both speculative and irrelevant.

Finally, the State has not met its burden of showing beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129,1136 (Fla. 1986). I would therefore reverse and remand for a new trial.


author: Per Curiam.

text:
    Christopher Nathanial JOHNSON, Appellant, v. STATE of Florida, Department of Business and Professional Regulation, Construction Industry Licensing Board, Appellee.
    No. 4D15-3965
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]
    R.N. Koblegard, III of The Koblegard Law Firm, Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlene K, Stern, Assistant Attorney General, Tallahassee, for appellee.
   Per Curiam.

We affirm the order of the Construction Industry Licensing Board (“CILB”) denying Christopher Nathanial Johnson’s application to be a qualifying agent for his employer, Fort Pierce Utility Authority, a municipal corporation. Pursuant to section 489.119(2), Florida Statutes (2016), an individual who seeks “to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, ... must apply for registration or certification as the qualifying agent of the business organization.” However, employees of municipalities such as Mr. Johnson are expressly excluded from the requirements of part I of Chapter 489, Florida Statutes (2015), which encompasses section 489.119. See § 489.103(3), Fla. Stat. (2015) (providing that the part does not apply to “[a]n authorized employee of ... any municipality ... or any other municipal or political subdivision .... ”). Consequently, the CILB did not abuse its discretion in interpreting the term “legal entity,” as it is used in section 489.119, to exclude municipalities and in denying Mr. Johnson’s application.

Affirmed.

Ciklin, C.J., May and Kuntz, JJ., concur.


author: Kuntz, J.

text:
    Leroi R. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3303
    District Court of Appeal of Florida, Fourth District.
    [February 8, 2017]
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   EN BANC

Kuntz, J.

The defendant appeals his conviction of felony murder in the first degree, felony murder in the second degree, and attempted armed robbery. He raises eight argu-merits on appeal, and we affirm without further comment as to the first seven arguments. We address the defendant’s eighth argument en banc to recede from Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2004), and West v. State, 876 So.2d 614 (Fla. 4th DCA 2004).

For his eighth argument, the defendant states the trial court erred in failing to suppress his statement when law enforcement failed to advise him of his right to stop the interrogation at any time. This argument lacks merit according to binding authority from the United States Supreme Court and our Florida Supreme Court. To the extent our decisions in Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2004), and West v. State, 876 So.2d 614 (Fla. 4th DCA 2004), conflict with that binding authority, we recede from those cases. The Miranda warning in this case sufficiently advised the defendant of his rights, which implicitly included the right to stop questioning. We affirm the defendant’s convictions.

Background

The defendant states that the following facts are undisputed and, for purposes of this opinion, we accept the characterization: “Duane Myrie and Oneil Mignott lived at a warehouse and at some point in time on January 21, 2011 James Rutledge and [the defendant] were present at the warehouse. [The defendant] was not armed. At some point in the warehouse, Mignott shot Rutledge and Rutledge shot Mignott. Mignott and Rutledge both died as the result of the shooting.”

Ultimately, the defendant was detained by the Broward Sheriffs Office. Before being questioned, he was advised of his rights in a recorded interview as follows:

Officer: Okay. All right. So I’m gonna go ahead and read this from this prepared text. All right. Before I ask you any questions, I want to advise you of your constitutional rights.
Officer: You have the right to remain silent; do you understand?
Defendant: (Nods head.)
Officer: Yes or no?
Defendant: Yes.
Officer: Okay. Anything you say can be—can be used against you in a court of law; do you understand?
Defendant: Yes.
Officer: Okay. You have the right to talk with an attorney present prior to and during any questioning, if you wish; do you understand?
Defendant: Yes.
Officer: Yes or no?
Defendant: Yes, sir.
Officer: Okay. All right. If you can’t afford an attorney, one will be appointed to—to represent you before any questioning, if you wish; do you understand? Defendant: Yes, sir.
Officer: Okay. Knowing and understanding each of your rights, as I’ve explained them to you, are you willing to answer my questions without an attorney present?
Defendant: Yes, sir.

Before trial, the defendant filed a motion to suppress his confession, arguing the officer’s recitation of his rights failed to satisfy the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court held a hearing and denied the motion to suppress in a four-page written order.

After a jury trial and conviction, the defendant timely appealed.

Analysis

In 1966, the United States Supreme Court issued its opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and established four warnings that are required prior to questioning when a person has been “taken into custody or otherwise deprived of his freedom of action in any significant way.” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Specifically, “[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Florida v. Powell, 559 U.S. 50, 59-60,130 S.Ct. 1195,175 L.Ed.2d 1009 (2010) (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).

Since its issuance, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). While the four required warnings have become embedded in police practice, the specific words used vary and the Supreme Court “has not dictated the words in which the essential information must be conveyed.” Powell, 559 U.S. at 60, 130 S.Ct. 1195; see also California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981); Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Consistent with those holdings, Judge Gross has explained that “the law is flexible in the form that Miranda warnings are given, but rigid as to their required content.” West, 876 So.2d at 616 (Gross, J., concurring) (emphasis added).

This case presents a question as to the required content. The defendant argues that his statement to the police should have been suppressed because he was not advised that he had the right to stop questioning at any time during the interrogation. To support his argument, the defendant quotes Ripley where we stated:

The warning then in use did not advise Ripley that he was entitled to have counsel present during questioning or that he could stop the interrogation at any time during questioning. We have previously held that this form is legally inadequate to comply with the requirements of Miranda.

Ripley, 898 So.2d at 1081 (emphasis in original). Similarly, in West, we held that the defendant “was not informed that she was entitled to have counsel present during interrogation or that she could stop the interrogation at any time.” West, 876 So.2d at 616.

Subsequently, the Third District took “a very different view” and “conclude[d] that, because the Miranda form used informs the accused that he/she does not have to answer any questions posed by the officer, implicit in this warning is the fact that the accused may invoke his right to remain silent at any time during the interrogation or to terminate further questioning during the interrogation.” Gillis v. State, 930 So.2d 802, 806 (Fla. 3d DCA 2006). The Florida Supreme Court initially accepted review of Gillis, later discharging jurisdiction as improvidently granted based upon differences in the specific Miranda forms at issue in Gillis, Ripley, and West. Gillis v. State, 959 So.2d 194 (Fla. 2007). In a dissent from the discharge of jurisdiction, Justice Bell noted that Ripley and West “expressly and directly conflict with this Court’s decision in Brown....” Id. at 195 (citing Brown v. State, 565 So.2d 304, 305 (Fla. 1990)).

Although not cited in Ripley, West, or Gillis, Justice Bell was correct that the issue had already been decided in Brown. In Broim, the defendant argued that “the detective failed to tell him that he could stop answering questions at any time.” Brown, 565 So.2d at 305. Our supreme court rejected the argument and held that the “right to cut off questioning is implicit in the litany of rights which Miranda requires to be given to a person being questioned. It is not, however, among those that must be specifically communicated to such a person.” Id. The court concluded that the “rights card which the detective used contained no mention of cutting off questioning, but, because Miranda does not require such a warning, the warnings given Brown were sufficient.” Id. at 306.

The Florida Supreme Court has not overruled Brown on this point of law, and “does not intentionally overrule itself sub silentio.” Puryear v. State, 810 So.2d 901, 905 (Fla. 2002). Therefore, absent a contrary decision from the United States Supreme Court on this point of law, the holding in Brown was binding, and remains so.

The decisions of the United States Supreme Court do not compel a contrary result. In State v. Powell, 998 So.2d 531 (Fla. 2008), our supreme court held that the failure to specifically advise the defendant of his right to have an attorney present during questioning failed to satisfy the requirements of Miranda. Id. at 532. In Powell, the defendant was advised:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

Id. at 540 (emphasis omitted). The majority of our supreme court concluded that this warning failed to sufficiently advise the defendant of his rights. In a dissent, Justice Wells stated, “I believe that the majority stretches the plain language of the warning given in this case and ignores the simple, straight-forward requirements for a warning set out in Miranda.” Id. at 544.

Justice Wells’ dissent in Powell ultimately proved correct when the case reached the United States Supreme Court. Elena Kagan, then-Solicitor General of the United States, relied upon Justice Wells’ dissent in her brief on behalf of the United States, and the United States Supreme Court relied upon it in its opinion. In its opinion, the United States Supreme Court stated that the “four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed.” Florida v. Powell, 559 U.S. 50, 60, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). “In determining whether police officers adequately conveyed the four warnings ... reviewing courts are not required to examine the words employed as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.” Id. at 60, 130 S.Ct. 1195 (internal quotations omitted).

The United States Supreme Court applied this test and concluded that the officers who interrogated Powell did not omit any information required by Miranda. Id. at 62, 130 S.Ct. 1195. The “warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.” Id. The Court stated: “a reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice. Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.” Id. at 62-63,130 S.Ct. 1195.

The analysis used by the United States Supreme Court in Powell, and in the cases decided before Powell, is the same as that used by our supreme court in Brown. Therefore, we remain bound by Brovm and our supreme court’s holding: “The right to cut off questioning is implicit in the litany of rights which Miranda requires to be given to a person being questioned. It is not, however, among those that must be specifically communicated to such a person.” Brawn, 565 So.2d at 306.

Conclusion

We recede from Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2004), and West v. State, 876 So.2d 614 (Fla. 4th DCA 2004), to the extent those decisions require an officer to specifically state that a defendant has the right to stop questioning at any time. The Miranda warning in this case sufficiently advised the defendant of his rights which implicitly included the right to stop questioning. Therefore, the conviction is affirmed.

Affirmed.

Ciklin, C.J., Warner, Gross, Taylor, May, Damoorgian, Gerber, Levine, Conner, Forst and Klingensmith JJ., concur.


author: Gerber, J.

text:
    L.D.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-186
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The juvenile appeals from his delinquency adjudication for burglary of a dwelling while wearing a mask. He argues the trial court erred in denying his motion for judgment of dismissal as to the burglary’s “mask” enhancement. Specifically, he argues that because he wrapped the lower part of his face in his shirt during only part of the burglary, and did not conceal his face within the home as shown by the victim’s home security video recording, or during law enforcement’s pursuit and apprehension of him, the state failed to prove that, he covered his face with his shirt in order to conceal his identity. We disagree with the juvenile’s argument. The fact that he covered his face with his shirt to conceal his identity, regardless of the length of time, is competent, substantial evidence to prove the “mask” enhancement. We affirm.

We present this opinion in three parts:

1. the state’s trial evidence;
2. the juvenile’s motion for judgment of dismissal on the “mask” enhancement and the tidal court’s ruling; and
3. our analysis.

1. The State’s Trial Evidence

The state charged the juvenile with two counts: (1) burglary of a dwelling while wearing a mask; and (2) grand theft from a dwelling.

Early one evening, the victim looked at her home security video feed on her smart-phone. She saw two young males breaking into her home through her backyard patio door. She called the police.

The police responded to the victim’s home. One officer, looking through the home’s backyard fence, saw someone trying to peek out from the home’s window. The officer also heard someone walking through the home’s backyard. The officer then saw two young males running from the home’s backyard.

One of the males got away immediately. However, the officer was able to pursue the second male (the juvenile in this case), who wore khaki shorts and no shirt. The officer yelled at the juvenile to stop. After the juvenile turned a corner, the officer lost sight of the juvenile.

Another officer accompanied by a canine joined in pursuit of the juvenile. She and her canine located the juvenile hiding between another house and a bush. The juvenile was arrested.

When the victim arrived home, she found a few items, which had been inside the home before the burglary, underneath a tree in her backyard.

Once the juvenile was in custody, the police interrogated him post-Miranda. The juvenile admitted he entered the victim’s home through a damaged screen door. He also admitted that he entered the home with the intent to steal, attempted to take some of the items found in the backyard, but ultimately left empty-handed.

The state, besides presenting the foregoing evidence, introduced the victim’s home security video recording into evidence. The following is description of the video footage.

At 18:20:56, two young males entered the backyard. The juvenile was wealing khaki shorts and a shirt. At that time, his face was not covered. After exploring the backyard, they approached the patio door. Once they opened the patio door, the juvenile removed his shirt and wrapped it around his face. They then propped open the door and entered the home.

At 18:22:12 (seventy-six seconds after entry), the juvenile exited the home and removed the shirt from his face. After-wards, the two young males looked carefully around the backyard while entering and exiting the patio doorway. During this time, the juvenile had his shirt hanging around his neck, not covering his face.

At 18:28:58, the juvenile exited the home, crouched down, and again covered his face with the shirt. His face remained covered until he re-entered the home at 18:30:05 (sixty-seven seconds after covering his face with his shirt again).

At 18:31:43, the juvenile exited the house again. The shirt no longer was covering his face but instead was hanging around his neck again. For the next few minutes, the two young males exited and entered the house repeatedly.

At 18:35:38, the juvenile exited the house wearing the shirt wrapped around his face again. He continued wearing the shirt around his face for a few minutes until he re-entered the home.

At 19:00:52, the juvenile was still wearing the shirt around his face and was carrying items from the victim’s home.

At 19:01:20, the juvenile ran away.

2. The Juvenile’s Motion for Judgment of Dismissal on the “Mask” Enhancement and the Trial Court’s Ruling

Defense counsel argued that the juvenile was entitled to a judgment of dismissal on the “mask” enhancement. According to counsel:

[The state failed to show that] the shirt that was around [the juvenile’s] face, very briefly, for only a few seconds on the video, was indeed [intended] to conceal his identity. In fact the portions of the video that were put into evidence or published by the State show most of the time his face was shown ... and that the rest of his face and body was perfectly visible....

The state responded that the video showed the juvenile purposely taking off his shirt and bringing it up to or around his mouth so only his eyes could be seen. According to the state:

[The juvenile] was attempting to conceal his identity to gain entry into the home so as not to be seen once inside the home and once he established that there was no one in the home to see him, there was no reason to conceal his identity at that time, especially coupled with the fact that they later moved the camera so that none of this could hopefully be caught on video.

The trial court denied the juvenile’s motion for judgment of dismissal. The court’s detailed findings of fact are as follows:

[I]t appears to the Court that the [juvenile] did take his shirt off and put it around his face. If only for very brief amount of time, when he first went up to the sliding glass—or the porch ... area, and then later outside for a brief moment, and obviously once the [juvenile] enters into the curtilage of the home with the intent to commit an offense, he is engaged in the commission of the offense and if he is wearing a mask, even for a brief amount of time, I think it would still constitute a violation of that enhancement statute.
And this one [is] a little bit of a close call, only became it’s not apparent that the statute is designed to prohibit any kind of a time period within which the mask is being worn. But absent that kind of limitation of the statute, I find that any amount of concealment of a perpetrator[]s face during the commission of a crime would qualify under the statute with enhancement by wearing a mask if it’s proven beyond a reasonable doubt that the perpetrator was wearing the mask, for however short [a period of time].
Here I find there’s really no other reason that the [juvenile] would take his shirt off and put it around the lower half of his face but for the intent to try to conceal his identity, for however short a period of time....

(emphasis added). The court then found the juvenile guilty of burglary of a dwelling while wearing a mask (as charged), and petit theft as a lesser included offense of grand theft from a dwelling. The court adjudicated the juvenile accordingly.

This appeal followed. The juvenile argues that because he wrapped the lower part of his face in his shirt during only part of the burglary, and did not conceal his face within the home as shown by the victim’s home security video recording, or during law enforcement’s pursuit and apprehension of him, the state failed to prove that he covered his face with his shirt in order to conceal his identity, and, accordingly, the trial court erred in denying his motion for judgment of dismissal.

The state responds that the statute’s plain language does not require an offender to successfully conceal his identity throughout the entire criminal episode.

Our review is de novo. See S.B. v. State, 31 So.3d 968, 969 (Fla. 4th DCA 2010) (“Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo.”).

3. Our Analysis

We agree with the state’s argument. Section 775.0845, Florida Statutes (2015), provides in pertinent part:

The felony or misdemeanor degree of any criminal offense ... shall be reclassified to the next higher degree as provided in this section if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his or her identity.

Consistent with the statute, the standard jury instruction for “Aggravation of a Felony by Wearing a Hood, Mask, or Other Device to Conceal Identity’ states:

If you find that (defendant) committed (crime charged) and you also find beyond a reasonable doubt that (defendant) was personally wearing a hood, mask, or other device that concealed [his] [her] identity, you should find (defendant) guilty of (crime charged) while wearing a device that concealed [his] [her] identity.
If you find that (defendant) committed (crime charged) but you are not convinced beyond a reasonable doubt that [he] [she] personally wore a hood, mask, or other device that concealed [his] [her] identity, then you should find the defendant guilty only of (crime charged).

Fla. Std. Jury Instr, (Crim) 3.3(e).

As seen above, neither section 775.0845 nor Standard Juxy Instruction 3.3(e) contain any requirement that a person conceal their identity throughout the entire criminal episode, or for any specific length of time, to prove that the person intended to conceal their identity. Instead, the factfin-der simply considers the totality of the evidence to determine whether the person personally wore a hood, mask, or other device to conceal their identity.

Here, the trial court, as factfinder, considered the totality of the evidence and appropriately determined that the juvenile used his shirt to conceal his identity. As the trial court observed, even if the juvenile’s use of his shirt to conceal his identity was for only “a brief amount of time,” such use of his shirt to conceal his identity still violated section 775.0845.

The juvenile nevertheless argues that his identity was readily apparent on the home security video recording. According to the defendant:

If [the juvenile] had covered his face only outside the house, an inference that [the juvenile] was attempting to conceal his identity from cameras or possible witnesses from surrounding properties could be made. Likewise, if [the juvenile] covered his face only when inside the home, an inference that he was attempting to conceal his identity from cameras or residents could be made. However, [the juvenile] did neither of those things.
[Thus, the juvenile’s] actions in placing his shirt over the lower part of his face while inside and outside the home, for a total of approximately eight minutes, were insufficient to support the inference that he was doing so to conceal his identity.

We conclude the juvenile’s argument is misplaced. The fact that the home security video recording captured the juvenile removing and replacing the shirt over the lower part of his face constitutes competent, substantial evidence that he was doing so to conceal his identity. Viewing the evidence in the light most favorable to the state, the trial court, as the trier of fact, could find the existence of the “mask” enhancement beyond a reasonable doubt. See S.B., 31 So.3d at 969-70 (“When moving for a judgment of acquittal, a [juvenile] admits both the facts adduced, as well as every conclusion favorable to the State that a finder of fact could fairly and reasonably infer from the evidence. Evidence is sufficient to sustain a conviction if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the State.”) (internal citations omitted).

Conclusion

With the growing use of home security video technology as a crime prevention measure, it is not unreasonable to conclude that a person intending to burglarize a dwelling would wear a hood, mask, or other device to conceal their identity. The fact that a “witness” is not present to view the person wearing the hood, mask, or other device is irrelevant. The point is that the person is wearing the hood, mask, or other device to conceal their identity. See Fletcher v. State, 472 So.2d 537, 540 (Fla. 5th DCA 1985) (section 775.0845 “is aimed at criminals who employ devices either to make witnesses’ identifications of them difficult or to otherwise facilitate the commission of a crime. This may include covering up one’s face ....”) (emphasis added).

Based on the foregoing, we affirm the juvenile’s adjudication for burglary of a dwelling while wearing a mask.

Affirmed.

Ciklin, C.J., and Damoorgian, J., concur.